CITY OF SAN LEANDRO
MASTER LICENSE AGREEMENT FOR
SMALL CELL POLE ATTACHMENT INSTALLATION
between
THE CITY OF SAN LEANDRO
and
NEW CINGULAR WIRELESS PCS, LLC
For City of San Leandro in San Leandro, California
Effective as of , 202 _
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TABLE OF CONTENTS
Page
1 PURPOSE, DEFINITIONS, AND BASIC LICENSE INFORMATION ................................... 2
1.1 Purpose ..................................................................................................................... 2
1.1.1 Master License .............................................................................................. 2
1.1.2 Pole Licenses ................................................................................................ 2
1.1.3 Non-City Poles .............................................................................................. 2
1.2 Basic License Information ......................................................................................... 2
1.3 Definitions ................................................................................................................. 2 2 SCOPE OF LICENSE ........................................................................................................... 6
2.1 License Areas ........................................................................................................... 6
2.1.1 Issuance of Pole Licenses ............................................................................ 6
2.1.2 No Competing Licenses ................................................................................ 6
2.1.3 Limitation on Scope ....................................................................................... 6
2.1.4 Limitation on Nonstandard City Poles ........................................................... 7
2.1.5 Exclusions ..................................................................................................... 7
2.1.6 Consideration of Alternative Location ........................................................... 7
2.2 No Property Interest in License Area or City Poles ................................................... 7
2.2.1 Limited Interest .............................................................................................. 7
2.2.2 Limited Rights ............................................................................................... 7
2.2.3 No Impediment to Municipal Use .................................................................. 8
2.3 Signs and Advertising ............................................................................................... 8
2.4 Light and Air .............................................................................................................. 8
2.5 As-Is Condition of the License Area .......................................................................... 8
2.5.1 As-Is Condition .............................................................................................. 8
2.5.2 Licensee Due Diligence ................................................................................ 8
2.5.3 No City Representations or Warranties ......................................................... 8
2.5.4 Disclosure ..................................................................................................... 9 3 TERM.................................................................................................................................... 9
3.1 Term of Master License and Pole Licenses .............................................................. 9
3.1.1 Term .............................................................................................................. 9
3.1.2 Minimum Term .............................................................................................. 9
3.1.3 Deadline to Apply for Pole Licenses ............................................................. 9 DRAFT
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4 LICENSE FEES; ADDITIONAL FEES; AND OTHER CHARGES ...................................... 10
4.1 Commencement Date ............................................................................................. 10
4.1.1 Definition ..................................................................................................... 10
4.2 License Fees ........................................................................................................... 10
4.2.1 License Fee Schedule ................................................................................. 10
4.2.2 Cost Study ................................................................................................... 10
4.2.3 Change of Law ............................................................................................ 10
4.2.4 Notice of License Fee Change .................................................................... 11
4.2.5 Amount of License Fee; Proration ............................................................... 11
4.2.6 Due Dates ................................................................................................... 11
4.2.7 Discount for Integrated Poles ...................................................................... 11
4.3 Adjustments in License Fee .................................................................................... 11
4.4 Intentionally Omitted ............................................................................................... 11
4.5 Intentionally Omitted ............................................................................................... 11
4.6 Master License Application Processing Payments ................................................. 12
4.6.1 Intentionally Omitted ................................................................................... 12
4.6.2 Intentionally Omitted ................................................................................... 12
4.6.3 Early Termination ........................................................................................ 12
4.6.4 Refunding of Excess Amounts .................................................................... 12
4.7 Pole License Administrative Processing Payments ................................................ 12
4.7.1 Initial Payment ............................................................................................. 12
4.7.2 Account ....................................................................................................... 13
4.7.3 Subsequent Payments ................................................................................ 13
4.7.4 Early Termination ........................................................................................ 13
4.7.5 Refunding of Excess Amounts .................................................................... 13
4.8 Additional Fees ....................................................................................................... 13
4.8.1 Defined ........................................................................................................ 13
4.8.2 Exclusions ................................................................................................... 13
4.9 Manner of Payment ................................................................................................. 13
4.10 Reasonableness of Liquidated Charges and Fees ................................................. 14 5 USE RESTRICTIONS ......................................................................................................... 14
5.1 Permitted Use ......................................................................................................... 14
5.2 Prohibition on “Macro Cell” Uses ............................................................................ 14
5.3 No Illegal Uses or Nuisances .................................................................................. 15 DRAFT
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6 POLE LICENSE APPROVALS ........................................................................................... 15
6.1 City Approval Required ........................................................................................... 15
6.1.1 City Rights Superior .................................................................................... 15
6.1.2 Changes in Application ............................................................................... 15
6.1.3 Consultation with Community Development ............................................... 16
6.2 Regulatory Approval Required. ............................................................................... 16
6.3 Initial and Annual Master Plans Required ............................................................... 16
6.4 Design Guidelines ................................................................................................... 16
6.5 Pole License Application ......................................................................................... 16
6.6 Pole License Application Review Process .............................................................. 17
6.7 Administrative Payments ........................................................................................ 17
6.8 Pole License Approval ............................................................................................ 18
6.9 Right to Disapprove ................................................................................................ 18
6.10 Federal and State Regulations Inapplicable ........................................................... 18 7 INSTALLATION OF EQUIPMENT ...................................................................................... 18
7.1 Approved Plans and Specifications ........................................................................ 18
7.1.1 Strict Compliance Required ........................................................................ 18
7.1.2 Identification and Other Signage ................................................................. 18
7.1.3 Required Changes ...................................................................................... 19
7.1.4 Corrections .................................................................................................. 19
7.2 Installation ............................................................................................................... 19
7.3 Notice Required Prior to Installation ....................................................................... 19
7.4 Cost of Labor and Materials .................................................................................... 19
7.5 No Alteration of City’s Existing Equipment or Infrastructure ................................... 20
7.6 Standard of Work .................................................................................................... 20
7.7 Licensee’s Contractors ........................................................................................... 20
7.8 Project Manager ...................................................................................................... 20
7.9 Coordination of Work .............................................................................................. 20 8 ALTERATIONS ................................................................................................................... 21
8.1 Licensee’s Alterations ............................................................................................. 21
8.2 Title to Improvements and Removal of Licensee’s Equipment ............................... 21 9 CITY WORK ON POLES OR LICENSE AREA .................................................................. 21
9.1 Repairs, Maintenance, and Alterations ................................................................... 21
9.2 Notice to Licensee .................................................................................................. 21 DRAFT
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9.3 Licensee’s On-Call Representative ......................................................................... 22
9.4 Emergencies ........................................................................................................... 22 10 LICENSEE’S MAINTENANCE AND REPAIR OBLIGATIONS. .......................................... 22
10.1 Damage to City Property ......................................................................................... 22
10.2 Alterations to City Property ..................................................................................... 23
10.3 No Right to Repair City Property ............................................................................. 23
10.4 Notice of Damage to City Property ......................................................................... 23
10.5 Licensee’s Equipment ............................................................................................. 23
10.5.1 Maintenance and Repair .......................................................................... 23
10.5.2 City Approval ............................................................................................ 23
10.5.3 Graffiti ....................................................................................................... 23
10.6 Intentionally Omitted ............................................................................................... 23 11 LIENS ................................................................................................................................. 24 12 UTILITIES; TAXES AND ASSESSMENTS ......................................................................... 24
12.1 Utilities .................................................................................................................... 24
12.2 Taxes and Assessments ......................................................................................... 24
12.2.1 General Payment Duty of Licensee ......................................................... 24
12.2.2 Licensee’s Right to Appeal Tax Assessments ......................................... 25 13 COMPLIANCE WITH LAWS ............................................................................................... 25
13.1 Current and Future Laws ........................................................................................ 25
13.2 Personnel Safety Training ....................................................................................... 25
13.2.1 CPUC Certification ................................................................................... 25
13.2.2 Licensee’s Indemnity ................................................................................ 25
13.2.3 City’s Indemnity ........................................................................................ 26
13.3 Compliance with CPUC General Order 95 ............................................................. 26
13.4 Compliance with Electric Codes ............................................................................. 26
13.5 Intentionally Omitted ............................................................................................... 26
13.6 Regulatory Approvals .............................................................................................. 26
13.7 Radiofrequency Radiation and Electromagnetic Fields .......................................... 27
13.8 Compliance with City’s Risk Management Requirements ...................................... 27 14 DAMAGE OR DESTRUCTION ........................................................................................... 27
14.1 City’s Election ......................................................................................................... 27
14.1.1 Election to Repair or Replace Damage .................................................... 27
14.1.2 Election to Remove Damaged City Pole .................................................. 28 DRAFT
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14.1.3 Election to Remove Equipment from Damaged License Area ................. 28
14.1.4 Licensee’s Rights after Termination ......................................................... 28
14.2 No Statutory Rights for Damaged City Pole ............................................................ 28 15 EMINENT DOMAIN ............................................................................................................ 28
15.1 Eminent Domain ..................................................................................................... 28
15.1.1 Termination .............................................................................................. 28
15.1.2 Award ....................................................................................................... 28
15.1.3 No Statutory Right to Terminate ............................................................... 28
15.2 Temporary Takings ................................................................................................. 29 16 ASSIGNMENT .................................................................................................................... 29
16.1 Restriction on Assignment ...................................................................................... 29
16.2 Notice of Proposed Assignment .............................................................................. 29
16.3 City Response ......................................................................................................... 29
16.3.1 Timing ...................................................................................................... 29
16.3.2 Effect of Default ........................................................................................ 29
16.4 Effect of Assignment ............................................................................................... 30
16.5 Assumption by Transferee ...................................................................................... 30
16.6 Permitted Assignment ............................................................................................. 30
16.6.1 Defined ..................................................................................................... 30
16.6.2 Conditions ................................................................................................ 30 17 DEFAULT ........................................................................................................................... 31
17.1 Events of Default by Licensee ................................................................................ 31
17.1.1 Nonpayment of Fees ................................................................................ 31
17.1.2 Lapsed Regulatory Approvals .................................................................. 31
17.1.3 Prohibited Assignment ............................................................................. 31
17.1.4 Interference with City ............................................................................... 31
17.1.5 Failure to Maintain Insurance ................................................................... 31
17.1.6 Failure to Cure ......................................................................................... 31
17.1.7 Other Terms ............................................................................................. 31
17.1.8 Abandonment ........................................................................................... 31
17.1.9 Insolvency ................................................................................................ 31
17.2 City’s Remedies ...................................................................................................... 32
17.2.1 Continuation of License ............................................................................ 32
17.2.2 Termination of Pole License ..................................................................... 32 DRAFT
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17.2.3 Termination of Master License ................................................................. 32
17.2.4 Default Fees ............................................................................................. 32
17.3 Licensee’s Remedy for City Defaults ...................................................................... 33
17.4 Cumulative Rights and Remedies ........................................................................... 33 18 LICENSEE’S INDEMNITY .................................................................................................. 33
18.1 Scope of Licensee’s Indemnity ............................................................................... 33
18.2 Indemnification Obligations ..................................................................................... 33 19 INSURANCE ....................................................................................................................... 34
19.1 Licensee’s Insurance .............................................................................................. 34
19.1.1 Coverage Amounts .................................................................................. 34
19.1.2 Required Endorsements .......................................................................... 34
19.1.3 Notice of Cancellation .............................................................................. 34
19.1.4 Claims-Made Policies ............................................................................... 35
19.1.5 Intentionally Omitted ................................................................................ 35
19.1.6 Certificates ............................................................................................... 35
19.1.7 Insurance Does Not Limit Indemnity ........................................................ 35
19.1.8 Right to Terminate .................................................................................... 35
19.1.9 Ratings ..................................................................................................... 35
19.1.10 Effective Dates ......................................................................................... 35
19.1.11 Self-Insurance Alternative ........................................................................ 35
19.2 Insurance of Licensee’s Property ............................................................................ 35
19.3 City’s Insurance ...................................................................................................... 35
19.4 Waiver of Subrogation ............................................................................................ 36
19.5 Contractors’ Insurance, and City Business Licenses .............................................. 36
19.6 Submittal of Proof of Insurance Coverage ............................................................. 36 20 LIMITATION OF CITY’S LIABILITY .................................................................................... 36
20.1 General Limitation on City’s Liability ....................................................................... 36
20.2 Consequential Damages ......................................................................................... 36
20.3 No Relocation Assistance ....................................................................................... 37
20.4 Non-Liability of City Officials, Employees, and Agents. .......................................... 37
20.5 Scope of Waivers .................................................................................................... 37 21 CITY ACCESS TO LICENSE AREA ................................................................................... 37
21.1.1 City’s Right of Access .............................................................................. 37
21.1.2 Emergency Access .................................................................................. 38 DRAFT
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21.1.3 No Liability for Emergency Access ........................................................... 38 22 REQUIRED RECORDS ...................................................................................................... 38
22.1 Records of Account for Active Pole Licenses ......................................................... 38
22.2 Estoppel Certificates ............................................................................................... 38
22.3 Regulatory and Bankruptcy Records ...................................................................... 39
22.3.1 Copies for City Records ........................................................................... 39
22.3.2 Production of Documents ......................................................................... 39 23 RULES AND REGULATIONS ............................................................................................ 39 24 SECURITY DEPOSIT ......................................................................................................... 39
24.1 Application of Security Deposit ............................................................................... 39
24.2 Further Deposits ..................................................................................................... 40 25 SURRENDER OF LICENSE AREA .................................................................................... 40
25.1 Surrender ................................................................................................................ 40
25.1.1 Obligations Upon Surrender ..................................................................... 40
25.1.2 Equipment Abandoned After Termination ................................................ 40
25.2 Holding Over ........................................................................................................... 40
25.2.1 With Consent ............................................................................................ 40
25.2.2 Without Consent ....................................................................................... 41 26 HAZARDOUS MATERIALS ................................................................................................ 41
26.1 Hazardous Materials in License Area ..................................................................... 41
26.2 Licensee’s Environmental Indemnity ...................................................................... 41 27 SPECIAL PROVISIONS ..................................................................................................... 42
27.1 Early Termination by Either Party ........................................................................... 42
27.2 Licensee’s Termination Rights ................................................................................ 42
27.2.1 No-Fault Termination of Master License .................................................. 42
27.2.2 Pole License Termination ......................................................................... 42
27.2.3 Master License Termination ..................................................................... 42
27.2.4 Interference Caused by City Work ........................................................... 42
27.3 City’s Termination Rights ........................................................................................ 42
27.3.1 Right to Terminate Pole Licenses ............................................................ 42
27.3.2 Removal of Equipment ............................................................................. 43
27.3.3 City Pole Removal .................................................................................... 43
27.3.4 Replacement, Relocation, or Upgrading of City Poles ............................. 43
27.3.5 Future Use of Existing City Conduit ......................................................... 44 DRAFT
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27.4 Licensee’s Rights after Termination ........................................................................ 44
27.5 Special Remedies for Interference with Operations ................................................ 44
27.5.1 Licensee’s Obligation Not to Cause Interference ..................................... 44
27.5.2 Impairment Caused by Change in City Use ............................................. 45
27.5.3 Impairment Caused by City Access ......................................................... 45 28 GENERAL PROVISIONS ................................................................................................... 46
28.1 Formal Notices ........................................................................................................ 46
28.1.1 Writings Required ..................................................................................... 46
28.1.2 Manner of Delivery ................................................................................... 46
28.1.3 Effective Date of Notices .......................................................................... 46
28.2 Intentionally Omitted ............................................................................................... 46
28.3 No Implied Waiver ................................................................................................... 47
28.4 Amendments ........................................................................................................... 47
28.5 Interpretation of Licenses ........................................................................................ 47
28.5.1 General .................................................................................................... 47
28.5.2 Multi-party Licensee ................................................................................. 47
28.5.3 Captions ................................................................................................... 47
28.5.4 Time for Performance .............................................................................. 47
28.5.5 City Actions .............................................................................................. 47
28.5.6 Words of Inclusion .................................................................................... 48
28.5.7 Laws ......................................................................................................... 48
28.6 Successors and Assigns ......................................................................................... 48
28.7 Brokers .................................................................................................................... 48
28.8 Severability ............................................................................................................. 48
28.9 Governing Law and Venue ..................................................................................... 48
28.10 Entire Agreement .................................................................................................... 49
28.11 Time of Essence ..................................................................................................... 49
28.12 Survival ................................................................................................................... 49
28.13 Recording ................................................................................................................ 49
28.14 Counterparts ........................................................................................................... 49
28.15 Cooperative Drafting ............................................................................................... 49
28.16 Authority to Approve Agreement ............................................................................. 50
28.17 Conflict of Interest ................................................................................................... 50
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28.18 Included Exhibits and Schedules ............................................................................ 50 EXHIBIT A Form of Pole License Agreement
EXHIBIT A-1 Pole Locations/License Area
EXHIBIT A-2 Licensee’s Plans and Specifications
SCHEDULE A-3 Licensee Fee and Default Fee Schedule
EXHIBIT A-4 City Installation Guidelines
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BASIC LICENSE INFORMATION
City: City of San Leandro, a California charter city.
