within the public right-of-way on City-owned poles (e.g., streetlights and traffic signals) to improve wireless coverage and capacity in the City (Attachment C). Crown Castle provides communications infrastructure for wireless service providers via private contractual arrangements to improve service in areas with gaps in coverage. Crown Castle has a Certificate of Public Convenience and Necessity (CPCN) from the Public Utilities Commission to provide these services. The Agreement set the conditions and terms for Crown Castle’s operations within the City and established fees paid to the City for the use of its poles. The Agreement had an initial term of ten (10) years with an optional five (5) year renewal term that Crown exercised on October 23, 2015. Under the Agreement, Crown Castle operates six (6) wireless facilities, or “nodes”, on streetlights and traffic signal poles throughout the City. A map of the existing node locations is included as Exhibit B of the proposed MLA, which is Attachment B to this report. Attachment D includes pictures of an existing Crown Castle wireless facility on a City of Del Mar traffic signal pole.
In March 2021, Crown Castle approached the City to renew the Agreement as the renewal term was set to expire on June 5, 2021. At that time, it was agreed by both parties that a new agreement was needed to account for significant changes in Federal law pertaining to the deployment of small cell wireless facilities by the Federal Communications Commission (FCC), as discussed in more detail further in this report.
For the last year, the City and Crown Castle have collaborated on developing a new 10-year MLA to replace the current Agreement. Several amendments to the Agreement were executed during this time to temporarily extend the term beyond June 5, 2021, to allow sufficient time to negotiate the MLA.
DISCUSSION:
On September 26, 2018, the FCC approved Order 18-133 (Order), a declaratory ruling enacting new preemptions of local control over small cell wireless facility deployment and management of local public rights-of-ways. The Order went into effect in January 2019 and limits the City’s ability to regulate the use of its vertical infrastructure, such as streetlights and traffic signals, for the deployment of small cell facilities. The Order reduces the time limit for the City to process applications for small cell facilities to either 60 or 90 days, depending on whether the wireless facilities are being placed on existing or new poles; limits the amount of fees or rent that the City can charge for access to the right-of-way and city poles; and limits aesthetic review and requirements to those that are reasonable, objective, comparable to requirements for other right-of-way users, and published in advance. A number of challenges to the Order were ultimately combined into a case decided by the Ninth Circuit, which substantially upheld the Order, including the new fees and time limits. The Supreme Court declined to review the Ninth Circuit’s ruling.
Based on the above changes in Federal law, Crown Castle requests a new ten (10) year MLA to operate their existing wireless facilities on City poles and to establish the conditions and terms for the future deployment of additional nodes. Under the proposed MLA, prior to the 2 June 6, 2022 Item 14
City Council Agenda Report
Small Cell Master License Agreement – Crown Castle
June 6, 2022
installation of any new equipment on a City pole, Crown Castle must enter into a separate Pole License agreement specific to each location and obtain all applicable regulatory permits from the City, including complying with City Council Policy 116, Design Standards for Small Cell Wireless Communication Facilities in the Public Right-of-Way (Attachment E). Each Pole License will be subject to the terms, conditions and requirements of the MLA, designating and identifying the individual City pole location and wireless facilities installed on the streetlight or traffic signal pole. The City reserves the right in the MLA to terminate any Pole License that threatens public health and safety, constitutes a nuisance, or interferes with the City’s municipal operations.
As noted above, the City Council established Council Policy 116 in April 2019 to formalize aesthetic design standards to be utilized by City staff when reviewing applications for the future installation of small cell wireless facilities on City poles that complies with FCC Order 18-133. These standards provide objective standards for maximum height, size (volume) and locations of small cell facilities. The policies additionally lay out installation preferences for accessory equipment and require undergrounding such equipment unless found technically infeasible. Overall, the intent of the policy is to minimize and conceal the appearance of the small cell antennas and equipment to the maximum extent feasible while not being burdensome, discriminatory between providers, or prohibitive of cellular service, as required by FCC Order 18-133.
The proposed MLA is a result of yearlong collaborative negotiation between the City and Crown Castle, is similar to, and based on several executed small cell agreements Crown Castle has with the cities of Oceanside and National City. Staff worked closely with the City Attorney to ensure the City is sufficiently protected from liability while maintaining as much discretionary approval as allowed under Federal law.
Next Steps
If the MLA is approved by the City Council, Crown Castle will be required to obtain the necessary Pole Licenses for all new installations. Crown Castle’s six (6) existing nodes will transfer over to the new MLA and are included as Exhibit B to the Agreement. Currently, Crown Castle is not proposing any upgrades to those facilities or any new Pole Licenses with the approval of the MLA.
FISCAL IMPACT:
Under the proposed MLA, the City will receive from Crown Castle a license fee of $270 per pole per year with a three (3) percent annual escalator. This translates to $1,620 in total rent owed to the City under the first year of the MLA. The City will also recover from Crown Castle a one-time $5,000 administrative fee to cover the City’s costs for reviewing and executing the MLA. All Pole License applications will be subject to an administrative fee consistent with the City’s fee schedule for a minor permanent encroachment permit, the cost for which is currently $600.
3 June 6, 2022 Item 14
City Council Agenda Report
Small Cell Master License Agreement – Crown Castle
June 6, 2022
Under the existing agreement, the City received approximately $10,000 in total rent from Crown Castle in Fiscal Year 2021 and $8,700 in Fiscal Year 2020. That is because the existing agreement requires Crown Castle to pay an attachment fee of $500 per small cell facility and a right-of-way use fee of $500 per facility or five (5) percent of Crown’s gross revenue, whichever is greater. Due to the 2019 Federal declaratory ruling, the proposed MLA limits annual rent to $270 per pole per year with no option for revenue sharing, which is a significant decrease in revenue from what is allowed under the City’s existing agreement.
ENVIRONMENTAL IMPACT:
The proposed City Council action is exempt from the California Environmental Quality Act (CEQA) per State CEQA guidelines 15301 – Existing Facilities. Section 15301 exempts the leasing of property involving negligible or no expansion of use beyond that existing at the time of the agency’s determination.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
The recommended action is operational and is not on the City Council’s list of goals and priorities.
ATTACHMENTS:
Attachment A – Resolution 2022-XX
Attachment B – Proposed Master License Agreement with Crown Castle Attachment C – Current Right-of-Way Use Agreement with Crown Castle Attachment D – Pictures of Existing Crown Castle Wireless Facility Attachment E – City Council Policy 116
4 June 6, 2022 Item 14
Attachment A
RESOLUTION NO. 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, CALIFORNIA, AUTHORIZING A MASTER LICENSE FOR
WIRELESS FACILITIES ON CITY POLES IN THE PUBLIC RIGHTOF-WAY WITH CROWN CASTLE FIBER LLC, AND AUTHORIZING
THE CITY MANAGER TO ACT ON BEHALF OF THE CITY IN ALL
FUTURE DECISIONS AND ACTIONS NECESSARY TO
IMPLEMENT THE MASTER LICENSE AGREEMENT
WHEREAS, the City of Del Mar (“City”) owns and operates streetlights and traffic signal poles in the public right-of-way; and
WHEREAS, Crown Castle Fiber LLC (“Crown Castle”) operates as a telecommunication provider for cellular communications; and WHEREAS, Crown Castle currently operates six (6) wireless facilities, or “nodes”, on streetlights and traffic signal poles throughout the City through an existing Right-of-Way Use Agreement with the City that was executed in 2006; and
WHEREAS, Crown Castle desires to enter into a Master License Agreement (“MLA”) with the City to install, maintain, and operate small cellular wireless communication facilities located within the City’s right-of-way for a term of ten (10) years; and WHEREAS, the MLA would replace the City’s existing Right-of-Way Use Agreement with Crown Castle; and
WHEREAS, pursuant to the MLA, Crown Castle will be required to enter into a separate Pole License agreement specific to each pole location and obtain all applicable regulatory permits from the City, including complying with City Council Policy 116, Design Standards for Small Cell Wireless Communication Facilities in the Public Right-of-Way; and WHEREAS, and the annual license fee would be $270 per pole per year, consistent with the default fees established by the Federal Communications Commission, with a three (3) percent annual escalator; and
WHEREAS, all Pole License applications will be subject to an administrative fee consistent with the City’s current fee schedule for a minor permanent encroachment permit; and
WHEREAS, when the executed MLA is delivered to the City, Crown Castle will pay the City a one-time nonrefundable administrative fee of $5,000 to reimburse the City for its cost to prepare the MLA; and
WHEREAS, in order to fully implement the MLA and Pole License agreements, numerous actions must be taken and various documents must be executed; and 5 June 6, 2022 Item 14
Resolution No. 2022-XX
WHEREAS, many of the actions and document executions necessary to fully implement the MLA are extremely time sensitive, and as such it would be beneficial and more expedient for the City Council to authorize the City Manager, or their designee, to execute and act on behalf of the City in carrying out the actions necessary to implement the MLA.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar, California, as follows:
1. That the above recitals are true and correct.
2. That the City Manager is authorized and directed to execute the Master License for Wireless Facilities on City Poles in the Public Right-of-Way with Crown Castle Fiber LLC.
3. That the City Manager, or their designee, is hereby authorized to act on behalf of the City of Del Mar to carry out the actions necessary to implement the MLA, and to do so in full compliance with the terms and conditions expressed in the MLA and to the satisfaction of the City Attorney.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California, at a Regular Meeting held this 6th day of June 2022.
_____________________________
Dwight Worden, Mayor
City of Del Mar
APPROVED AS TO FORM:
___________________________
Leslie E. Devaney, City Attorney
City of Del Mar
6 June 6, 2022 Item 14
Resolution No. 2022-XX
ATTEST AND CERTIFICATION:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF DEL MAR
I, SARAH KRIETOR, Administrative Services Manager/City Clerk of the City of Del Mar, California, DO HEREBY CERTIFY, that the foregoing is a true and correct copy of Resolution No. 2022-XX, adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the 6th day of June 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sarah Krietor, Administrative Services
Manager/ City Clerk
City of Del Mar
7 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 1
MASTER LICENSE FOR
WIRELESS FACILITIES ON CITY POLES IN THE PUBLIC RIGHT-OF-WAY between
CITY OF DEL MAR, A CALIFORNIA MUNICIPAL CORPORATION
and
CROWN CASTLE FIBER LLC, A NEW YORK LIMITED LIABILITY COMPANY Effective Date: June __, 2022
Attachment B 8 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 2
TABLE OF CONTENTS
MASTER LICENSE AGREEMENT…………………………………………………………….6
1. GENERAL DEFINITIONS ................................................................................................7
2. SCOPE OF LICENSE ......................................................................................................9
2.1. License Area...................................................................................................................9
2.1.1. Pole License Issuance and Effect.......................................................................9
2.1.2. Limitations on License Areas .............................................................................9
2.2. Limitations on Licensee’s Interests............................................................................10
2.2.1. Limited Interest Created....................................................................................10
2.2.2.Limited Rights Created .........................................................................................10
2.2.3.No Impediment to Municipal Uses .......................................................................10
2.3. Diminutions in Light, Air and Signal ...........................................................................10
2.4. License Area Condition ...............................................................................................10
2.4.1. “As-Is and With All Faults” Condition ..............................................................10
2.4.2. Licensee’s Due Diligence..................................................................................11
2.4.3. Certified Access Specialist Disclosure ............................................................11
2.5. Rearrangement and Relocation…………………………………………………….……....11
3. TERM.............................................................................................................................12
3.1. Master License Term ................................................................................................12
3.2. Pole License Term....................................................................................................12
4. LICENSE FEE; OTHER PAYMENTS.............................................................................12
4.1. License Fees .............................................................................................................12
4.1.1. Commencement Date ........................................................................................12
4.1.2. License Fee Amount..........................................................................................13
4.1.3. Annual License Fee Adjustments.....................................................................13
4.1.4. License Fee Due Date........................................................................................13
4.2. Administrative Fees..................................................................................................13
4.2.1. Master License Preparation Fee .......................................................................13
4.2.2. Pole License Processing Fee............................................................................13
4.3. Late Charges.............................................................................................................14
4.4. Default Interest..........................................................................................................14
4.5. Additional Fees.........................................................................................................14
4.6. Payment Procedures ................................................................................................14
4.7. Liquidated Charges and Fees ..................................................................................14
5. USES .............................................................................................................................15
5.1. Permitted Use............................................................................................................15
5.2. Prohibition on “Macro Cell” Uses............................................................................15
5.3. Prohibition on Illegal Uses or Nuisances................................................................15
5.4. Signs or Advertisements..........................................................................................15
6. POLE LICENSES...........................................................................................................15
6.1. City Approval Required............................................................................................15
6.2. Pole License Application .........................................................................................16
6.3. Pole License Application Review Procedures........................................................16
6.3.1. Pole License Application Approval ..................................................................16
6.3.2. City’s Right to disapprove.................................................................................16
6.4. Preexisting Licensee Equipment………………………………………………..……..…17 Attachment B 9 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 3
7. EQUIPMENT INSTALLATION.......................................................................................17
7.1. Approved Plans and Equipment Specifications .....................................................17
7.1.1. Site Identification Required...............................................................................17
7.1.2. Changes Required for Regulatory Approvals..................................................17
7.1.3. Corrections to Approved Plans ........................................................................17
7.2. Prior Regulatory Approvals Required .....................................................................17
7.3. Installation; Strict Compliance with Approved Plans.............................................18
7.3.1. Alterations to City’s Property ...........................................................................18
7.3.2. Licensee’s Contractors .....................................................................................18
7.3.3. Underground Service Alert…………………………………………………..…...….18
7.3.4. Damage and Repairs to Subsurface Structures…………………………….…...18
7.4. Labor and Materials Costs .......................................................................................19
7.5. Project Managers......................................................................................................19
7.6. Coordination with the City .......................................................................................20
7.7. Post-Completion Inspections…………………………….……………………………....20
7.8. As-Built Plans and Maps…………………………………….……………………….……20
7.9. Title to Licensee’s Equipment and Other Improvements……………………………20
7.10. Equipment Modifications……………………………………………………………….…21
8. PUBLIC WORKS OPERATIONS...................................................................................21
8.1. City’s Access to License Areas...............................................................................21
8.2. Repairs, Maintenance and Alterations to Poles......................................................21
8.3. Repairs, Maintenance and Alterations to License Areas .......................................22
8.4. Emergencies .............................................................................................................22
9. LICENSEE’S MAINTENANCE OBLIGATIONS..............................................22
9.1. Damage to Poles.......................................................................................................22
9.1.1. Notice to the City ...............................................................................................22
9.1.2. Damage Caused by Licensee............................................................................23
9.1.3. No Right to Repair .............................................................................................23
9.2. Equipment Maintenance...........................................................................................23
9.3. Graffiti Abatement ....................................................................................................23
9.4. Standard of Work......................................................................................................23
9.5. Inspections................................................................................................................24
10. LIENS ............................................................................................................................24
11. UTILITIES......................................................................................................................24
12. TAXES AND ASSESSMENTS .......................................................................24
12.1. Possessory Interest Taxes....................................................................................24
12.2. Licensee’s Tax Obligations ..................................................................................25
13. COMPLIANCE WITH LAWS..........................................................................................25
13.1. Compliance with Current and Future Laws .........................................................25
13.2. FCC 2018 Order ……………………………………………………………….…………...25
13.3. Licensee’s Personnel..............................................................................................26
13.3.1. Personnel Training and Certification............................................................26
13.3.2. Licensee’s Indemnification for Personnel Injuries ......................................26
13.4. Compliance with CPUC GO 95..............................................................................26
13.5. Compliance with Building and Electric Codes ....................................................26
13.6. Compliance with RF Exposure Regulations........................................................26
14. DAMAGE OR DESTRUCTION ......................................................................................27
14.1. City’s Rights After Damage or Destruction……………………………………..…...27
14.1.1. Election to Repair or Replace Damaged Pole...............................................27
14.1.2. Election to Remove Damaged Pole...............................................................27
14.1.3. Election to Remove Equipment from Damaged Pole...................................27 Attachment B 10 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 4
14.2. Licensee’s Rights upon Termination...................................................................27
14.3. Waiver of Statutory Rights....................................................................................27
15. CONDEMNATION..........................................................................................................28
15.1. Permanent Takings ...............................................................................................28
15.1.1. Termination ....................................................................................................28
15.1.2. Award..............................................................................................................28
15.1.3. No Statutory Right to Terminate....................................................................28
15.2. Temporary Takings ...............................................................................................28
16. ASSIGNMENT AND OTHER TRANSFERS...................................................................28
16.1. General Restriction ...............................................................................................28
16.2. Proposed Assignment Procedures......................................................................28
16.2.1. Proposed Assignment Notice........................................................................28
16.2.2. City Response ................................................................................................29
16.3. Permitted Assignments ........................................................................................29
16.3.1. Definition ........................................................................................................29
16.3.2. Conditions ......................................................................................................29
16.4. Effect of Assignment.............................................................................................29
16.5. Assumption by Transferee ...................................................................................30
16.6. Licensee’s Customers ..........................................................................................30
17. DEFAULT ......................................................................................................................30
17.1. Events of Default by Licensee..............................................................................30
17.2. City’s Remedies.....................................................................................................31
17.2.1. License Continuation.....................................................................................31
17.2.2. Pole License Termination..............................................................................31
17.2.3. Master License Termination..........................................................................31
17.2.4. Default Fees....................................................................................................31
17.3. Licensee’s Remedies ................................................................................................32
17.4. Cumulative Rights and Remedies............................................................................32
18. LICENSEE’S INDEMNIFICATION OBLIGATIONS........................................................32
19. INSURANCE..................................................................................................................33
19.1. Licensee’s Insurance ............................................................................................33
19.1.1. Required Coverages ......................................................................................33
19.1.2. Required Endorsements................................................................................33
19.1.3. Cancellation Notices......................................................................................33
19.1.4. Claims-Made Policies.....................................................................................33
19.1.5. General Aggregate Limit................................................................................34
19.1.6. Certificates .....................................................................................................34
19.1.7. Insurer Qualifications ....................................................................................34
19.1.8. Effective Dates ...............................................................................................34
19.1.9. Licensee’s Self-Insurance Alternative.......................................................35
19.1.10. No Limitation on Indemnification Obligations..........................................35
19.1.11. Right to Terminate ......................................................................................35
19.2. City’s Insurance.....................................................................................................35
19.3. Subrogation Waiver ..............................................................................................35
19.4. Contractors’ Bonds and Insurance......................................................................35
20. LIMITATIONS ON THE CITY’S LIABILITY....................................................................35
20.1. General Limitations on the City’s Liability ..........................................................35
20.2. Consequential Damages.......................................................................................36
20.3. No Relocation Assistance ....................................................................................36
20.4. Non-Liability for City Officials, Employees and Agents......................................36
20.5 Licensee’s Waiver.................................................................................................36
21. RECORDS .....................................................................................................................37 Attachment B 11 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 5
22. RULES AND REGULATIONS........................................................................................37
23. PERFORMANCE BOND................................................................................................37
24. SURRENDER OF LICENSE AREA ...............................................................................38
25. HAZARDOUS MATERIALS...........................................................................................38
25.1. Hazardous Materials in License Area ..................................................................38
25.2. Licensee’s Environmental Indemnity...................................................................39
26. TERMINATION ..............................................................................................................39
26.1. Termination for Failure to Obtain Regulatory Approvals ...................................39
26.2. Licensee’s Termination Rights.............................................................................39
26.2.1. Master License Termination Rights ..............................................................39
26.2.2. Pole License Termination Rights..................................................................40
26.2.3. Termination Rights after Pole Replacement.................................................40
26.3. City’s Absolute Right to Terminate Pole Licenses .............................................40
26.4 Licensee’s Rights after Termination………………………………..………………..40
27. NTERFERENCE ............................................................................................................40
27.1. Licensee’s Obligation Not to Cause Interference ...............................................40
27.2. Impairment Caused by Change in City Use .........................................................40
27.3. Impairment Caused by City Access .....................................................................41
28. MISCELLANEOUS PROVISIONS .................................................................................41
28.1. Notices...................................................................................................................41
28.2. Waiver; No Implied Waivers..................................................................................42
28.3. Amendments .........................................................................................................42
28.4. Interpretation.........................................................................................................42
28.4.1. General............................................................................................................42
28.4.2. Multi-party License.........................................................................................43
28.4.3. Captions..........................................................................................................43
28.4.4. City Actions ....................................................................................................43
28.4.5. Words of Inclusion.........................................................................................43
28.4.6. Laws................................................................................................................43
28.5. Successors and Assigns ......................................................................................43
28.6. Brokers ..................................................................................................................43
28.7. Severability............................................................................................................44
28.8. Governing Law; Venue..........................................................................................44
28.9. Time for Performance ...........................................................................................44
28.10. Survival ..............................................................................................................44
28.11. Recording...........................................................................................................44
28.12. Counterparts ......................................................................................................44
28.13. Approval Authority ............................................................................................45 EXHIBIT A................................................................................................................................46 EXHIBIT A-1 ................................................................................................................................. 47 EXHIBIT A-2 ................................................................................................................................. 48 EXHIBIT A-3 ................................................................................................................................. 49 EXHIBIT A-4................................................................................................................................. 51 EXHIBIT A-5…………………………………………………………………………………….………52
EXHIBIT B……………………………………………………………………………………………….53
Attachment B 12 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 6
MASTER LICENSE AGREEMENT
FOR WIRELESS FACILITIES ON CITY POLES IN THE
PUBLIC RIGHT-OF-WAY
This MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES ON CITY POLES IN THE PUBLIC RIGHT-OF-WAY (“Master License”) dated June __, 2022 (the “Effective Date”) is between the CITY OF DEL MAR, a chartered California municipal corporation (the “City”) and Crown Castle Fiber LLC, a New York Limited Liability Company (the “Licensee”). This License may refer to the City and/or Licensee individually as a “Party” or collectively as the “Parties.”
