HomeMy WebLinkAbout4.17 - 2721 Verizon MLA
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STAFF REPORT
CITY COUNCIL
DATE: June 18, 2019
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Master License Agreement for Small Cell Pole Attachment Installation
Prepared by: John D. Bakker, City Attorney
EXECUTIVE SUMMARY:
The City Council will consider approval of a Master License Agreement for Small Cell
Pole Attachment Installation with GTE Mobilnet of California, LP (doing business as
Verizon Wireless). In addition, the City Council will consider offering the same terms
offered to Verizon to the other wireless carriers that have entered into Master License
Agreements with the City.
STAFF RECOMMENDATION:
Adopt the Resolution Approving a Master License Agreement for Small Cell Pole
Attachment Installation with GTE Mobilnet of California, LP (doing business as Verizon
Wireless) and Offering Same Terms to Other Master Licensees.
FINANCIAL IMPACT:
Approval of the Master License Agreement with GTE Mobilnet of California LP (doing
business as Verizon Wireless) does not, in and of itself, impact the General Fund.
Once Verizon Wireless obtains individual licenses, the City will collect annual revenue
from the licensee of $270 per-pole basis to supplement the General Fund for a period of
10 years.
DESCRIPTION:
Over the past several years, the City has been contacted by a number of wireless
communications service providers interested in deploying new small cell facilities within
the City right-of-way, which would provide enhanced wireless se rvices throughout the
community.
On March 20, 2018, the City Council approved two Master License Agreements with
New Cingular Wireless Company PCS, LLC and Extenet Systems (California) LLC. On
September 4, 2018, the City Council approved a Master License Agreement with
Mobilitie, LLC. Due to increasing wireless data consumption, wireless providers are
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making rapid investment in the necessary infrastructure to meet not only current data
demands but to prepare for deployment of fifth generation wireless syst ems (5G)
technology.
The City has been working with another wireless provider, GTE Mobilnet of California
LP (doing business as Verizon Wireless) on establishing a Master License Agreement
to serve as the framework to deploy small cell antenna equipment on the City’s right of
way infrastructure. Typically, a small cell antenna is attached to a steel signal pole and
placed in locations that are heavily populated and need additional network capacity,
such as downtowns and around heavily used traffic corridors.
The small cell antennas are usually deployed in areas that cannot be effectively served
by a traditional macro cell, or areas that may have coverage but not enough capacity. A
small cell is not intended to replace macro cell sites, but to fill in are as that do not have
sufficient capacity. Unlike in the past, when wireless communications facilities sites
tended to be larger (macro cells) and on private property, wireless providers are now
more interested in locating new facilities within public rights-of-way.
The California Public Utilities Commission (CPUC) historically determined that wireless
providers are a utility and, therefore, have the same right to use the public rights -of-way
as any other telecommunications utility under Public Utilities Code section 7901. The
public rights-of-way contain existing overhead infrastructure, such as utility poles, traffic
signals, and street lights that can support wireless telecommunications facilities. For
example, small cell antennas can be installed on wood poles owned by PG&E, and the
City has limited discretion over such installations.
General Overview of the MLA and Pole License Approach
The proposed Master License Agreement (MLA) with Verizon Wireless would not
directly grant any rights to use an individual City pole. Rather, the MLA establishes the
procedures, terms and conditions under which they would obtain individual pole
licenses. Individual pole licenses, issued pursuant to the MLA, would identify the
licensed pole and contain detailed exhibits for the site plans, permits, fee schedules,
insurance documentation, and other materials that are unique to each site. When the
City grants a pole license, that pole license (together with all the plans, equipment
specifications and fee schedules) would become integrated with the MLA.
The MLA format remains essentially the same regardless of the licensee. The City
negotiated the terms of the template MLA with five wireless carriers. Wireless providers
desiring access to City-owned poles have the opportunity to enter into the MLA with the
City that would entitle them to obtain 1-year, pole licenses on a first-come, first-served
basis for a ten-year period. This framework creates a single set of rules for all providers
that reduces the administrative burden on the City and promotes a level playing field
among competitor licensees.
Verizon Wireless was among the carriers that was involved in negotiating the template
MLA. Several other carriers, New Cingular Wireless Company PCS, LLC, ExteNet
Systems (California) LLC, and Mobilitie, LLC, entered into MLAs with the City in 2018.