Licensee: New Cingular Wireless PCS, LLC, a Delaware
limited liability company.
Term (§ 3.1.1): Ten (10) years, beginning on the Master License Effective Date, with subsequent renewal terms
thereafter.
Master License Effective Date (§ 1.3): The first day of the month after the date that the City Council provides it final approval of this
Master License.
Expiration Date (§ 1.3): The day before the 10th anniversary of the Master License Effective Date unless otherwise
renewed.
Pole License Term and Pole License Effective
Date (§ 3.1.1):
For each Pole License, the Pole License
Effective Date shall be the first day of the month
after Licensee has received all City-issued
Regulatory Approvals with the exception of an
Encroachment Permit and a Pole License is fully
executed. Each Pole License is coterminous
with the Master License.
Pole License Application Deadline (§ 3.1.3): Licensee may submit Pole License applications at any time during the Term.
Commencement Date (§ 4.1): For each Pole License, the Commencement Date shall be the same date as the Pole License
Effective Date.
License Fee (§ 4.2): Licensee will be obligated to pay City an annual License Fee at a rate based on the License Fee
on the Commencement Date. The License Fee
Schedule for each Pole License will be attached
to the Pole License as Exhibit A-3.
Integrated Pole License Fee Discount (§ 4.2.7): 20% discount to the License Fee rate per City Pole upgraded to an Integrated Pole over the
remaining term of each applicable Pole License.
License Fee Adjustment Dates (§ 4.3): License Fee will escalate by three percent (3%) on January 1 of each year of the Term.
Master License Processing Payment (§ 4.6): $4,000 to be delivered with Licensee’s partially executed counterpart of this Master License.
The payment will be used for all of the City’s
reasonable and actual processing and
administrative costs related to the Master
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License.
Pole License Administrative Payments
(§ 4.7.1 - 4.7.3):
$1,865 per Standard City Pole, to be delivered
with Licensee’s application for each Pole
License. This includes a $65 non-refundable
administrative fee, and a $1,800 deposit. This
initial payment, and any necessary subsequent
payments, will be used to cover the City’s actual
and reasonable costs to review and administer
the application process upon delivery of each
Pole License application. City will negotiate the
amount of the deposit for Nonstandard City
Poles upon receiving any Pole License
application requesting their use. Funds will be
deposited in a customer number account
established by the City’s Finance Department.
Permitted Use (§ 5.1): Installation, operation, maintenance, modification, and addition of, and access to,
Equipment on the License Area specified in each
Pole License and no other location. Use of the
License Area for any other purpose without
City’s prior consent is prohibited.
Equipment Installation (Art. 7): All Equipment to be installed on the License Area is subject to City’s final approval through the
applicable Pole License. Licensee shall install
Equipment at its sole cost only at the Pole
Location specified in each Pole License.
Utilities (§ 12.1): Licensee shall be solely responsible for obtaining and maintaining electric service for the
Equipment, including, but not limited to, making
payments to electric utilities and installation of
separate electric meters, if necessary. If feasible
and in the City’s sole determination, the parties
will cooperate to allow Licensee to use City Utility
Infrastructure as provided in Section 12.1.
Pre-Construction Emissions Report (§ 13.7): As a condition to issuance of any Pole License, Licensee must provide City a copy of the PreConstruction Emissions Report submitted for Licensee’s Encroachment Permit.
License Fee and Default Fee Schedule
(§ 17.2.4):
Exhibit A-3 to each Pole License.
Security Deposit (Art. 24): Cash deposit or surety bond in the amount of $50,000, to be delivered within ten (10) days
following Licensee’s receipt of its first fully
executed Pole License issued under this Master
License. Licensee shall provide additional
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security in the amount of $25,000 within ten (10)
days following receipt of its tenth (10th) fully
executed Pole License.
With a copy to: Meyers Nave
1999 Harrison Street, 9th Floor
Oakland, CA 94612
Attn: Richard Pio Roda, Esq.
Re: Master License – New Cingular Wireless
PCS, LLC
Project manager and day-to-day contact for City: City Principal Engineer Emergency contact for City (§ 9.4): During Business Hours:
Public Works Department
Telephone No.: (510) 577-3440
Off-Hours:
Police Dispatch
Telephone No.: (510) 577-2740
Instructions for payments due to City: Checks should be made payable to “City of San Leandro” and delivered to:
City of San Leandro Finance Department
835 East 14th Street
San Leandro, CA 94577
Attn: Finance Director
Re: Master License - Company
Wire transfers should be directed as follows:
Routing Number: 121000248
Account Number: 4121676340
Notice address of Licensee (§ 28.1): New Cingular Wireless PCS, LLC Attn: Tower Asset Group – Lease
Administration
Re: AT&T-City of San Leandro MLA for Small
Cells
1025 Lenox Blvd. NE, 3rd Floor
Atlanta, GA 30319
With a copy concurrently to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal- Network Operations
Re: AT&T-City of San Leandro MLA for Small
Cells
208 S. Akard Street
Dallas, TX 75202
Project manager for Licensee (§ 7.8): On File with City DRAFT
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On-call and emergency contact for Licensee (§§
9.3, 9.4):
AT&T Mobility Network Reliability Center
1-800-638-2822
NOTICE TO LICENSE APPLICANTS: The above Basic License Information table is intended to provide an overview of the terms of this Master License for ease of reference. If any inconsistency should arise between this table and terms of the Master License, the Master License language shall control. The City’s acceptance of the Pole License Administrative Payment(s) will not obligate the City to enter into any Pole License if the City in its sole discretion determines that disapproval is warranted consistent with the terms of this Master License and applicable Laws. If the City disapproves any Pole License application, it will notify the applicant by a letter specifying the reasons for disapproval. Disapproval will not disqualify the applicant from re-applying (§ 6.5.).
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1 MASTER LICENSE AGREEMENT FOR
SMALL CELL POLE ATTACHMENT INSTALLATION
This MASTER LICENSE AGREEMENT FOR SMALL CELL POLE ATTACHMENT INSTALLATION (“Master License”), effective as of __________, 202___, is made by and between the CITY OF SAN LEANDRO, a municipal corporation (the “City”) and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company (“Licensee”).
BACKGROUND
A. The City owns and operates approximately 4,730 streetlight poles and other traffic control and safety poles (each, a “City Pole”) in San Leandro, California, many of which are suitable sites for installing equipment to enhance wireless telecommunications services in San Leandro. The City purchases electricity to power each streetlight from Pacific Gas & Electric Company (PG&E). Certain streetlights are powered from PG&E’s unmetered electrical grid, while others are attached in series to various electrical meters. The City can provide Licensee information on how individual streets lights are powered upon request.
B. Licensee has requested to use City Poles to install, maintain, access, and operate communications facilities as specified in this Master License.
C. This Master License Agreement is intended to manage the license of existing City Poles for installation of outdoor distributed antenna systems, including small cells or microcells to be installed and operated by wireless telecommunications carriers using licensed and unlicensed spectrum and third-party hosts certificated by the California Public Utilities Commission. The City reserves the right to evaluate usage of unlicensed spectrum (e.g. 5 Ghz) and to assess coexistence with its Public Wi-Fi equipment. Licensee agrees to work with City to ensure such coexistence is achieved. The Master License has been approved by the following City actions, all of which are now final and binding:
1. The City Council concluded that City approval of the Master License and Pole License would not commit the City to authorize use of specific City Poles. Therefore, the City actions described in Paragraph C.2 did not fall with the definition of a “project” under the California Environmental Quality Act (CEQA) Guidelines section 15378.
2. The City Council adopted Resolution No. _______ authorizing its City Manager or his or her designee to enter into this Master License with and to issue Pole Licenses to wireless telecommunications carriers in a manner consistent with all required approvals on __________.
D. Licensee has the authority under applicable Laws to install and maintain communications facilities in the public right-of-way to provide wireless telecommunications services.
NOW THEREFORE, IN RECOGNITION OF MUTUAL CONSIDERATION, THE ABOVE PARTIES AGREE TO THE FOLLOWING:
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AGREEMENT
1 PURPOSE, DEFINITIONS, AND BASIC LICENSE INFORMATION
1.1 Purpose.
1.1.1 Master License. This Master License: (i) establishes the legal relationship and framework under which Licensee may apply to the City for and obtain a revocable, nonpossessory license to use the License Area identified in Pole Licenses issued under this Master License for the Permitted Use which may only be revoked consistent with the terms of this Master License; (ii) governs the fees, charges, procedures, requirements, terms, and conditions by which the City will issue Pole License(s) to Licensee; and (iii) authorizes Licensee to engage in the Permitted Use only after Pole Licenses are issued under this Master License.
1.1.2 Pole Licenses. Pole Licenses that the City issues under this Master License will: (i) authorize Licensee to engage in the Permitted Use; (ii) specify approved Pole Locations, any site constraints, and any additional installation, operation, access, and maintenance requirements specific to those Pole Locations; (iii) grant a license, but not a leasehold interest, to Licensee only as a part of and subject to the terms and conditions of this Master License and which may only be revoked consistent with the terms of this Master License; and (iv) not amend any term or condition of this Master License.
1.1.3 Non-City Poles. The parties agree that Licensee may seek to install Equipment on poles owned by any other public or private party, or as otherwise permitted by Laws, as long as Licensee obtains all necessary permits for such installation, including, without limitation, a City-issued Encroachment Permit.
1.2 Basic License Information.
The Basic License Information in the preceding pages is intended to provide a summary of certain provisions relating to the licenses that the City will grant to Licensee in accordance with this Master License and is for the parties’ reference only. If any information in the Basic License Information conflicts with any more specific provision of this Master License or any Pole License issued under it, the more specific provision will control.
1.3 Definitions.
Capitalized and other defined terms used in this Master License and all exhibits have the meanings given to them in this Section or in the text where indicated below, subject to the rules of interpretation set forth in Section 28.5 (Interpretation of Licenses). “Additional Fees” is defined in Subsection 4.8.1.
“Adjustment Date” is defined in Section 4.3.
“Administrative Payments” is defined in Section 4.7.
“Affiliate” means (i) any entity in which the Licensee directly or indirectly holds a majority equity or similar interest; or (ii) any entity directly or indirectly under common control with the Licensee; or (iii) any entity which acquires all or substantially all of Licensee's assets in the market DRAFT
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defined by the FCC in which a particular City Pole is located by reason of a merger, acquisition or other business reorganization.
“Agents” when used with respect to either party includes the agents, employees, officers, contractors, subcontractors, and representatives of that party in relation to this Master License and the License Area.
“Approved Plans” is defined in Subsection 7.1.1.
“Assignee” is defined in Section 16.2.
“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 sublicensee. “Assignment Response Period” is defined in Subsection 16.3.1. “Basic License Information” means the summary attached in chart form immediately preceding the text of this Master License.
“Broker” is defined in Section 28.7.
“Business Day” is defined in Subsection 28.5.4.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.), also commonly known as the “Superfund” law. “City” is defined in the preamble.
“City Pole” is defined in Recital A.
“Claim” is defined in Section 18.1.
“Commencement Date” is defined in Subsection 4.1.1.
“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; and (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” is defined in Subsection 13.2.1.
“Default Fee” is defined in Subsection 17.2.4.
“EMFs” is defined in Section 13.7.
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“Pre-Construction Emissions Report” is defined in Section 13.7. “Encroachment” is defined in Section 6.2.
“Environmental Laws” means any Law relating to industrial hygiene, environmental conditions, or Hazardous 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, mount or install other Equipment to or adjacent to a licensed pole in the public right of way, peripherals, and ancillary equipment and installations, including wiring, cabling, power feeds, and any approved signage attached to Equipment.
“Expiration Date” means the last day of the Term of this Master License and any Pole Licenses issued under it as specified in the Basic License Information. “FCC” is defined in Section 7.1.2.
“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 CERCLA or section 25316 of the California Health & Safety Code; and any “hazardous waste” listed in section 25140 of the California Health & Safety Code; and petroleum, including crude oil or any fraction thereof, natural gas, or natural gas liquids. “Indemnified Parties” means the City, its Agents, its Invitees, and their respective heirs, legal representatives, successors, and assigns.
“Indemnify” means to indemnify, defend (with counsel who is either (i) licensed and in good standing and possesses a minimum of seven (7) years of experience in the subject matter of the Claim, or (ii) otherwise reasonably acceptable to an Indemnified Party), and hold harmless. “Integrated Pole” means a new Pole designed to house street lighting and wireless communications equipment intended to provide efficient lighting and wireless communications signals in an integrated, aesthetically coherent structure. An Integrated Pole shall function as street lighting even if communications Equipment is not connected or is removed from the Integrated Pole, and said Integrated Pole shall be aesthetically compatible with streetlights within the immediate vicinity.
“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. “Invitees” when used with respect to either party includes the clients, customers, invitees, guests, tenants, subtenants, licensees, authorized assignees, and authorized sublicensees of that party in relation to the License Area.
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“Laws” means all present and future statutes, ordinances, codes, orders, regulations, and implementing requirements and restrictions of federal, state, county, and municipal authorities including the Wireless Infrastructure Order (as defined in Section 4.2.1 below), and, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question.
“License Area” means, individually and collectively for all licensed City Poles, the portion of the City Poles approved for installation of Equipment, including pole tops, conduits housing the circuits delivering power to the City Poles and streetlight pull boxes and other City Property necessary for access.
“License Fee” is defined in Subsection 4.2.1. “License Year” is defined in Subsection
4.1.1. “Licensee” is defined in the preamble.
“Master License” is defined in the preamble, and where appropriate in the context, includes all Pole Licenses issued under it.
“Master License Effective Date” means the effective date of this Master License as specified in the Basic License Information.
“NESC” is defined in Section 13.4.
“Nonstandard City Pole” means a City Pole other than a Standard City Pole, including historic, decorative, or concrete City Poles, traffic signal poles, or intersection traffic control and safety poles.
“Notice of Proposed Assignment” is defined in Section 16.2. “Permitted Assignment” is defined in Subsection 16.6.1. “Permitted Use” means Licensee’s installation, operation, access to, maintenance, modification, and addition 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 or other utility pole in San Leandro (excluding traffic signal poles), whether owned and operated by the City or another entity. “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 License Effective Date” is defined as the first day of the month after Licensee has received all City-issued Regulatory Approvals with the exception of an Encroachment Permit and a Pole License is fully executed.
“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.
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“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, poles, 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, including any applicable permits relating to wireless facilities or encroachments. “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.
“RFs” is defined in Section 13.7.
“Security Deposit” is defined in Section 24.1.
“Standard City Pole” means a standard steel tapered City streetlight pole installed in the City right-of-way. Standard City Poles conform to then-applicable City standards, as may be amended from time to time. Said standards include San Leandro Standard Drawings 500A, 500B, 500C, and 500D.
“Subsidiary” means an entity controlled by Licensee.
“Term” is defined in Subsection 3.1.1.
“Utility Infrastructure” means any and all forms of existing power supply, conduit, pull boxes, electrical circuits, or other form of infrastructure fixtures or equipment owned, or controlled by the City for the delivery of power or communication services to a Pole or otherwise located in the public right-of-way or other location owned or controlled by the City. 2 SCOPE OF LICENSE
2.1 License Areas.
2.1.1 Issuance of Pole Licenses. Subject to the terms, covenants, and conditions set forth in this Master License, the City will issue to Licensee one or more Pole Licenses, each of which will be effective as of the first day of the month after the date on which both parties have executed it. Each Pole License will grant Licensee a contractual license to use the License Area specified in the Pole License.
2.1.2 No Competing Licenses. The City will not license to any third party any City Pole that is licensed to Licensee under a Pole License.
2.1.3 Limitation on Scope. This Master License applies only to City Poles identified in final, fully executed Pole Licenses. This Master License does not authorize the DRAFT
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Permitted Use on any other City Property except the License Areas specified in the Pole Licenses.
2.1.4 Limitation on Nonstandard City Poles. Licensee acknowledges that: (i) any Pole License application that requests installation of Equipment on a Nonstandard City Pole imposes a greater administrative burden on the City in the Pole License application review and approval process; and (ii) for any other Nonstandard City Pole that is historic or decorative, the City has the absolute right in its sole discretion to deny for any reason an application for a Pole License solely on aesthetic grounds to the extent permitted by state and federal Laws.