BACKGROUND
A. WHEREAS, technology developments and demand for high-speed mobile data service and capacity has extended beyond the capabilities of traditionalmacro cell wireless communications facilities; and
B. WHEREAS, Section 253 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, codified as 47 U.S.C. § 253, preserves the City’s authority to control access to and use the rights-of-way within the City’s jurisdictional boundaries, and to require reasonable compensation for such use on a competitively-neutral and nondiscriminatory basis so long as such compensation is disclosed; and C. WHEREAS, Licensee is a public communications utility in California, holding a Certificate of Public Convenience and Necessity from the California Public Utilities Commission (“CPUC”); and
D. WHEREAS, Licensee typically installs, maintains and operates its communications network facilities on existing vertical infrastructure in the public right-of-way pursuant to authority granted by the CPUC; and
E. WHEREAS, the City owns as its realproperty assets a substantial number of existing poles within the public right-of-way that are suitable for installing wireless communications facilities within the City’s jurisdiction;and
F. WHEREAS, Licensee (as successor in interest to NextG Networks of California, Inc.) and City previously entered into a Right-of-Way Use Agreement dated June 6, 2006 (the “ROW Agreement”) to locate, place, attach, install, operate, control, and maintain certain telecommunications network facilities on City’s poles in the public right-of-way; and
G. WHEREAS, Licensee desires to install, maintain and operate communications network facilities on the City’s poles in the public right-of-way (including continuing to maintain the existing facilities under the ROW Agreement) in a manner consistent with the City’s regulatory authority and Licensee is willing to compensate the City for the right to use the City’s poles for communications purposes; and
H. WHEREAS, consistent with all applicable Laws, the City does not intend this Master License to grant the Licensee any exclusive right to use or occupy the public rights-of-way within the City’s jurisdictional boundaries, and Licensee expressly acknowledges that the City may in its sole discretion enter into similar or identical agreements with other entities, which include without limitation Licensee’s competitors; and
Attachment B 13 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 7 I. WHEREAS, the City desires to authorize Licensee’s access to individual City- owned poles based on a comprehensive and uniform Master License according to the terms and conditions set forth in this Master License, any applicable Pole License, and pursuant to all the applicable permits issued by the City to protect public health and safety; and
NOW THEREFORE, for good, valuable and sufficient consideration received and acknowledged by the City and Licensee, the City and Licensee agree as follows:
AGREEMENT
1. GENERAL DEFINITIONS
“Agent” means agent, employee, officer, contractor, subcontractor, and representative of a party in relation to this Master License and the License Area. “Assignment” means any of the following: (a) a merger, acquisition, or other transfer of a controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee's sale, assignment, encumbrance, pledge, or other transfer of any part of its interest in or rights with respect to the License Area; and (c) any action by Licensee to permit any portion of the License Area to be occupied by anyone other than itself, including a sublicense. “Claim” mean any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect. “Common Control” means two entities that are both controlled by the same third entity. “Control” means (a) as to a corporation, the ownership of stock having the right to exercise more than 50% of the total combined voting power of all classes of stock of the controlled corporation, issued and outstanding; or (b) as to partnerships and other forms of business associations, ownership of more than 50% of the beneficial interest and voting control of such association.
“CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or it’s duly appointed successor agency. “Discretion”, “sole discretion”, and “sole and absolute discretion” shall have their ordinary meaning.
“EMF” means electromagnetic fields or radio frequency between 30 kHz and 300GHz in the electromagnetic spectrum range.
“Environmental Laws” means any Law relating to industrial hygiene, environmental conditions, regulated waste, or Hazardous Waste or Materials. “Equipment” means antennas and any associated utility or equipment box, and battery backup, transmitters, receivers, radios, amplifiers, ancillary fiber-optic cables and wiring, and ancillary equipment for the transmission and reception of radio communication signals for voice and other data transmission, including the means and devices used to attach Equipment to a licensed City Pole, peripherals, and ancillary equipment and installations, including wiring, cabling, power feeds, and any approved signage attached to Equipment. “FCC” means the Federal Communications Commission or its duly appointed successor agency.
Attachment B 14 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 8 “Hazardous Material” means any material that, because of its quantity, concentration, or physical or chemical characteristics, is at any time now or hereafter deemed by any Regulatory Agency to pose a present or potential hazard to human health, welfare, or safety or to the environment. Hazardous Material includes any material or substance defined as a “hazardous substance,” or “pollutant” or “contaminant” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or section 25316 of the California Health & Safety Code; and any “hazardous waste” listed California Health & Safety Code § 25140; and petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids.
“Investigate and Remediate” means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. “Invitee” means the client, customer, invitee, guest, tenant, subtenant, licensee, assignee and sub licensee of a party in relation to the License Area. “Laws” means all present or future statutes, ordinances, codes, orders, regulations and implementing requirements and restrictions of federal, state, county and municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question.
“Licensee’s On-Call Representative” mean the person(s) assigned by Licensee to be on-call and available to the City regarding the operation of Licensee’s Equipment. Such person(s) shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency in and in day-to-day operations of the Equipment. “Permitted Use” means Licensee’s installation, operation and maintenance of Equipment for the transmission and reception of wireless, cellular telephone and data and related communications equipment on License Areas.
“Pole” means a streetlight pole, utility pole or other support structure located in the public right-ofway within the City and owned by the City. “Pole License” means the document in the form of Exhibit A that, when fully executed, incorporates the provisions of this Master License and authorizes Licensee to install, operate and maintain Equipment for the Permitted Use on City Poles identified in the Pole License. “Pole Location” means the geographic information identifying each City Pole on which Licensee is authorized to install, operate and maintain Equipment under Pole Licenses. Pole Locations will be identified in Exhibit A-1 to each Pole License. “Property” means any interest in real or personal property, including land, air and water areas, leasehold interests, possessory interests, easements, franchises and other appurtenances, public rights-of-way, physical works of improvements such as buildings, structures, infrastructure, utility and other facilities, and alterations, installations, fixtures, furnishings and additions to existing real property, personal property and improvements. “Regulatory Agency” means the local, regional, state or federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance with applicable Laws. “Regulatory Approvals” means licenses, permits and other approvals necessary for Licensee to install, operate and maintain Equipment on the License Area.
Attachment B 15 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 9 “Release” when used with respect to Hazardous Material includes any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment.
“RF” means radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range.
“RF Compliance Report” means a report prepared and certified by an RF engineer acceptable to the City that certifies that the proposed facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts ERP) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RFexposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the projectsite. “Small Cell Policy” means the policies adopted by the Del Mar City Council that regulate the location and design of cellular equipment installed within the City’s jurisdiction. (See Exhibit “A5”).
2. SCOPE OF LICENSE
2.1. License Area
2.1.1. Pole License Issuance and Effect
Subject to the terms and conditions in this Master License and upon approval by the City, it will issue to Licensee one or more Pole Licenses, which will grant Licensee a contractual privilege to use the space on the subject Pole approved for the Equipment, which includes any conduits, pull boxes or other City Property specifically identified in the Approved Plans attached to the Pole License (individually for each licensed Pole and collectively for all licensed Poles, the “License Area”). Any approved Pole License will become effective on the first day of the month following the date on which both the City and Licensee execute such Pole License.
2.1.2. Limitations on License Areas
This Master License applies to only Poles identified in final and fully executed Pole Licenses.
This Master License does not authorize Licensee or any other persons or entities to enter on to or use any other City Property, except the License Areas specified in any fully executed Pole Licenses. Furthermore, neither this Master License nor any Pole License authorizes or confers any rights in Licensee or any other persons or entities to use any portions of the public rights-ofway, or any improvements or other personal property within the public rights-of-way owned by any third parties. Except as prohibited by law, the City reserves the absolute right to reject any Pole License Application. Licensee expressly acknowledges and agrees that the City will not be obligated to issue any Pole License or other license to Licensee for any purpose related to the followingpoles:
(1) any decorative Pole, which includes any Pole or light standard with ornate features or ornate characteristics designed or intended to enhance the appearance of the Pole or light standard;
(2) any Pole in a City-approved underground district when the Licensee does not propose to install the non-antenna equipment (other than the electric meter as Attachment B 16 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 10 may be required by Licensee’s utility provider)underground; and (3) to the extent consistent with applicable law, the City may reasonably determine in its discretion that the use of the pole is not in the City’s best interest.
2.2. Limitations on Licensee’s Interests
2.2.1. Limited Interest Created
Licensee expressly acknowledges and agrees that: (1) Licensee does not have any rights to use or interest in any City-owned Pole for any purpose whatsoever until and unless the City issues a Pole License for such Pole; and (2) neither this Master License nor any Pole License issued pursuant to this Master License creates or will be deemed to create any leasehold, easement, franchise or any other possessory interest or real property interest whatsoever in the License Area.
2.2.2. Limited Rights Created
Any Pole License the City approves pursuant to this Master License grants to Licensee only a non-possessory and revocable license to enter on to and use the License Area for the Permitted Use. Licensee expressly acknowledges and agrees that (1) neither this Master License or any Pole License will be coupled with an interest; (2) the City retains legal possession and control over all Poles for the City’s operations, which will be superior to Licensee’s interest at all times; (3) subject to the terms and conditions in this Master License, the City may terminate a Pole License in whole or in part at any time; (4) except as specifically provided otherwise in this Master License, the City may enter into any agreement with third parties in connection with use and occupancy of Poles and other City Property; (5) neither this Master License nor any Pole License creates or will be deemed to create any partnership or joint venture between the City and Licensee; (6) the granting of a pole License does not provide an interest in any real or personal property owned by the City.
2.2.3. No Impediment to Municipal Uses
Except as specifically provided otherwise in this Master License, neither this Master License nor any Pole License limits, alters or waives the City’s right to use any License Area in whole or in part as infrastructure established and maintained for the City’s and the public’s benefit.
2.3. Diminutions in Light, Air and Signal
In the event that any existing or future structure diminishes any light, air or signal propagation, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Additional Fees or any other sums payable to the City under this Master License or any Pole License, the City shall have no liability to Licensee whatsoever and such diminution will not affect this Master License, any Pole License or Licensee’s obligations except as may be expressly provided in this Master License.
2.4. License Area Condition
2.4.1. “As-Is and With All Faults” Condition
Licensee expressly acknowledges and agrees to enter on to and use the License Area in its “asis and with all faults” condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the License Area’s condition or suitability for Licensee’s use.
Licensee expressly acknowledges and agrees that neither the City nor its Agents have made, and the City expressly disclaims, any representations or warranties whatsoever, whether express or Attachment B 17 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 11 implied, with respect to the physical, structural or environmental condition of the License Area, the present or future suitability of the License Area for the Permitted Use or any other matter related to the License Area.
2.4.2. Licensee’s Due Diligence
Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee, into the License Area condition and suitability for Licensee’s intended use, and that Licensee relies solely on its due diligence for such determination. Licensee further expressly represents and warrants to the City that Licensee’s intended use is the Permitted Use as defined in Section 5 in this Master License. This includes knowingly entering into this Master License with the acknowledgement that the City’s Small Cell Policy applies to all Pole License approvals as limited under relevant Laws.
2.4.3. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, and to the extent applicable to this Master License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has not inspected any License Area in whole or in part to determine whether it meets all applicable construction-related accessibility requirements.
2.5 Rearrangement and Relocation
2.5.1 Rearrangement and Relocation for City
Licensee acknowledges that the City, in its sole discretion and at any time, may: (1) change any street grade, width or location; (2) add, remove or otherwise change any improvements owned by the City or any other public agency located in, on, under or along any Street, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications; and/or (3) perform any other work deemed necessary, useful or desirable by the City in connection with the City’s municipal functions or otherwise reasonably related to a legitimate governmental interest by the City including, but not limited to, the undergrounding of aerial equipment and facilities pursuant to and in connection with a City-established undergrounding district (collectively, “City Work”). The City reserves the rights to do any and all City Work without any admission on its part that the City would not have such rights without the express reservation in this Master License. In the event that the City Engineer determines that any City Work will require the Equipment to be rearranged and/or relocated Licensee shall, at its sole cost and expense, do or cause to be done all things necessary to accomplish such rearrangement and/or relocation. If Licensee fails or refuses to either permanently or temporarily rearrange and/or relocate the Equipment within a reasonable time after the City Engineer’s notice, the City may (but will not be obligated to) cause the rearrangement or relocation to be performed at Licensee’s sole cost and expense. The City will use reasonable efforts to provide Licensee with at least six (6) months’ prior notice, but the City may exercise its rights to rearrange or relocate the Equipment without prior notice to Licensee when the City Engineer determines that the City Work is immediately necessary to protect public health or safety. Licensee shall reimburse the City for all costs and expenses in connection with such work within thirty (30) days after a written demand for reimbursement and reasonable documentation to support such costs. In addition, Licensee shall indemnify, defend and hold any and all Indemnified City Parties harmless from and against any Claims in connection with rearranging or relocating the Equipment, or turning on or off any water, oil, gas, electricity or other utility service in connection with the Equipment. Within ninety (90) days after any Equipment has been rearranged or relocated, Licensee shall file as-built plans and maps with the City Engineer in the same manner and subject to the same requirements as provided in Attachment B 18 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 12 Section 7.8 (As-Built Plans and Maps).
2.5.2 Rearrangement and Relocation to Accommodate Third Parties Licensee shall reasonably cooperate with and promptly respond to requests to rearrange or relocate the Equipment to accommodate third parties authorized to use the Streets (“Third-Party Accommodations”). All costs to perform any Third-Party Accommodations shall be borne by the person or entity to be accommodated; provided, however, that Licensee shall be solely responsible to collect any costs incurred by Licensee from such third party and the City shall have no liability to Licensee for any such costs. Nothing in this License shall be construed to require Licensee to perform any Third-Party Accommodations that would materially reduce, impair or otherwise diminish Licensee’s Equipment or Licensee’s operations on the License Area. Within ninety (90) days after any Third-Party Accommodations, Licensee shall file as-built plans and maps with the City Engineer in the same manner and subject to the same requirements as provided in Section 7.8 (As-Built Plans and Maps).
2.5.3 No Right to Rearrange or Relocate City Property
Nothing in this License will be construed to require the City or authorize Licensee to change any street grade, width or location, or add, remove or otherwise change any improvements owned by the City or any other public agency located in, on, under or along the License Area or any Street, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications, for Licensee’s or any third party’s convenience or necessity.
3. TERM
3.1. Master License Term
The term under this Master License (the “Term”) will commence on the Effective Date and will automatically expire ten (10) years from the Effective Date (the “Expiration Date”), unless earlier terminated in accordance with this Master License.
3.2. Pole License Term
The term under each Pole License will commence on the Commencement Date (as defined in Section 4.1.1 below) and will automatically expire ten (10) years after the Commencement Date, unless earlier terminated in accordance with this Master License. Notwithstanding the expiration or termination of this Master License, any Pole License(s) still in effect shall remain subject to the terms and conditions of the Master License during the term of such Pole License.
4. LICENSE FEE; OTHER PAYMENTS
4.1. License Fees
4.1.1. Commencement Date
Licensee shall pay an annual License Fee under each Pole License beginning on its “Commencement Date,” which will be the earlier of: (1) the date six months from full execution of the Pole License or (2) the first day of the month after the date on which Licensee has obtained all Regulatory Approvals necessary for the Permitted Use on the License Area. The parties define a “License Year” to mean any 12-month period (or shorter period in the event that a Pole License commences less than 12 months from the next July 1 or the Expiration Date) that begins on the Commencement Date for each Pole License.
Attachment B 19 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 13
4.1.2. License Fee Amount
Licensee shall pay to the City an annual fee at Two Hundred Seventy and 00/100 Dollars ($270.00) per year, per pole (the “License Fee”). The License Fee Schedule will reflect the annual License Fee adjustments as provided in Section 4.1.3 (Annual License Fee Adjustments).
Licensee shall pay each annual License Fee in advance without any prior demand, deduction, setoff or counterclaim for any reason, except to account for a partial year in the event that: (1) the Commencement Date falls on a date other than January 1; (2) this Master License expires or terminates; or (3) any other abatement rights expressly granted in this Master License become effective. Any amounts for less than a full year or full month will be calculated based on a 360- day year and a 30-day month.
4.1.3. Annual License Fee Adjustments
Each year throughout the Term on July 1 (each an “Adjustment Date”), the License Fee will be increased 3% over the License Fee payable in the immediately previous year. The adjustment provided in this Section will be effective even if the first License Year was for less than a full calendar year.
4.1.4. License Fee Due Date
Licensee shall pay the License Fee for the first year at the same time Licensee delivers the Acknowledgement Letter without any deduction or setoff for any reason. Thereafter, Licensee shall pay the annual License Fee on July 1 in each year throughout the Term.
4.2. Administrative Fees
4.2.1. Master License Preparation Fee
At the time Licensee delivers to the City a partially executed counterpart to this Master License, Licensee shall pay to the City a nonrefundable administrative fee equal to Five Thousand and 00/100 Dollars ($5,000.00) (the “Master License Preparation Fee”) to recoup the City’s costs to review and execute this Master License. The City will not be obligated to execute any Master License until the City receives the Master License Preparation Fee. The City’s execution of this Master License shall be its acknowledgment that Licensee has paid the full Master License PreparationFee.
4.2.2. Pole License Processing Fee
At the time Licensee delivers to the City an individual Pole License Application, Licensee shall pay to the City a nonrefundable administrative fee consistent with the City’s current fee schedule for a minor permanent encroachment permit (the “Pole License Processing Fee”). Licensee recognizes that the City will incur costs to review each Pole License Application, which may include without limitation staff time, legal fees, and expert fees.
The parties further acknowledge that these costs may vary among and/or between various Pole License Applications due to circumstances particular to any given Pole, and that it would impracticable (if not impossible) to accurately predict such costs. Accordingly, the parties agree that the Pole License Processing Fee set forth in this Section represents a reasonable estimate of the City’s administrative costs to review each Pole in the typical Pole License Application. The parties further acknowledgethat the Pole License Processing Fee is intended to cover the City’s administrative costs incurred as the licensor and the Pole License Processing Fee does not substitute for or diminish the Licensee’s obligation to pay any reasonable and actual cost based regulatory permit fees required by the City’s departments. The City will not be obligated to commence its review for any Pole License Application until the City receives the Pole License Attachment B 20 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 14 Processing Fee. The parties to this Master License collectively refer to the Master License Preparation Fee and the Pole License Processing Fee as “Administrative Fees.”
4.3. Late Charges
In the event that Licensee fails to pay any License Fee, Additional Fee, Administrative Fees or any other amount payable to the City within 10 days after the City notifies that such amounts are due and unpaid, such amounts will be subject to a late charge equal to 6% of unpaid amounts.
4.4. Default Interest
Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City other than late charges will bear interest at ten percent (10%) per annum from the due date when not paid within ten (10) days after due and payable to the City. Any sums received shall be first applied towards any interest, then to the late charge and lastly to principle amount owed.
Any interest or late charge payments will not alone excuse or cure any default by Licensee.
4.5. Additional Fees
The parties to this Master License define “Additional Fees” to collectively mean any sums payable by Licensee to the City in its proprietary capacity as the licensor, which includes without limitation any late charges, default interest, costs in connection with a request for the City’s consent to an Assignment under Section 16.2 (Proposed Assignment Procedures) and Default Fees under Section 17.2.4; provided, however, that the term excludes any: (1) License Fees; (2) Administrative Fees; (3) any other amounts payable to the City by Licensee in connection with the City’s review of Pole License Applications or coordinating and inspecting Equipment installed on the License Area; and (4) any payments to the City in its regulatorycapacity.
4.6. Payment Procedures
Licensee shall pay all License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City in cash or other immediately available funds by: (1) local check payable to City of Del Mar, Finance Department, 1050 Camino Del Mar, CA 92014; or (2) electronic wire transfer to an account specified by the City. Any payment made with a dishonored check will be deemed unpaid. The parties may change the payment address from time to time by written notice.
4.7. Liquidated Charges and Fees
The parties agree that the Additional Fees payable under this Master License represent a fair and reasonable estimate of the administrative costs that the City will incur in connection with the matters for which they are imposed and that the City’s right to impose the Additional Fees is in addition to, and not in lieu of, any other rights it may have under this Master License.
Furthermore:
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CITY’S ACTUAL
ADMINISTRATIVE COSTS AND OTHER DETRIMENT ARISING FROM LICENSEE
DEFAULTS AND OTHER ADMINISTRATIVE MATTERS UNDER THIS MASTER
LICENSE WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. BY PLACING HIS OR HER INITIALS BELOW, EACH PARTY’S
AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT THE PARTIES
HAVE AGREED, AFTER A NEGOTIATION, ON THE AMOUNT OF THE
ADDITIONAL FEES AS REASONABLE ESTIMATES OF THE CITY’S ADDITIONAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT.
Licensee: City:
Attachment B 21 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 15
5. USES
5.1. Permitted Use
Licensee may use the License Area solely for the installation, operation and maintenance of Equipment for transmission and reception of wireless communications signals (the “Permitted Use”) in compliance with all applicable Laws and any conditions in any Regulatory Approvals and for no other use whatsoever without the City’s prior written consent, which the City may withhold in its sole and absolute discretion for any or no reason.