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Ultimately, Verizon declined to proceed with entering into the MLA in the originally
negotiated form.
The wireless providers benefit from licensing existing City-owned infrastructure to install
small cell facilities by reducing costs associated with negotiating individual pole licenses
and by accelerating the deployment of advanced wireless facilities with a streamlined
process. The City would benefit as well by (1) establishing a more robust wireless
broadband network available to the City’s residents and businesses; (2) maintaining
greater control over aesthetics and potential liability from wireless facilities on City-
owned poles; and (3) receiving license revenues.
Impact of FCC Declaratory Ruling
In late 2018, the Federal Communications Commission issued a ruling that led Verizon
to contact the City about revising the MLA form. The FCC’s Declaratory Ruling (FCC
18-133, 33 FCC Rcd 9088) declares that per -pole fees must be based o n reasonable
costs or they are considered to be “effective prohibitions” on carriers’ ability to
provide telecommunications services. The ruling indicates that recurring fees of no
more than $270 per pole annual are presumed valid. Verizon proposed that t he MLA
be amended to provide, among other things, that the annual per -pole license fees be
reduced from $1 ,020 (the 2019 rate) to $270 based on the FCC Declaratory Ruling.
The Declaratory Ruling is the subject of a legal challenge, and the City has assert ed
in its negotiations with Verizon that the FCC’s Declaratory Ruling is unlawful.
Verizon and the City’s negotiations led to a compromise that avoids a dispute over
the effect of the FCC Declaratory Ruling. Under the terms of the compromise, the
City will initially charge Verizon annual license fees of $270. However, if the
Declaratory Ruling is “struck down” by the courts, the originally negotiated license
fee would become effective (currently $1 ,020 and increasing by 2% each year
thereafter). In ad dition, Verizon would, if Declaratory Ruling is “struck down” by the
courts, pay the City an amount equal to what the City would have received during the
preceding 18 months had the originally negotiated license fee been in effect.
Key Terms of Master License Agreement
Among the key terms and conditions of the Master License Agreement are:
• MLA Term – The term of the MLA is ten (10) years. During this period, licensees
can seek individual licenses under the terms offered in the MLA. This period of
time has been requested by interested parties who desire a sufficiently long
period of time in which to amortize their capital investments.
• Pole License Term – The term for each Pole License shall be ten years from the
first day of the month after the date the parties have fully executed it.
• License Fee – Annual License Fee per City-owned pole would be $270 (Initial
License Fee). If the FCC Declaratory Ruling discussed above is invalidated by
the courts, the original license fee amount (currently $1 ,020) would go into effect
(Contingent License Fee). The Contingent License Fee, but not the Initial
License Fee, will escalate by 2% on January 1 of each year of the term.
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In addition to a Pole License Fee, wireless providers will be responsible for paying a
Master License Application Processing fee and a Pole License Administrative fee, which
will be calculated based upon the hourly staff rate.
Anticipating an increase in applications for small cell facilities in the public rights -of-way,
staff recommends the City Council approve the MLA with GTE Mobilnet of California, LP
and authorize the City Manager to enter into an agreement with the wireless provider to
install new small cell facilities on City-owned street light poles. The goal of the MLA is to
align the City’s available infrastructure assets with wireless provider’s demand for
access, develop uniform and predictable processes for evaluating individual pole
license applications, maintain the City’s municipal functions related to public health and
safety, establish maintenance requirements and standards for the licensee, and
preserve the community’s aesthetic characteristics.
Offer to Other Master Licensees
Should the City Council approve the agreement with Verizon Wireless, Staff would
further recommend that the same terms offered to Verizon Wireless in the proposed
agreement be offered to the other carriers that have entered into MLAs with the City.
Staff is proposing to do so because the Telecommunications Act of 1996 prohibits the
City from “unreasonably discriminat[ing] among providers of functionally equivalent
services.” The resolution approving the proposed agreement includes a provision that
would require the City Manager to offer such terms to the other carriers and authorize
the City Manager, if necessary, to enter into amendments to the MLAs on such terms
with the other carriers.