2.1.5 Exclusions. Licensee acknowledges that the City will not license any of the following for any purpose: (i) Nonstandard City Poles that are concrete; (ii) electrical wires servicing City Poles; and (iii) a City Pole that the City has already licensed to a third party which cannot, in the sole determination of the City, support collocation of additional equipment or meet City’s Design Guidelines, however all instances of collocation requires agreement from existing third party Licensees. Notwithstanding the preceding sentence, City may approve, in its sole discretion, a Pole License that allows the replacement of a concrete Nonstandard City Pole with a Standard City Pole or Integrated Pole at Licensee’s sole cost and expense, subject to the City’s prior approval of plans, specifications, cost estimates, materials, and acceptance of completed improvements.
2.1.6 Consideration of Alternative Location. For any Pole License application, Licensee, upon request of City, agrees to use good faith efforts to consider at least one (1) alternative location that can accomplish Licensee’s technical requirements for that proposed Pole License.
2.2 No Property Interest in License Area or City Poles.
2.2.1 Limited Interest. Licensee acknowledges and agrees that neither this Master License nor any Pole License issued under it creates a lease, possessory interest, easement, franchise, or any other real property interest in any part of the License Area.
Licensee further acknowledges and agrees that in the absence of a fully executed Pole License, Licensee does not have the right to use any City Pole for any purpose.
2.2.2 Limited Rights. Pole Licenses that the City issues under this Master License grant to Licensee only a nonpossessory, revocable license to enter onto and use the License Area for the Permitted Use subject to the terms, conditions, and processes contained herein, which means that:
(a) the City retains possession and control of all License Areas and City Poles for City operations, which will at all times be superior to Licensee’s interest;
(b) the City may terminate a Pole License in whole or in part at any time, but only in accordance with this Master License;
(c) except as specifically provided otherwise in this Master License, this Master License does not limit, restrict, or prohibit the City from entering into agreements with third parties regarding the use of other City facilities, including City Poles or other City Property in the vicinity of any License Area; DRAFT
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(d) neither this Master License nor any Pole License creates a partnership or joint venture between the City and Licensee; and (e) Licensee has no ownership or property right in any Pole whatsoever.
2.2.3 No Impediment to Municipal Use. Except as limited in this Master License, neither this Master License nor any Pole License limits, alters, or waives the City’s right to use any part of the License Area as infrastructure established and maintained for the benefit of the City, and for such purpose, City may require Licensee to relocate its equipment and facilities at Licensee’s sole expense pursuant to Section 27.3.4 of this Master License.
2.3 Signs and Advertising.
Licensee agrees that its rights under Pole Licenses do not authorize Licensee to erect or maintain, or permit to be erected or maintained by anyone under Licensee’s control, any signs (except as provided in Section 7.1.2 (Identification of Licensee’s Equipment)), notices, graphics, or advertising of any kind on any part of the License Area.
2.4 Light and Air.
Licensee agrees that no diminution of light, air, or signal transmission by any structure (whether or not erected by the City) will entitle Licensee to any reduction of the License Fees or Additional Fees under any Pole License, result in any liability of the City to Licensee, or in any other way affect this Master License, any Pole License, or Licensee’s obligations, except as specifically provided in this Master License.
2.5 As-Is Condition of the License Area.
Licensee’s attention is directed to the following:
2.5.1 As-Is Condition. Licensee expressly acknowledges and agrees to enter onto and use each License Area in its “as-is, with all faults” condition. The City makes no representation or warranty of any kind as to the condition or suitability for Licensee’s use of any License Area.
2.5.2 Licensee Due Diligence. Licensee represents and warrants to the City that Licensee has conducted a reasonably diligent investigation, either independently or through Agents of Licensee’s choosing, of the condition of the License Area and of the suitability of the License Area for Licensee’s intended use, and Licensee is relying solely on its independent investigation. The City agrees to reasonably cooperate with licensee’s due diligence efforts at Licensee’s sole cost and expense. Licensee further represents and warrants that its intended use of the License Area is the Permitted Use as defined in Section 1.3 (Definitions) and as described in the Basic License Information.
2.5.3 No City Representations or Warranties. Except as may be expressly provided herein, Licensee agrees that neither the City nor any of its Agents have made, and the City disclaims, any representations or warranties, express or 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 relating to the License Area.
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2.5.4 Disclosure. Under California Civil Code section 1938, to the extent applicable to this Master License, Licensee is hereby advised that a Certified Access Specialist (as defined in that Law) has not inspected any License Area to determine whether it meets all applicable construction-related accessibility requirements. 3 TERM
3.1 Term of Master License and Pole Licenses.
3.1.1 Term. The term of this Master License shall be ten (10) years commencing on the Master License Effective Date and ending at midnight on the last day of the term, unless earlier terminated by City or Licensee pursuant to the express terms of this Master License (the “Term”). Provided that Licensee is not in default of this Master License beyond the applicable notice and cure period in this Master License, then the Term will be automatically extended for one (1) five (5) year period commencing immediately upon the expiration of the Term (the “First Renewal Term”). Following the First Renewal Term, this Master License shall be renewable for one (1) subsequent five (5) year period (the “Second Renewal Term”) subject to each party’s option to not renew this Master License, for any reason, upon one hundred and eighty (180) days’ written notice to the other party.
Following the Second Renewal Term, this Master License shall be renewable for one (1) subsequent five (5) year period (the “Third Renewal Term”), subject to each party’s option to not renew this Master License, for any reason, upon one hundred and eighty (180) days’ written notice to the other party. Following the Third Renewal Term, this Master License shall be renewable for one (1) subsequent five (5) year period (the “Fourth Renewal Term”), subject to each party’s option to not renew this Master License, for any reason, upon one hundred and eighty (180) days’ written notice to the other party. The Term shall include, if exercised, the First Renewal Term, the Second Renewal Term, the Third Renewal Term, and the Fourth Renewal Term. By way of example, upon the expiration of the Term after fifteen (15) years, if the Second Renewal Term takes effect, the Term along with all rights and obligations of the parties shall include the additional five (5) year period under the Second Renewal Term. Each Pole License will be effective upon the Pole License Effective Date and shall be coterminous with the Term, and terminate upon the Expiration Date (as the Term and Expiration Date may be extended for a renewal term in accordance with this Section 3.1.1) or earlier termination of this Master License, which may result in a partial License Year at the end of the Pole License Term.
3.1.2 Minimum Term. The minimum term for the purpose of establishing the License Fee for each Pole License will be one License Year immediately following the Pole License Effective Date under Section 4.1. This minimum term provision will prevail over any rights of abatement or termination afforded to Licensee under this Master License except as otherwise expressly stated herein.
3.1.3 Deadline to Apply for Pole Licenses. Licensee may submit Pole License applications at any time during the Term. All Pole Licenses will end on the Expiration Date, regardless of the Pole License Effective Date.
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4 LICENSE FEES; ADDITIONAL FEES; AND OTHER CHARGES
4.1 Commencement Date.
4.1.1 Definition. Licensee shall pay an annual License Fee under each Pole License beginning on its “Commencement Date,” which will be on the Pole License Effective Date. Each 12-month period (or shorter, for the period immediately preceding the Expiration Date) beginning on the Pole License Effective Date of each Pole License is a “License Year” for that Pole License.
4.2 License Fees.
4.2.1 License Fee Schedule. Licensee shall initially pay to the City the License Fee for each License Year in the amount of Two Hundred Seventy Dollars ($270) per year (the “Initial License Fee”). If during the Term of the Master License, federal legislation, a regulation, a rule or other law is passed or adopted, or a court of competent jurisdiction issues a judgement (collectively, the “Contingent Event”), that overturns, vacates, or makes non-controlling, as related to San Leandro, the Declaratory Ruling issued by the Federal Communications Commission on September 27, 2018 in WT Docket Nos. 17-79 and 17-84 (FCC 18-133, 33 FCC Rcd 9088) ("Wireless Infrastructure Order"), then on the date that the Contingent Event provides that the Revised License Fee shall take effect the Initial License Fee shall be immediately replaced by a revised License Fee equal to the Contingent License Fee listed for the then-current year under Schedule A-3 and consistent with applicable Laws (the “Contingent License Fee”). The Initial License Fee and the Contingent License Fee shall be specified in the License Fee schedule attached to each Pole License, in the form of Schedule A-3. Any Contingent License Fee shall not be charged retroactively by City to Licensee. Depending on which is applicable pursuant to the terms of this paragraph, the Initial License Fee or the Contingent License Fee shall be the “License Fee” as referred to in this Master License. Both the Initial License Fee and the Contingent License Fee shall be subject to annual calendar-year adjustments as provided in Section 4.3 (Adjustments in License Fee). The License Fee must be delivered in cash or its equivalent in the manner specified in Section 4.9 (Manner of Payment).
4.2.2 Cost Study. If the Contingent Event does not overturn, vacate, or make non-controlling the Wireless Infrastructure Order, the City may perform a cost or fee study at any time to determine the City’s fees consistent with applicable State and Federal Laws (the “Cost Study”). A Cost Study, consistent with Laws, can be inclusive of any and all actual and reasonable costs borne by the City to make its Infrastructure available to the Licensee pursuant to this Agreement, including but not limited to its Utility Infrastructure, as described in Section 12.1. The new License Fee payable under this Agreement is due at least 90 days after the date of City Council approval of the new fees.
4.2.3 Change of Law. If after implementation of the Contingent License Fee or Cost Study, applicable State or Federal Laws are modified so that the then current License Fee is no longer consistent with such applicable State or Federal Laws (“Change of Law”), then the Parties agree to revise the License Fee under Section 4.2.4, below to be consistent with the Change of Law effective as of the date the Change of Law requires the Change of Law to take effect.
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4.2.4 Notice of License Fee Change. In the event that such Contingent Event, Cost Study, or Change of Law occurs that modifies the License Fees under this Master License, the Party claiming such License Fee change shall send notice to the other in good faith (i) justifying such License Fee change; (ii) its effective date; and (iii) stating that payments shall be processed accordingly. This notice shall evidence any fee changes pursuant to this Master License without the necessity of an amendment hereto. In the event of a disagreement regarding License Fee changes pursuant to notices received under this Section 4.2.4, the Parties agree to negotiate in good faith to resolve them with any License Fee determinations being made in compliance with applicable State and Federal Laws.
4.2.5 Amount of License Fee; Proration. Each annual License Fee is payable in advance without prior demand or any deduction, setoff, or counterclaim, except to account for a partial year at the beginning of a Pole License, at the end of the Term or earlier termination of this Master License or a right of abatement or refund expressly granted under this Master License. The adjustment provided in this Section will be effective even if the first License Year was for less than a full calendar year.
4.2.6 Due Dates.
(a) Licensee shall pay the first License Fee on or before the 30th day following the Commencement Date of the Pole License without deduction for any reason. As an illustration, and not a limitation, if the Pole License Effective Date falls on July 1, then the first License Fee due will be prorated 50% (to account for the six-month difference between January and July) and will be due 30 days later, on July 31st.
(b) The annual License Fee for each subsequent License Year of the Term of each Pole License will be due and payable to the City on January 1 and will be late if the City has not received payment by the due date.
4.2.7 Discount for Integrated Poles. If the use of Integrated Poles becomes feasible at any time during the Term, Licensee may request that the City amend any Pole License to authorize Licensee to replace one or more licensed City Poles with Integrated Poles, subject to the City’s prior approval of plans, specifications, cost estimates, materials, and completed improvements in accordance with Section 8.1 (Licensee’s Alterations). The Integrated Pole should be aesthetically consistent with Poles in the immediate vicinity and have a similar lighting fixture as approved by the City. As an incentive for Licensee to upgrade City Poles to Integrated Poles, beginning in the License Year following the License Year in which the City accepts the Integrated Pole and continuing for the remainder of the Term of each affected Pole License, the City will discount by twenty percent (20%) the annual License Fee for each Integrated Pole that the City has accepted.
4.3 Adjustments in License Fee.
On January 1 of each year of the Term of this Master License (each, an “Adjustment Date”), the License Fee will be increased by three percent (3%).
4.4 Intentionally Omitted.
4.5 Intentionally Omitted.
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4.6 Master License Processing Payment.
Licensee shall pay to the City a one-time, non-refundable “Master License Processing Payment” in the amount of $4,000 upon delivery of a partially executed counterpart of this Master License to the City. The City will not be obligated to process the Master License or any Pole License application until this Master License Processing Payment is submitted. The payment is intended to reimburse the City for all of the reasonable and actual costs of processing this Master License, including, but not limited to, all time and materials costs of City employees, agents, consultants, and the City Attorney’s office.
4.6.1 Intentionally Omitted.
4.6.2 Intentionally Omitted.
4.6.3 Early Termination. Licensee shall have the right to terminate processing of the application by providing written notice to the City. Upon receipt of such notice by City (for purposes of this section, “Termination Date”), City shall cease all processing on Licensee’s application as of the Termination Date and Licensee shall pay all costs reasonably and actually incurred by City prior to such Termination Date from the account.
4.6.4 Refunding of Excess Amounts. Any funds remaining in the account will be refunded to Licensee. No refunds will occur until a 90-day period has passed without processing costs.
4.7 Pole License Administrative Processing Payments.
Licensee shall deposit funds with the City to cover the City’s reasonable and actual costs to review and administer the Pole License application process including inspections (the “Administrative Payments”). Such funds shall compensate the City for all of the reasonable and actual costs of processing each Pole License application in accordance with applicable Laws, including, but not limited to, all time and materials costs of City employees, agents, consultants, and the City Attorney’s office.
4.7.1 Initial Payment. Licensee shall pay to City an initial Administrative Payment deposit in the amount of $1,865 which includes a $65 non-refundable administrative fee (subject to increase annually according to the City’s adopted Fee Schedule) upon delivery of each Pole License application to the City. City will not be obligated to begin its review of any Pole License application until the initial Administrative Payment, including any supplement under subsection (b) (Nonstandard City Poles) below, is paid. (a) Standard City Poles. The amount of the initial Administrative Payment per Standard City Pole is specified above and in the Basic License Information.
(b) Nonstandard City Poles. If the Pole License application includes Nonstandard City Poles, the City will negotiate the amount of the initial Administrative Payment for each Nonstandard City Pole upon receipt of the application. Pending negotiation, Licensee must submit an initial Administrative Payment for each Nonstandard City Pole at the Standard City Pole rate. Licensee must submit the negotiated supplement to the Administrative Payment within 30 days after the amount is set. Approval of DRAFT
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communications Equipment on Non-standard City Poles should not be assumed and will be reviewed on a case-by-case basis only.
4.7.2 Account. The initial Administrative Payment, and any subsequent payments, as provided below, shall be held by City in a customer number account for the reimbursement of City’s reasonable and actual costs. Upon Licensee’s request, City shall provide to Licensee a monthly accounting of the account with a description of City’s costs and expenses withdrawn from the account.
4.7.3 Subsequent Payments. If there is a reasonable need for additional funds reflecting City’s reasonable and actual costs to facilitate review and processing of a Pole License application as requested by City, City shall notify Licensee of an estimate of the additional deposit. Licensee may withdraw any Pole License application requiring an additional deposit within thirty (30) days of City’s notice. If Licensee does not withdraw its Pole License application within such time period, Licensee shall be deemed to have elected to proceed with the Pole License application and submit the additional deposit to the City.
City shall have the right to cease processing the pending Pole License application for which additional funds are requested pursuant to this subsection until such time as the funds are received.
4.7.4 Early Termination. Licensee shall have the right to terminate processing of the application by providing written notice to the City. Upon receipt of such notice by City (for purposes of this section, “Termination Date”), City shall cease all processing on Licensee’s application as of the Termination Date and Licensee shall pay all costs reasonably and actually incurred by City prior to such Termination Date from the account.
4.7.5 Refunding of Excess Amounts. Any funds remaining in the account will be refunded to Licensee or, at the request of Licensee, applied to a future Pole License application. No refunds shall occur until a 90-day period has passed without processing costs.
4.8 Additional Fees.
4.8.1 Defined. Sums payable to the City by Licensee for any late charges, default interest, costs related to a request for the City’s consent to an Assignment under Section
16.2 (Notice of Proposed Assignment), and Default Fees under Subsection 17.2.4 (Default Fees) are referred to collectively as “Additional Fees.”
4.8.2 Exclusions. Licensee’s payment of any of the following will not be considered Additional Fees under this Master License: (i) Master License Processing Payment (§ 4.6); (ii) Administrative Payments (§ 4.7); (iii) any other amount paid to the City in compensation for reviewing Licensee’s applications and coordinating and inspecting its installation of Equipment on the License Area under Pole Licenses; and (iv) License Fees.
4.9 Manner of Payment.
Licensee shall pay License Fees, Administrative Payments, Additional Fees, and all other amounts payable to the City under this Master License in cash or other immediately available funds by: (i) check payable to “City of San Leandro” and delivered to the attention of the Finance Director of the City of San Leandro at the address for payment specified in the Basic License Information; or (ii) wire transfer in accordance with the instructions in the Basic License Information, unless the DRAFT
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City directs otherwise by notice given in accordance with Section 28.1 (Notices). A check that is dishonored will be deemed unpaid. City agrees to provide the applicable W-9, Electronic Funds Transfer Form, and other documentation which from time to time may be required by Licensee in order for Licensee to make payments under this Master License or any Pole License.