5.2. Prohibition on “Macro Cell” Uses
The City and Licensee intend this Master License and any Pole License to cover only wireless facilities that (a) qualify as a “small wireless facility” as that term is defined and interpreted by the FCC under 47 C.F.R. § 1.6002(l), as may be amended or superseded, and subsequent binding FCC Orders; and (b) have been approved by the City in accordance with all applicable provisions in the Del Mar Municipal Code as defined by the FCC. Licensee expressly acknowledges and agrees that the Permitted Use under this Master License does not include the right to use any City-owned Pole within the Right of Way as a support structure for a “macro cell” as defined by the FCC or a traditional macro cell wireless tower or base station.
5.3. Prohibition on Illegal Uses or Nuisances
Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any manner that constitutes a nuisance as determined by the City in its reasonable judgment.
Licensee shall take all precautions to eliminate any nuisances or hazards in connection with its uses and activities on or about the LicenseArea.
5.4. Signs or Advertisements
Licensee acknowledges and agrees that its rights under this Master License and any Pole License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area other than the site identification notice required by Section 7.1.1, below and/or any notice required by the City in its regulatory capacity to ensure compliance with Laws related to maximum permissible exposure to RF emissions on or about the License Area.
6. POLE LICENSES
6.1. City Approval Required
Licensee shall not have any right to use the License Area in whole or in part for any purpose until and unless the City approves a Pole License. Subject to any express limitations in this Master License, the City will not be obligated to subordinate its municipal functions or proprietary interest in any manner whatsoever to Licensee’s interest under any Pole License. When the City considers whether to approve or disapprove any Pole License Application, the City may consider any matter that affects its municipal functions which include, without limitation: (1) Licensee’s proposed plans and Equipment specifications; (2) compliance with the City’s Small Cell Policy or other applicable Laws in effect at that time; (3) impacts on the City’s street light operations; (4) any potential hazards or unsafe conditions that could result from Licensee’s installation, operation or maintenance; (5) any unreasonable visual or aesthetic impacts as determined by the City should the proposed Equipment not be in conformance with objective design standards adopted by the City; (6) the additional load on the Pole the proposed Equipment would create only if: (a) such additional load would exceed such Pole’s permitted capacity; and (b) such Pole Attachment B 22 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 16 could not be replaced to support Licensee’s proposed Equipment; and (7) any municipal plans for the Pole or right-of-way in proximity to thePole.
6.2. Pole License Application
Each Pole License Application must include: (1) two partially executed duplicate counterparts of a Pole License in the form attached as Exhibit A to this Master License, with fully completed Exhibit A-1 and Exhibit A-2 attached to such partially executed Pole License; (2) the Pole License Processing Fee; and (3) a complete RF Compliance Report or exemption documentation.
6.3. Pole License Application Review Procedures
The City will review complete Pole License Applications within applicable timeframes and pursuant to applicable Law, including but not limited to conformance with the City’s Small Cell Policy, and taking into account any tolling periods for such timeframes. Licensee will endeavor to provide the City with prior notice prior to the time the Licensee submits any Pole License Application that covers fifteen (15) or more Poles to allow the City sufficient time to prepare and/or augment its staff as necessary. Licensee shall use best efforts not to submit successive Pole License Applications if those Pole License Applications would collectively cover fifteen (15) or more Poles. Consistent with FCC Orders and Spectrum Act Section 6409(a), the City will use good faith efforts to approve or deny the Pole License Application within sixty (60) days for existing structures and ninety (90) days for new structures from the time the application is deemed complete. Licensee shall minimize the visual impacts of installed equipment to the extent required by applicable law where prior approvals required such mitigation or when the installation is a new facility. In the event that Licensee submits one or more Pole License Applications that cumulatively request approval for more than ten (10) individual sites in any thirty (30) day period, the City shall endeavor to process the additional sites within the applicable timeframe for review, but advises Licensee that the City’s review could take approximately fifteen (15) days longer than the applicable timeframe for each site beyond the first ten (10). In such cases where the City expects that it reasonably cannot complete its review within the applicable timeframe, the City may request a tolling agreement subject to Licensee’s consent.
6.3.1. Pole License Application Approval
In the event that the Licensee obtains all applicable Regulatory Approvals in connection with a Pole License Application and City approves a Pole License Application, the City will return one fully executed Pole License to Licensee. In the event that Licensee fails to commence construction pursuant to the Pole License within one year from the date the City issues the last required permit, the Pole License shall automatically expire unless the City Manager or their designee grants a one-time written extension that may not exceed one additional year. Licensee shall not be entitled to any refund for any fees, which include without limitation the License Fee, paid in connection with a Pole License that expires pursuant to this Section 6.3.1. Nothing in this Section 6.3.1 is intended to prohibit or prevent Licensee from submitting a new Pole License Application for the same or substantially the same Poles as those covered under a Pole License that expired pursuant to this Section 6.3.1.
6.3.2. City’s Right to Disapprove
Subject to applicable laws, Licensee acknowledges that the City reserves the absolute right to disapprove any Pole License Application in whole or in part when the City finds in its sole, reasonable discretion that the subject Pole Location or proposed equipment interfere with the City’s municipal functions or create a hazardous or unsafe condition. In addition, Licensee acknowledges that the City reserves the absolute right to disapprove any license within a Pole License Application when the subject Pole would involve above-ground equipment (other than the antenna and any required electric meter) in a residential district or in close proximity to a Attachment B 23 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 17 residential use. In addition, the City may disapprove any Pole License application if it finds in its sole discretion that it is contrary to the City’s Small Cell Policy and any other law in effect at that time as limited by the FCC or applicable law.
6.4 Preexisting Licensee Equipment
Notwithstanding the Pole License Application procedures and requirements in this Section 6, following the Effective Date of this Master License City shall issue Pole Licenses for Licensee Equipment already in place as of the Effective Date (as depicted and set forth in Exhibit B) pursuant to the ROW Agreement without having to submit a Pole License Application. All other terms and conditions of this Master License shall apply to such Pole Licenses including, but not limited to, the License Fee and subsequent annual adjustments of Section 4.1; the insurance requirements of Section 19; and the performance bond requirements of Section 23. Prior to issuance of the new Pole License for the Equipment identified on Exhibit B, Licensee shall provide evidence of either extended performance bonds under the ROW Agreement or new performance bonds under this Master License.
7. EQUIPMENT INSTALLATION
7.1. Approved Plans and Equipment Specifications
Licensee must submit complete plans and equipment specifications as Exhibit A-2 to any Pole License Application, which must include without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage, concealment elements and other improvements proposed in connection with the License Area. Licensee acknowledges that Exhibit A-2 to any approved Pole License will be deemed to be the “Approved Plans” and that Licensee will be permitted to install only the Equipment and other improvements shown on such Approved Plans.
7.1.1. Site Identification Required
On each licensed Pole, Licensee must install one identification plate in strict compliance with the size, material, form and substance as shown on the Approved Plans. The identification plate must include Licensee’s corporate name and telephone number at which Licensee’s On-Call Representative can be reached at all times (twenty-four (24) hours per day and seven (7) days per week). Licensee must replace the identification plate in the event that any information on such plate changes, including the contact name.
7.1.2. Corrections to Approved Plans
Licensee shall have the obligation to correct any errors or omissions in any Approved Plans and related Regulatory Approvals. Licensee shall immediately send written notice to the City in the event that Licensee discovers any such defects. Any Approved Plans and/or amendments to Approved Plans by the City will not release or excuse Licensee’s obligations under this Section
7.1.2. 7.2. Prior Regulatory Approvals Required
Licensee shall not commence any installation, construction and other work on or about the License Area until and unless Licensee obtains all necessary prior Regulatory Approvals which includes without limitation any approvals required to provide the services offered by Licensee either to the public or Licensee’s customers within the geographic area that encompasses the City’s territorial and/or jurisdictional boundaries, and any required use permits, design review permits, encroachment permits, building permits, grading permits and electrical permits. Any installation, construction or other work performed by Licensee or its Agents or Invitees without such Regulatory Approvals will be a default under this Master License in addition to any other Attachment B 24 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 18 liabilities or penalties the City, in its regulatory capacity, may impose on Licensee for the same acts or omissions
7.3. Installation; Strict Compliance with Approved Plans Licensee shall not commence any work at the License Area until the City provides Licensee with the Acknowledgement Letter or an equivalent letter to confirm the Commencement Date.
Licensee shall perform all work in connection with the License Area in strict compliance with the Approved Plans and in a diligent, skillful and workmanlike manner. All installed Equipment must be high quality, safe, and fire resistant, all as approved by the City. After any work at the License Area concludes, Licensee shall restore the License Area and any other City Property to the condition that existed immediately prior to the work commenced unless otherwise indicated in Approved Plans.
7.3.1. Alterations to City’s Property
Licensee shall not remove, damage or in any manner alter any City Property without prior written consent from the City. The City may withhold its consent in its sole and absolute discretion, and may reasonably condition its consent in each instance based on scope and nature of the proposed alterations. Licensee shall immediately notify the City if any removal, damage or other alteration occurs to City Property for any reason and through any cause.
7.3.2. Licensee’s Contractors
Licensee and all of its contractors shall obtain all necessary licenses and registrations, including without limitation Contractor State Licensing Board licenses, Department of Industrial Relations, and a City of Del Mar Business License, prior to performing work on or about the License Area.
Licensee shall use only qualified and trained persons and appropriately licensed contractors for all work performed on or about the License Area. Licensee shall give the City at least ten (10) days’ prior written notice of commencement of any construction or installation on any part of the License Area except for minor and routine repair and maintenance of Licensee’s Equipment. At least five (5) business days before any work commences on or about the License Area, Licensee shall provide the City with: (1) a schedule with all activities to be performed in connection with the work; and (2) a list with all the names, contractor’s license numbers and business addresses for all contractors who will perform the work. The use of City property may require that the Licensee follow all California labor laws, including the payment of prevailing wages, apprenticeship requirements, and other workforce policies. The Licensee agrees to indemnify and hold harmless the City should the Licensee fail to adhere to any required California labor or workforce laws and this indemnity and hold harmless provision is an addition to the other indemnities obligations contained in this Master License.
7.3.3. Underground Service Alert
Licensee warrants and represents to City that Licensee is presently a member in good standing with the Underground Service Alert of Southern California (“DigAlert”). Licensee shall maintain and keep current its membership in DigAlert throughout the Term. Prior to any excavation performed in the Streets, Licensee shall observe and perform all notice and other obligations required under applicable Laws, which includes, without limitation, California Government Code §§ 4216 et seq., as may be amended or superseded.
7.3.4. Damage and Repairs to Subsurface Structures
Any excavation performed in the Streets must be monitored by Licensee for any lateral movement, trench failures and other similar hazards. Licensee shall, at Licensee’s sole cost and expense, repair any damage (which includes without limitation any subsidence, cracking, Attachment B 25 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 19 erosion, collapse, weakening and/or any loss or reduction in lateral or subjacent support) to the Streets, any adjacent private property, any utility lines or systems (whether overhead or underground) and any sewer and/or water lines or systems resulting from or in connection with any excavation by Licensee or its Agents. All repair or restoration work performed pursuant to this Section 7.3.4 shall be performed under the City Engineer’s (or his or her designee’s) supervision and to the City Engineer’s (or his or her designee’s) satisfaction.
7.4. Labor and Materials Costs
Licensee shall be responsible for all direct and indirect costs (labor, materials, and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation, which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigation measures that arise from Licensee’s proposed installation. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use or furnished to the License Area at Licensee’s direction or for Licensee’s benefit in accordance with state and federal law.
7.5. Project Managers
The City and Licensee each designate the person listed in this Section 7.5 as its project manager to coordinate Licensee’s Equipment design and installation, and serve as each party’s respective primary contact person for all design, engineering, construction and installation issues that may arise between the parties in connection with this Master License.
City’s Project Manager:
City of Del Mar, City Manager’s Office
Clem Brown, Environmental Sustainability & Special Projects Mgr. 1050 Camino Del Mar, Del Mar, CA 92014
(858) 375-9524; [email protected]
Licensee’s Project Manager:
Crown Castle
Elton Stolze, Senior Network Real Estate
10301 Manley Drive, Suite 200, San Diego, CA 92131
(925) 737-1008; Email: [email protected]
With Copies to:
Crown Castle Network Operation Center
1-888-632-0931 or [email protected]
Licensee acknowledges that the City’s project manager is not exclusively assigned to this Master License, and that the City’s project manager may not always be immediately available to Licensee or its project manager. Licensee further acknowledges that the authority delegated by the City to the City’s project manager is limited to the administration of this Master License, any Pole License Applications and any approved Pole Licenses. Processing of the Pole License Applications will be handled by the City’s Planning and Community Development Department, not the City’s project manager. The parties’ respective project managers will have no obligation to perform any term or covenant to be performed by the other party under this Master License.
Notices to the parties’ respective project managers alone will not be deemed effective notice for any purpose under this Master License. The parties may designate a new project manager from time-to-time by written notice to the other party.
Attachment B 26 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 20
7.6. Coordination with the City
Licensee must coordinate all its installation, construction and other non-maintenance or emergency work on or about the License Area with the City so as to avoid any interference (physical, electronic or otherwise) with any existing utilities, substructures, facilities, City Property and the City’s municipal operations.
7.7. Post-Completion Inspections
Within five (5) days after Licensee completes any Equipment construction, installation or other installation work that requires an inspection, Licensee shall provide the City with a written notice that confirms the precise locations and dates on which the Licensee completed the work. The City shall have the right to inspect Licensee’s Equipment at any time after Licensee completes any construction, installation or other work in connection with this Master License or any Pole License.
If the City discovers any defects or non-compliant conditions in connection with the Equipment, Licensee shall, at Licensee’s sole cost and expense, correct any such defects and conditions within fifteen (15) days after written notice from the City. Licensee shall promptly reimburse the City for all costs incurred in connection with any inspections or re-inspections by the City where a material defect or non-compliant condition is assessed. Such period may be extended by the City at its discretion where additional time is reasonably required to complete the necessary work.
Licensee shall promptly reimburse the City for all costs incurred in connection with any inspections or re-inspections by the City. The City’s final inspection will occur after: (1) all surface improvements have been restored; (2) all construction debris, excess materials, traffic control devises, and equipment have been removed; and (3) the site has been cleaned and rendered safe for pedestrian and vehicular traffic by the City Engineer (or his or her designee). Any work performed by Licensee without an inspection is subject to rejection and removal by the City in accordance with Section 24 (Surrender of License Area).
7.8. As-Built Plans and Maps
Within thirty (30) days after the City issues a certificate of completion, Licensee shall file as-built plans and maps in a format specified by the City Engineer (or his or her designee). In addition to any format required by the City Engineer (or his or her designee), all as-built plans and maps shall include digital copies in a native format compatible with the City’s document management, GIS and/or other digital information management systems. Licensee’s as-built plans and maps must show the accurate location and dimensions for all Equipment. The City shall have the right to reject any as-built plans or maps for cause, in which case Licensee shall file revised as-built plans and/or maps within thirty (30) days after notice from the City. The City shall have the right to incorporate the as-built plans for the then-current description of the License Area in Exhibit A-1 and/or the then-current Approved Plans in Exhibit A-2.
7.9. Title to Licensee’s Equipment and Other Improvements Except as specifically provided otherwise in this Master License, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents or Invitees will be and remain at all times Licensee’s personal property. All structural improvements to any Pole, any replacement Pole and any underground fiber optic cables, all as approved by the City and shown in the Approved Plans, will become City Property and remain should Licensee vacate or abandon such License Area, unless the City elects in a written notice to Licensee that it does not wish to take title to such structural improvements, in which case Licensee shall remove such improvements at its sole cost and in a manner acceptable to City, and shall restore all affected areas by such removal to a condition compliant with all applicable Laws. Subject to Section 24 (Surrender of LicenseArea), Licensee may remove its Equipment from the License Area at any time after thirty (30) days’ written notice to the City.
Attachment B 27 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 21
7.10 Equipment Modifications
If, after the initial construction, installation or other installation work is completed, Licensee proposes to modify existing Equipment or install new equipment on the existing License Area, and such proposal is different in any material way from the specifications or design configurations shown in the Approved Plans, then Licensee shall first obtain the City’s consent to modify this Master License or the affected Pole License to reflect the material difference, which the City shall approve or deny in accordance with the City’s small cell design standards and/or other applicable Laws (if any). Without the requirement of obtaining the City’s prior consent, Licensee shall have the right to (a) perform routine maintenance, testing and repair of any Equipment installed on a Vertical Infrastructure approved for use by the City pursuant to this Master License, and (b) perform “like-for-like” replacements of Equipment so long as (i) any such “like-for-like” replacement does not alter the visible aesthetic appearance of the installed Equipment, and (ii) the resulting installation does not (A) result in an increase in the size of the License Area, (B) materially increase the weight, size or structural loading of Licensee’s Equipment or on the applicable Vertical Infrastructure beyond the loading or utilization, if any, that was established as of the Effective Date of this Master License or any subsequent City approval of Licensee’s Equipment for which City’s prior written consent was required, as the case may be; (c) will be in compliance with applicable Laws (such as radio-frequency emission standards); and (d) does not cause any interference with any municipal functions or equipment. In any case, Licensee’s modification shall be performed in compliance with all applicable provisions in this Master License, which includes, without limitation Licensee’s obligation to obtain and pay for all Regulatory Approvals required for the proposed modification.
8. PUBLIC WORKS OPERATIONS
8.1. City’s Access to License Areas
Except as specifically provided otherwise in this Master License, the City and its Agents have the right to access any License Area in whole or in part at any time without notice for any purpose.
The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City’s or its Agents’ access to the License Area, which includes any Equipment removed in an emergency or other exigent circumstances pursuant to Section 8.4 (Emergencies), except to the extent that the damage arises directly and exclusively from the negligence or willful misconduct of the City or itsAgents and not contributed to by the acts, omissions or negligence of Licensee, its Agents or Invitees. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City’s or its Agents’ negligence.
8.2. Repairs, Maintenance and Alterations to Poles
The City and/or the City’s Public Works Department will: (1) maintain and repair Poles as needed, in its sole judgment, for its streetlight operations and other municipal functions; and (2) correct any immediately hazardous condition. If City requires the termination of electrical service to the Equipment in order to maintain or repair any Poles, the City shall inform Licensee at the telephone number provided in section 7.5 and the parties shall coordinate in good faith to determine suitable dates and times to complete such actions. If City requires the termination of electrical service to the Equipment in order to correct any immediately hazardous condition, Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment. If City uses Licensee’s emergency shut-off switch, City will notify Licensee at the telephone number provided in section 7.5. Except as provided in Section 26 (Termination), and excluding conditions that arise from the City’s or its Agents’ sole negligence or willful misconduct, neither any City work on any Pole nor any condition on any Pole will: (1) entitle Licensee to any damages; (2) excuse or reduce any obligation by Licensee to pay any Attachment B 28 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 22 License Fees or Additional Fees or perform any covenant under this Master License; or (3) constitute or be construed as a constructive termination of this Master License or any Pole License.
8.3. Repairs, Maintenance and Alterations to License Areas The City may, at any time, alter, add to, repair, remove from and/or improve the License Area in whole or in part for any operational purpose, which includes without limitation maintenance and improvements in connection with street light services and compliance with Laws; provided, however, (1) the City makes a good-faith effort to provide notice to Licensee’s On-Call Representative; (2) the City allows Licensee’s representative to observe the City’s work; and (3) the City takes reasonable steps not to disrupt Licensee’s ordinary operations on the License Area. If City requires the termination of electrical service to the Equipment in order to alter, add to, remove from, and/orimprove the License Area, the City shall inform Licensee at the telephone number provided in section 7.5 and the parties shall coordinate in good faith to determine suitable dates and times to complete such actions. The provisions in this Section 8.3 will not be construed to allow Licensee’s ordinary operations to impede or delay the City’s authority and ability to make changes to the License Areas necessary to maintain streetlight services.
8.4. Emergencies
In emergencies, the City’s work will take precedence over Licensee’s operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole determination and in accordance with this Section 8.4, whether the City has notified Licensee of such emergency or other exigent circumstances or not. When safe and practicable, the City will notify Licensee of any emergency or other exigent circumstances that requires the City to remove or replace any Pole and will allow Licensee to remove its Equipment before the City removes or replaces the Pole; provided, however, that the City will remove the Equipment from the Pole when in the City’s sole determination it would: (1) be unsafe or not practicable to wait for Licensee to perform the work; (2) cause significant delay; or (3) otherwise threaten or compromise public safety or public services. In order to allow City to remove Equipment under this section, Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment.
If City uses Licensee’s emergency shut- off switch, City will notify Licensee at the telephone number provided in section 7.5. The City will remove any Equipment with reasonable care and store the Equipment for retrieval by Licensee. Licensee shall have the right to reinstall such removed Equipment or equivalent Equipment at Licensee’s sole expense on the repaired or replaced Pole and in accordance with Section 7 (Equipment Installation). The City’s removal of Licensee’s Equipment in emergencies or other exigent circumstances will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee’s contractual privilege to use the License Area.
9. LICENSEE’S MAINTENANCE OBLIGATIONS
9.1. Damage to Poles
9.1.1. Notice to the City
Licensee shall promptly notify the City if Licensee discovers any damage or other alteration to the Streets, any City Property or any personal or real property owned by third parties for any reason and through any cause. Notices shall contain the following information to the extent available at the time Licensee sends the notice: (a) the location where the event occurred; (b) a statement to describe the damage or other alteration and the surrounding circumstances; (c) the names and contact information for any persons or entities involved in the matter, as well as the names and contact information for any potential Attachment B 29 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 23 witnesses to the damage or other alteration, if any; and (d) any other pertinent information. Licensee will not be deemed to have assumed liability for any for any such damage or other alteration by giving such notice, unless and until such damage or other alteration are found to have been caused by or arisen in connection with the acts, omissions, negligence, or willful misconduct of Licensee or its Agents or Invitees. Failure to provide such notice will be a material default under this Master License.