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Approving the Master License Agreement for Small Cell Pole Attachment
Installation with GTE Mobilnet of California, LP (doing business as Verizon Wireless)
2. Exhibit A to Resolution - Master License Agreement for Small Cell Pole Attachment
Installation with GTE Mobilnet of California, LP (doing business as Verizon Wireless)
RESOLUTION NO. XX-19
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING A MASTER LICENSE AGREEMENT FOR SMALL CELL POLE ATTACHMENT
INSTALLATION WITH GTE MOBILNET OF CALIFORNIA, LP (DOING BUSINESS AS
VERIZON WIRELESS) AND OFFERING SAME TERMS TO OTHER MASTER LICENSEES
WHEREAS, over the past several years, the City has been contacted by a number of
wireless communications service providers interested in deploying new small cell facilities within
the City right-of-way, which would provide enhanced wireless services throughout the
community; and
WHEREAS, various types of antennas are required to deliver wireless coverage and
capacity; and
WHEREAS, wireless providers are proposing to place a single “small cell” antenna and
equipment on existing overhead infrastructure located within the public rights-of-way; and
WHEREAS, the City has developed a Master License Agreement (MLA) in consultation
with five wireless providers, that will establish the procedures, terms and conditions under which
licensees obtain individual pole licenses on City-owned poles; and
WHEREAS, GTE Mobilnet of California, LP (doing business as Verizon Wireless) has
requested a Master License Agreement with the City of Dublin; and
WHEREAS, three other wireless carriers, New Cingular Wireless Company PCS, LLC
(doing business as AT&T Wireless), ExteNet Systems (California) LLC, and Mobilitie, LLC (“the
Master Licensees”), entered into MLAs with the City in 2018; and
WHEREAS, GTE Mobilnet of California LP (doing business as Verizon Wireless) has
asserted that a Federal Communications Commission ruling prevents the City from requiring
certain terms that are in the template, and the City and Verizon have reached a compromise
that is reflected in the proposed Master License Agreement, and which the City would offer to
the other Master Licensees; and
WHEREAS, wireless providers desiring access to City-owned poles have the opportunity
to enter into the MLA with the City that would entitle them to obtain 1-year, pole licenses on a
first-come, first-served basis for a ten-year period; and
WHEREAS, the goal of the MLA is to align the City’s available infrastructure assets with
wireless provider’s demand for access, develop uniform and predictable processes for
evaluating individual pole license applications, maintain the City’s municipal functions related to
public health and safety, establish maintenance requirements and standards for the licensee,
and preserve the community’s aesthetic characteristics.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve a Master License Agreement for Small Cell Pole Attachment Installation with
GTE Mobilnet of California, LP (doing business as Verizon Wireless); and
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement, attached hereto as Exhibit A to this Resolution, in substantially the form attached.
BE IT FURTHER RESOLVED that the City Manager shall offer the terms offered to GTE
Mobilnet of California, LP (doing business as Verizon Wireless) in Exhibit A to this Resolution to
the Master Licensees and is authorized to enter into amendments to the Master Licensees’
Master License Agreement to effectuate the offer.
PASSED, APPROVED AND ADOPTED this 18th day of June, 2019, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Mayor
ATTEST:
______________________________
City Clerk
3233966.2
CITY OF DUBLIN
MASTER LICENSE AGREEMENT FOR
SMALL CELL POLE ATTACHMENT INSTALLATION
between
THE CITY OF DUBLIN
and
GTE Mobilnet of California Limited Partnership,
a California limited partnership,
doing business as VERIZON WIRELESS
For City of Dublin Pole License Program in Dublin, California
Effective as of June 18, 2019
TABLE OF CONTENTS
1 PURPOSE, DEFINITIONS, AND BASIC LICENSE INFORMATION ...................................... 2
1.1 Purpose. ...................................................................................................................... 2
1.2 Basic License Information. ........................................................................................... 2
1.3 Definitions. ................................................................................................................... 2
2 SCOPE OF LICENSE .............................................................................................................. 5
2.1 License Areas. ............................................................................................................. 5
2.2 No Property Interest in License Area or City Poles. .................................................... 6
2.3 Signs and Advertising. ................................................................................................. 6
2.4 Light and Air. ................................................................................................................ 6
2.5 As-Is Condition of the License Area. ........................................................................... 6
3 TERM ...................................................................................................................................... 7
3.1 Term of Master License and Pole Licenses. ................................................................ 7
4 LICENSE FEES; ADDITIONAL FEES; AND OTHER CHARGES ........................................... 7
4.1 Commencement Date. ................................................................................................. 7
4.2 License Fees. .............................................................................................................. 8