4.10 Reasonableness of 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 its other rights under this Master License. More specifically:
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 EXECUTING THIS AGREEMENT, AN
AUTHORIZED REPRESENTATIVE OF EACH PARTY ACKNOWLEDGES THAT
THE PARTIES HAVE AGREED, AFTER NEGOTIATION, ON THE AMOUNT OF THE ADDITIONAL FEES AS REASONABLE ESTIMATES OF THE CITY’S ADDITIONAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT.
5 USE RESTRICTIONS
5.1 Permitted Use.
Licensee shall use the License Area solely for the Permitted Use and for no other use, subject to all applicable Laws and conditions of Regulatory Approvals. Licensee shall not interfere with the City’s use and operation of any portion of the License Area or any other City Property for any purpose. Each Pole License will be subject to and conditioned upon Licensee obtaining and maintaining throughout the Term all Regulatory Approvals to use the License Area for the Permitted Use. Licensee acknowledges that City Laws and Regulatory Approvals include design review, engineering, radio interference, and zoning or telecommunications ordinances which shall all be in accordance with applicable State and Federal Law.
5.1.1 Licensee may use the License Area solely for the installation, operation, maintenance, modification, and addition 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. Licensee may lease, license or otherwise allow its Invitees to use capacity on Licensee’s Equipment; provided, however, that any such third parties shall not be permitted to perform any physical work on any Pole without the City’s prior written consent, which the City may reasonably withhold or condition as the City deems necessary to protect the Pole or public health safety and/or welfare.
5.2 Prohibition on “Macro Cell” Uses.
The City and Licensee intend this Master License and any Pole License to cover only “small cell” and/or distributed antenna system installations, as those terms are commonly understood to mean small, low-power, low-elevation, unobtrusive wireless facilities intended to cover relatively DRAFT
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small geographic areas. Licensee expressly acknowledges and agrees that the Permitted Use under this Master License does not include the right to use any Pole as a support structure for a “macro cell” or a traditional wireless tower typically constructed on private property. The City may, in its sole and absolute discretion, approve “macro cell” facilities on its Poles on a case-by-case basis.
5.3 No Illegal Uses or Nuisances.
Licensee shall not use or occupy any of the License Area in any unlawful manner or for any illegal purpose or in any manner that constitutes a public or private 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 use of the License Area. 6 POLE LICENSE APPROVALS
6.1 City Approval Required.
6.1.1 City Rights Superior. Licensee’s use of any part of the License Area for the Permitted Use is subject to the City’s prior approval in connection with a Pole License application. Subject to any limitations expressly provided in this Master License, the City is not obligated to subordinate its municipal functions in any way to Licensee’s interest under any Pole License. In determining whether to approve Licensee’s application for any Pole License, including the submitted plans and specifications, the City may consider any matter affecting its municipal obligations. Examples of municipal concerns include:
6.1.1.1 the resulting total load on the City Pole if the Equipment is installed;
6.1.1.2 the impact of the installation on the City’s streetlight operations, including whether the Equipment would compromise the City’s streetlight circuits serving City Poles;
6.1.1.3 whether the installation complies with electrical codes;
6.1.1.4 whether the Equipment would create a hazardous or unsafe condition;
6.1.1.5 any impacts the Equipment would have in the vicinity of the City Pole, including size, materials, and visual clutter;
6.1.1.6 aesthetic concerns; and municipal plans for the City Pole.
In any instance, the above municipal concerns must be (i) reasonable; (ii) published in advance of a Pole License application; and (iii) comply with applicable State and Federal Laws.
6.1.2 Changes in Application. If the City determines for any reason that the Permitted Use at any particular Pole Location would impede its municipal functions, it will provide notice to Licensee of the City’s concerns within thirty (30) days after receipt of a Pole License application. Licensee will have the opportunity to change the Pole License application to address the City’s concerns for a period ending fourteen (14) days after delivery of the City’s notice, or such longer period as to which the City and Licensee may DRAFT
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agree in writing, without affecting the priority of Licensee’s application in relation to other potential licensees.
6.1.3 Consultation with Community Development. In reviewing a Pole License application, the City’s Engineering and Transportation Department may consult with the City’s Community Development Department to assess whether Licensee’s proposed Equipment is appropriate for a given location or, for historic and decorative Nonstandard City Poles, whether the proposed Equipment poses particular aesthetic concerns.
6.2 Regulatory Approval Required.
Licensee’s installation of Equipment is also subject to the prior approval of, and Licensee’s compliance with all conditions of any applicable encroachment permit approval as required by the San Leandro Municipal Code (generally, an “Encroachment” as said term is defined in San Leandro Municipal Code Chapter 5-1), other applicable City or outside agency requirements, and implementing regulations and orders, if any.
6.3 Initial and Annual Master Plans Required.
At the time of Licensee’s submission of the first Pole License application filed with the City during the first and each subsequent calendar year during the Term of this Master License, Licensee shall submit to the City a master plan showing the number and approximate location(s) of each City Pole for which Licensee intends to submit a Pole License application (“Master Plan”) during the current calendar year. The initial and annual Master Plans shall be based on Licensee’s best information reasonably available at that time with respect to the proposed use of City Poles for the upcoming calendar year. Licensee may submit updated Master Plans at any time. The purpose of the Master Plan is (a) to give the City a sense of the workload required to process Licensee’s Pole License applications for the upcoming year; (b) to allow the City to identify geographic locations in which multiple carriers may be filing Pole License applications; and (c) to allow the City to identify opportunities to negotiate terms for potential shared cost of conduit installation. Licensee’s Master Plans shall be reasonably designed to meet such purposes.
6.4 Design Guidelines.
Licensee shall comply with the City’s design guidelines as prepared by the City Manager or designee (“Design Guidelines”), which the City may update and amend from time-to-time in accordance with applicable provisions of the San Leandro Municipal Code. The City shall consult in good faith with Licensee before any update or amendment to the Design Guidelines becomes effective. Nothing in this Section is intended to limit or affect the City’s rights to disapprove any Pole License Application pursuant to Section 6 (Pole License Approvals) or any other provision in this Master License that expressly reserves the City’s right to disapprove any Pole License Application.
6.5 Pole License Application.
Licensee shall submit Pole License applications to the City, which will review, approve, or deny each application in its reasonable discretion but subject to the requirements of any applicable Laws. Each application will consist of:
(a) partially executed duplicate counterparts of a Pole License application in the form attached as Exhibit A;
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(b) Exhibit A-1 filled in with the location and other identifying information about each City Pole covered by the application, including whether it is a Standard City Pole or a historic or decorative Nonstandard City Pole;
(c) Exhibit A-2, consisting of all plans and specifications required under Subsection 7.1.1 (Strict Compliance Required);
(d) the initial Administrative Payment as specified in Section 4.7 (Pole License Administrative Payments); and
(e) if not previously provided, a copy of the Pre-Construction Emissions Report shall be submitted for the Encroachment Permit. For Pole License applications relating to a License Area that is not solely owned by the City, including, but not limited to, City easements located on private property, Licensee shall also provide evidence demonstrating, to the satisfaction of the City Attorney, Licensee’s entitlement to use the proposed License Area for the Permitted Use.
(f) typical photo-simulations that accurately depict the appearance of each variation of Equipment installation proposed with the application. A photo-simulation of individual installations is not required; rather a typical photo-simulation for each variant is required so City staff can understand the general character of the Equipment from an aesthetic perspective. Photographs of similar installations from other communities are acceptable provided they accurately depict the appearance of the Equipment to be installed.
6.6 Pole License Application Review Process.
The City will review and process Pole License applications including any public noticing in a residential district or in close proximity to a sensitive neighborhood within the timeframe allowed by the FCC and 47 U.S.C. § 332(c)(7)(B)(i)(II) or as provided for pursuant to a Change of Law and in the chronological order (date and time) in which complete applications are submitted or deemed submitted unless Licensee specifically requests a different prioritization. Except as stated in the preceding sentence or as otherwise specified in this Master License, the City will not give priority to any application or licensee over another application or licensee. The City, at its discretion, may solicit feedback from proximate property owners for installations in a residential district or in close proximity to a sensitive neighborhood. During its review process, the City will provide to Licensee the applicable License Fee and Default Fee Schedule (Exhibit A-3 to Pole License) and City Installation Guidelines (Exhibit A-4 to Pole License), each of which will be deemed to be attached to the Pole License upon execution by the City.
6.7 Administrative Payments.
The City is not obligated to begin its review of any Pole License application if Licensee has failed to pay the applicable initial Administrative Payment under Section 4.7 (Pole License Administrative Payments) when due. If Licensee does not timely deliver the required initial Administrative Payment, the supplement for any Nonstandard City Pole, or any additional Administrative Payment required for the City to complete its review, the City may suspend its review of any of Licensee’s Pole License applications then under review by the City. The date and time of submission of any suspended Pole License application will be deemed to be the date and time that Licensee submits the required payment.
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6.8 Pole License Approval.
The City will notify Licensee that the City has approved each Pole License by returning one fully executed counterpart of the Pole License to Licensee. The City requires as a condition to approval of any Pole License that Licensee provide proof that contractors installing Equipment have bonds and insurance coverage as required by Section 19.5 (Contractors’ Insurance and City Business License). In the event that Licensee fails to commence construction pursuant to the Pole License within one year from the Pole License Effective Date, the Pole License shall automatically expire unless the City grants a written extension. Licensee shall not be entitled to any refund for any Administrative Payments, which include without limitation the License Fee, paid in connection with a Pole License except as provided in Section 27.1 (Early Termination by Either Party).
Nothing in this Section 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.
6.9 Right to Disapprove.
Licensee acknowledges that the City reserves the right to disapprove any Pole License Application consistent with applicable State and Federal Laws. If a Pole License application is disapproved, the City shall notify Licensee in writing and advise Licensee of the reason(s) for disapproval.
6.10 Federal and State Regulations.
To the extent this Master License is inconsistent with requirements, limitations or other restrictions in any applicable Laws, the parties agree that the Laws shall prevail. Equipment installed pursuant to this Master License or any Pole License will not be considered or interpreted as “personal wireless service facilities” as defined in 47 U.S.C. § 332(c)(7)(C)(ii), and any Pole or replacement Pole on which such Equipment is installed will not be considered or interpreted as a “tower” or a “base station” as used in 47 U.S.C. § 1455 or 47 C.F.R. § 1.40001 et seq. 7 INSTALLATION OF EQUIPMENT
7.1 Approved Plans and Specifications.
7.1.1 Strict Compliance Required. Licensee must submit its plans and specifications for the City’s review as Exhibit A-2 to its Pole License application. Plans and specifications must cover all Equipment, including signage required or permitted under Subsection 7.1.2 (Identification and Other Signage). Plans and specifications shall be prepared in strict accordance with codes referenced in Section 13.4 (Compliance with Electrical Code), as stamped/signed by a California-licensed engineer. Licensee’s plans and specifications and any Equipment installed, if authorized, shall comply with the minimum requirements provided in the Design Guidelines. Licensee is authorized to install Equipment and perform permitted modifications at the License Area covered by the Pole License only in strict compliance with plans and specifications approved by the City and, if applicable, in compliance with Regulatory Approvals (hereinafter referred to as “Approved Plans”).
7.1.2 Identification and Other Signage. Licensee shall place signage on its Equipment at each Pole Location containing (i) Licensee’s emergency phone number; and DRAFT
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(ii) a unique pole identification number identifying the location of Licensee’s pole; and (iii) complying with Federal Communications Commission (the “FCC”) signage requirements.
7.1.3 Required Changes. Licensee may amend previously Approved Plans if required to obtain or comply with other Regulatory Approvals necessary for installation of Equipment, including construction or installation-related temporary street occupancy permits, traffic control permits, and building permits, as may be required by City or State of California codes. Amendment of Approved Plans will require the City’s approval. Licensee acknowledges that as of the Master License Effective Date, the City has not approved or promised to approve any plans, specifications, or permits necessary for Licensee to install Equipment on any City Poles. The City will provide notice of its decision in accordance with Section 28.1 (Notices).
7.1.4 Corrections. The City’s approval of plans, specifications, and amendments to Approved Plans, and the issuance of related Regulatory Approvals will not release Licensee from the responsibility for and obligation to correct any errors or omissions that may be contained in the Approved Plans and related Regulatory Approvals. Licensee shall notify the Engineering and Transportation Department immediately upon discovery of any omissions or errors, and Licensee shall obtain required approvals of any amendments to previously Approved Plans before proceeding with any current or pending equipment installation.
7.2 Installation.
Licensee shall not commence installation of Equipment on the License Area until the Pole License Effective Date for the applicable Pole License and the issuance to Licensee of the Encroachment Permit under Section 6.2 (Regulatory Approval Required). When installing Equipment, Licensee must strictly comply with the Encroachment Permit and Approved Plans as originally approved, or, if applicable, as amended or corrected.
7.3 Notice Required Prior to Installation.
Licensee shall not commence installation of Equipment on the License Area until Licensee has provided at least 24 hours’ prior notice of the installation, by first requesting an inspection using the City’s Inspection Hot Line telephone system, 510-577-3308, to disclose the Encroachment Permit number and License Area location.
7.4 Cost of Labor and Materials.
Licensee is responsible for all direct and indirect costs (labor, materials, and overhead) incurred by Licensee for designing, purchasing, and installing Equipment in accordance with the Approved Plans and all applicable Laws. Licensee also shall bear all costs of obtaining all Regulatory Approvals required in connection with the installation, and Licensee shall satisfy any conditions or mitigation measures arising from Licensee’s proposed installation. Licensee shall timely pay for all labor, materials, and Equipment and all professional services related to the Permitted Use.
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7.5 No Alteration of City’s Existing Equipment or Infrastructure.
Neither Licensee nor its Agents or Invitees shall remove, damage, or alter in any way any City Property, including City Poles and supporting infrastructure, pull boxes, electrical equipment, wiring, and electrical vaults, without the express permission of the Engineering and Transportation Director, except as authorized by the Approved Plans.
7.6 Standard of Work.
Licensee must install and perform all other work on Equipment in strict compliance with Approved Plans and applicable City standards diligently and in a skillful and workmanlike manner.
Prior to performing any work that requires excavation, Licensee must notify Underground Service Alert (ph. 800-227-2600 or 811) at least 72-hours in advance so existing buried utilities can be located and marked. After performing any work on the License Area, Licensee shall leave it and other City Property in a condition as good as it was before the work.
7.7 Licensee’s Contractors.
Licensee shall use only qualified and properly trained persons and appropriately licensed contractors for all work performed on or about the License Area in conformance with Section 13.2 (Personnel Safety Training). At least five (5) business days before to 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, contact information, and business addresses for all contractors who will perform the work.
7.8 Project Manager.
The City and Licensee each has designated the person listed in the Basic License Information as its project manager to coordinate the design and installation of Licensee’s Equipment and to serve as the respective primary point of contact between the City and Licensee for all engineering, construction, and installation issues. Licensee acknowledges that the City project manager is not exclusively assigned to this Master License, and the authority delegated to the project manager is limited to the administration of this Master License, Pole Licenses, and approved Encroachment Permits. Licensee shall be fully responsible for obtaining and satisfying the requirements of all required Regulatory Approvals necessary for installation of Equipment on the License Area, and Licensee shall not rely upon the City or the City’s project manager to do so.
Either party may change the name and contact information of its project manager by providing written notice thereof in the manner provided in this Master License. Licensee shall be the City’s point of contact for all Equipment installation and except in case of emergency, all communications concerning all engineering, construction, and installation issues relating to the Equipment. The City may contact Licensee’s Project manager for purposes of responding to technical questions asked by citizens and beyond the expertise of City staff.
7.9 Coordination of Work.
Licensee shall be responsible for coordination of its installation work to avoid any interference with existing utilities, substructures, facilities, streetlight operations, or routine maintenance. During installation, alteration, repair, and maintenance of Equipment, Licensee must abide by all reasonably adopted and applied City construction regulations, including, but not limited to construction hours, waste management, noise abatement, and traffic management ordinances DRAFT
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and regulations. Licensee must pay all parking fees and citation fines incurred by Licensee and its contractors for vehicle parking. The City will not pay or void any citations or reimburse Licensee for traffic citations or fines.
8 ALTERATIONS
8.1 Licensee’s Alterations.
Other than installation in accordance with Approved Plans or modifications which otherwise do not require City approval, Licensee shall not make or permit any alterations to the License Area or anything that is part of, installed on, or appurtenant to the License Area, except with the City’s prior consent in each instance, which the City may grant or withhold in its sole discretion. The City may condition its consent reasonably in each instance based on the scope and nature of the alterations to be made. All alterations must be at Licensee’s sole expense in accordance with plans and specifications approved by the City and be performed only by duly licensed and bonded contractors or mechanics.