9.1.2. Damage Caused by Licensee
In the event that Licensee or its Agents or Invitees directly or indirectly caused such damage or other alterations to any Pole, the Streets, any City Property or any personal or real property owned by third parties, Licensee shall, at its sole cost and expense, repair such damage or other alteration and restore the affected property to the condition that existed immediately before the damage or other alteration occurred, reasonable wear and tear excepted. If Licensee fails or refuses to perform its obligations under this Section 9.1.2 within fifteen (15) days after written notice from the City, the City may (but will not be obligated to) cause the repair and restoration to be performed at Licensee’s sole cost and expense. The City may exercise its rights to perform Licensee’s obligations under this Section 9.1.2 without prior notice to Licensee when the City Engineer determines that the repair and/or restoration is immediately necessary to protect public health or safety. Licensee shall reimburse the City for all costs and expenses in connection with such work within thirty (30) days after a written demand for reimbursement and reasonable documentation to support such costs. In addition, Licensee shall indemnify, defend and hold any and all Indemnified City Parties harmless from and against any Claims in connection with such performance by the City. The aforementioned fifteen (15) day cure period may be extended to a date certain if the City agrees the cure reasonably requires more time.
9.1.3. No Right to Repair
Absent notice from the City with a demand to cure any damage to a Pole, Licensee is not authorized to make any repairs to any Pole. Licensee expressly waives all rights it may have under any applicable Laws to make repairs at the City’s expense.
9.2. Equipment Maintenance
Licensee shall maintain all Equipment installed on, under, over, in or about the License Area in good, safe and orderly condition at all times, and shall promptly repair any damage to any Equipment whenever repair or maintenance may be required, subject to any Regulatory Approvals if required for such maintenance work. All work performed by or for Licensee under this Section 9.2 shall be performed: (a) in accordance with the terms and conditions in this License; (b) at Licensee’s sole cost and expense, and at no cost to the City; (c) by only qualified, trained, experienced and appropriately licensed contractors or Licensee’s Agents or other personnel; (d) in a manner and with equipment and materials that will not interfere with or impair the City’s municipal operations on or about the License Area; (e) in a safe, diligent, skillful and workmanlike manner; and (f) in compliance with all applicable Laws, which includes without limitation all applicable provisions in the Del Mar Municipal Code and any conditions in any applicable Regulatory Approval(s).
9.3. Graffiti Abatement
Licensee’s repair and maintenance obligation includes the removal of any graffiti from the License Area within seven (7) days after the City notifies Licensee in writing.
9.4. Standard of Work
For all work performed by or for Licensee under this Section 9, Licensee shall be: (1) at Licensee’s sole cost and expense; (2) performed only qualified and trained persons and appropriately Attachment B 30 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 24 licensed contractors; (3) performed in a manner and with equipment and materials that will not interfere with or impair the City’s operations; and (4) compliant with all applicable Laws including California labor and workforce laws.
9.5. Inspections
At least once in every License Year, Licensee shall perform an inspection of all Equipment. Upon the City’s written request, Licensee shall furnish, within thirty 30 days, a written report to the City on the condition of such Equipment that includes, without limitation, any identified concerns and corrective action taken or planned to be taken. In the event that Licensee’s inspection reveals any maintenance concerns in connection with any Pole or any other City Property, Licensee shall promptly notify the City.
10. LIENS
Licensee shall keep the License Area free and clear from any and all liens in connection with any work performed, material furnished or obligations incurred by or for Licensee. Licensee shall inform each and every contractor and material supplier that provides any work, service, equipment or material to Licensee in any way connected with Licensee’s use of the License Area that the License Area is public property and is not subject to mechanics’ liens or stop notices for Equipment or other materials or services provided for Licensee’s Equipment. If Licensee does not bond over or otherwise cause the release of lien of a mechanic’s lien or stop notice by any contractor, service provider or equipment or material supplier purporting to attach to the License Area or other City Property within thirty (30) days after receipt of written notice or discovery of the lien, the City will have the right, but not the obligation, to cause the same to be released by any means it deems proper, including payment of the Claim giving rise to such lien. Licensee must reimburse the City for all expenses it incurs in connection with any such lien (including reasonable attorneys’ fees) within thirty (30) days following receipt of the City’s demand together with copies of invoices or other evidence to document the costs incurred. Licensee shall give the City at least ten (10) days’ prior notice of commencement of any construction or installation on any part of the License Area except for minor and routine repair and maintenance of Licensee’s Equipment. Licensee shall not create, permit, or suffer any other encumbrances affecting any portion of the LicenseArea.
11. UTILITIES
Licensee shall be responsible to secure its own utility services for its Permitted Use and shall not be permitted to use or sub meter from any electrical service provided to the City on any Pole without the City’s prior written consent. The City may, in its sole and absolute discretion, permit License to connect to or sub meter from any electrical service provided to the City on any Pole not subject to a flat rate from the City’s electrical service provider. Licensee shall timely pay when due all charges for all utilities furnished to its Equipment on the License Area as required by law.
Any interconnection between the City’s and Licensee’s electrical facilities permitted by City shall be accomplished in compliance with all applicable Laws and all utility service providers’ policies for such interconnection and shall not compromise the City’s then-existing tariff rates.
12. TAXES AND ASSESSMENTS
12.1. Possessory Interest Taxes
Licensee understands and acknowledges that this Master License may create a possessory interest subject to taxation and that Licensee will be required to pay any such possessory interest taxes. Licensee further understands and acknowledges that any sublicense or assignment permitted under this Master License and any exercised options to renew or extend this Master License may constitute a change in ownership for taxation purposes and therefore result in a Attachment B 31 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 25 revaluation for any possessory interest created under this Master License.
12.2. Licensee’s Tax Obligations
Licensee agrees to pay when due and prior to delinquency any and all taxes, assessments, charges, excises and exactions whatsoever, including without limitation any possessory interest taxes, that arise from or in connection with Licensee’s use within the License Area or Licensee’s Equipment that may be imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any taxes assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee’s Equipment. In the event that the City receives any tax or assessment notices on or in connection with the License Area or Licensee’s Equipment, the City shall promptly (but in no event later than thirty (30) calendar days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Licensee’sEquipment.
13. COMPLIANCE WITH LAWS
13.1. Compliance with Current and Future Laws
Licensee shall install, operate, and maintain the Equipment, and shall perform all work in connection with such installation, operation and maintenance, in strict compliance with all applicable Laws (including labor laws) and all conditions in any Regulatory Approvals issued in connection with the Equipment or its installation and operation on any Pole, except to the extent such compliance is prohibited by or inconsistent with federal, state, or local law. The parties agree that Licensee’s obligation to comply with all Laws is a material part of the bargained-for consideration under this Master License, irrespective of the degree to which such compliance may interfere with Licensee’s use or enjoyment of the License Area, the likelihood that the parties contemplated the particular Law involved and whether the Law involved is related to Licensee’s particular use of the License Area. No occurrence or situation arising during the Term arising under any current or future Law, whether foreseen or unforeseen and however extraordinary, will relieve Licensee from its obligations under this Master License or give Licensee any right to terminate this Master License or any Pole License in whole or in part or to otherwise seek redress against the City.
Licensee, when seeking approvals from the City for installation of Equipment on its Poles, shall comply with all City rules and regulations including, but not limited to, the City’s Small Cell Policy (see Exhibit A-5), except to the extent such Policy conflicts with federal, state, or local law.
Should there be a conflict between a City ordinance or policy and applicable state, or federal law, federal law and corresponding regulations shall control where federal preemption exists.
13.2. FCC 2018 Order
Licensee acknowledges that: (a) the City is compelled by applicable Laws, which includes without limitation the Federal Communications Commission’s Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018 (“FCC 2018 Order”), as subsequently clarified, to accept certain cost-based rates and compensation; (b) but for such Laws, the City would be entitled to condition its assent to any lease, license or other agreement for attachments to its Vertical Infrastructure (such as this License) on consideration that exceed the City’s costs; and (c) but for such Laws, the City would not assent to all the terms and conditions in this License.
Licensee further acknowledges that, in the event the FCC 2018 Order is reversed, repealed, invalidated, no longer effective or otherwise not applicable to the City in a final and unappealable order of the FCC or a court of competent jurisdiction (“Reversal Decision”), and no legal or regulatory requirement exists that would constrain or otherwise limit the price that Licensor may charge (either on the effective date of the Reversal Decision or at any time thereafter during the Term of this Master License), the annual License Fee shall be OneThousand Hundred and 00/100 Attachment B 32 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 26 Dollars ($1,000.00) (“Alternate License Fee”), subject to the Annual License Fee Adjustments identified in Section 4.1.4. The Alternate License Fee shall apply as of the License Fee due after the date the Reversal Decision is issued or the Reversal Decision is effective. If any New Law is adopted after the effective date of a Reversal Decision, the Alternate License Fee shall be adjusted to comply with New Law effective with the next License Fee payment that is due after the date such New Law is effective.
13.3. Licensee’s Personnel
13.3.1. Personnel Training and Certification
Licensee shall ensure that all persons who install, operate or maintain the Equipment are appropriately trained and licensed by the California State Contractors Licensing Board as required under applicable CPUC rules and regulations. Licensee shall ensure that such persons are trained in and observe all safety requirements established by the City, the CPUC and the California Division of Occupational Safety and Health, Department of Industrial Relations, which includes without limitation site orientation, tag- out and lock-out de-energization rules, ladder and lift restrictions and track and street right-of-way safety requirements.
13.3.2. Licensee’s Indemnification for Personnel Injuries Licensee acknowledges that: (1) the City has delegated to Licensee control over the License Area at any time in which Licensee or its Agents are installing, operating or maintaining the Equipment; and (2) the City is not a co-employer of any employee of Licensee or any employee of Licensee’s Agents, and the City shall not be liable for any Claim by Licensee’s or its Agent’s employee(s).
Except as caused by Licensor’s sole negligence or willful misconduct, Licensee agrees to fully indemnify, defend and hold the City harmless in the same manner as provided in Section 18 (Licensee’s Indemnification Obligations) against any Claim by any employee of Licensee or its Agents that arises in connection with Licensee’s or its Agents’ access, uses or other activities on or about the License Area.
13.4. Compliance with CPUC GO 95
Licensee shall conduct all activities on the License Area in accordance with CPUC General Order 95 and the rules and other requirements enacted by the CPUC under that General Order, as applicable and as amended.
13.5. Compliance with Building and Electric Codes
Licensee shall conduct all activities on the License Area in accordance with the requirements of all applicable codes and regulations related to building and construction safety, which includes without limitation the California Building Code, the California Electric Code, National Electric Safety Code IEEE C2 (the “NESC”) and any applicable local building electrical code, as those codes exist now or may be amended in the future. To the extent that CPUC General Order 95 does not address cellular telephone antenna installations on Poles carrying electrical lines, Licensee shall apply applicable provisions of the NESC, with particular attention to paragraphs 224, 235C, 235F, 238, 239 and 239H and sections 22, 41 and 44. Where any conflict exists between the California Building Code, the NESC, the California Electric Code, any local code and CPUC General Order 128, the more stringent requirements will apply, as determined by the City.
13.6. Compliance with RF Exposure Regulations
Licensee’s obligation to comply with all Laws includes all Laws related to maximum permissible exposure to RF or EMF emissions on or about the License Area, which includes all applicable FCC standards, whether such RF or EMF emissions or exposure results from Licensee’s Attachment B 33 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 27 Equipment alone or from the cumulative effect of Licensee’s Equipment added to all other sources on or near the License Area.
14. DAMAGE OR DESTRUCTION
14.1. City’s Rights After Damage or Destruction
In the event the License Area in whole or in part becomes damaged due to any cause, the City will have no obligation whatsoever to repair or replace the damaged License Area, in the City’s sole and absolute discretion. Without limiting such discretion, City may elect to take any of the following actions:
14.1.1. Election to Repair or Replace Damaged Pole
Within approximately thirty (30) days after the date on which the City discovers damage or destruction of a Pole licensed to Licensee, the City will give Licensee notice of the City’s decision whether to repair or replace the damaged Pole and its good faith estimate of the amount of time the City will need to complete the work. If the City cannot complete the work within thirty (30) days after the date that the City specifies in its notice, or if the City elects not to do the work, then Licensee will have the right to terminate the affected Pole License on thirty (30) days’ written notice to the City.
14.1.2. Election to Remove Damaged Pole
If the City elects to remove, rather than repair or replace, a damaged Pole licensed to Licensee, then the applicable Pole License will automatically terminate on the last day of the month in which the removal occurs.
14.1.3. Election to Remove Equipment from Damaged Pole
If the acts of third parties or an act of nature or otherforce majeure circumstance outside the control of Licensee or its Agents or Invitees destroys or damages any Pole to such an extent that, in the City’s reasonable determination, the Equipment on the Pole cannot be operated in a safe manner, the City may decide to terminate the affected Pole License on thirty (30) day’s written notice to Licensee and require Licensee to remove the Equipment from the damaged Pole before the termination date specified in the City’s notice.
14.2. Licensee’s Rights upon Termination
After the City terminates a Pole License pursuant to Section 14.1 (City’s Rights After Damage or Destruction), the City will: (1) refund any pre-paid License Fee in connection with the terminated Pole License on a pro-rata basis determined by the number of months left in the current License Year at the time such termination occurs, subject to the Minimum Term as defined in Section 3.2 (Pole License Term) in this Master License; and (2) use good faith efforts to allow that Licensee apply for a reasonably equivalent alternative pole within the same vicinity and prioritize Licensee’s request for a substantially similar license on such Pole as a replacement for the Pole License; or (3) take no action whatsoever. In no event shall City be required to install a new replacement pole if no reasonably equivalent alternative exists.
14.3. Waiver of Statutory Rights
The parties understand, acknowledge and agree that this Master License fully governs their rights and obligations in the event that any the License Area or any licensed Poles become damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases the provisions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws.
Attachment B 34 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 28
15. CONDEMNATION
15.1. Permanent Takings
In the event that any entity with the power to condemn permanently takes any License Area in whole or in part, or in the event that the City transfers any License Area in whole or in part to such entity in lieu of eminent domain, the following provisions will apply:
15.1.1. Termination
Any affected Pole License will automatically terminate as to the part taken or transferred on the date the permanent taking or transfer occurs, and the License Fee under the affected Pole License will be ratably reduced to account for the reduction in License Area.
15.1.2. Award
The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against the City for the value of any unexpired Term of any Pole License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee’s loss or damage to Licensee’s Equipment.
15.1.3. No Statutory Right to Terminate
The parties understand, acknowledge and agree that this Section 15.1 (Permanent Takings) is intended to fully govern the parties’ rights and obligations in the event of a permanent taking.
Licensee and the City each hereby waives and releases any right to terminate this Master License in whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and under any similar Laws to the extent applicable to this Master License.
15.2. Temporary Takings
Any taking that affects any License Area in whole or in part for less than ninety (90) days will have no effect on the affected Pole License, except that Licensee will be entitled to a pro-rata abatement in the applicable License Fee to the extent that such temporary taking materially impairs Licensee’s use of the License Area. Furthermore, in the event that the City receives an award, if any, in connection with such temporary taking, Licensee will receive the portion from the award that represents compensation for the use or occupancy of the License Area during the Term but not to exceed the License Fees and Additional Fees payable by Licensee for the period of the taking, and the City will retain the balance of the award.
16. ASSIGNMENT AND OTHER TRANSFERS
16.1. General Restriction
Except as specifically provided in Section 16.3 (Permitted Assignments), Licensee shall not directly or indirectly assign its interests or rights, whether in whole or in part, in connection with this Master License, any Pole License or the License Area without the City’s prior written consent. The City shall not unreasonably withhold its consent to any proposed Assignment; provided, however, that the parties acknowledge that the City may reasonably withhold its consent to any proposed Assignment at any time in which any monetary or other material default by Licensee under this Master License remains uncured.
16.2. Proposed Assignment Procedures
16.2.1. Proposed Assignment Notice
Attachment B 35 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 29 In the event that Licensee desires to Assign its interests or rights, whether in whole or in part, in connection with this Master License, any Pole License or the License Area, Licensee shall first send written notice (the “Proposed Assignment Notice”) to the City, which states in detail the proposed terms and conditions for the Assignment and complete information, which includes without limitation financial statements, business track records, references and other information about the proposed assignee (the “Proposed Assignee”) that the City reasonably requires to fully evaluate Licensee’s request and render an informed decision. In the event that Licensee does not provide all the such information simultaneously with the Proposed Assignment Notice, the Proposed Assignment Notice shall not be deemed effective until Licensee delivers all such information as the City may reasonably require.
16.2.2. City Response
The City shall approve or disapprove any request for consent to an Assignment within thirty (30) days after the City receives a complete Proposed Assignment Notice, or thirty (30) days after the deemed-effective date if Licensee delivers an incomplete Proposed Assignment Notice as described in Section 16.2.1 (Proposed Assignment Notice) (in either case, the “Assignment Response Period”). If the City fails to respond within the Assignment Response Period, the request for consent will be deemed disapproved. If the City delivers to Licensee written consent to the proposed Assignment, then Licensee shall have one hundred eighty (180) days from such written consent to complete the Assignment. The City’s consent will be deemed revoked if Licensee fails to complete the proposed Assignment within the one hundred eighty (180) day period; provided, however, that the one hundred eighty (180) day period may be extended to a date certain in a written agreement, which the City shall not unreasonably refuse.
16.3. Permitted Assignments
16.3.1. Definition
The City agrees that Licensee will be permitted to enter into an Assignment of this Master License and Pole Licenses issued under it (a “Permitted Assignment”), without the City’s prior consent but with notice to the City as provided below, to: (i) Licensee’s parent; (ii) Licensee’s subsidiary; (iii) an entity that acquires all or substantially all of Licensee’s assets in the market in which the License Area is located (as the market is defined by the FCC under an order or directive of the FCC; (iv) an entity that acquires Licensee by a change of stock ownership or partnership interest; or (v) an entity Controlled by Licensee or that, with Licensee, is under the Common Control of a third party.
16.3.2. Conditions
A Permitted Assignment is subject to all the following conditions: (a) the Assignee uses the License Area only for the Permitted Use and holds all Regulatory Approvals necessary to lawfully install, operate, and maintain Equipment on the License Area; (b) Licensee provides the City with notice thirty (30) days before the effective date of Permitted Assignment, stating the contact information for the proposed Assignee and providing financial information establishing that the proposed Assignee has the capital and fiscal qualifications greater than or equal to Licensee’s; and (c) Licensee is in good standing under this Master License.
16.4. Effect of Assignment
No Assignment by Licensee, consent to Assignment by the City, or Permitted Assignment under Section 16.3 (Permitted Assignments) will relieve Licensee of any obligation on its part under this Master License, unless expressly provided in a writing signed by the City. Any Assignment that is not in compliance with this Article will be void and be a material default by Licensee under Attachment B 36 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 30 this Master License without arequirement for notice and a right to cure. The City’s acceptance of any License Fee, Additional Fee, or other payments from a proposed Assignee will not be deemed to be the City’s consent to such Assignment, recognition of any Assignee, or waiver of any failure of Licensee or other transferor to comply with this Section 16.
16.5. Assumption by Transferee
Each Assignee shall assume all obligations of Licensee under this Master License and each assigned Pole License and will be and remain liable jointly and severally with Licensee for all obligations to be performed by Licensee. No Assignment will be binding on the City unless Licensee or the Assignee delivers to the City evidence satisfactory to the City that the Assignee has obtained all Regulatory Approvals required to operate as a wireless telecommunications service provider on the assigned License Area, a copy of the Assignment agreement (or other document reasonably satisfactory to the City in the event of a Permitted Assignment under Section 16.3 (Permitted Assignments)), and an instrument in recordable form that contains a covenant of assumption by such Assignee satisfactory in substance and form to the City, consistent with the requirements of this Article. However, the failure or refusal of an Assignee to execute such instrument of assumption will not release such Assignee from its liability as set forth in this Section. Except for a Permitted Assignment as provided in Section16.3 (Permitted Assignments), Licensee shall reimburse the City on demand for any reasonable costs that the City incurs in connection with any proposed Assignment, including the costs of investigating the acceptability of the proposed Assignee and legal costs incurred in connection with considering any requested consent. The City agrees that its right to reimbursement under this Section during the Term will be limited to Two Thousand Dollars and 00/100 ($2,000.00) for each request.
16.6 Licensee’s Customers
Licensee may provide capacity to third-party wireless carrier customers (“Customers”) using, or permit such Customers to use, the Equipment installed by Licensee without the City's consent required in this Section. Such Customer usage or equipment shall be treated as Licensee’s Equipment for all purposes under this Master License and any Pole License. The City’s sole point of contact regarding such Equipment shall be Licensee. A Customer’s ownership and/or operation of such Equipment shall not constitute an assignment under this Master License, provided that Licensee shall not actually or purport to sell, assign, encumber, pledge, or otherwise transfer any part of its interest in this Master License, any Pole License or License Area to a Customer, or otherwise permit any portion of the License Area to be occupied by anyone other than Licensee. Licensee shall remain solely responsible for such Equipment and liable for the performance of all obligations under this Master License with respect to any Equipment owned and/or operated by a Customer. As an illustration and not a limitation, the obligations in Section 18 (Licensee’s Indemnification and Defense Obligations) and Section 19 (Insurance) shall apply to any acts or omissions by a Customer in connection with this Master License, any Pole License and/or any Equipment. This Master License or any Pole License shall not be construed to give any third party, which includes without limitation Customers or any other potential third-party beneficiaries, any right, title or interest in this Master License, any Pole License or the real or personal property(ies) that may be affected by the same.
17. DEFAULT
17.1. Events of Default by Licensee
Any of the following will constitute an event of default by Licensee under this Master License and any Pole Licenses issued under it: (1) Licensee fails to pay any sums due to the City within ten (10) days after written notice from the City; (2) Licensee fails to perform or comply with any other obligation or representation made under this Master License, fails to conform to City approvals, or permit conditions, and if the failure continues for ten (10) days after the date of written notice Attachment B 37 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 31 from the City, or, if such default is not capable of cure within the thirty (30) day period, Licensee fails to promptly undertake action to cure such default within such thirty (30) day period and thereafter fails to use its best efforts to complete such cure within ten (10) days after the City’s notice; (3) Licensee removes its Equipment or abandons the License Area for a continuous period of more than thirty (30) days without prior written approval, such that the License Area is longer being used for the Permitted Use; or (4) any of the following occurs: (i) the appointment of a receiver due to Licensee’s insolvency to take possession of all or substantially all of the assets of Licensee; (ii) an assignment by Licensee for the benefit of creditors; or (iii) any action taken by or against Licensee under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief Laws, if any such receiver, assignment, or action is not released, discharged, dismissed, or vacated within sixty (60) days.
17.2. City’s Remedies
In addition to all other rights and remedies available to the City at law or in equity, the City will have the following remedies following the occurrence of an event of default by Licensee.
17.2.1. License Continuation
Without prejudice to its right to other remedies, the City may continue this Master License and applicable Pole Licenses in effect, with the right to enforce all of its rights and remedies, including the right to payment of License Fees, Additional Fees, and other charges as they become due.
17.2.2. Pole License Termination
If a default specific to one or more Pole Licenses is not cured by Licensee within the applicable cure period, if any, specified in Section 17.1 (Events of Default by Licensee), the City may terminate each Pole License in default.
17.2.3. Master License Termination
If Licensee’s default is of such a serious nature in the City’s reasonable determination that the default materially affects the purposes of this Master License, the City may terminate this Master License in whole or in part. Termination of this Master License in whole will terminate all Pole Licenses issued under it automatically and without the need for any further action by the City. In either case, the City will deliver written notice to Licensee providing thirty (30) days’ notice of termination and specify whether the termination affects the entire Master License or only certain Pole Licenses in the notice. The City will specify the amount of time Licensee will have to remove its Equipment from any affected City Pole, which will be at least ninety (90) days after the date of the City’s notice for up to fifty-percent (50%) of licensed City Poles and an additional thirty (30) days for more than fifty-one-percent (51%) of licensed City Poles. If Licensee does not remove its Equipment within the specified period, the City will be entitled to remove Licensee’s Equipment from the City Pole. The City will have the right to make any terminated portion of the License Area available for license to other parties as of the effective date of the termination, even if Licensee’s Equipment is still on thePole.
17.2.4. Default Fees
Without limiting the City’s other rights and remedies under this Master License, the City may require Licensee to pay Additional Fees for any and all actual and reasonable costs incurred by the City in connection with a default event to reimburse the City’s administrative cost to enforce compliance with this Master License (each, a “Default Fee”).
Licensee shall pay the Default Fee within thirty (30) days after the City’s written demand for reimbursement and reasonable documentation to support such costs. If Licensee fails to timely pay the Default Fee or cure the underlying default within the applicable cure period, the City shall Attachment B 38 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 32 have the right (but not the obligation) to send Licensee a follow-up notice and demand for an additional Default Fee that will be due and payable within ten (10) days. Licensee’s obligation to pay Default Fees is separate and distinct from the underlying default. Default Fee payments shall not be deemed to cure the underlying default.
17.3. Licensee’s Remedies
Except as may be provided elsewhere in this Master License, Licensee’s sole remedies for the City’s uncured default of this Master License or any Pole License issued under it will be to (1) terminate the Pole License(s) affected by the uncured default on thirty (30) days’ prior written notice; and (2) an action for damages subject to the provisions in Section 20 (Limitations on City’s Liability).
17.4. Cumulative Rights and Remedies
All rights and remedies under this Master License are cumulative, except as otherwise provided.
18. LICENSEE’S INDEMNIFICATION AND DEFENSE OBLIGATIONS
To the maximum extent permitted by applicable Laws, Licensee, for itself and its successors and assigns, shall indemnify, defend, protect and hold the City, its Agents, Invitees and their respective heirs, legal representatives, successors and assigns (the “Indemnified Parties”), harmless from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect, incurred in connection with or arising in whole or in part from: (1) death or personal injury to any person or property damage or other loss that occurred on or about the License Area or arises in connection with Licensee’s or its Agents’ or Invitees’ authorized or unauthorized uses on or about the License Area; (2) any failure or refusal by Licensee to observe or perform any term, covenant or condition in this Master License to be observed or performed on Licensee’s part; (3) Licensee’s or its Agents’ or Invitees’ uses or occupancy, or manner of use or occupancy, of the License Area; (4) any exposure to RF emissions or EMFs from Licensee’s Equipment or uses on or about the License Area; (5) the License Area condition or any occurrence on or about the License Area attributable to the events described in clauses (1), (2), (3) or (4) in this Section 18; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether any negligence may be attributed to the Indemnified Parties or not, and all whether liability without fault is imposed or sought to be imposed on the Indemnified Parties, but except to the extent that such Claim(s) arise from the Indemnified Parties’ willful misconduct or sole negligence. Licensee’s obligations under this Section 18 includes, without limitation, reasonable fees, costs and expenses for attorneys, consultants and experts, and the City’s costs to investigate any Claim. Licensee specifically acknowledges and agrees that, in the event that any Claim is brought against any Indemnified Parties in connection with any subject matter for which any Indemnified Parties are indemnified by Licensee under this Master License, Licensee shall, upon written notice and at Licensee’s sole cost and expense, resist and defend against such Claim with competent and experienced legal counsel reasonably acceptable to the City. The City shall not unreasonably withhold or delay its consent to legal counsel selected by Licensee; provided, however, that the City has the absolute right to reject any proposed legal counsel that:
(a) is not duly licensed to practice law in the State of California by the State Bar of California; (b) has any past or pending disciplinary actions by any United States tribunal or state bar association; or (c) has any actual or potential conflicts of interest with any Indemnified Parties who would be represented by such proposed legal counsel. Licensee shall not, without the City’s written consent, enter into any compromise or settlement agreement on any Indemnified Parties’ behalf that: (s) admits any liability, culpability or fault whatsoever on any Indemnified Parties’ part; or (b) requires any Indemnified Party to take or refrain from any action, which includes without limitation any change in the City’s policies or any monetary payments. Nothing in this Master License shall be construed to limit or preclude any Indemnified Parties or their respective Attachment B 39 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 33 legal counsel from cooperating with Licensee and/or participating in any judicial, administrative, alternative dispute resolution or other litigation or proceeding. Licensee’s obligations under this Section 18 will survive the expiration or termination of this Master License.
19. INSURANCE
19.1. Licensee’s Insurance
As a condition to issuance of any Pole License, Licensee must provide proof of compliance with the insurance requirements in this Section except to the extent the City’s Risk Manager agrees otherwise.
19.1.1. Required Coverages
Licensee shall procure and keep in effect at all times during the Term, at Licensee’s cost, insurance in the following amounts and coverages: (1) Commercial General Liability insurance as per ISO form CG 00 01 or its equivalent (including premises operations; explosion, collapse and underground hazard; broad form property damage; products/completed operations; contractual liability including indemnity coverage; independent contractors; personal injury) with limits of at least $2 million combined single limit for each occurrence; (2) Worker’s Compensation Insurance per California statutory limits with Employer’s Liability Limits not less than $1 million each accidentor disease; (3) Commercial Automobile Liability Insurance with limit not less than $2 million each occurrence combined single limit for bodily injury and property damage,including owned and non-owned and hired vehicles. The required limits may be met by a combination of primary and excess or umbrella insurance.
19.1.2. Required Endorsements
Commercial General Liability Insurance and Commercial Automotive Liability Insurance policies must contain the following coverage or endorsements: (1) name the City, its officers, agents, employees and volunteers as additional insureds; (2) that such policies are primary insurance to any other insurance available to the additional insureds with respect to any Claims that arise in connection with this Master License; (3) that such insurance applied separately to each insured against whom a Claim is made or brought, except with respect to the limits; (4) that such policies provide for the severability of interests and that an act or omission of one of the named insureds that would void or otherwise reduce coverage shall not void or otherwise reduce coverage as to any other named insured; and (5) that such policies shall afford coverage for all Claims based on acts, omissions, injury or damage that occurred or arose (or the onset occurred or arose) in whole or in part during the policy period. Additional Insured Endorsement shall not exclude products/completed operations.
19.1.3. Cancellation Notices
All insurance policies required to be maintained by Licensee under this Master License shall be endorsed to provide written notice of cancellation by the insurer for any reason, other than nonpayment of premium to the City. In the event that Licensee receives a notice of intent to cancel or notice of cancellation for non-payment or reduction of any coverage required under this Master License, Licensee shall forward such notice to the City within two business days and promptly take action to prevent cancellation, reinstate cancelled coverage or obtain coverage from a different insurer qualified under Section 19.1.7.
19.1.4. Claims-Made Policies
In the event that any required insurance under this Master License is provided under a claimsmade form, Licensee shall continuously maintain such coverage throughout the Term and, Attachment B 40 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 34 without lapse, for three years after this Master License expires or terminates, to the effect that, should any event during the Term give rise to a Claim brought after this Master License expires or terminates, such Claims will be covered under Licensee’s claims-made policies.
19.1.5. General Aggregate Limit
The general aggregate limit for any required insurance under this Master License must be double the per-occurrence or Claims limits specified in Section 19.1 when coverage includes a general annual aggregate limit or provides that Claims investigation or legal defense costs will be included in such general annual aggregate limit.
19.1.6. Certificates
On or before the Effective Date, Licensee shall deliver to the City all insurance certificates and additional insured endorsements from Licensee’s insurance providers in a form reasonably satisfactory to the City that evidences all the required coverages under this Master License. In addition, Licensee shall promptly deliver to the City all certificates and endorsements required herein after Licensee receives a request from the City. Upon written request by City, Licensee shall make copies of complete policies available for review by City staff/agents in the presence of a representative of Licensee at a local office of Licensee located within fifty (50) miles of the City of Del Mar City Hall within ten (10) business days. After review is complete, copies shall not be made and policies will be returned to Licensee’s corporate office in Texas. City agrees to keep Licensee’s insurance information confidential and agrees to disclose such information only when required by applicable law, as determined by City in its reasonable determination. City agrees to notify Licensee if it determines that Licensee’s insurance information issubject to disclosure under the California Public Records Act (CPRA) or other applicable law, and will include a copy of the information the City believes is subject to disclosure. If Licensee believes that the insurance information should not be subject to disclosure, Licensee shall provide the specific legal grounds justifying its position that the requested information is exempt from disclosure. Licensee acknowledges that general references to sections of the CPRA shall not suffice and Licensee must provide a specific and detailed legal basis, including applicable case law that establishes that the requested information is exempt from disclosure. If Licensee does not provide City with a specific and detailed legal basis for withholding the information within ten (10) calendar days, the City may release such information and Licensee acknowledges that any such release by City shall not constitute a breach or default of this Master License. Additionally, Licensee shall defend, at its expense, and indemnify and hold harmless the City, its elected officials, officers, and employees from and against any action, claim or liability arising or resulting from the City’s refusal to release information withheld at Licensee’s request. Licensee’s obligations herein include, but are not limited to, all reasonable attorney’s fees, reasonable costs of litigation incurred by the City or its attorneys (including all actual costs incurred by the City, not merely those costs recoverable by a prevailing party, and specifically including costs of experts and consultants) as well as all damages or liability of any nature whatsoever arising out of any such suits, claims, and causes of action brought against the City, through and including any appellate proceedings.
19.1.7. Insurer Qualifications
Licensee’s insurance providers must be licensed to do business in California andmust meet or exceed an A.M. Best’s Key Rating A- VII or its equivalent.
19.1.8. Effective Dates
The City shall not authorize Licensee to install any Equipment on any Pole until and unless all insurance coverages required to be carried by Licensee under this Master License have been obtained. Licensee shall ensure that all insurance coverages required to be carried by Licensee under this Master License remain in effect at all time until all Equipment has been removed from Attachment B 41 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 35 the License Area. The requirements in this Section 19.1.8 (Effective Dates) shall survive the expiration or termination of this Master License.
19.1.9. Licensee’s Self-InsuranceAlternative
Licensee shall not be permitted to meet its insurance obligations under this Master License through self-insurance without prior written consent from the City, which the City may withhold in its sole discretion for any or no reason. In the event that the City consents to allow Licensee to self-insure as an alternative insurance program, such consent will not be deemed an amendment or implied waiver to any other requirement in this Master License. Any amendment to any insurance requirement must be in a written agreement.
19.1.10. No Limitation on Indemnification Obligations
Licensee’s insurance obligations under this Section 19 in no way relieves or decreases Licensee’s liability under Section 18 (Licensee’s Indemnification Obligations) or any other provision in this Master License.
19.1.11. Right to Terminate
The City may elect, in its sole and absolute discretion, to terminate this Master License on written notice to Licensee if Licensee allows any required insurance coverage to lapse and does not reinstate the lapsed insurance coverage within three (3) days after Licensee receives such written notice.
19.2. City’s Insurance
Licensee acknowledges that the City self-insures against casualty, property damage and public liability risks. The City agrees to maintain an adequate program of self- insurance for public liability risks during the Term and will not be required to carry any third-party insurance with respect to the License Area or otherwise.
19.3. Subrogation Waiver
The City and Licensee each hereby waives any right of recovery against the other party for any loss or damage sustained by such other party with respect to the License Area or any portion thereof or the contents of the same or any operation therein, whether or not such loss is caused by the fault or negligence of such other party, to the extent such loss or damage is covered obtained by the waiving party under this Master License or is actually coverage obtained by the waiving party. Each waiving party agrees to cause its coverage provider(s) to issue appropriate waiver of subrogation rights endorsements to all policies relating to the License Area, but the failure toobtain any such endorsement will not affect the waivers in thisSection.
19.4. Contractors’ Bonds and Insurance
Licensee shall require its contractors that install, maintain, repair, replace or otherwise perform any work on or about the License Area: (1) to provide bonds to guarantee the performance of the work and the payment of subcontractors and suppliers for any installation of Equipment, and (2) to have and maintain insurance of the same coverage and amounts as required of Licensee.
20. LIMITATIONS ON THE CITY’S LIABILITY
20.1. General Limitations on the City’s Liability
Licensee expressly acknowledges that the City is not responsible or liable to Licensee for any Attachment B 42 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 36 Claims that arise in connection with: (a) acts or omissions by persons or entities using the Streets or other areas adjoining, adjacent to or connected with any License Area; (b) any utility service interruption; (c) theft; (d) burst, stopped or leaking water, gas, sewer, steam or other pressurized pipes; (e) fires, floods, earthquakes, pandemic or other force majeure; (f) any vehicular collision on or about the License Area or other City Property; (g) any costs or expenses incurred in connection with any relocation or rearrangement as provided in Section 2.5 (Rearrangement and Relocation); or (h) any costs or expenses incurred in connection with any removal or restoration as provided in this License; all except to the extent such events are caused directly and exclusively by the City’s sole active negligence or willful misconduct.
Licensee, in perpetuity, expressly waives and releases all Claims it may now or in the future have against any Indemnified Parties, whether known or unknown, whether foreseeable or unforeseeable, that arise in connection with the events described in this Section 20 as may be related to this License or locations on or about the License Area. In no event will Licensee or its Agents be personally liable to the City for any default, breach or any other nonperformance or unpaid sum by Licensee. The provisions in this Section 20.1 shall survive this License’s revocation, termination or expiration.
20.2. Consequential Damages
Without limiting any Indemnification obligations of Licensee or other waivers contained in this Master License, Licensee fully releases, waives and discharges forever any and all Claims against the City for consequential and incidental damages that may arise from or in actual and direct connection with this Master License, any Pole License, or Licensee’s use on or about the License Area, which includes without limitation any lost profits related to any disruption to Equipment, any interference with uses or operations conducted by Licensee, regardless of the cause, and whether or not due to the active or passive negligence or willful misconduct of the City or any City Indemnified Parties, and covenants not to sue for such damages the City, the City’s departments and all City agencies, officers, directors and employees, and all persons acting by, through or under each of them.
20.3. No Relocation Assistance
Neither this Master License nor any Pole License creates any right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assistance Law (Cal. Gov. Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.), as either may be amended or superseded, or any similar Laws upon or after any termination. To the extent that any such Laws may apply, Licensee waives, releases and relinquishes forever any and all Claims that it may have against the City for any compensation from the City except as specifically provided in Section 15 (Condemnation).
20.4. Non-Liability for City Officials, Employees and Agents No elective or appointive board, agency, member, officer, employee or other Agent of the City will be personally liable to Licensee, its successors and assigns, in the event of any default or breach by the City or for any amount which may become dueto Licensee, its successors and assigns, or for any obligation of the City under this Master License.
20.5. Licensee’s Waiver
Licensee acknowledges the City’s rights under this Section and waives any Claims arising from the exercise of their rights. In connection with the preceding sentence and releases and waivers under Section 8.1 (City’s Access to License Areas), Section 9.1.3 (No Right to Repair), Section
13.1 (Compliance with Current and Future Laws), Section 14.1.1 (Election to Repair or Replace Damaged Pole), Section 15.1.3 (No Statutory Right to Terminate), Section 19.3 (Subrogation Attachment B 43 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 37 Waiver), Section 20.1 (General Limitations on City’s Liability), Section 20.2 (Consequential Damages), Section 20.3 (No Relocation Assistance), Section 23.3 (Application) and any other waiver by Licensee under this Master License, Licensee acknowledges that it is familiar with section 1542 of the California Civil Code, which reads:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Licensee realizes and acknowledges that the waivers and releases contained in this Master License include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated Claims. Licensee affirms that it has agreed to enter into this Master License in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of California Civil Code section 1542 and any similar Law. The releases and waivers contained in this Master License will survive its expiration or earlier termination.
21. RECORDS
Licensee shall maintain throughout the Term and for at least three (3) years after this Master License expires or terminates the following records in either physical format at Licensee’s place of business within San Diego County or in an electronic format at Licensee’s discretion: (1) site identification and location for all Poles under active Pole Licenses; (2) the amount and payment date for all License Fees paid to the City pursuant to this Master License; (3) all Regulatory Approvals issued in connection with the Equipment on Poles; and (4) all correspondence with the City in connection with any matter covered under this Master License. Notwithstanding the foregoing, Licensee’s duty to retain the records described in Section 21 above shall not extend beyond the times set forth in Licensee’s internal document retention policies unless otherwise required by law or regulation. The City, or its designee, will have the right to inspect and audit Licensee’s records at Licensee’s place of business during regular business hours on ten (10) days’ notice to Licensee.
22. RULES AND REGULATIONS
At all times throughout the Term, Licensee shall faithfully comply with any and all reasonable and lawful rules, regulations and instructions that the City may from time-to-time establish and/or amend with respect to the License Area.
23. PERFORMANCE BOND
Before the City issues any Regulatory Approval required to commence construction, installation or other work in connection with the Equipment pursuant to this Master License or any Pole License, Licensee shall, at its sole cost and expense, post a performance bond from a surety and in a form acceptable to the City Engineer (or his or her designee) and the City Attorney in an amount reasonably necessary to cover the cost to remove the Equipment and all associated improvements and completely restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all the Equipment and all associated improvements, which includes, without limitation, all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the Equipment, plus the cost to completely restore any areas affected by the removal work to a condition that is neat, clean, safe and compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Attachment B 44 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 38 Code § 65964(a), the City Engineer (or his or her designee) shall take into consideration any information provided by Licensee regarding the cost to remove the Equipment as provided in this Section 23. The performance bond shall expressly survive the Term of this Master License or any Pole License to the extent required to completely remove the subject Equipment and restore the affected areas in accordance with Section 24 (Surrender of License Area) and this Section 23 and upon completion of such removal and restoration, Licensee may release the performance bond and City shall cooperate with such release. The parties acknowledge that Licensee and the City may enter into one or more Pole Licenses and that Licensee may elect to have one performance bond that covers multiple Pole Licenses in lieu of obtaining a separate performance bond for each Pole License; provided that a performance bond that covers multiple Pole Licenses remains, at all relevant times to this Master License and any Pole License, sufficient to meet the removal and restoration conditions in this Section 23.