8.2 Title to Improvements and Removal of Licensee’s Equipment.
Except as otherwise provided in this Master License, the City has no claim of ownership of Licensee’s Equipment installed on the License Area, but any structural improvements to a City Pole, replacement of a City Pole, installation of an Integrated Pole, made by Licensee will become City Property without the requirement of an additional deed AS-IS, WHERE-IS, AND WITH ALL FAULTS. Any replacement City Pole or Integrated Pole will remain on the Pole Location should Licensee vacate or abandon use of the replacement City Pole or Integrated Pole. During the Term, Licensee may remove any or all of its Equipment (which excludes structural improvements to or replacement of any City Pole) from the License Area after 30 days’ prior notice to the City, subject to Article 25 (Surrender of License Area), and Article 27 (Special Provisions). 9 CITY WORK ON POLES OR LICENSE AREA
9.1 Repairs, Maintenance, and Alterations.
City will: (a) maintain and repair the City Poles as needed, in its sole judgment, for its streetlight, utility, or municipal operations; and (b) correct any immediately life-threatening or hazardous condition. Except as specified in Article 27 (Special Provisions), neither City work on the City Poles, nor the condition of the City Poles, will entitle Licensee to any damages, relieve Licensee of the obligation to pay the License Fees and Additional Fees or perform each of its other covenants under this Master License, or constitute or be construed as a constructive termination of this Master License.
9.2 Notice to Licensee.
The City reserves the right at any time to make alterations, additions, repairs, removals, and improvements to all or any part of the License Area for any operational purpose, including maintenance and improvement of street lighting services, City compliance with mandatory regulations or voluntary controls or guidelines, subject to: (i) making good faith efforts to give Licensee 72-hour prior notice of City work that requires manipulation of Licensee’s equipment in accordance with Section 9.3 (Licensee’s On-Call Representative); (ii) allowing a representative of Licensee to observe the City’s work; and (iii) taking reasonable steps not to disrupt Licensee’s normal use of Equipment on the License Area. Licensee’s use of the License Area may not impede DRAFT
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or delay in any way the City’s authority and ability to make necessary changes, as determined by the City Engineer, to any License Area to maintain its streetlights, utility services, or other municipal services.
9.3 Licensee’s On-Call Representative.
Licensee shall at all times have a representative assigned to be on call and available to the City regarding the operation of Licensee’s Equipment and who can be reached at Licensee’s oncall and emergency contact number. The on-call representative, or such party that the representative refers the City’s call to, shall be qualified and experienced in the operation of Licensee’s Equipment and authorized to act on behalf of Licensee in any emergency and in day to day operations of the Equipment. Before the City performs non-emergency maintenance, repair, or other activities on the License Area in the regular course of its business that may impair the operation of Licensee’s Equipment on the License Area, the City will attempt to provide at least 72 hour’s telephonic notice to Licensee’s on-call representative. The City will not be required to delay non-emergency repair or maintenance activities more than 72 hours after attempting to contact Licensee’s on-call representative.
9.4 Emergencies.
The parties agree to notify each other of any emergency situation related to any City Poles at the emergency phone numbers listed in the Basic License Information at the earliest opportunity.
In an emergency, however, the City’s work and needs will take precedence over the operations of any of Licensee’s Equipment on the License Area, and the City may access any portion of the License Area that it determines necessary in its sole discretion in accordance with Section 21.2 (Emergency Access), whether or not the City has notified Licensee of the emergency. Licensee acknowledges that City personnel will be entitled to exercise their judgment in an emergency caused by any person, and in the exercise of judgment may determine that the operation of Licensee’s Equipment must be interrupted, or that the circumstances require the removal of any part of Licensee’s Equipment. Licensee agrees that the City will bear no liability to Licensee for the City’s interruption of Licensee’s Equipment operations, removal of Equipment, or other actions with respect to Licensee’s Equipment in an emergency except to the extent caused by the gross negligence or willful misconduct of the City, and that Licensee shall be solely responsible for the costs required to resume operations or repair or replace Equipment following the emergency. 10 LICENSEE’S MAINTENANCE AND REPAIR OBLIGATIONS
10.1 Damage to City Property.
If the acts, omissions, or negligence of Licensee or its Agents or Invitees when installing or removing Equipment damages any City Pole, License Area, or other City Property, the City will provide notice describing the damage and 30 days’ opportunity to cure. If Licensee fails to repair or replace the damaged City Pole in accordance with the requirements of Section 8.1 (Licensee’s Alterations) within the 30-day cure period, or any longer period to which the City agrees in its reasonable discretion, the City may do so at Licensee’s expense. If City elects to do so, then Licensee shall reimburse the City for its actual costs of repair or replacement within 20 days after receipt of the City’s demand for payment, together with copies of invoices or other evidence of its costs. Alternatively, after the end of the time period provided to Licensee by the City in this Section
10.1, the City may thereafter serve a notice of default on Licensee pursuant to Section 17.1.7, and if Licensee fails to repair the damage within the cure period set forth in Section 17.1.7, then the City may pursue all rights and remedies available to the City under this Master License.
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10.2 Alterations to City Property.
If Licensee or any of its Agents or Invitees alters or removes any City Property without the City’s express prior approval, Licensee shall restore the City Property to the condition existing before the damage or alteration, unless the City directs otherwise. The City may condition its approval of any alteration to City Property on restoration in accordance with this Section.
10.3 No Right to Repair City Property.
Absent notice from the City providing an opportunity to repair damage to City Property, Licensee is not authorized to make any repairs to City Property. In all cases, Licensee waives any right it may have to make repairs at the City’s expense under any applicable Law.
10.4 Notice of Damage to City Property.
Licensee agrees to give the City notice of the need for any repair to any City Pole, License Area, or other City Property promptly after Licensee’s discovery of damage from any cause.
Licensee’s agreement to provide notice is not an assumption of liability for any life-threatening or hazardous conditions unless caused by the negligent or reckless acts or omissions or willful misconduct of Licensee or its Agents or Invitees.
10.5 Licensee’s Equipment.
10.5.1 Maintenance and Repair. Licensee shall at its sole expense install, maintain, and promptly repair any damage to Equipment installed on the License Area whenever repair or maintenance is required, subject to the City’s prior approval if required under Article 8 (Alterations).
10.5.2 City Approval. Licensee is not required to seek the City’s approval for any repair, maintenance, replacement, or other installation of Equipment or signage in a License Area if: (i) the Equipment or signage in question was in the Approved Plans; (ii) the repair, replacement, modification, or installation of internal or external components does not result in any substantial change to the external appearance, dimensions, or weight of the Equipment in the Approved Plans as reasonably determined by the City; (iii) the City in its reasonable judgment concurs with Licensee that the repair, maintenance, replacement, or other installation of Equipment is reasonably consistent with the Approved Plans, taking into consideration availability of the specific Equipment and advancements in technology, or (iv) requires no temporary traffic control within the roadway or closure of a public sidewalk. In no event, however, will Licensee be authorized to install larger, different, or additional Equipment on a City Pole without the City’s express prior consent, or erect temporary traffic control for either the roadway or sidewalk in a manner that endangers the public. In this regard, Licensee acknowledges that section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) does not apply to Small Wireless Facilities installed pursuant to this Master License or any Pole License. Any work on Licensee’s Equipment installed on City Poles that is authorized or permitted under this Subsection is subject to Licensee obtaining any required Regulatory Approvals.
10.5.3 Graffiti. Licensee’s repair and maintenance obligation includes the removal of any graffiti from the Licensee’s Equipment.
10.6 Intentionally Omitted.
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11 LIENS
Licensee shall keep the License Area free from any liens arising out of 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, other materials, or services provided for Licensee’s Equipment. If Licensee does not 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 as a result of work performed, material furnished, or obligations incurred on behalf of Licensee within 60 days after 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 30 days following receipt of the City’s demand, invoice and evidence of City’s expenses. Licensee shall not create, permit, or suffer any other encumbrances affecting any portion of the License Area. 12 UTILITIES; TAXES AND ASSESSMENTS
12.1 Utilities.
Licensee shall be solely responsible for obtaining and maintaining the provision of electricity to Licensee’s Equipment, including, but not limited to, making payments to electric utilities and installation of separate electric meters, if necessary. Licensee shall comply with all Laws and rules and regulations of the electric utility relating to installation and connection of Licensee’s Equipment to electricity. If granted a choice between a pole-mounted Smart Meter and a pedestal-mounted meter, Licensee must choose a pole-mounted Smart Meter. Pedestalmounted meters will only be allowed if no alternative is available. The electricity purveyor in San Leandro is Pacific Gas & Electric Company (PG&E). While the City is not obligated to make its Utility Infrastructure available to Licensee, nonetheless, the City shall make a good faith effort to make its Utility Infrastructure available in connection with each Pole identified by Licensee in its Pole License application, and Licensee and the City shall work cooperatively to allow Licensee to use the Utility Infrastructure wherever possible in the sole determination of the City.
12.2 Taxes and Assessments.
12.2.1 General Payment Duty of Licensee. Although the City is not subject to any federal, state, or local property or income taxes, City shall invoice and Licensee shall pay any applicable transaction tax (including sales, use, gross receipts, or excise tax) imposed on the Licensee and required to be collected by the City based on any service, rental space, or equipment provided by the City to the Licensee. Licensee shall pay all personal property taxes, fees, assessments, or other taxes and charges imposed by any government entity that are imposed on the Licensee and required to be paid by the Licensee that are directly attributable to the Licensee’s Equipment or Licensee’s use and occupancy of the Leased Premises. Payment shall be made by Licensee within 60 days after presentation of a receipted bill and/or assessment notice which is the basis for such taxes or charges. The City shall pay all ad valorem, personal property, real estate, sales and use taxes, fees, assessments or other taxes or charges that are attributable to the City’s Property or any portion thereof imposed by any government entity.
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12.2.2 Licensee’s Right to Appeal Tax Assessments. Licensee shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which Licensee is wholly or partly responsible for payment. The City shall reasonably cooperate with Licensee at Licensee’s expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence, including but not limited to, executing any consent, appeal or other similar document. In the event that as a result of any appeal or challenge by Licensee, there is a reduction, credit or repayment received by the City for any taxes previously paid by Licensee, the City agrees to promptly reimburse to Licensee the amount of said reduction, credit or repayment. In the event that Licensee does not have the standing rights to pursue a good faith and reasonable dispute of any taxes under this paragraph, the City will pursue such dispute at Licensee’s sole cost and expense upon written request of Licensee.
12.2.3 Use of City Electricity. For a location where Licensee’s Equipment will be powered from a street light circuit that is currently connected to a City-operated electrical meter, the cost of said electricity is assumed to be included in the License Fee paid to City, and no sub-metering or incremental payment for electricity will be required. 13 COMPLIANCE WITH LAWS
13.1 Current and Future Laws.
Licensee shall install, use, and maintain the Equipment in strict compliance with Laws and conditions to Regulatory Approvals relating to the use or occupancy of the License Area, including all Laws relating to health, safety, and radio signal transmission.
Any work or installations made or performed by or on behalf of Licensee or any person or entity claiming through or under Licensee is subject to applicable Laws. 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 to otherwise seek redress against the City, except that Licensee may terminate a Pole License by removing its Equipment and surrendering rights to the License Area if Licensee determine in its judgment that compliance with a future Law makes continued use of the Equipment in the License Area undesirable. After termination of any Pole License under this Section, the City will refund the portion of the previously-paid License Fee attributable to the terminated portion of the License Year, subject to the Minimum Term.
13.2 Personnel Safety Training.
13.2.1 CPUC Certification. Licensee shall ensure that all persons installing, operating, or maintaining its Equipment are appropriately trained and licensed by the California State Contractors Licensing Board and as required by applicable regulations and rules of the California Public Utilities Commission (the “CPUC”). Licensee shall ensure that these persons are trained in and observe all safety requirements established by the City, the CPUC, and the California Division of Occupational Safety & Health, Department of Industrial Relations, including site orientation, tag-out lock-out de- energization rules, ladder and lift restrictions, and sidewalk and street right-of-way safety requirements.
13.2.2 Licensee’s Indemnity. During any period when Licensee or any Agent of Licensee is installing, operating, or maintaining its Equipment, Licensee acknowledges and DRAFT
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agrees that the City has delegated control of the License Area to Licensee, which will be solely responsible for any resulting injury or damage to property or persons, except for injury or damage resulting from the City’s negligence, recklessness, or willful misconduct.
The City is not a co-employer of any employee of Licensee or any employee of Licensee’s Agents, and the City will not be liable for any Claim of any employee of Licensee or any employee of Licensee’s Agents, except for Claims arising from the City’s negligence, recklessness, or willful misconduct. Licensee agrees to Indemnify the City fully (as provided in Article 18 (Indemnification)) against any Claim brought by any employee of Licensee, any employee of Licensee’s Agents, or any third party arising from or related to Licensee’s access to and use of the License Area and other activities of Licensee or its Agents in or around the License Area, except to the extent the Claims result from the City’s negligence, recklessness, or willful misconduct.
13.2.3 City’s Indemnity. During any period when the City or any Agent of the City is installing, operating, or maintaining its Equipment, the City acknowledges and agrees that the City has control of the License Area and will be solely responsible for any resulting injury or damage to property or persons, except for injury or damage resulting from Licensee's negligence, recklessness, or willful misconduct. Licensee is not a coemployer of any employee of the City or any employee of the City’s Agents, and Licensee will not be liable for any Claim of any employee of the City or any employee of Licensor’s Agents, except for Claims arising from Licensee's negligence, recklessness, or willful misconduct. The City agrees to Indemnify Licensee fully against any Claim brought by any employee of the City or any employee of the City’s Agents arising from or related to the City’s access to and use of the License Area and other activities of the City or its Agents in or around the License Area, except for injury or damage resulting from Licensee's negligence, recklessness, or willful misconduct.
13.3 Compliance with CPUC General Order 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.
13.4 Compliance with Electric Codes.
Licensee shall conduct all activities on the License Area in accordance with the requirements of California Electric Code, National Electric Safety Code IEEE C2 (“NESC”), and any applicable local electrical code, as any of those codes may be applicable or amended. To the extent that CPUC General Order 95 does not address installation of cellular telephone antennas on Poles carrying electrical lines, Licensee shall apply any 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 NESC, the California Electric Code, any local code, and CPUC General Order 128, the more stringent requirements will apply, as determined by the City.
13.5 Intentionally Omitted.
13.6 Regulatory Approvals.
Licensee represents and warrants that prior to, and as a condition of, conducting its activities on the License Area, Licensee will acquire all Regulatory Approvals required for Licensee’s use of the License Area. Licensee shall maintain all Regulatory Approvals for DRAFT
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Licensee’s Permitted Use on the License Area throughout the Term of this Master License and for as long as any Equipment is installed on any portion of the License Area. Following submission of a Pole License application by Licensee, such Regulatory Approvals (or written denials explaining with specificity all reasons for such denials) shall be issued by the City within the timeframe allowed by the FCC and 47 U.S.C. § 332(c)(7)(B)(i)(II).
13.7 Radiofrequency Emissions and Electromagnetic Fields.
Licensee’s obligation to comply with all Laws includes all Laws relating to allowable presence of or human exposure to Radiofrequency Radiation (“RFs”) or Electromagnetic Fields (“EMFs”) on or off the License Area, including all applicable FCC standards, whether such RF or EMF presence or exposure results from Licensee’s Equipment alone or from the cumulative effect of Licensee’s Equipment added to all other sources on or near the License Area. Licensee must provide to the City a copy of the report required for Licensee’s Encroachment Permit, of an independent engineering consultant analyzing whether RF and EMF emissions at the proposed Pole Locations would comply with FCC standards, taking into consideration the Equipment installation specifications and distance to residential windows (each, an “Pre-Construction Emissions Report”). If not provided earlier, Licensee must submit the Pre-Construction Emissions Report to the City with the applicable Pole License application. If the Pre-Construction Emissions Report does not identify the type(s) of frequencies or bandwidth used by the Equipment, Licensee shall include such information in its Pole License application. In the event that a claim is filed against the City, or Licensee, for damages resulting from Licensee’s equipment operation, the City may request a Post-Construction Emissions Report which shall be provided by Licensee within ninety (90) days of Licensee’s receipt of such request.
13.8 Compliance with City’s Risk Management Requirements.
Licensee shall not do anything, or permit anything to be done by anyone under Licensee’s control, in, on, or about the License Area that would create any unusual fire risk, and shall take commercially reasonable steps to protect the City from any potential liability by reason of Licensee’s use of the License Area. Licensee, at Licensee’s expense, shall comply with all reasonable rules, orders, regulations, and requirements of the City Manager and City’s Risk Manager.