24. SURRENDER OF LICENSE AREA
No later than thirty (30) days after this Master License or any Pole License expires or terminates, as the case may be, Licensee shall, at Licensee’s sole cost and expense, (1) remove all Equipment from the License Areas affected by the expiration or termination; (2) restore any such License Areas and other City Property affected by the removal all affected areas to a condition compliant with all applicable Laws, in at least as good as the condition existed immediately before such Equipment was installed, reasonable wear and tear excepted, and to the City Engineer’s (or his or her designee’s) reasonable satisfaction; and (3) surrender such License Areas to the City free and clear from any debris, hazards, liens and encumbrances caused by Licensee. The City may, in its discretion, extend the thirty (30) day period by written notice to Licensee. If Licensee fails to timely perform its removal and restoration obligations under this Master License or any Pole License, then: (a) Licensee shall remain responsible for all its obligations under this Master License and any applicable Pole License and liable for all Claims that may arise in connection with the Equipment through and until such Equipment are completely removed and the affected areas are completely restored; (b) the City shall have the right (but not the obligation) to perform such obligations; (c) the City shall have the right to store, sell or destroy any Equipment, improvements, personal property or other things installed by Licensee in connection with this Master License; and (d) Licensee shall reimburse the City for all costs incurred by the City in connection with such removal and restoration work within thirty (30) days after a written demand for reimbursement and reasonable documentation to support such costs. Within ninety (90) days after any Equipment have been removed, Licensee shall file as-built plans and maps with the City Engineer (or his or her designee) in the same manner and subject to the same requirements as provided in Section 7.8 (As-Built Plans and Maps). The obligations under this Section 24 will survive this Master License’s or any Pole License’s expiration or termination.
25. HAZARDOUS MATERIALS
25.1. Hazardous Materials in License Area
Licensee covenants and agrees that neither Licensee nor any of its Agents or Invitees shall cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed of or Released in, on, under or about the License Area or any other part of City Property, or transported to or from any City Property in violation of Environmental Laws, except that Licensee may use small quantities of Hazardous Materials as needed for routine operation, cleaning and maintenance of Licensee’s Equipment that are customarily used for routine operation, cleaning and maintenance of such equipment and so long as all such Hazardous Materials are contained, handled and used in compliance with Environmental Laws. Licensee shall immediately notify the City if and when Licensee learns or has reason to believe any Release of Hazardous Material has occurred in, on, under or about the License Area or other City Property.
Attachment B 45 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 39
25.2. Licensee’s Environmental Indemnity
If Licensee breaches any of its obligations contained in this Section, or if any act, omission, or negligence of Licensee or any of its Agents or Invitees results in any contamination of the License Area or other City Property, or in a Release of Hazardous Material from, on, about, in or beneath any part of the License Area or other City Property, or the violation of any Environmental Law, then Licensee, on behalf of itself and its successors and assigns, shall indemnify, defend and hold harmless the City, including its Agents, and their respective successors and assigns from and against any and all Claims (including damages for decrease in value of the License Area or other City Property, the loss or restriction of the use of usable space in the License Area or other City Property and sums paid in settlement of Claims, attorneys’ fees, consultants’ fees, and experts’ fees and related costs) arising during or after the Term of this Master License relating to such Release or violation of Environmental Laws; provided, however, Licensee shall not be liable for any Claims to the extent such Release was caused by the sole active negligence or willful misconduct of the City or its Agents. Licensee’s Indemnification obligation includes costs incurred in connection with any activities required to Investigate and Remediate any Hazardous Material brought onto the License Area or other City Property by Licensee or any of its Agents or Invitees and to restore the License Area or other City Property to its condition prior to Licensee’s introduction of such Hazardous Material or to correct any violation of Environmental Laws.
Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City and the other Indemnified Parties from any Claim that actually or potentially falls within this Indemnity provision even if the allegations supporting the Claim are or may be groundless, fraudulent, or false, which obligation arises at thetime such Claim is tendered to Licensee by the Indemnified Party and continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any of its Agents or Invitees causes the Release of any Hazardous Material on, about, in, or beneath the License Area or other City Property, then in any such event Licensee shall, immediately, at no expense to any Indemnified Party, take any and all necessary actions to return the License Area or other City Property, as applicable, to the condition existing prior to the Release of any such Hazardous Materials on the License Area or other City Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent such Release was caused by the sole active negligence or willful misconduct of the City or its Agents. Licensee shall afford the City a full opportunity to participate in any discussions with Regulatory Agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding involving Hazardous Material.
26. TERMINATION
26.1. Termination for Failure to Obtain Regulatory Approvals In the event that Licensee cannot obtain all Regulatory Approvals required for any Pole License after two (2) years from the subject Pole License effective date, then either the City or Licensee may terminate that Pole License on sixty (60) days’ notice to the other party delivered within ten (10) days after second anniversary of that Pole License’s effective date. The parties agree that the Commencement Date will be deemed to have not occurred for any Pole License terminated under this section, and Licensee will have no obligation to pay the applicable License Fee for that Pole License.
26.2. Licensee’s Termination Rights
26.2.1. Master License Termination Rights
Licensee may, in Licensee’s sole discretion, elect not to extend this Master License at the end of the initial ten (10) year term or any subsequent extension terms with at least one (1) year’s written notice to the City at any time after the Effective Date. Licensee may not terminate this Attachment B 46 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 40 Master License during the initial ten (10) year term except as expressly provided in this Master License.
26.2.2. Pole License Termination Rights
Licensee may, in Licensee’s sole discretion, terminate any Pole License on ninety (90) days’ written notice to the City at any time after twelve (12) months from the subject Pole License Commencement Date so long as Licensee is not in default with respect to the subject Pole License.
26.2.3. Termination Rights after Pole Replacement
In the event that the City exercises its absolute right to replace any Pole, the City shall make a reasonable effort to provide Licensee with at least sixty (60) days’ written notice. The City’s failure to provide at least sixty (60) days’ notice prior to any Pole replacement shall not affect the City’s rights under this Master License. Within ninety (90) days after Licensee receives notice from the City, Licensee may elect to either: (1) install Licensee’s Equipment on the replacement Pole at Licensee’s sole cost and expense or (2) terminate the applicable Pole License as to the replacementPole.
26.3. City’s Absolute Right to Terminate Pole Licenses
If the City determines, in its sole judgment, that a default specific to one or more Pole Licenses materially impairs the City’s ability to perform its municipal functions or threatens public health, safety or welfare, then the City may terminate each Pole Licenses on thirty (30) days’ written notice to Licensee.
26.4. Licensee’s Rights after Termination
In the event that the City terminates any Pole License for reasons unrelated to Licensee’s failure to perform its obligations under this Master License, the City shall refund any pre-paid Licensee Fee on a pro-rata basis. In addition, the City shall prioritize Licensee’s Pole License Application for any Pole License to replace the terminated Pole License; provided, however, that (1) the City shall prioritize only as many Pole License Applications as Pole Licenses terminated by the City and (2) the City’s prioritization will not affect Licensee’s obligations under this MasterLicense.
27. INTERFERENCE
27.1. Licensee’s Obligation Not to Cause Interference
Licensee will not operate or maintain its Equipment in a manner that interferes with or impairs other communication (radio, telephone and other transmission or reception) or computer equipment lawfully used by any person, including the City or any of its Agents. Such interference will be an event of default under this Master License by Licensee, and upon written notice from the City, Licensee shall be responsible for eliminating such interference promptly and at no cost to the City. Licensee will be required to use its best efforts to remedy and cure such interference with or impairment of City operations. If Licensee does not cure the default promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the City will have the right to bring an action against Licensee to enjoin such interference or to terminate all Pole Licenses where the Equipment is causing interference or impairment, at the City’s election.
27.2. Impairment Caused by Change in City Use
If any change in the nature of the City’s use of the License Area during the Term results in measurable material adverse impairment to Licensee’s normal operation of its Equipment making Attachment B 47 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 41 it necessary to alter the Equipment to mitigate the adverse effect, Licensee shall notify the City and provide evidence of the claimed impairment. Upon receipt of such notice, the City will have the right to make its own reasonable determination and, if it agrees with Licensee, investigate whether it can reasonably and economically mitigate that interference. The City will provide notice to Licensee of the City’s determination.
If the City determines in its sole reasonable discretion that mitigation is feasible and can be achieved for a reasonable cost in the City’s reasonable judgment, the City’s notice will specify when the City will mitigate the adverse effect. The City’s mitigation will effect a cure, and the City will not be liable to Licensee in any other way or be required to take any other measures with respect to the Equipment. If the City finds in its sole, reasonable determination that mitigation is not feasible or cannot be achieved for a reasonable cost in the City’s reasonable judgment, Licensee may elect either to: (1) terminate the Pole License as to the affected City Pole and receive a ratable reduction in the License Fee; or (2) take steps itself at its own cost to mitigate the adverse effect and continue to operate the Equipment on the City Pole, and receive from the City a waiver of the License Fee for the first six (6) months of the following License Year under the affected Pole License to offset the cost of mitigation.
Licensee agrees that the City’s temporary and partial abatement or waiver of the License Fee under this Section 27.2 will be the only compensation due to Licensee for costs incurred or otherwise arising from the adverse effect as liquidated damages fully compensating Licensee for all Claims that may arise or be related to the adverse effects. Under no circumstances may the City be required to alter its operations at the identified City Pole or provide a replacement City Pole to Licensee.
27.3. Impairment Caused by City Access
Licensee agrees that it will not be entitled to any abatement of License Fees if the City exercises its rights of access under Section 8.1 (City Access to License Area) unless the City’s activities cause Licensee to be unable to operate Equipment on the License Area for its permitted use for a period of more than ten (10) days, in which case, subject to proof, License Fees will be abated ratably forthe entire period that Licensee is unable to operate any Equipment on any affected City Pole.
28. MISCELLANEOUS PROVISIONS
28.1. Notices
Except as may be specifically provided otherwise in this Master License, all notices, demands or other correspondence required to be given under this Master License must written and delivered through: (1) an established national courier service that maintains delivery records and confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows:
TO CITY:
Del Mar City Manager
1050 Camino Del Mar
Del Mar, CA 92014
(858) 755-9313
WITH A COPY TO:
Del Mar City Attorney Leslie Devaney, DPMC
402 W. Broadway, Suite: 1300
San Diego, CA 92101
(619) 354-5030
Attachment B 48 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 42 TO LICENSEE:
Crown Castle Fiber LLC
C/O Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
Attn: Ken Simon, General Counsel
WITH A COPY TO:
Crown Castle San Diego
10301 Meanley Drive, Suite 200
San Diego, CA 92126
All notices under this Master License will be deemed to have been delivered: (i) five days after deposit if delivered by first class mail; (ii) two days after deposit if delivered by certified mail; (iii) the date delivery is made by personal delivery or overnight delivery; or (iv) the date an attempt to make delivery fails because a party has failed to provide notice of a change of address or refuses to accept delivery. Telephone, facsimile and email information are provided for convenience and for couriers who may require such information, and any notice given solely through electronic means will not be deemed to be effective notice. Any copies required to be given constitute an administrative step and not actual notice. The parties may change the notice addresses above from time-to- time through written notice to the addresses above or the then-current notice address.
28.2. Waiver; No Implied Waivers
No failure by either party to insist upon the strict performance of any obligation of the other under this Master License or to exercise any right, power or remedy arising out of a breach thereof, irrespective of the length of time for which such failure continues, will constitute a waiver of such breach. No acceptance by the City or any of its Agents of full or partial payment of License Fees or Additional Fees during the continuance of any such breach will constitute a waiver of such breach or of the City’s right to demand strict compliance with such term, covenant or condition, or operate as a waiver of any requirement of this Master License. No express waiver by either party of any default or the performance of any provision hereof will affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more waivers of a default or the performance of any provision hereof by either party will not be deemed to be a waiver of a subsequent default or performance. The City’s consent given in any instance under the terms of this Master License will not relieve Licensee of any obligation to secure the City’s consent in any other or future instance under the terms of this MasterLicense.
28.3. Amendments
No part of this Master License (including all Pole Licenses) may be changed, waived, discharged or terminated orally, nor may any breach thereof be waived, altered or modified, except by a written instrument signed by both parties.
28.4. Interpretation
The following rules of interpretation apply to this Master License.
28.4.1. General
Whenever required by the context, the singular includes the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice versa; anddefined terms encompass all correlating forms of the terms (e.g., the definition of “indemnify” applies to “indemnity,” Attachment B 49 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 43 “indemnification,” etc.).
28.4.2. Multi-party License
In the event that the City provides consent, which the City may withhold for any or no reason, to enter into this Master License with more than one Licensee, the obligations and liabilities under this Master License imposed on Licensee will be joint and several among them.
28.4.3. Captions
The captions preceding the sections of this Master License and in the table of contents have been inserted for convenience of reference and such captions in no way define or limit the scope or intent of any provision of this Master License.
28.4.4. City Actions
All approvals, consents or other determinations permitted or required by the Cityunder this Master License will be made by or through the City Manager or his or her designee, including but not limited to the Public Works Director/City Engineer or his or her designee or the Director of Planning and Community Development or his or her designee, unless otherwise provided in this Master License or by the City Charter, Municipal Code or any City ordinance.
28.4.5. Words of Inclusion
The use of the term “including,” “such as,” or words of similar import when following any general or specific term, statement or matter may not be construed to limit the term, statement or matter to the stated terms, statements or matters, whether or not language of non-limitation, such as “including, but not limited to” and “including without limitation” are used. Rather, the stated term, statement or matter will be interpreted to refer to all other items or matters that could reasonably fall within the broadest scope of the term, statement or matter.
28.4.6. Laws
References to all “Laws,” including specific statutes, relating to the rights and obligations of either party mean the Laws in effect on the Effective Date and as they are amended, replaced, supplemented, clarified, corrected or superseded at any time while any obligations under this Master License or any Pole License are outstanding, whether or not foreseen or contemplated by theparties.
28.5. Successors and Assigns
The terms, covenants and conditions contained in this Master License bind and inure to the benefit of the City and Licensee and, except as otherwise provided herein, their successors and assigns.
28.6. Brokers
Neither party has had any contact or dealings regarding the license of the License Area, or any communication in connection therewith, through any licensed real estate broker or other person who could claim a right to a commission or finder’s fee in connection with the license contemplated herein (“Broker”), whose commission, if any is due, is to be paid pursuant to a separate written agreement between such Broker and the party through which such Broker contracted. In the event that any Broker perfects a claim for a commission or finder’s fee based upon any such contact, dealings or communication, Licensee shall indemnify the City from all Claims brought by the Broker. This Section will survive expiration or earlier termination of this Attachment B 50 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 44 MasterLicense.
28.7. Severability
If any provision of this Master License or the application thereof to any person, entity or circumstance is invalid or unenforceable, the remainder of this Master License, or the application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each provision of this Master License will be valid and be enforced to the full extent permitted by Law, except to the extent that enforcement of this Master License without the invalidated provision would be unreasonable or inequitable under all the circumstances or would frustrate a fundamental purpose of this Master License.
28.8. Governing Law; Venue
This Master License must be construed and enforced in accordance with the laws of the State of California and the City Charter, without regard to the principles of conflicts of law. This Master License is made, entered and will be performed in the City of Del Mar, County of San Diego, State of California. Any action concerning this Master License must be brought and heard in North County of the Superior Court for the County of San Diego or in the United States District Court for the Southern District of California.
28.9. Time for Performance
Provisions in this Master License relating to number of days mean calendar days, unless otherwise specified. “Business day” means a day other than a Saturday, Sunday or a bank or City holiday. If the last day of any period to give notice, reply to a notice, or to undertake any other action occurs on a day that is not a business day, then the last day for undertaking the action or giving or replying to the notice will be the next succeeding business day. Time is of the essence with respect to all provisions of this Master License in which a definite time for performance is specified.
28.10. Survival
Expiration or earlier termination of this Master License will not affect the right of either party to enforce any and all Indemnities and representations and warranties given or made to the other party under this Master License, or any provision of this Master License that expressly survives termination.
28.11. Recording
Licensee acknowledges and agrees that: (1) this Master License and any Pole License affects the City’s personal property and therefore cannot be recorded in any official records; (2) Licensee shall not have the right to record this Master License, any Pole License, any memorandum or any short-form agreement in relation to this Master License; and (3) Licensee shall, at Licensee’s sole cost and expense, remove any document or other instrument recorded against the City’s title to any City Property promptly upon the City’s request or demand. In the event that this Master License or any Pole License affects or is deemed to affect any real property owned by the City, Licensee may not record any document or instrument in connection with this Master License or any Pole License without the City’s prior written consent, which the City may withhold in the City’s sole and absolute discretion.
28.12.Counterparts
This Master License and any subsequent amendments may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will be one Attachment B 51 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 45 and the same instrument. Copies of signature pages bearing electronic or original signatures, and executed instruments or signature pages delivered by e-mail transmission of an Adobe© file format document (also known as a PDF file), shall, in each such instance, be deemed to be, and shall constitute and be treated as, an originally-signed instrument or counterpart, as applicable.
28.13. Approval Authority
Each person signing this Master License and any Pole License on behalf of Licensee warrants and represents that: (i) he or she has the full right, power and capacity to act on behalf of Licensee and has the authority to bind Licensee to the performance of its obligations under those agreements without the subsequent approval or consent of any other person or entity; (ii) Licensee is a duly authorized and existing entity; (iii) Licensee is qualified to do business in California; and (iv) Licensee has full right and authority to enter into this Master License and Pole Licenses. Upon the City’s request, Licensee shall provide the City with evidence reasonably satisfactory to the City confirming the representations and warranties above.
The City and Licensee executed this Master License as of the date first written above.
THE CITY: LICENSEE:
City of Del Mar Crown Castle
BY: _____________________________ BY: ___________________________ Ashley Jones, City Manager Name, Title
APPROVED AS TO FORM:
BY: _____________________________
Leslie E. Devaney, City Attorney
ATTEST:
BY: _____________________________
Sarah Krietor, City Clerk
[AGREEMENT EXHIBITS APPEAR ON FOLLOWING PAGES]
Attachment B 52 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 46
EXHIBIT A
FORM OF POLE LICENSE AGREEMENT
MLA NO. [INSERT]
POLE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER]
Pursuant to that certain Master License between the City of Del Mar, a California chartered municipal corporation (the “City”) and
(“Licensee”), Licensee submits to the City two partially executed counterparts of this Pole License, together with all the materials listed below, as its Pole License Application in accordance with Section 6 under the Master License:
1. Exhibit A-1, which designates all Pole Locations that Licensee seeks to be included in the License Area under this Pole License;
2. Exhibit A-2, which includes complete, detailed and final plans and specifications for all Licensee’s Equipment to be installed in the License Area, subject to Regulatory Approvals;
3. a Pole License Processing Fee equal to [$270.00 multiplied by the number of pole locations];
4. an RF Compliance Report, if not previously provided; Licensee acknowledges that: (1) this Pole License will not be effective until the City returns a fully executed copy to Licensee; (2) the City may require Licensee to supplement the Administrative Fee on conditions specified in Section 4.2 under the Master License; (3) Licensee will not have the right to access or install Equipment on the License Area until after Licensee has: (a) submitted a complete Acknowledgment Letter (Exhibit A-3) to the City with all information and funds required, which includes the applicable License Fee specified in Exhibit A4; (b) submitted insurance information to the City as specified in Exhibit A-3; and (c) the City has provided notice to proceed by returning to Licensee a countersigned copy of the AcknowledgmentLetter.
This Pole License is executed and effective on the last date written below and, upon full execution will be the City’s authorization for the City to begin its review of the Pole Locations and plans and specifications proposed in this Pole License application.
THE CITY: LICENSEE:
By: By:
Ashley Jones, City Manager Name, Title
Date: Date:
Attachment B 53 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 47 EXHIBIT A-1
POLE LOCATIONS / LICENSE AREA
MLA No. / Pole License No.
[Licensee to list all proposed Pole Locations requested in this Pole License Application] Attachment B 54 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 48 EXHIBIT A-2
LICENSEE’S PLANS AND SPECIFICATIONS
MLA No. / Pole License No.
[Licensee to attach all plans and specifications for all Equipment proposed to be installed at all proposed Pole Locations]
Attachment B 55 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 49 EXHIBIT A-3
FORM OF ACKNOWLEDGEMENT LETTER
[Licensee to complete and submit with Pole License Application or upon obtaining all Regulatory Approvals]
[insert date]
[insert addressee information]
RE: MLA No. / Pole License No.
Dear City Manager:
This letter will confirm the following: (1) that Licensee has obtained all the Regulatory Approvals required for the Permitted Use under this Pole License, and (2) the Commencement Date of this Pole License is [insert date], which is the first day of the month after Licensee obtained all Regulatory Approvals.
This letter also confirms that Licensee has submitted all required insurance and bond information to the City. A check for the full Performance Bond (if not already provided) and the License Fee for the first License Year of this Pole License is enclosed herewith.
Please acknowledge the City’s receipt of this letter and the items listed below, and issue the City’s approval for Licensee to begin installation of Equipment on the License Area by signing and returning a copy of this letter.
Sincerely,
[insert name]
[insert title]
[Acknowledgement signature on next page]
Attachment B 56 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 50 City Acknowledgment
By signing below, the City acknowledges receipt of this letter and the enclosures listed below.
Based upon receipt of the same, the City issues a notice to Licensee to proceed with installation of the approved Equipment in strict accordance the Pole License and the Master License as of the date below.
City of Del Mar
By:
Name, Title
Date:
Enc.
[ ] Executed Pole License
[ ] Approved WTF Permit
[ ] All other Regulatory Approvals
[ ] Insurance certificates
[ ] Contractor's bonds
[ ] First License Year's License Fee
Attachment B 57 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 51 EXHIBIT A-4
ANNUAL LICENSE FEE AND DEFAULT FEE SCHEDULE
Pole License No.