14 DAMAGE OR DESTRUCTION
14.1 City Election.
The City has no obligation to replace or repair any part of the License Area following damage by any cause. Following damage or destruction of a City Pole or License Area, the City may elect any of the following actions, in the City’s sole and absolute discretion.
14.1.1 Election to Repair or Replace Damage. Within 30 days after the date on which the City discovers damage or destruction of a City Pole licensed to Licensee, the City will give Licensee written notice of the City’s decision whether to repair or replace the damaged City 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 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 immediately terminate the affected Pole License. However, if City elects not to perform such work, Licensee may perform such work at its sole cost and expense, subject to City approval of Licensee’s plans and specifications and Licensee’s compliance DRAFT
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with City permit requirement, or terminate the Pole License. If Licensee agrees to perform such work, the affected Pole License will remain in full force and effect.
14.1.2 Election to Remove Damaged City Pole. If the City decides to remove, rather than repair or replace, a damaged City Pole licensed to Licensee, the applicable Pole License will terminate automatically as of the last day of the month the City Pole is removed. Licensee also may request that it transfer any of its Equipment to any available substitute City Pole, at Licensee’s sole cost and expense, which request may be approved or denied by City in its reasonable discretion.
14.1.3 Election to Remove Equipment from Damaged License Area. If the acts of third parties or an act of nature or other force majeure circumstance outside the control of Licensee or its Agents or Invitees destroys or damages any City Pole to such an extent that, in the City’s or Licensee’s reasonable determination, the Equipment on the City Pole cannot be operated, the City or Licensee may decide to terminate the affected Pole License on 30 days’ notice to the other party and Licensee shall remove the Equipment from the damaged City Pole before the termination date specified in the City’s notice.
14.1.4 Licensee’s Rights after Termination. After termination of any Pole License under this Section, the City will: (i) refund the portion of the previously-paid License Fee attributable to the terminated portion of the License Year, subject to Section 3.1.2 (Minimum Term); and (ii) give priority to Licensee’s Pole License application for a replacement City Pole.
14.2 No Statutory Rights for Damaged City Pole.
The parties understand and agree that this Master License governs fully their rights and obligations in the event of damage or destruction of City Poles, and, to the extent applicable, Licensee and the City each hereby waives and releases the provisions of section 1932, subdivision 2, and section 1933, subdivision 4, of the Civil Code of California (when hirer may terminate the hiring) or under any similar Laws.
15 EMINENT DOMAIN
15.1 Eminent Domain.
If all or any part of the License Area is permanently taken in the exercise of the power of eminent domain or any transfer in lieu thereof, the following will apply:
15.1.1 Termination. As of the date of taking, the affected Pole Licenses will terminate as to the part so taken, and the License Fee under the affected Pole Licenses will be ratably reduced to account for the portion of the License Area taken.
15.1.2 Award. The City will be entitled to any award paid or made in connection with the 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 relocation expenses or loss or damage to Licensee’s Equipment.
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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 sections 1265.120 and 1265.130 of the California Code of Civil Procedure (partial termination of lease and court order terminating lease, respectively) and under any similar Laws to the extent applicable to this Master License.
15.2 Temporary Takings.
A taking that affects any portion of the License Area for less than 90 days will have no effect on the affected Pole License, except that Licensee will be entitled to an abatement in the License Fee to the extent that its use of the License Area is materially impaired. In the event of any such temporary taking, Licensee will receive that portion of any award, if any, that represents compensation for the use or occupancy of the License Area during the Term up to sum of the License Fees and Additional Fees payable by Licensee for the period of the taking, and the City will receive the balance of the award.
16 ASSIGNMENT
16.1 Restriction on Assignment.
Except as specifically provided in Section 16.6 (Permitted Assignment), Licensee shall not directly or indirectly assign any part of its interest in or rights with respect to the License Area without the City’s prior consent. The City will not unreasonably withhold, condition, or delay its consent to an Assignment other than an Assignment covered by Article 11 (Liens).
16.2 Notice of Proposed Assignment.
Except as specifically provided in Section 16.6 (Permitted Assignment), if Licensee desires to enter into an Assignment of this Master License or any Pole License issued under this Master License, Licensee shall give notice (a “Notice of Proposed Assignment”) to the City, stating in detail the terms and conditions for such proposed Assignment and financial information reasonably sufficient to show that the proposed assignee (the “Assignee”) has a demonstrated ability to perform all of the obligations of Licensee under this Master License and any Pole License issued hereunder. If Licensee does not deliver all information that the City reasonably requires simultaneously with the Notice of Proposed Assignment, the date of Licensee’s delivery of notice will be deemed to have occurred only when it has delivered any additional information the City requests.
16.3 City Response.
16.3.1 Timing. The City will grant or deny any request for consent to an Assignment within 30 days after the City’s receipt or deemed receipt, if delayed under Section 16.2 (Notice of Proposed Assignment), of the Notice of Proposed Assignment (the “Assignment Response Period”). If the City consents to the proposed Assignment, then Licensee will have 180 days following the date the City delivers its consent notice to Licensee to complete the Assignment.
16.3.2 Effect of Default. Licensee acknowledges that it would be reasonable for the City to refuse to consent to an Assignment during any period during which any monetary or other material event of default by Licensee is outstanding under this Master License.
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16.4 Effect of Assignment.
No Assignment by Licensee, consent to Assignment by the City, except a Permitted Assignment under Section 16.6 (Permitted Assignment) will relieve Licensee of any obligation on its part under this Master License. Any Assignment that is not in compliance with this Article will be void and be a material default by Licensee under this Master License without a requirement 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 Article.
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
16.6 (Permitted Assignment)), 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 Section 16.6 (Permitted Assignment), 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.
16.6 Permitted Assignment.
16.6.1 Defined. 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) an Affiliate; (ii) a 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.
16.6.2 Conditions. A Permitted Assignment is subject to the following conditions:
16.6.2.1 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.
16.6.2.2 Licensee provides the City with notice within ninety (90) days following the effective date of the Permitted Assignment, stating the contact information for the proposed Assignee and providing financial information establishing that the proposed Assignee meets the capital and fiscal qualifications stated in this Section.
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16.6.2.3 Licensee is in good standing under this Master License. 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:
17.1.1 Nonpayment of Fees. Licensee fails to pay any License Fee or Additional Fees as and when due, if the failure continues for thirty (30) days after written notice from City to Licensee of such failure.
17.1.2 Lapsed Regulatory Approvals. Licensee fails to maintain all Regulatory Approvals required for the Permitted Use, if the failure continues for 30 days after written notice from City to Licensee of such failure.
17.1.3 Prohibited Assignment. Licensee enters into an Assignment in violation of Article 16 (Assignment) which violation is not cured by Licensee within 30 days after written notice from City to Licensee of such violation.
17.1.4 Interference with City. Licensee interferes with the City’s operations in violation of Section 27.5.1 (Licensee’s Obligation Not to Cause Interference) for a period of 30 days after written notice thereof from City to Licensee.
17.1.5 Failure to Maintain Insurance. Licensee fails to maintain insurance as required by Article 19 (Insurance) if the failure continues for 30 days after written notice from City to Licensee of such failure.
17.1.6 Failure to Cure. Licensee fails to cure noncompliance with the specified requirements of this Master License after initial and follow-up notices or to pay the Default Fees as set forth in Section 17.2.4 (Default Fees) if the failure continues for 30 days after written notice from City to Licensee of such failure.
17.1.7 Other Terms. Licensee fails to perform or comply with any other obligation or representation made under this Master License, if the failure continues for 30 days after the date of written notice from the City, or, if such default is not reasonably capable of cure within the 30-day period, Licensee fails to promptly undertake action to cure such default within such 30-day period and thereafter fails to use its best efforts to complete such cure within 60 days after the initial 30-day period (i.e., 90 days after the date of the written notice from the City), unless that 60-day period is subsequently extended by mutual agreement of the parties in writing.
17.1.8 Abandonment. Licensee removes its Equipment or abandons the License Area for a continuous period of more than 60 days, such that the License Area is no longer being used for the Permitted Use.
17.1.9 Insolvency. 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 DRAFT
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other debtor relief Law, if any such receiver, assignment, or action is not released, discharged, dismissed, or vacated within 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 Continuation of License. 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 Termination of Pole License. If a default specific to one or more Pole Licenses is not cured by Licensee within the applicable cure period, specified in Section
17.1 (Events of Default by Licensee), the City may terminate each Pole License in default.
17.2.3 Termination of Master License. If Licensee’s uncured default or its failure to cure a default within all applicable notice and cure periods is of such a fundamentally serious nature in the City’s sole judgment that such uncured default or such failure to cure a default within all applicable notice and cure periods 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 90 days’ written notice of termination and in such written notice specify the reason(s) for the termination and whether the termination affects the entire Master License or only certain Pole Licenses as specified in the notice. Licensee shall remove its Equipment from any affected City Pole in compliance with Section 25.1.1 (Obligations Upon Surrender) below. If Licensee does not remove its Equipment within the specified period, the City will be entitled but not obligated to remove Licensee’s Equipment from the License Areas.
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 the City’s administrative costs in providing notice or performing inspections for the events described below (each, a “Default Fee”), by giving notice of the City’s demand that Licensee cure the default and specifying the cure period. The Default Fee for the initial notice from the City will be due and payable to the City 10 days after delivery of notice to Licensee. In addition, if Licensee fails to cure the condition within the cure period set forth in the initial notice, and the City then delivers to Licensee a follow-up notice requesting compliance, then the Default Fee for the follow-up notice will be due and payable to the City 10 days after delivery of the follow-up notice to Licensee. Default Fees will apply to any of the following events:
17.2.4.1 Licensee constructs or installs any alteration or improvement without the City’s prior approval as required by Article 6 (Pole License Approvals), Article 7 (Installation of Equipment), or Article 8 (Alterations) of this Master License.
17.2.4.2 Licensee fails to make a repair required by Article 10 (Licensee’s Maintenance and Repair Obligations) on a timely basis.
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17.2.4.3 Licensee fails to notify the City, through its project manager, before accessing the License Area or following the plan approval procedures as set forth in Article 7 (Installation of Equipment).
17.2.4.4 Licensee fails to provide evidence of the required bonds and insurance coverage described in Article 19 (Insurance) on a timely basis.
17.3 Licensee’s Remedy for City Defaults.
Licensee’s sole remedy for the City’s breach or threatened breach of this Master License or any Pole License issued under it will be termination of this Master Agreement or any Pole License issued under it and/or an action for damages, subject to Article 20 (Limitation of 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 INDEMNITY
18.1 Scope of Licensee’s Indemnity.
Licensee, on behalf of itself and its successors and assigns, shall Indemnify the City “Indemnified Parties”, as defined in Section 1.3 (Definitions), from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties, and expenses, including direct and vicarious liability of every kind (each, a “Claim”), incurred in connection with or arising in whole or in part from: (a) injury to or death of a person, including employees of Licensee, or loss of or damage to property occurring on or about the License Area or arising in connection with Licensee’s or its Agents’ or Invitees’ authorized or unauthorized use of the License Area; (b) any default by Licensee in the observation or performance of any of the terms, covenants, or conditions of this Master License to be observed or performed on Licensee’s part; (c) the use or occupancy or manner of use or occupancy of the License Area by Licensee, its Agents, or Invitees, or any person or entity claiming through or under any of them; (d) the presence of or exposure to RFs or EMFs resulting from Licensee’s use of the License Area; (e) the condition of the License Area or any occurrence on the License Area from any cause attributable to the events described in clauses (a), (b), (c) or (d) of this Section; or (f) any acts, omissions, or negligence of Licensee, its Agents, or Invitees, in, on, or about the License Area; except to the extent that such Indemnity is void or otherwise unenforceable under applicable Law in effect on or validly retroactive to the date of this Master License and further except to the extent such Claim is caused by the willful misconduct or gross negligence of the Indemnified Parties.
18.2 Indemnification Obligations.
Licensee’s Indemnification obligation includes reasonable fees of attorneys, consultants, and experts and related costs, including the City’s costs of investigating any Claim. 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 the scope of Section 18.1 (Scope of Indemnity) even if allegations supporting the Claim are groundless, fraudulent, or false, which obligation arises at the time such Claim is tendered to DRAFT
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Licensee by the Indemnified Parties and continues at all times until finally resolved. Licensee’s obligations under this Article will survive the termination of the 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 Article except to the extent the City’s Risk Manager agrees otherwise in writing.
19.1.1 Coverage Amounts. Licensee shall carry and keep in effect at all times during the Term, at Licensee’s cost, insurance in the following amounts and coverages:
19.1.1.1 Commercial General Liability insurance based on ISO form CG 00 01 or equivalent (including premises operations; explosion, collapse and underground hazard; products/completed operations; contractual liability; independent contractors; personal and advertising injury) with limits of $2 million per occurrence for bodily injury and property damage and $4 million general aggregate.
19.1.1.2 Worker’s Compensation Insurance in compliance with applicable state law with Employer’s Liability Limits of $1 million each accident/disease/policy limit.
19.1.1.3 Commercial Automobile Liability Insurance with limits of $2 million combined single limit each accident for bodily injury and property damage, covering all owned and non-owned and hired vehicles.
19.1.2 Additional Requirements. Commercial General Liability and Commercial Automobile Liability Insurance policies shall:
19.1.2.1 include “San Leandro and its officers, officials, and employees” are included as additional insureds by endorsement as their interest may appear under this Master License; and
19.1.2.2 be primary insurance to any other insurance available to the additional insureds, with respect to any Claims arising out of this Master License, and that insurance applies separately to each insured against whom Claim is made or suit is brought, except for limits of liability. Such policies shall also provide for severability of interests and that an act or omission of one of the named insureds that would void or otherwise reduce coverage shall not reduce or void the coverage as to any insured, and shall afford coverage for all Claims based on acts, omissions, injury, or damage that occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period.
19.1.3 Notice of Cancellation. Upon receipt of notice from its insurer(s), Licensee shall provide the City with thirty (30) days’ prior written notice of cancellation of any required coverage unless replaced. Licensee must take prompt action to reinstate the cancelled coverage, or obtain it from a different insurer meeting the qualifications of Subsection
19.1.9 (Ratings).
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19.1.4 Claims-Made Policies. Should any of the required insurance be provided under a claims-made form, Licensee shall maintain such coverage continuously throughout the Term and, without lapse, for a period of two (2) years after the expiration or termination of this Master License, to the effect that, should occurrences during the Term give rise to Claims made after expiration or termination of this Master License, such Claims shall be covered by such claims-made policies.
19.1.5 Intentionally Omitted.
19.1.6 Certificates. Licensee shall deliver to the City certificates of insurance and blanket additional insured policy endorsements, evidencing the coverages required under this Master License Within five (5) days of the Master License Effective Date.
19.1.7 Insurance Does Not Limit Indemnity. Licensee’s compliance with the provisions of this Section in no way relieve or decrease Licensee’s liability under Article 18 (Licensee’s Indemnity) or any other provision of this Master License.
19.1.8 Licensee’s Failure to Maintain Required Insurance. In the event that Licensee fails to maintain any required insurance under this Section 19, and if the failure continues for thirty (30) days after Licensee’s receipt of written notice from the City of such failure and City’s demand to cure such failure, then thereafter, in addition to any other remedies available at law or in equity, the City may elect in its sole and absolute discretion, to terminate this Master License.
19.1.9 Ratings. Licensee’s insurance companies must be eligible to do business in California and must meet or exceed an A.M. Best rating of A-VII or its equivalent.
19.1.10 Effective Dates. All insurance must be in effect before the City will authorize Licensee to install Equipment on any City Pole and maintain in effect until all Equipment has been removed from the License Area. Licensee is responsible for determining whether the above insurance coverages are adequate to protect its interests.
The above coverages are not limitations upon Licensee’s liability.
19.1.11 Self-Insurance Alternative. Licensee may propose and the City may accept an alternative insurance program, if that program provides equivalent protections to the City as the insurance requirements in this Section in consultation with the City’s Risk Manager. The City’s acceptance of an alternative insurance program will not affect an implied waiver or amendment of any other requirement of this Master License. Any amendment of these insurance requirements must be in a written amendment to this Master License, executed in the same manner as this Master License.
19.2 Licensee’s Property.
City shall have no responsibility for insuring Licensee’s property. Licensee shall be responsible, at its expense, and in its sole discretion, for separately insuring or self-insuring Licensee’s property.
19.3 City’s Insurance.
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agrees to maintain adequate coverage for public liability risks during the Term and is not required to carry any additional insurance with respect to the License Area or otherwise.
19.4 Waiver of Subrogation.
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 by insurance obtained by the waiving party under this Master License or is actually covered by insurance obtained by the waiving party. Each waiving party agrees to cause its insurers to issue appropriate waiver of subrogation rights endorsements to all policies relating to the License Area, but the failure to obtain any such endorsement will not affect the waivers in this Section. Licensee self-insures its property insurance and in satisfaction of the waiver of subrogation requirement will include the City as joint loss payee to the extent of the City’s insurable interest which would have been covered had Licensee purchased property insurance.
19.5 Contractors’ Insurance and City Business License.
Licensee shall endeavor to require its contractors that install, maintain, repair, replace, or otherwise perform work on the License Area: (a) to obtain and maintain insurance of the same coverage and amounts as required of Licensee, and (b) to have and maintain a valid City Business License. Licensee’s contractors may use any combination of primary and excess insurance to meet the total limits required.
19.6 Submittal of Proof of Insurance Coverage.
All certificates of insurance and blanket additional insured original endorsements effecting coverage required in this Article 19 must be electronically submitted through the City’s online insurance document management program, PINS Advantage. Contractor shall comply with all requirements provided by City related to the PINS Advantage program. 20 LIMITATION OF CITY’S LIABILITY
20.1 General Limitation on City’s Liability.
The City is not responsible or liable to Licensee for, and Licensee hereby waives all Claims against the City and its Agents and releases the City and its Agents from, all Claims from any cause (except to the extent caused by the gross negligence or willful misconduct of the City and its Agents), including acts or omissions of persons using the sidewalk or street adjoining or adjacent to or connected with the License Area; utility interruption; theft; burst, stopped, or leaking water, gas, sewer, or steam pipes; or gas, fire, oil, or electricity in, flood, vehicle collision, or other accidental “knock downs” or similar occurrences on or about the License Area or other City Property.
20.2 Consequential and Other Damages.
Notwithstanding any provision to the contrary, in no event shall either party be liable to the other in contract, tort, under any statute, warranty, provision of indemnity or otherwise, for any special, indirect, incidental, or consequential, punitive, or exemplary damages suffered by the other party or any customer or third party or any other person for lost profits or other business interruption DRAFT
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damages of that party's customers, advertisers, users, clients, licensees, or any other person, firm, or entity, and the parties agree to indemnify and hold each other harmless in such regard.
20.3 No Relocation Assistance.
This Master License creates no 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.), or similar Law upon any termination of occupancy except as provided in Article 15 (Eminent Domain). To the extent that any relocation law 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 this Master License upon termination of its occupancy of all or any part of the License Area.
20.4 Non-Liability of City Officials, Employees, and Agents.
No elective or appointive board, commission, member, officer, employee, or other Agent of the City will be personally liable to Licensee, its successors, or its assigns, in the event of any default or breach by the City or for any amount which may become due to Licensee, its successors, or its assigns, or for any obligation of the City under this Master License.
20.5 Scope of Waivers.
Licensee acknowledges the City’s rights under this Article and waives any Claims arising from the exercise of the City’s rights. In connection with the preceding sentence and the releases and waivers contained in this Master License, including Section 10.3 (No Right to Repair City Property), Section 14.2 (No Statutory Rights for Damaged City Pole), Subsection 15.1.3 (No Statutory Right to Terminate), Section 19.4 (Waiver of Subrogation), Section 20.1 (General Limitation on City’s Liability), Section 20.2 (Consequential Damages), Section 20.3 (No Relocation Assistance), Section 21.3 (No Liability for Emergency Access), Section 24.1 (Application of Security Deposit), 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 THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE
AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
21 CITY ACCESS TO LICENSE AREA
21.1 City’s Right of Access.
Except as specifically provided otherwise, the City and its designated Agents have the right of access to any part of the License Area at any time without notice for any purpose. The City will, however, make good faith efforts to provide notice to Licensee according to Section 9.2 (Notice to Licensee).
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21.2 Emergency Access.
If safe and practicable, the City will notify Licensee of any emergency that requires the City to remove and replace a City Pole and allow Licensee to remove its Equipment before the City removes or replaces a City Pole in an emergency situation or other exigent circumstances. But if in the City’s sole judgment it is not safe or practicable to wait for Licensee to perform the work or where such delay would cause significant delay to or otherwise compromise public safety or services, the City will remove the Equipment from the City Pole, exercising reasonable care to avoid damage. The City will hold the Equipment for retrieval by Licensee, and Licensee will have the right to reinstall the Equipment or equivalent Equipment at Licensee’s expense on the repaired or replaced City Pole in accordance with Article 7 (Installation of Equipment). As provided in Section 9.4 (Emergencies), the City’s removal of Licensee’s Equipment in emergency or exigent circumstances may not be deemed to be a forcible or unlawful entry into or interference with Licensee’s rights to the License Area.
21.3 No Liability for Emergency Access.
The City will not be liable in any manner, and Licensee hereby waives any Claims, for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of the City’s entry onto the License Area, including the removal of Licensee’s Equipment from a City Pole in an emergency as described in Subsection 21.2 (Emergency Access), except damage resulting directly and exclusively from the gross negligence or willful misconduct of the City or its Agents and not contributed to by the acts, omissions, or negligence of Licensee, its Agents, or Invitees. 22 REQUIRED RECORDS
22.1 Records of Account for Active Pole Licenses.
For any active Pole Licenses only, Licensee shall maintain during the Term the following records at a place of business within the State of California or in an electronic format:
(a) identification and location of all City Poles; (b) amounts and dates of License Fees paid to the City; (c) Regulatory Approvals issued for the installation, operation, and maintenance of Equipment on City Poles; and (d) correspondence with the City concerning any matter covered by this Master License. The City, or a consultant acting on its behalf, will have the right to inspect and audit Licensee’s records at Licensee’s place of business during regular business hours on 10 business days’ notice to Licensee.
22.2 Estoppel Certificates.
Licensee, at any time and from time to time on not less than 30 days’ notice from the City, shall execute, acknowledge, and deliver to the City or to any party designated by the City, a certificate of Licensee stating: (a) that Licensee has accepted the License Area (or, if Licensee has not done so, that Licensee has not accepted all or any part of the License Area and specifying the applicable portions of the License Area and reasons for non-acceptance); (b) the Pole License Effective Dates of any Pole Licenses then in effect; (c) the Master License Effective Date and the Expiration Date; (d) that this Master License and Pole Licenses are unmodified and in full force and effect or, if modified, the manner in which they are modified; (e) to Licensee’s knowledge, whether any defenses then exist against the enforcement of any of Licensee’s obligations under this Master License (and if so, specifying the same); (f) to Licensee’s knowledge, whether any of the City’s obligations under this Master License are outstanding (and if so, identifying any City obligations that Licensee believes that the City has failed to meet); (g) the dates, if any, to which DRAFT
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the License Fees and Additional Fees have been paid; and (h) any other information that may be reasonably required by any such persons pertaining to the status of this Master License or Pole Licenses then in effect.
22.3 Regulatory and Bankruptcy Records.
22.3.1 Copies for City Records. Licensee shall provide to the City upon request copies of: (a) any pending applications, communications, or other documents related to any filing by or against Licensee of an action for bankruptcy, receivership, or trusteeship; and (b) all relevant non-privileged petitions, applications, communications, and reports submitted by Licensee to the FCC or any other Regulatory Agency having jurisdiction directly related to any active Pole Licenses on City property.
22.3.2 Production of Documents. The City will attempt to notify Licensee promptly after delivery of any request for copies of these records made under any public records Law or in any court proceeding and of the date on which the records are to be made available. If Licensee believes that any of the requested records are confidential or contain proprietary information, Licensee must identify those records to the City before the date of required production. If the request is made through any court or administrative proceeding, or the requesting party otherwise makes a formal complaint regarding nondisclosure, Licensee will have the burden to obtain any protective order needed to withhold production at its sole cost and expense. Licensee acknowledges that the City’s compliance with any court order, including a subpoena duces tecum, will not violate this Subsection. The City’s failure to notify Licensee will not affect the City’s legal obligation to produce records or give rise to any Claim by Licensee against the City.
23 RULES AND REGULATIONS
Licensee shall faithfully comply during the Term with any and all reasonable rules, regulations, and instructions that the City establishes, as amended from time to time, with respect to use of any part of the License Area, to the extent that the same do not materially conflict with any express, material terms and conditions of this Master License. 24 SECURITY DEPOSIT
24.1 Application of Security Deposit.
Licensee must tender to the City for deposit the sum(s) specified as the security deposit in the Basic License Information or surety bond in the same amount (the “Security Deposit”) to secure Licensee’s faithful performance of all terms, covenants, and conditions of this Master License and the requested Pole License. The Security Deposit shall be due at the time(s) specified in the Basic License Information. Any surety bond shall be in a form acceptable to the City Attorney and shall name the City as the obligee to guarantee and assure the faithful performance of Licensee’s obligations under this Master License. Licensee agrees that the City may apply the Security Deposit in whole or in part to remedy any damage to the License Area caused by Licensee, its Agents, or Invitees, or any failure of Licensee, its Agents, or Invitees to perform any other terms, covenants, or conditions contained herein (including the payment of License Fees or other sums due under this Master License or any Pole License either before or after a default, or payments to contractors or material suppliers), without waiving any of the City’s other rights and remedies under this Master License or at law or in equity. Licensee waives any rights it may have under section 1950.7 of the California Civil Code or any similar Law and agrees that the City may DRAFT
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retain all or any portion of Security Deposit reasonably necessary to compensate the City for any other foreseeable or unforeseeable loss or damage caused by the acts or omissions of Licensee, its Agents, or Invitees. Licensee understands and agrees that the City may apply some or all of the Security Deposit to the payment of future License Fees, Additional Fees, and other amounts payable to the City under this Master License and any Pole License following a Licensee event of default. The City’s obligations with respect to the Security Deposit are solely that of a debtor and not of a trustee. The City is not required to keep the Security Deposit separate from its general funds, and Licensee is not entitled to interest on the Security Deposit. The amount of the Security Deposit in no way limits the liabilities of Licensee under any provision of this Master License or any Pole License.
24.2 Further Deposits.
Should the City use any portion of the Security Deposit to cure any default by Licensee under this Master License, Licensee will be required to replenish the Security Deposit in the amount and by the date that the City specifies by notice to Licensee. 25 SURRENDER OF LICENSE AREA
25.1 Surrender.
25.1.1 Obligations Upon Surrender. No later than 60 days after the termination of any Pole License, Licensee shall at its sole cost and expense peaceably remove its Equipment from applicable portions of the License Area, repair any damage resulting from the removal, and surrender the poles to the City in good order and condition, normal wear and tear excepted, free of debris and hazards, and free and clear of all liens and encumbrances. Notwithstanding the foregoing, if the Expiration Date or other termination of this Master License occurs, Licensee shall have no later than 120 days to perform its obligations in the preceding sentence if there are 25 or fewer Pole Licenses terminated as a result of the occurrence of the Expiration Date or other termination of this Master License, and no later than 180 days if more than 25 Pole Licenses are terminated. Licensee’s obligations under this Article will survive the Expiration Date or other termination of this Master License.
25.1.2 Equipment Abandoned After Termination. At its option, the City may deem any items of Licensee’s Equipment that remain in a License Area or other City Property more than 60 days after the Expiration Date of this Master License to be abandoned and in such case the City may dispose of the abandoned Equipment in any lawful manner after expiration of a 60-day period initiated by the City notice to Licensee to remove the Equipment. Licensee agrees that California Civil Code sections 1980 et seq. and similar provisions of the Civil Code addressing abandoned property by residential or commercial tenants do not apply to any abandoned Equipment.
25.2 Holding Over.
25.2.1 With Consent. Any holding over after the Expiration Date with the express consent of the City will be construed to automatically extend the Term of this Master License for a period of one License Year at a License Fee equal to the License Fee in effect immediately before the Expiration Date, and the Master License otherwise will be on its express terms and conditions.
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25.2.2 Without Consent. Any holding over without the City’s consent will be a default by Licensee and entitle the City to exercise any or all of its remedies, even if the City elects to accept one or more payments of License Fees, Additional Fees, or other amounts payable to the City from Licensee after the Expiration Date. 26 HAZARDOUS MATERIALS
26.1 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.
26.2 Licensee’s Environmental Indemnity.
If Licensee breaches any of its obligations contained in this Article, 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 the City, 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 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 the time 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 Licensee’s 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 City or its Agents. Licensee shall afford the City a full opportunity to participate in any discussions with Regulatory Agencies regarding any DRAFT
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settlement agreement, cleanup or abatement agreement, consent decree, or other compromise or proceeding involving Hazardous Material.
27 SPECIAL PROVISIONS
27.1 Early Termination by Either Party.
If Licensee does not obtain an Encroachment Permit for any Pole License by the first anniversary of the Pole License Effective Date, either party will have the right to terminate that Pole License on 60 days’ notice, which the terminating party must deliver to the other party within 10 business days after the first anniversary of the Pole License Effective Date. If a Pole License is terminated under this provision, the Commencement Date will be deemed not to occur, and Licensee will have no obligation to pay the License Fee. If Licensee obtains an Encroachment Permit within such sixty (60) day period, City’s termination notice shall be deemed revoked, and the Pole License shall remain in full force and effect.
27.2 Licensee’s Termination Rights.
27.2.1 No-Fault Termination of Master License. This Subsection will apply after the Commencement Date of any Pole Licenses. If Licensee fails to obtain or loses Regulatory Approvals for the Permitted Use with respect to a majority of the City Poles subject to Pole Licenses for reasons other than its failure to comply with the conditions of this Master License or Regulatory Approvals and in spite of reasonable efforts by Licensee to obtain or maintain its Regulatory Approvals, Licensee may terminate this Master License at any time on 90 days’ prior notice to the City.
27.2.2 Pole License Termination. Absent the circumstances described in Subsection 27.2.1 (No-Fault Termination of Master License), Licensee may terminate a Pole License on 30 days’ notice at any time following the first anniversary of the Commencement Date of the Pole License. Upon any such termination, Licensee shall remove its Equipment from the applicable License Area in accordance with Section 25.1.1 (Obligations Upon Surrender) above. Licensee shall not be liable for any License Fee or other fees or charges applicable to the terminated Pole License for any License Year after the date of such termination by Licensee.
27.2.3 Master License Termination. Licensee may terminate this Master License at any time on one year’s notice.
27.2.4 Interference Caused by City Work. If any City work described in Section
9.1 (Repairs, Maintenance, and Alterations) prevents Licensee from using a City Pole or other License Area for more than 10 days, Licensee will be entitled to: (i) a pro rata abatement of the License Fee for the period Licensee is unable to use the City Pole; (ii) terminate the Pole License on 30 days’ notice; or (iii) both abatement of the License Fee under clause (i) and termination under clause (ii).
27.3 City’s Termination Rights.
27.3.1 Right to Terminate Pole Licenses.
27.3.1.1 The City has the absolute right in its sole discretion to terminate any or all Pole Licenses if the City Manager (or his or her designee) determines that DRAFT
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Licensee’s continued use of the License Area adversely affects or poses a threat to public health and safety, constitutes a verified and material public nuisance, interferes with the City’s streetlights, utilities, or other municipal operations, or requires the City to maintain a City Pole that is no longer required for City purposes.
27.3.1.2 If the condition is susceptible to cure, the City will provide notice to Licensee of the City’s determination, the underlying reasons for the determination, and provide a 30-day cure period following which the affected Pole Licenses will terminate if Licensee has not effected a cure.
27.3.1.3 If the condition is not susceptible to cure in the City’s sole judgment, the City will have the right to terminate the affected Pole Licenses on 30 days’ notice to Licensee of the City’s determination.
27.3.1.4 The City will endeavor to accommodate a request by Licensee to relocate the Pole License and related Equipment, at Licensee’s sole cost and expense, to another City Pole mutually acceptable to Licensee and City.
27.3.2 Removal of Equipment. The City in its sole discretion may determine that exigent circumstances require, for reasons of public, health, safety, or needs of the City to provide street lighting, utilities, or other municipal services, that Licensee remove the Equipment from a particular City Pole on 72 hours’ notice. Licensee shall remove the Equipment from the identified City Pole within the 72-hour period or any longer time to which the City agrees. The applicable Pole License will terminate as to the identified City Pole upon expiration of the 72-hour period.
27.3.3 City Pole Removal. The City has the right to remove any City Pole that it determines in its sole judgment is unnecessary for its streetlight operations. If the City decides to remove a City Pole, it will make reasonable efforts to provide at least 90 days’ notice to Licensee, but the City’s rights under this Subparagraph will not be affected by its failure to provide less than 90 days’ notice. Upon removal of a City Pole, either party will have the right to terminate the Pole License as to the affected City Pole as of the last day of the month of removal. The City will endeavor to accommodate a request by Licensee to relocate the Pole License and related Equipment, at Licensee’s sole cost and expense, to another City Pole mutually acceptable to Licensee and City.