Year Per Pole Fee
1 $270.00
2 $278.10
3 $286.44
4 $295.04
5 $303.89
6 $313.00
7 $322.39
8 $332.07
9 $342.03
10 $352.29
DEFAULT FEE SCHEDULE
VIOLATION INITIAL NOTICE EACH FOLLOW-UP
NOTICE
Unauthorized Installations $500 $500
Failure to Make Required Repairs $300 $350
Access Violations $300 $350
Insurance Violations $300 $350
Attachment B 58 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 52 EXHIBIT A-5
CITY OF DEL MAR SMALL CELL POLICY
Attachment B 59 June 6, 2022 Item 14
Master License for Wireless Facilities on City Poles in the Public Right-of-Way 53
EXHIBIT B
PRE-EXISTING EQUIPMENT PURSUANT TO RIGHT-OF-WAY USE AGREEMENT Node ID Permit # SCU Address latitude longitude Pole types J19 325880 402787 143 1/2 Carmel Valley Rd. 32.94045 -117.26127 Traffic SP2_SD_0153 AKA J5b 325880 402801 901 1/2 Camino Del Mar 32.95348 -117.26289 Traffic ATTNT 5 EP0648 403705 4030 1/2 Del Mar Heights Road 32.94812 -117.26066 Traffic NT1A EP0648 403712 2437 1/2 Camino Del Mar 32.96966 -117.26810 Street Light TMB1009-29 EP-12-23 409078 1555 1/3 Camino Del Mar 32.95990 -117.26514 Traffic NT9 EP0648 504745 141 1/2 Carmel Valley Road 32.94018 -117.26123 Traffic Attachment B 60 June 6, 2022 Item 14
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Attachment C 78 June 6, 2022 Item 14
SECOND AMENDMENT TO
RIGHT-OF-WAY USE AGREEMENT BETWEEN THE
CITY OF DEL MAR AND CROWN CASTLE FIBER, LLC
This Second Amendment ("Second Amendment") to the that certain Right-ofWay Use Agreement ("Agreement") dated June 6, 2006, by and between Crown Castle Fiber LLC, a New York limited liability company (f/k/a NewPath Networks, LLC) ("Licensee") and City of Del Mar, a California municipal corporation ("Licensor") (collectively referred to herein as "Parties") is effective as of June 6,2021.
WHEREAS, the Parties entered into the Agreement for the construction of Licensee's telecommunications facilities on Licensor's property for a term of ten (10) years; and
WHEREAS, Licensee exercised its option to renew the term of the Agreement for one (1) additional term of five (5) years under the same terms and conditions as set forth in the Agreement by delivering a written letter to the Licensor on October 23, 2015; and
WHEREAS, on December 14, 2018, NewPath Networks, LLC, a New Jersey limited liability company was converted into a Texas limited liability company; and
WHEREAS, on February 28, 2019, NewPath Networks,LLC merged into its affiliate, such that Crown Castle Fiber LLC is the surviving entity and successor by merger to NewPath Networks, LLC; and
WHEREAS, the additional five (5) year term of the Agreement expires June 6,2021;and
WHEREAS, the Parties wish to execute a short-term extension of the Agreement to negotiate a Master License Agreement for the next iteration of the Right-of-Way Use Agreement; and
WHEREAS, Capitalized terms not otherwise defined in this Amendment shall have the meanings set forth in the Agreement.
NOW THEREFORE, the Agreement is hereby amended as follows:
1) EXTENSION OF TERM: The Parties hereby agree to extend the term of the Agreement as set forth in Section 13.8 for an additional period of four (4) months ("New Term"). Parties agree that the New Term will be extended to the earlier of a signed Master License Agreement between the Parties or October 6, 2021.
2) NO OTHER CHANGE: Except as expressly set forth in this Amendment, there is no other change to the Agreement.
DocuSign Envelope ID: C0FA9F0A-AEF7-49AC-AF1A-BC59D32CBB53 Attachment C 79 June 6, 2022 Item 14
DocuSign Envelope ID: C0FA9F0A-AEF7-49AC-AF1A-BC59D32CBB53 Michael Tuma
Contract Execution Manager
Attachment C 80 June 6, 2022 Item 14
Attachment C 81 June 6, 2022 Item 14
Attachment C 82 June 6, 2022 Item 14
FOURTH AMENDMENT TO RIGHT-OF-WAY USE AGREEMENT
BETWEEN THE CITY OF DEL MAR AND CROWN CASTLE FIBER LLC
This Fourth Amendment ("Fourth Amendment") to the certain Right-of-Way Use Agreement ("Agreement") dated June 6, 2006, by and between Crown Castle Fiber LLC, a New York limited liability company (f/k/a NewPath Networks, LLC) ("Licensee") and City of Del Mar, a California municipal corporation ("Licensor") (collectively referred to herein as "Parties") is effective as of January 6, 2022.
WHEREAS, the Parties entered into the Agreement for the construction of Licensee's telecommunications facilities on Licensor's property for an initial term of ten (10) years beginning on June 6, 2006; and
WHEREAS, by mutual written agreement the Parties executed a First Amendment to the Agreement on August 26, 2013, which changed the payment schedule from monthly to annual and brought clarity to the correct payment amount; and
WHEREAS, Licensee exercised its option to renew the term of the Agreement for one (1) additional term of five (5) years under the same terms and conditions as set forth in the Agreement by delivering a written letter to the Licensor on October 23, 2015; and
WHEREAS, on December 14, 2018, NewPath Networks, LLC, a New Jersey limited liability company was converted into a Texas limited liability company; and WHEREAS, on February 28, 2019, NewPath Networks, LLC merged into its affiliate, such that Crown Castle Fiber LLC is the surviving entity and successor by merger to NewPath Networks, LLC; and
WHEREAS, by mutual written agreement the Parties executed a Second Amendment to the Agreement on June 6, 2021, extending the term of the Agreement for an additional four (4) month period in order to negotiate a Master License Agreement (“MLA”) for the next iteration of the Agreement, which ended on October 6, 2021; and
WHEREAS, by mutual written agreement the Parties executed a Third Amendment to the Agreement on October 6, 2021, extending the term of the Agreement for an additional three (3) month period to continue negotiations on an MLA, which ends on January 6, 2022; and
WHEREAS, the Parties now wish to execute a Fourth Amendment to the Agreement to provide the additional time needed to finalize negotiation of the MLA for the next iteration of the Right-of-Way Use Agreement; and WHEREAS, capitalized terms not otherwise defined in this Fourth Amendment shall have the meanings set forth in the Agreement.
NOW THEREFORE, the Agreement is hereby amended as follows:
EXTENSION OF TERM: The Parties hereby agree to extend the term of the Agreement as set forth in Section 13.8 until June 6, 2022, or at such time that the Parties enter into a MLA, whichever occurs sooner.
DocuSign Envelope ID: D6E66E82-3737-48D7-8BE0-EB66E849FFFD Attachment C 83 June 6, 2022 Item 14
Crown Castle Fiber LLC
Right-of-Way Use Agreement
Fourth Amendment
NO CHANGE IN TERMS: Except as expressly set forth in this Fourth Amendment, all other terms and conditions of the Agreement, First Amendment, Second Amendment, and Third Amendment are in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to be effective as of the date first written above.
LICENSEE: LICENSOR:
Crown Castle Fiber LLC City of Del Mar
By: ___________________________ By: _______________________________ Ashley Jones, City Manager
Name: ________________________
Title: _________________________
DocuSign Envelope ID: D6E66E82-3737-48D7-8BE0-EB66E849FFFD Supervisor, Contract Execution
Michael Tuma
Attachment C 84 June 6, 2022 Item 14
CROWN CASTLE
NODE ID: NT5 ADDRESS: 430 1/2 DEL MAR HIGHTS ROAD, DEL MAR, CA.
DATE: 04/10/14 NETWORK: SAN DIEGO AT&T DAS LTE
PICTURE 1
FRONT OVERVIEW - ENTIRE SITE
PICTURE 2
SIDE OVERVIEW – ENTIRE SITE
PICTURE 3
CLOSE UP OF EQUIPMENT
PICTURE 4
CLOSE UP OF ANTENA W/ MOUNTING BRACKET
PICTURE 5
CLOSE UP OF INSIDE CONNECTION BOX
PICTURE 6
GROUND BUSS CONECTIONS
Attachment D 85 June 6, 2022 Item 14
CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
116
DESIGN STANDARDS FOR SMALL CELL WIRELESS
COMMUNICATION FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
DATE ADOPTED: 4-1-2019
BY RESOLUTION: 2019-18
PAGES: 1 OF 5
PURPOSE/INTENT
The design standards contained within this policy shall supplement Chapter 23.28 (Encroachment Permits) of the Del Mar Municipal Code as necessary and appropriate to protect the public health, safety, and welfare – including the aesthetic character of the City, its neighborhoods, and community – from the potential harm caused by unregulated small cell wireless facilities and other infrastructure deployments, while balancing the benefits that flow from technological advancements such as advanced wireless services.
PERMIT REQUIREMENT
Small cell wireless facilities, as defined in the FCC-CIRC1890-02 may be installed, erected, maintained and operated in any dedicated public right-of-away upon the issuance of an Encroachment Permit from the City of Del Mar.
DESIGN STANDARDS FOR SMALL CELL WIRELESS FACILITIES
1. Location. The following siting standards shall apply to small cell wireless facilities to be placed within the public right-of-way.
a) Each small cell wireless facility must be at least 350 feet away from the nearest small cell facility (Facilities mounted on traffic signal poles are not subject to this standard with regard to other facilities located on traffic signal poles). b) Small cell wireless facilities shall not displace any existing landscape features unless: such displaced landscaping is replaced with native and/or droughtresistant plants, trees or other landscape features approved by the City and the applicant submits and adheres to a landscape maintenance plan. c) Small cell wireless facilities should be located and installed with consideration of public scenic views and scenic views from Primary Living Areas, as defined by the Del Mar Municipal Code.
d) The placement of small cell wireless facilities on utility or stand-alone poles within a paved/improved alley shall be preferred over placement within an unpaved/unimproved alley.
e) To ensure aesthetic harmony and consistency with neighborhood character, if technically feasible, the City shall have the ability to require the horizontal relocation of any proposed pole in the public right-of-way, up to a distance of 50 feet.
Attachment E 86 June 6, 2022 Item 14
CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
116
DESIGN STANDARDS FOR SMALL CELL WIRELESS
COMMUNICATION FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
DATE ADOPTED: 4-1-2019
BY RESOLUTION: 2019-18
PAGES: 2 OF 5
2. Overall Height. Small cell wireless facilities shall not extend higher than twenty-six feet (26”) above grade or the finished surface adjacent to the support pole or structure. This shall be the distance between the grade/surface and the top of the antenna or its shroud/enclosure, whichever is higher.
3. Antennas. The following concealment, size and mounting criteria apply to all small cell wireless antennas located in the public right-of-way:
a) Concealment - All antennas and associated mounting equipment, hardware, cables or other connecters must be completely concealed within an opaque antenna shroud or radome. The antenna shroud or radome must be painted a flat, non-reflective color to match the underlying support structure.
b) Antenna Volume - Each individual antenna may not exceed three cubic feet in volume.
4. Small Cell Wireless Facility Sites within the Public right-of-way a) Traffic Signal Poles - Applicants that propose to install small wireless facilities on a new, replacement, or existing traffic signal support pole shall install the antenna above the pole within a single, canister style shroud or radome that tapers to the pole, unless: 1) an antenna already exists in that top-of-pole location; or 2) the applicant demonstrates that mounting the antennas above the pole would be technically infeasible as supported by clear and convincing evidence in the written record. Side-mounted antennas on a standoff bracket or extension arm must be concealed within a shroud. All cables, wires and other connectors must be concealed within the side-arm mount or extension arm. The maximum horizontal separation between the antenna and the pole shall be the minimum separation required by applicable health and safety regulations. No more than two small cell wireless facilities shall be located on a single traffic signal support pole. Facilities mounted on traffic signal poles are not subject to the 350 foot spacing requirement in section 1-a of this policy with regard to facilities on other traffic signal poles. b) Streetlights - Attachment of small cell wireless facilities to streetlights within the Central Commercial Zone, as depicted within the City of Del Mar Zoning Map, shall not be allowed. Applicants that propose to install small wireless facilities on an existing streetlight outside of the Central Commercial Zone must remove and replace the existing streetlight with one substantially similar to the City's standards and specifications for that geographic area but designed to accommodate wireless antennas and accessory equipment. To mitigate any material changes in the street lighting patterns, the replacement pole must: (A) be located as close to the removed pole as possible; (B) be aligned with the other existing streetlights; and (C) include a luminaire at substantially the same height and distance from the pole as the luminaire on the Attachment E 87 June 6, 2022 Item 14
CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
116
DESIGN STANDARDS FOR SMALL CELL WIRELESS
COMMUNICATION FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
DATE ADOPTED: 4-1-2019
BY RESOLUTION: 2019-18
PAGES: 3 OF 5
removed pole. All antennas must be installed above the pole within a single, canister style shroud or radome that tapers to the pole.
c) Wood Utility Poles - Applicants that propose to install small wireless facilities on an existing wood utility pole must install all antennas above the pole unless the applicant demonstrates that mounting the antennas above the pole would be technically infeasible as supported by clear and convincing evidence in the written record. Side-mounted antennas on a stand-off bracket or extension arm must be concealed within a shroud. All cables, wires and other connectors must be concealed within the side-arm mount or extension arm. The maximum horizontal separation between the antenna and the pole shall be the minimum separation required by applicable health and safety regulations.
Location on wood utility poles shall only be allowed outside of commercial zoning districts.
d) New “Stand–Alone” Poles - Applicants that propose to install small wireless facilities within the public right-of-way of the Central Commercial Zone may do so only on traffic signal support poles and on a new stand-alone poles proposed to match the overall height, colors, style and design of the streetlight poles within the Zone (see Exhibit A).
All antennas, must be installed above the pole within a single, canister style shroud or radome, side-mounted installations shall not be permitted. In the case that wooden utility poles containing small cell wireless facilities are “undergrounded” within a residential zone, new stand-alone poles may be permitted as a replacement support for the approved facility and shall be designed to blend in with the surrounding character of the neighborhood. All surfaces shall be non-metallic and painted in natural tones.
The overall height of the antenna shall be no higher than previously approved for the utility pole.
5. Accessory Equipment
a) Installation Preferences - All non-antenna accessory equipment shall be installed in accordance with the following preferences, ordered from most preferred to least preferred:
(i) underground in any area in which the existing utilities are primarily located underground;
(ii) on the pole or support structure; or
(iii) integrated into the base of the pole or support structure.
Applications that involve lesser-preferred installation locations may be approved so long as the applicant demonstrates that no more preferred installation location would be technically infeasible as supported by clear and convincing evidence in the written record.
Attachment E 88 June 6, 2022 Item 14
CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
116
DESIGN STANDARDS FOR SMALL CELL WIRELESS
COMMUNICATION FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
DATE ADOPTED: 4-1-2019
BY RESOLUTION: 2019-18
PAGES: 4 OF 5
b) Undergrounded Accessory Equipment - All undergrounded accessory equipment must be installed in an environmentally controlled vault that is load-rated to meet the City's standards and specifications. Underground vaults located beneath a sidewalk must be constructed with a slip-resistant cover. Vents for airflow shall be flush-to-grade when placed within the sidewalk and may not exceed two feet above grade when placed off the sidewalk. Applicants shall not be permitted to install an underground vault in a location that would cause any existing tree to be materially damaged or displaced.
c) Pole-Mounted Accessory Equipment – RRU’s shall be placed within antenna shrouds, as attaching them to poles is discouraged. However, if that is determined to not be technically feasible, the smallest possible RRU volume shall be utilized and mounting of any and all accessory equipment must be installed flush to the pole to minimize the overall visual profile. If any applicable health and safety regulations prohibit flush-mounted equipment, the maximum separation permitted between the accessory equipment and the pole shall be the minimum separation required by such regulations. All pole-mounted equipment and required or permitted signage must be placed and oriented away from adjacent sidewalks and structures. Pole-mounted equipment may be installed behind street, traffic or other signs to the extent that the installation complies with applicable public health and safety regulations. All cables, wires and other connectors must be routed through conduits within the pole, and all conduit attachments, cables, wires and other connectors must be concealed from public view. To the extent that cables, wires and other connectors cannot be routed through the pole, applicants shall route them through a single external conduit or shroud that has been finished to match the underlying support structure.
d) Base-Mounted Accessory Equipment - All base-mounted accessory equipment must be installed within a shroud, enclosure or pedestal integrated into the base of the support structure. All cables, wires and other connectors routed between the antenna and base-mounted equipment must be concealed from public view. e) Ground-Mounted Accessory Equipment - The City shall not approve any groundmounted accessory equipment including, but not limited to, any utility or transmission equipment, pedestals, cabinets, panels or electric meters. f) Accessory Equipment Volume - All accessory equipment associated with a small wireless facility installed above ground level shall not cumulatively exceed: (i) nine (9) cubic feet in volume if installed in a residential district; or (ii) seventeen (17) cubic feet in volume if installed in a non-residential district. The volume calculation shall include any shroud, cabinet or other concealment device used in connection with Attachment E 89 June 6, 2022 Item 14
CITY OF DEL MAR
CITY COUNCIL POLICY BOOK
116
DESIGN STANDARDS FOR SMALL CELL WIRELESS
COMMUNICATION FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
DATE ADOPTED: 4-1-2019
BY RESOLUTION: 2019-18
PAGES: 5 OF 5
the non-antenna accessory equipment. The volume calculation shall not include any equipment or other improvements placed underground.
5. Street Trees. To preserve existing landscaping in the public rights-of-way, all work performed in connection with small wireless facilities shall not cause any street trees to be trimmed, damaged or displaced. If any street trees are damaged or displaced, the applicant shall be responsible, at its sole cost and expense, to plant and maintain replacement trees at the site for the duration of the permit/lease term.
Exhibit A – Camino del Mar Streetscape Light Pole Specifications Attachment E 90 June 6, 2022 Item 14
Submitted by OCS Lighting & Control (OCS)
Architect: City Electric Supply - Santee (Santee)
(new) Camino Del Mar Streetscape Improvements
Job Name:
6"
Notes: Bol, Straight, 18', 7.0" base, Top diameter @ 5", TA 4" x T4006- 2GFCI-BNR
BOL-T-18-70-5" TOP DIA-S4-C4-
Catalog Number: Type:
4 OCS18-56906
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GFCI boxes include cover only- USB Charger/ Receptacle are BY OTHERS Index Page 1/2Submitted On: Oct 23, 2018
APPROVED
Exhibit A
Attachment E
91 June 6, 2022 Item 14
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Beth Murray, Senior Management Analyst
Kristen M. Crane, Assistant City Manager
Via Ashley Jones, City Manager
DATE: June 6, 2022
SUBJECT: CARE Court Legislation and Update on Del Mar’s Efforts related to Addressing Homelessness
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution supporting California Senate Bill (SB) 1338: Community Assistance, Recovery, and Empowerment (CARE) Court Program (Attachment A); and 2) receive an update by staff on Del Mar’s efforts to address homelessness in the City.
BACKGROUND:
In March 2022, Governor Gavin Newsom introduced a policy framework that seeks to assist people living with untreated mental health and substance use disorders. The policy framework is known as the CARE Court Program. Legislation in support of the CARE Court Program (SB 1338) is being introduced by State Senators Umberg and Eggman.
The legislation is intended to provide individuals with a clinically appropriate, communitybased, and court-ordered Care Plan which includes mental health and substance abuse treatment services. The legislation will allow medical professionals, first responders, and family members to file a petition for an individual suffering from severe mental health issues. If granted under a CARES Court, the individual would receive clinical evaluation that could result in court-ordered mental health holds and the creation of a customized mental health plan. The court-ordered plan could require behavioral health treatment, stabilization medication, and a housing plan. A CARE Court Program Fact Sheet with more information about the program is included as Attachment B.
DISCUSSION/ANALYSIS:
Under the current proposal, a person is eligible for CARE Court if they are 18 years of age or older, have a serious mental illness or a related disorder, are not currently stabilized and in treatment with a county behavioral health agency, and currently lack medical decision-making capacity. There are many methods of referral to the Court, which 1 June 6, 2022 Item 15
City Council Agenda Report
CARE Court and DM Homelessness Response Update
June 6, 2022
may include a family member, behavioral health provider, first responder, or other approved party.
Once a CARE Court proceeding is initiated, both a public defender and a "support person" would be appointed to assist the individual during the court process. The CARE Court process allows the individual to work with county behavioral health to determine if they can reach a voluntary plan for care. If they cannot, the court would order an evaluation of the individual and, based on the results of the evaluation, order the individual, their public defender, their support person and county behavioral health to develop a CARE plan which must be followed for one year.
The CARE plan must include medically necessary treatment, including medication if recommended. CARE plans must also include a housing plan, but the court may not order the county to provide housing. After one year, the individual may request an additional one-year term in CARE Court, or to be graduated. If a person fails to follow the plan there is a presumption that there are no suitable community alternatives and that a conservatorship under the Lanterman-Petris-Short (LPS) Act may be warranted.
The responsibility for CARE Court, as currently envisioned, places these responsibilities with counties. If a county fails to comply with the CARE plan, the court may fine the county or, in the case of persistent non-compliance, appoint a receiver to provide the courtordered treatment at the county's expense.
Mayor Worden and City Manager Jones met recently with Governor Newsome’s staff and received a briefing on the proposed legislation. SB 1338 is consistent with the City’s Legislative Policy Guidelines under the following section:
Homelessness
Support legislation that would provide funding for mental health resources and housing solutions for the homeless and facilitate inter-agency partnerships and shared resources to collaborate on solutions between regional agencies.
As such, Mayor Worden joined many other Mayors in the region by signing on to a bipartisan letter drafted by San Diego Mayor Gloria and San Diego County Board of Supervisors Chair Fletcher supporting the legislation (Attachment C). The deadline to sign on to the letter is June 2, 2022, and so far has received signatures from Poway Mayor Vaus, Oceanside Mayor Sanchez, Coronado Mayor Bailey, Chula Vista Mayor Salas, and Escondido Mayor McNamara.