27.3.4 Replacement, Relocation, or Upgrading of City Poles. The City has the right to replace, relocate, or add City equipment to, and remove Licensee’s Equipment from, any City Pole or License Area that the City determines in its sole judgment is necessary for its municipal operations, including, but not limited to, LED conversion or installation of solar capabilities. If the City decides to replace or relocate a City Pole or add equipment requiring the removal of Licensee’s Equipment, the City will make reasonable efforts to provide at least 90 days’ notice to Licensee, but the City’s rights under this Subparagraph will not be affected by its failure to provide less than 90 days’ notice. Licensee may choose either to terminate the applicable Pole License as to the replacement, relocated, or upgraded City Pole or, only if feasible in the discretion of the City’s Engineering and Transportation Department, install Licensee’s Equipment on the replacement, relocated, or upgraded City Pole at Licensee’s sole cost. The City will endeavor to accommodate a request by Licensee to relocate the Pole License and related Equipment, at Licensee’s sole cost and expense, to another City Pole mutually acceptable to Licensee and City.
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27.3.5 Future Use of Existing City Conduit.
27.3.5.1 If City conduit space is part of a License Area, and the City needs to use such City conduit space for future upgrade and expansion of its streetlight system, the City may require Licensee’s wiring to be removed from the City’s conduit. The City will use reasonable efforts to give Licensee at least 90 days’ notice that the wiring will be removed, but the City’s failure to give notice or delivery of less than 90 days’ notice will not affect the City’s rights under this Subsection. In either case, the City will provide Licensee with a date by which its wiring must be removed.
27.3.5.2 Unless Licensee notifies the City within the time specified in the City’s notice under Subsection (a) above that Licensee has identified an alternative to using City conduit to enable its Equipment without using the City conduit, the Pole License as to the affected City Pole will terminate automatically as of the last day of the month specified in the notice.
27.4 Licensee’s Rights after Termination.
Promptly after the effective date of any termination of any Pole License under Subsection
27.2.4 (Interference caused by City Work) or Section 27.3 (City’s Termination Rights), the City will refund the portion of any previously paid License Fee attributable to the terminated portion of the License Year, subject to Section 3.1.2 (Minimum Term). In addition, if Licensee wishes to replace the City Pole with a different Pole Location, the City will give priority to Licensee’s Pole License applications for an equal portion of replacement City Poles, but the grant of priority will not affect Licensee’s obligations under this Master License, including the requirement to obtain all Regulatory Approvals for the replacement City Poles.
27.5 Special Remedies for Interference with Operations.
27.5.1 Licensee’s Obligation Not to Cause Interference.
27.5.1.1 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 and correctly used by any person, including the City or any of its Agents. In the event such interference occurs and is not cured within fifteen (15) days of notice from City, such interference will be an event of default under this Master License by Licensee, and upon 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. Prior to installation of any Equipment, Licensee shall conduct an in-field test at the License Area to determine what existing communications are transmitted from or received in the License Area. A report of the in-field test shall be submitted with each application for a Pole License.
27.5.1.2 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. Notwithstanding the foregoing, Licensee shall have the right to temporarily power down its Equipment and DRAFT
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periodically test its Equipment in an effort to permanently resolve any interference.
The City shall not have the right to terminate any Pole Licenses where Licensee is actively taking steps to cure any interference in this manner.
27.5.2 Impairment Caused by Change in City Use.
27.5.2.1 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 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 within ten (10) days of its receipt of notice from Licensee.
27.5.2.2 If the City determines in its sole 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.
27.5.2.3 If the City determines in its sole discretion that mitigation is not feasible or cannot be achieved for a reasonable cost in the City’s reasonable judgment, Licensee may elect either to: (i) terminate the Pole License as to the affected City Pole and receive a ratable reduction in the License Fee; (ii) request to relocate the Pole License and related Equipment, at Licensee’s sole cost and expense, to another City Pole, subject to City’s approval in its sole discretion or (iii) 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 6 months of the following License Year under the affected Pole License to offset the cost of mitigation.
27.5.2.4 Licensee agrees that the City’s temporary and partial abatement or waiver of the License Fee under this Subsection 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.
27.5.3 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 Article 21 (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 10 days, in which case, subject to proof, License Fees will be abated ratably for the entire period that Licensee is unable to operate any Equipment on any affected City Pole.
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28 GENERAL PROVISIONS
28.1 Formal Notices.
This Section applies to all formal notices, requests, responses to requests, and demands made under this Master License.
28.1.1 Writings Required. All formal notices will be effective only if given in writing and delivered in accordance with this Section. Nothing in this Section will preclude the use of electronic mail (“e-mail”) for communication of an informal nature, especially with respect to notices according to Sections 9.2 (Notice to Licensee) and Section 9.4 (Emergencies).
28.1.2 Manner of Delivery. Formal notices may be delivered by: (i) personal delivery; (ii) certified mail, postage prepaid, return receipt requested; or (iii) prepaid overnight delivery, return receipt requested. Notices must be delivered to: (1) Licensee at Licensee’s address set forth in the Basic License Information, or at any place where Licensee or any Agent of Licensee may be personally served if sent after Licensee has vacated, abandoned, or surrendered the address set forth in the Basic License Information; (2) the City at the City’s address set forth in the Basic License Information; or (3) any new notice address that either the City or Licensee specifies by no less than 10 days’ notice given to the other in accordance with this Section.
28.1.3 Effective Date of Notices. All formal notices under this Master License will be deemed to have been delivered: (i) the date delivery is made by personal delivery or overnight delivery; or (ii) 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. The parties will transmit copies of notices by email to the email addresses listed in the Basic License Information, but failure to do so will not affect the delivery date or validity of any notice properly delivered in accordance with this Section. Further, notice by facsimile or electronic mail alone shall not be acceptable for notices of demand, breach, default, assignment, or change of notice address.
28.2 Living Wage Ordinance.
The City of San Leandro adopted Ordinance No. 2007-018, a Living Wage Ordinance (LWO) that became effective September 1, 2007. The term "living wage" represents an hourly wage set at a level higher than the federal or state minimum wage. San Leandro's Living Wage Ordinance provides a minimum pay rate and benefit requirement for workers in organizations that do business with the City of San Leandro. The City of San Leandro’s LWO affects licenses that, during the period from July 1 to June 30, generate a cumulative revenue to the City in the amount of $25,000 or more. In addition, the Licensee must have six (6) or more employees, and said employee engaged in work directly related to the License must spend more than 25% of their working time on work associated with the License. Finally, the LWO affects Licensees who generate $350,000 or more in annual (calendar) gross receipts. More information about the LWO is available on the City’s website at:
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28.3 No Implied Waiver.
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 Agent 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 Master License.
28.4 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.
28.5 Interpretation of Licenses.
The following rules of interpretation apply to this Master License:
28.5.1 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; and defined terms encompass all correlating forms of the terms (e.g., the definition of “indemnify” applies to “indemnity,” “indemnification,” etc.).
28.5.2 Multi-party Licensee. If there is more than one Licensee, the obligations and liabilities under this Master License imposed on Licensee will be joint and several among them.
28.5.3 Captions. The captions preceding the articles and 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.
28.5.4 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.
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of the City or his or her designee, unless otherwise provided in this Master License or by any City ordinance.
28.5.6 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 possible scope of the term, statement, or matter.
28.5.7 Laws. References to all Laws, including specific statutes, relating to the rights and obligations of either party mean the Laws in effect on the Master License Effective Date specified in the Basic License Information 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 the parties.
28.6 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.
28.7 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 Master License.
28.8 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.
28.9 Governing Law and Venue.
This Master License must be construed and enforced in accordance with the laws of the State of California without regard to the principles of conflicts of law. This Master License is made, DRAFT
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entered, and will be performed in San Leandro. Any action concerning this Master License must be brought and heard in the state or federal courts encompassing San Leandro.
28.10 Entire Agreement.
This Master License, including all exhibits and schedules, contains the entire agreement between the parties, and all prior written or oral agreements regarding the same subject matter are merged into this document. The parties further intend that this Master License, all Pole Licenses, and all exhibits and schedules will constitute one agreement that contains the complete and exclusive statement of its terms and that no extrinsic evidence (including prior drafts and revisions) may be introduced in any judicial, administrative, or other legal proceeding involving this Master License. Licensee hereby acknowledges that neither the City nor the City’s Agents have made any representations or warranties with respect to the City Poles or this Master License except as expressly set forth herein, and no rights, easements, or additional licenses are or will be acquired by Licensee by implication or otherwise unless expressly set forth herein.
28.11 Time of Essence.
Time is of the essence with respect to all provisions of this Master License in which a definite time for performance is specified.
28.12 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.
28.13 Recording.
Licensee agrees not to record this Master License, any Pole License, or any memorandum or short form of any of them in the Official Records of the County of Alameda.
28.14 Counterparts.
This Master License 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 and the same instrument.
28.15 Cooperative Drafting.
This Master License has been negotiated at arm’s length between persons sophisticated and knowledgeable in the matters it addresses and was drafted through a cooperative effort of both parties, each of which has had an opportunity to have this Master License reviewed and revised by legal counsel. No party will be considered the drafter of this Master License, and no presumption or rule (including that in Cal. Civil Code § 1654) that an ambiguity will be construed against the party drafting the clause will apply to the interpretation or enforcement of this Master License.
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28.16 Authority to Approve Agreement.
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.
28.17 Conflicts of Interest.
Through its execution of the Master License, Licensee acknowledges that it is familiar with sections 87100 et seq. and sections 1090 et seq. of the Government Code of the State of California, and certifies that it does not know of any facts which would constitute a violation of said provisions, and agrees that if Licensee becomes aware of any such fact during the term of the Master License, Licensee shall immediately notify the City.
28.18 Included Exhibits and Schedules.
The following exhibits and schedules are attached to and are incorporated by reference into this Master License.
EXHIBIT A – Form of Pole License
Exhibit A-1 – Pole Locations/License Area
Exhibit A-2 – Licensee’s Plans and Specifications
Exhibit A-3 – License Fee and Default Fee Schedule
Exhibit A-4 – City Installation Guidelines
The City and Licensee have executed this Master License as of the date last written below.
CITY:
City of San Leandro,
a California charter city
By:
[Name]
[Title]
Date:
LICENSEE:
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Name:
Its:
Date:
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Attest:
By:
[Name]
City Clerk
Approved as to Form:
By:
[Name]
City Attorney
Remainder of page intentionally left blank
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Exhibit A - Form of Pole License
EXHIBIT A
FORM OF POLE LICENSE
Master License between New Cingular Wireless PCS, LLC and San Leandro. Pole License No. [Start with Year-1 and number each subsequent application consecutively (e.g. 2018-1).] In accordance with Section 6.5 of the Master License, Licensee submits to the City two partially executed counterparts of this form of Pole License and each of the following as its Pole License application:
1. Exhibit A-1, designating all Pole Locations that Licensee seeks to be included in the License Area under this Pole License and noting (if known) whether any requested City Pole is a Nonstandard City Pole;
2. Exhibit A-2, complete and final plans and specifications for Equipment to be installed in the License Area subject to Regulatory Approvals;
3. The sum of $ for the initial Administrative Payment in amounts based on the number of City Poles identified in Exhibit A-1, subject to Section 6.7 of the Master License; and
4. The Pre-Construction Emissions Report.
Licensee acknowledges that: (a) this Pole License will not be effective until the first day of the month after Licensee has received all City-issued Regulatory Approvals with the exception of an Encroachment Permit and a Pole License is fully executed; (b) the City may require Licensee to supplement the Administrative Payment on conditions specified in Section 4.7.3 of the Master License; (c) Licensee will not have the right to access or install Equipment on the License Area until after Licensee has: (i) submitted insurance information to City as specified in Article 19.
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Exhibit A - Form of Pole License
This Pole License is effective as of the first day of the month after the last date written below and, upon execution will be the City’s authorization for the City’s Engineering and Transportation Department to begin its review of the Pole Locations and plans and specifications proposed in this Pole License application.
LICENSEE:
New Cingular Wireless PCSS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Name:
Its:
Date:
APPROVAL:
CITY:
San Leandro,
a municipal corporation
By:
[Name]
[Title]
Date:
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Exhibit A-1 – Pole Locations and License Area
EXHIBIT A-1
POLE LOCATIONS/LICENSE AREA
Pole License No.
[Licensee to complete and submit with Pole License application.] Pole Locations
(Longitude/Latitude and nearest
mailing address)
Standard or Nonstandard
City Pole
(Include 4-digit Pole Number if
previously assigned by City)
Metered or Unmetered
Electrical Service
(verification by City Public Works
staff is required)
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Exhibit A-2 – Licensee’s Plans and Specifications
EXHIBIT A-2
LICENSEE’S PLANS AND SPECIFICATIONS
Pole License No.
[Licensee to attach plans and specifications for all Equipment, including required and permitted signage, RF details such as frequency, spectrum, licensed/unlicensed, etc. to this cover sheet and submit with Pole License application.] DRAFT
Exhibit A-3 – Licensee Fee and Default Fee Schedule
SCHEDULE A-3
LICENSEE FEE AND DEFAULT FEE SCHEDULE
Pole License ________
LICENSE FEE SCHEDULE
2021 Annual License Fee
per City Pole
The annual License Fee will be increased by 3%
annually, as set forth in Section 4.3, and calculated for ease of reference only below.
$270.00
2022 Annual License Fee
per City Pole $278.10
2023 Annual License Fee
per City Pole $286.44
2024 Annual License Fee
per City Pole $295.03
2025 Annual License Fee
per City Pole $303.88
2026 Annual License Fee
per City Pole $313.00
2027 Annual License Fee
per City Pole $322.39
2028 Annual License Fee
per City Pole $332.06
2029 Annual License Fee
per City Pole $342.02
2030 Annual License Fee
per City Pole $352.28
2031 Annual License Fee
per City Pole $362.84
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Exhibit A-3 – Licensee Fee and Default Fee Schedule
2021 Contingent License Fee
(Section 4.2.1)
The Contingent License Fees will be increased by 3%
annually, as set forth in Section 4.3
$1,500
DEFAULT FEE SCHEDULE:
Default Fee
(Section 17.2.4.1)
Initial Notice $350
Follow up Notice $400
Default Fee
(Section 17.2.4.2)
Initial Notice $300
Follow up Notice $350
Default Fee
(Section 17.2.4.3)
Initial Notice $300
Follow up Notice $350
Default Fee
(Section 17.2.4.4)
Initial Notice $300
Follow up Notice $350
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Exhibit A-4 – City Installation Guidelines
EXHIBIT A-4
CITY INSTALLATION GUIDELINES
Licensee shall install a dedicated conduit for its use; however, Licensee may request the use of the City’s existing non-traffic signal conduits, subject to the allowable conduit fill percentage under the NESC and the review and approval of the City’s Public Works Department.
Licensee is not permitted to install or arrange for installment of external conduits on any City Poles.
Licensee shall apply for and install an electric meter, if required by the City and the electrical provider, and obtain any necessary building permits from the City for the installation and connection. Licensee shall coordinate with PG&E and provide written documentation to indicate PG&E is agreeable to the installation of equipment and/or electric meter on streetlight poles.
Licensee shall install the correct fuses and fuse holders for the dedicated circuit used for Licensee’s Equipment at the point of interconnection of the main service and the Licensee’s pull box. Fuse and fuse holder specifications shall be provided by Licensee and shown on the Approved Plans.
Licensee shall be responsible for repairing any City conduits that Licensee or its Agents damage during installation of electrical facilities, including pulling of wires into streetlight conduits. If following Licensee’s failure to make such repairs within thirty (30) days of notice from City, the City’s crew makes repairs to remedy damage caused by Licensee or its Agents, the City will charge Licensee the full cost of those repairs by notice with evidence of the City’s costs.
The City will inspect Licensee’s service installations to ensure compliance with Approved Plans. Licensee agrees to make any repairs or modifications to its service installations that are necessary to ensure compliance with the Approved Plans.
Licensee shall provide the City’s Public Works Department with as-built drawings showing all circuits installed by Licensee in existing streetlight conduits promptly after installation is complete. Licensee shall provide a PDF copy of the as-built drawings to the City.
If applicable, licensee shall provide the City’s Public Works Department with the final coordinates and/or digital GIS shape file for inclusion in the City’s GIS inventory.
Licensee shall not: (a) connect or use any electrical equipment that exceeds the capacity of the electrical system available to service the City Pole; or (b) connect any apparatus, machine, or device through the electrical service except in the manner for which such service is designed or as otherwise approved by the City in the Approved Plans.
Licensee shall not open any City pull boxes unless a member of the City’s streetlight maintenance crew is present or City’s Public Works department approves opening the pull boxes unattended by City’s maintenance crew. Licensee shall contact the City’s Public Works Department to complete the service connection.
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