In addition, the Governor’s Office is asking that cities and counties also adopt Resolutions in support of the legislation. The County Board of Supervisors adopted a Resolution on May 24, 2022, in support of the Legislation and several other cities in the County, including the cities of El Cajon, Santee, Vista, Lemon Grove, Solana Beach, and La Mesa, have also adopted, or are scheduled to adopt, Resolutions in support. 2 June 6, 2022 Item 15
City Council Agenda Report
CARE Court and DM Homelessness Response Update
June 6, 2022
Del Mar Efforts to Address Homelessness
According to a recent survey of California cities by the League of California Cities, homelessness was identified as one of the most challenging issues that many cities are facing. The recent Point in Time Count conducted by the San Diego Regional Task Force on Homelessness (RTFH) identified that the numbers of homeless individuals in the County have risen. Like all communities, Del Mar also experiences challenges related to homelessness.
Historically, Del Mar has not had many resources available to assist with addressing homelessness when the need arises. For example, the Sheriff’s Department homeless outreach team has only been available in unincorporated areas; there are few social service non-profits in the area that provide services; and Del Mar has no funds available for social worker outreach services, whereas cities that receive larger amounts of federal Community Development Block Grant funding will often use some of those funds for this purpose. Historically, Del Mar’s only option for issues related to homelessness was to call the Sheriff’s Department, which means that: 1) Del Mar’s limited law enforcement resources are being taken away from their core purpose; and 2) deploying resources that are not specifically trained in assisting homeless individuals or equipped with the necessary tools.
The City experienced an uptick in homeless individuals during spring and summer 2020.
In seeking to address this community concern, staff connected with other cities in North San Diego County to learn about available resources, which ultimately led to further engaging the City with the RTFH, County of San Diego, and other neighboring cities. For the past two years, the sitting mayors have participated in RTFH’s quarterly Intergovernmental Roundtable focused on homeless issues. Additionally, by collaborating with the North County cities, there was success advocating for the addition of ten social outreach workers to serve North County specific to homelessness. Del Mar is essentially sharing a County-funded outreach worker with the cities of Solana Beach and Encinitas.
This partnership has led to excellent outcomes to connect the individuals with services and in some cases, ultimately housing and employment. Attached are the most recent quarterly reports for this program (Attachment D).
The County’s Mobile Crisis Response Team (MCRT) is another potential resource related to homelessness; however, its purpose is not exclusive to addressing homelessness, nor is that team necessarily available right away when there is an immediate need.
For specific issues related to businesses and public spaces experiencing challenges with homeless encampments, staff has engaged the Sheriff’s Department Crime Prevention Team to identify facility modifications that can be made, such as lighting, shrub trimming, and signage establishing hours of operation and indicating that no trespassing is allowed after hours.
Despite progress, addressing homelessness is an ongoing, complex challenge. For most cities, especially smaller ones like Del Mar, they do not have the financial resources, staff 3 June 6, 2022 Item 15
City Council Agenda Report
CARE Court and DM Homelessness Response Update
June 6, 2022
capacity or expertise to formulate and operate programs or even to apply for grants. The most effective route is by way of leveraging regional partnerships. To the extent possible, Del Mar would be best served to continue engaging on a regional level in order to be a part of potential regional partnerships for programs, services, and both temporary and permanent supportive housing, in order to be able to tap into these resources when they are needed. Federal laws limit the ability of cities to address homelessness through law enforcement without having and offering access to a shelter. For that reason, a multipronged approach is likely to be most effective.
To that end, because homelessness is such a highly complex issue with so many root causes and associated symptoms, the CARE Court model is considered to be an important tool as part of the overall portfolio of resources.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this agenda item ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
ATTACHMENTS:
Attachment A - Resolution in Support of SB 1338
Attachment B – Fact Sheet for CARES
Attachment C – Letter in Support of SB 1338
Attachment D – Regional Task Force on Homelessness (RTFH) Intergovernmental Roundtable Quarterly Report
4 June 6, 2022 Item 15
RESOLUTION NO. 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, SUPPORTING CALIFORNIA SENATE BILL (SB) 1338:
COMMUNITY ASSISTANCE, RECOVERY, AND EMPOWERMENT
(CARE) COURT PROGRAM
WHEREAS, mental illness and drug addiction are root causes for many experiencing homelessness, and until the challenges of mental illness and drug addiction of those experience homelessness are addressed, homelessness will remain a challenge for the region and other communities in California; and
WHEREAS, Governor Gavin Newsom has presented legislation that is being introduced by State Senators Umberg and Eggman. This legislation is known as SB 1338: Community Assistance, Recovery, and Empowerment (CARE) Court Program; and WHEREAS, CARE Court intends to assist individuals living with untreated mental health and substance abuse challenges. It helps individuals access housing, treatment, and care in times of mental health crises. It also provides accountability for individuals and local governments with court orders for services; and
WHEREAS, the legislation will provide individuals with a clinically appropriate, community-based, and court-ordered Care Plan which includes mental health treatment and substance abuse treatment services; and
WHEREAS, the legislation will allow medical professionals, first responders, and family members to file a petition for an individual suffering from severe mental health issues.
If granted under a CARES Court, the individual would receive clinical evaluation that could result in court-ordered mental health holds and the creation of a customized mental health plan. The court-ordered plan could require behavioral health treatment, stabilization medication, and a housing plan.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Del Mar, California, that:
1. The above recitals are true and correct; and
2. The City Council hereby supports SB 1338, and directs staff to provide a copy of this Resolution to the Governor’s Office and State Senators Umberg and Eggman.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California, at the Regular Meeting held this 6th day of June, 2022. _____________________________
Dwight Worden, Mayor
City of Del Mar
ATTACHMENT A
5 June 6, 2022 Item 15
Resolution No. 2022-XX
APPROVED AS TO FORM:
____________________________
Leslie E. Devaney, City Attorney
City of Del Mar
ATTEST AND CERTIFICATION:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF DEL MAR
I, SARAH KRIETOR, City Clerk of the City of Del Mar, California, DO HEREBY CERTIFY, that the foregoing is a true and correct copy of Resolution No. 2022-XX, adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the 6th day of June, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________
Sarah Krietor, Administrative Services
Manager/City Clerk
City of Del Mar
6 June 6, 2022 Item 15
CARE COURT
Governor Newsom’s Proposal to Get People with Mental Health & Substance Use Disorders the Support they Need
● Community Assistance, Recovery and Empowerment (CARE) Court is a new proposal to get people with mental health and substance use disorders the support and care they need. ● CARE Court is aimed at helping the thousands of Californians who are suffering from untreated schizophrenia spectrum or psychotic disorders that too often lead to homelessness, incarceration, institutionalization, or premature death.
● California is taking a new approach to act early and get people the support they need and address underlying needs - and we’re doing it without taking away people’s rights. ● CARE Court includes accountability for everyone – on the individual and on local governments – with court orders for services.
SPONSORING NEW CARE COURT LEGISLATION
● In March the Governor unveiled the CARE Court framework, and engaged the public and stakeholders in community roundtables across the state and listening sessions with diverse stakeholders.
● Legislation was introduced by Senator Umberg, Orange County and Senator Eggman, San Joaquin County (SB 1338). Legislative hearings which started in April, will continue to engage the public - including people living with mental illness, families, local government, community behavioral health care providers, first responders, judges, and more - and further develop CARE Court. ● To meet the urgent needs for care and housing we see in our communities, families, and streets, CARE Court must be enacted by July 1, and local partners can begin implementation in the following months.
FOCUSING UNPRECEDENTED FUNDING ON RESULTS
● Behavioral health is now funded at a record $11.6 billion each year - up nearly 70% from $6.7 billion eight years ago. Funding comes from five major sources, including Prop 63 Mental Health Services Act, Medi-Cal and non-Medical Behavioral Health, and Realignment in 1991 and 2011. See CalHHS Funding Backgrounder for more details.
● Housing and homelessness investments totaled a historic $12 billion in last year’s budget. An additional $2 billion is proposed this year - with $1.5 billion focused on Behavioral Health Bridge Housing that will be prioritized to serve people in CARE Court. ● The Governor’s May Revision to the Budget will include costs for the new Care Court process, including judges and appointed counsel.
HOW CARE COURT WORKS
Updated April 25, 2022
ATTACHMENT B
7 June 6, 2022 Item 15
CARE Court connects a person struggling with untreated mental illness – and often also substance use challenges – with a court-ordered Care Plan for up to 24 months. Each plan is managed by a care team in the community and can include clinically prescribed, individualized interventions with several supportive services, medication, and a housing plan. The client-centered approach also includes a public defender and supporter to help make self-directed care decisions in addition to their full clinical team, as well as opportunities for early engagement and settlement agreements for treatment plans.
CARE Court is designed on the evidence that many people can stabilize, begin healing, and exit homelessness in less restrictive, community-based care settings. It's a long-term strategy to positively impact the individual in care and the community around them. The plan advances an upstream diversion from more restrictive conservatorships or incarceration.
The CARE Court response can be initiated by family, county and community-based social services, behavioral health providers, or first responders. Individuals exiting a short-term involuntary hospital hold or a misdemeanor arrest may be especially good candidates for CARE Court. The Care Plan can be ordered for up to 12 months, with periodic review hearings and subsequent renewal for up to another 12 months.
CARE Court is based on accountability for all. Participants who do not successfully complete Care Plans may, under current law, be hospitalized or referred to conservatorship - with a new presumption that no suitable alternatives to community care are available. All counties across the state will participate in CARE Court under the proposal. If local governments do not meet their specified duties under court-ordered Care Plans, the court will have the ability to order sanctions and, in extreme cases, appoint a receiver to ensure services are provided.
Updated April 25, 2022
8 June 6, 2022 Item 15
(Include seals of all that sign)
May 19, 2022
The Honorable Tom Umberg
Member of the State Senate
1021 O Street #6370
Sacramento, CA 95814
The Honorable Susan Talamantes Eggman
Member of the State Senate
1021 O Street #8530
Sacramento, CA 95814
Re: SB 1338 (Umberg/Eggman): Support
Dear Senators Umberg and Eggman:
We are writing in support of your legislation, SB 1338, which would enact the Community Assistance, Recovery, and Empowerment (CARE) Act, an important measure to provide California’s civil courts with a new process for earlier action, support, and accountability to protect and care for some of our State’s most vulnerable residents.
The creation of CARE Courts by SB 1338 represents a thoughtful approach to addressing the behavioral health crisis we are witnessing on our streets and getting people connected with the care they need earlier. It appropriately recognizes the continuum of care that this small but highly visible segment of the population with significant mental health disorders deserve. As with local agencies throughout the State, San Diego’s communities are facing a daunting homelessness crisis. However, the unsheltered population is as diverse as the general population, all who come to their housing situation with different backgrounds, upbringings, and traumas. It is imperative that we provide multi-faceted solutions to help the myriad situations our fellow Californians face. Some unsheltered individuals recently lost a job and need quick and focused assistance; some have serious mental health and substance use disorder issues that have developed over many years resulting in an inability to care for themselves.
The County of San Diego, in partnership with the region’s cities, has been working to modernize our region’s approach to behavioral health services, investing in mobile crisis response teams, and new facilities like crisis stabilization units and community harm reduction shelters, specifically for people struggling with addiction and co-occurring mental illness. In addition to these investments, we need the corresponding policy changes that must occur at the state level.
CARE Court will provide a new and focused civil justice alternative to those struggling with schizophrenia spectrum or psychotic disorders and who lack medical decision-making capacity.
ATTACHMENT C
9 June 6, 2022 Item 15
The CARE plan envisioned by SB 1338 provides numerous safeguards to ensure personal civil liberties are respected and protected. Distinct from the Lanterman Petris Short (LPS) conservatorship process, this bill requires the County Health and Human Services Agency to establish a cadre of “supporters” who have the obligation to advocate for each person enrolled or potentially enrolled in CARE Court. Further, CARE Court enrollment is time-limited and is intended to last only one year, although it can be extended for one additional year. During the enrolled period, CARE plans can provide the needed time and intensive care to assist those more seriously ill on our streets.
To ensure effective implementation, San Diego local governments will need to make new investments in scaling up a new system of care, as well as infrastructure to accommodate the anticipated increase in demand for services. The region is already experiencing a behavioral health workforce shortage due to high housing costs, stagnant wages, licensing barriers, and impacted caseloads. Having enough trained and qualified professionals to provide care and support to participants will be essential to the success of CARE Court.
In addition, the San Diego region is committed to working to expand available housing for participants in the treatment program. All manner of housing - including shelter, transitional, and affordable - must be acquired to stabilize participants and move them off the streets. The San Diego region is making significant strides to meet the workforce and infrastructure implementation needs of CARE Court, but more is needed. We collectively support new state investments to help significantly close these gaps.
We must modernize our state’s behavioral health system to help people access care earlier, before crisis. We are pleased that this bill, and the other pending budgetary and legislative proposals, promise to do just that.
Thank you for your leadership on this issue.
Sincerely,
NATHAN FLETCHER TODD GLORIA
Chair, Board of Supervisors Mayor
County of San Diego City of San Diego
DWIGHT WORDEN
Mayor
City of Del Mar
10 June 6, 2022 Item 15
Del Mar Project Report - 2021
In 2021, 43 new Persons Experiencing Homelessness (PEH) were contacted during The County of San Diego’s Office of Homeless Solutions (OHS) Outreach efforts for the City of Del Mar, the following activities were completed for the current caseload.
Collaborative Efforts with City/Community Organizations Supported the city with their referrals, partnering with community-driven efforts. o Responded to Code Enforcement referrals of unauthorized encampments throughout the City of Del Mar and provided PEH with appropriate community referrals for needed resources. OHS collaborated with Encinitas Sheriff Department and Community partners to conduct ongoing Outreach for PEH and provided community resources and County services for continuity of care for the City’s homeless population.
o OHS participated in regular field operations with Sheriff Deputies and a variety of community partners to visit areas of concern identified by the City of Del Mar, business owners, and community members.
o Additional late night and early morning Outreach was performed with Sheriff's Deputies to conduct directed patrols to seek out high community concern areas and provide resources for individuals not contacted during regularly scheduled operations.
Conducted property owner and landlord engagement to acquire housing solutions for PEH. o Initiated landlord engagement and property rental opportunities in North County region. o Provided case management and assisted with contract/application process for available housing. o Transported and assisted with obtaining financial documents and valid/current identification necessary to complete housing process.
Administer Housing Stabilization plan for recently housed clients. o Implemented Housing Stabilization Plan and devised client-centered strategies to meet their current goals towards self-sufficiency.
Assisted with navigating COVID-19 testing and vaccination process for those that met criteria. o Assisted with scheduling process for testing and vaccinations. o Transported PEH for COVID-19 testing and vaccinations. o Completed referral process for COVID-19 Isolation/Temporary Lodging. Coordinated employment opportunity for PEH with entry level positions gained through community engagement.
o Conducted outreach to engage new community partners and potential employers. o Provided case management, resume, and interview preparedness assistance.
ATTACHMENT D
11 June 6, 2022 Item 15
Outcomes on Case Management
Specific outcomes include:
9 PEH were successfully housed in rental units that met their needs and budget. 2 PEH were successfully reunited with out-of-state family and returned home. 7 PEH were successfully placed in temporary shelters. 2 PEH were offered/accepted gainful employment through project efforts. 2 PEH was successfully placed in Safe Parking.
8 PEH were successfully placed in temporary shelters/isolation lodging. 17 PEH were assisted with obtaining COVID-19 testing/vaccine. 23 PEH were connected to crisis prevention, crisis intervention, and crisis stabilization resources. 14 PEH were provided employment preparedness assistance: resume, interview, and application process. 37 PEH were assisted with application process for County social services and programs. 19 PEH were assisted with obtaining financial/housing documentation. 16 PEH were assisted with developing a Stabilization Plan.
Reporting on Measurable Outcomes
Collaborated with multiple Agencies and Community Partners, making necessary connections in order to provide reporting on measurable outcomes for Outreach efforts performed in the City of Del Mar. 2021 Del Mar Project Report: Measurable Outcomes
Resource Management Measures
Unduplicated Count of Contacts (using total clients
served as a proxy) 43
Gender
Male 27
Female 16
Transgender 0
Non-conforming 0
Refused/Missing/Doesn’t know 0
Ethnicity
Non-Hispanic 22
Hispanic 7
Refused 14
Not collected 0
Race
White 19
Black 6
Asian 0
12 June 6, 2022 Item 15
American Indian/Alaskan Native 1
Native Hawaiian or other Pacific Islander 0
Multiple race 2
Refused 15
Not collected 0
Age
<5 0
5-12 0
13-17 0
18-24 2
25-34 4
35-44 4
45-54 9
55-61 9
62+ 8
Refused 7
Not Collected 0
Veteran Status
Vet 0
Non-vet 29
Refused 14
Not Collected
Number of contacts prior to accepting service
assistance 3
Number of contacts prior to accepting housing
assistance 3
Access to Services/Benefits Measures
Number referred to Behavioral Health Services
(MH/SUD) 23
Number admitted to Behavioral Health Services
(MH/SUD) 9
Access to Housing Measures Total to Date
Number entering temporary shelter within 3
months of initial contact 7
Number permanent housed within 6, 12 and 18
months of initial contact 11
13 June 6, 2022 Item 15
Del Mar 1st Quarter Report - 2022
In the 1st Quarter of 2022, 27 unduplicated Persons Experiencing Homelessness (PEH) were contacted during The County of San Diego’s OHS (Office of Homeless Solutions) Outreach efforts for the City of Del Mar, the following activities were completed for the current caseload.
Collaborative Efforts with City/Community Organizations OHS collaborated with Encinitas Sheriff Department and Community partners to conduct ongoing Outreach for PEH and provided community resources and County services for continuity of care for the City’s homeless population.
o OHS participated in regular field operations with Sheriff Deputies and a variety of community partners to visit areas of concern identified by the City of Del Mar, business owners, and community members.
o Additional late night and early morning Outreach was performed with Sheriff's Deputies to conduct directed patrols to seek out high community concern areas and provide resources for individuals not contacted during regularly scheduled operations.
Supported the city with their referrals, partnering with community-driven efforts. o Responded to Code Enforcement referrals of unauthorized encampments throughout the City of Del Mar and provided PEH with appropriate community referrals for needed resources. Assisted with navigating COVID-19 testing and vaccination process for those that met criteria. o Assisted with scheduling process for testing and vaccinations. o Transported PEH for COVID-19 testing and vaccinations. o Completed referral process for COVID-19 Isolation/Temporary Lodging. Conducted property owner and landlord engagement to acquire housing solutions for PEH. o Initiated landlord engagement and property rental opportunities in North County region. o Provided case management and assisted with contract/application process for available housing. Coordinated placement in treatment facilities for PEH experiencing SMI/SED/SUD/AOD concerns. o Connected with Sober Living treatment centers for PEH that are struggling with dependency and addiction.
o Assisted with intake and application process for admittance into mental health stabilization units. Collaborated with homeless Resource groups for utilization of available temporary shelters. o Worked in partnership with local community partners to obtain shelter resources for PEH as a temporary solution to transition to more permanent housing. Administer Housing Stabilization plan for recently housed clients. o Implemented Housing Stabilization Plan and devised client-centered strategies to meet their current goals towards self-sufficiency.
14 June 6, 2022 Item 15
Outcomes on Case Management
Specific outcomes include:
5 PEH were successfully housed in rental units that met their needs and budget. 3 PEH were successfully reunited with out-of-state family and returned home. 6 PEH were successfully placed in temporary shelters. 2 PEH were offered/accepted gainful employment through project efforts. 2 PEH was successfully placed in Safe Parking.
4 PEH were successfully placed in COVID temporary isolation lodging. 9 PEH were connected to crisis prevention, crisis intervention, and crisis stabilization resources. 11 PEH were assisted with obtaining COVID-19 testing/vaccine. 10 PEH were provided employment preparedness assistance: resume, interview, and application process. 22 PEH were assisted with application process for County social services and programs. 10 PEH were assisted with obtaining financial/housing documentation. 14 PEH were assisted with developing a Stabilization Plan.
Reporting on Measurable Outcomes
Collaborated with multiple Agencies and Community Partners, making necessary connections in order to provide reporting on measurable outcomes for Outreach efforts performed in the City of Del Mar. 2022 Del Mar 1ST Quarter Report: Measurable Outcomes
Resource Management Measures
Unduplicated Count of Contacts (using total clients
served as a proxy) 27
Gender
Male 18
Female 8
Transgender 0
Non-conforming 1
Refused/Missing/Doesn’t know 0
Ethnicity
Non-Hispanic 11
Hispanic 6
Refused 6
Not collected 4
Race
White 8
Black 3
Asian 0
15 June 6, 2022 Item 15
American Indian/Alaskan Native 0
Native Hawaiian or other Pacific Islander 0
Multiple race 6
Refused 6
Not collected 4
Age
<5 0
5-12 0
13-17 0
18-24 1
25-34 6
35-44 7
45-54 3
55-61 5
62+ 1
Refused 0
Not Collected 4
Veteran Status
Vet 2
Non-vet 11
Refused 10
Not Collected 4
Number of contacts prior to accepting service
assistance 4
Number of contacts prior to accepting housing
assistance 3
Access to Services/Benefits Measures
Number referred to Behavioral Health Services
(MH/SUD) 9
Number admitted to Behavioral Health Services
(MH/SUD) 4
Access to Housing Measures Total to Date
Number entering temporary shelter within 3
months of initial contact 6
Number permanently housed within 6, 12 and
18 months of initial contact 8
16 June 6, 2022 Item 15