4.3 Adjustments in License Fee. ........................................ Error! Bookmark not defined.
4.4 Late Charge. ................................................................................................................ 9
4.5 Default Interest. ........................................................................................................... 9
4.6 Master License Application Processing Payments. ..................................................... 9
4.7 Pole License Administrative Processing Payments. .................................................. 10
4.8 Additional Fees. ......................................................................................................... 10
4.9 Manner of Payment. .................................................................................................. 11
4.10 Reasonableness of Liquidated Charges and Fees. ................................................... 11
5 USE RESTRICTIONS ........................................................................................................... 11
5.1 Permitted Use. ........................................................................................................... 11
5.2 No Illegal Uses or Nuisances. .................................................................................... 11
6 POLE LICENSE APPROVALS .............................................................................................. 11
6.1 City Approval Required. ............................................................................................. 11
6.2 Regulatory Approval Required. .................................................................................. 12
6.3 Initial and Annual Master Plans Required. ................................................................. 12
6.4 Pole License Application. ........................................................................................... 13
6.5 Pole License Application Review Process. ................................................................ 13
6.6 Administrative Payments. .......................................................................................... 13
6.7 Pole License Approval. .............................................................................................. 13
6.8 Right to Disapprove. .................................................................................................. 14
7 INSTALLATION OF EQUIPMENT ......................................................................................... 14
7.1 Approved Plans and Specifications. .......................................................................... 14
7.2 Installation. ................................................................................................................. 15
7.3 Notice Required Prior to Installation. ......................................................................... 15
7.4 Cost of Labor and Materials. ...................................................................................... 15
7.5 No Alteration of City’s Existing Equipment or Infrastructure. ..................................... 15
7.6 Standard of Work. ...................................................................................................... 15
7.7 Project Manager. ....................................................................................................... 15
7.8 Coordination of Work. ................................................................................................ 16
7.9 Installation; Parking Regulations. .............................................................................. 16
7.10 Fiber-Optic Cables, Conduits, and Pull Boxes. .......................................................... 16
8 ALTERATIONS ...................................................................................................................... 16
8.1 Licensee’s Alterations. ............................................................................................... 16
8.2 Title to Improvements and Removal of Licensee’s Equipment. ................................. 16
9 CITY WORK ON POLES OR LICENSE AREA ..................................................................... 16
9.1 Repairs, Maintenance, and Alterations. ..................................................................... 16
9.2 Notice to Licensee. .................................................................................................... 17
9.3 Licensee’s On-Call Representative. .......................................................................... 17
9.4 Emergencies. ............................................................................................................. 17
10 LICENSEE’S MAINTENANCE AND REPAIR OBLIGATIONS .............................................. 17
10.1 Damage to City Property. .......................................................................................... 17
10.2 Alterations to City Property ........................................................................................ 18
10.3 No Right to Repair City Property. .............................................................................. 18
10.4 Notice of Damage to City Property. ........................................................................... 18
10.5 Licensee’s Equipment. ............................................................................................... 18
10.6 Standard of Work. ...................................................................................................... 18
11 LIENS .................................................................................................................................... 19
12 UTILITIES; TAXES AND ASSESSMENTS ........................................................................... 19
12.1 Utilities. ...................................................................................................................... 19
12.2 Taxes and Assessments. ........................................................................................... 19
13 COMPLIANCE WITH LAWS ................................................................................................. 20
13.1 Current and Future Laws. .......................................................................................... 20
13.2 Personnel Safety Training. ........................................................................................ 20
13.3 Compliance with CPUC General Order 95. ............................................................... 21
13.4 Compliance with Electric Codes. ............................................................................... 21
13.5 City’s Exercise of its Proprietary Interests. ................................................................ 21
13.6 Regulatory Approvals. ............................................................................................... 21
13.7 Radiofrequency Radiation and Electromagnetic Fields. ............................................ 21
13.8 Compliance with City’s Risk Management Requirements ......................................... 21
14 DAMAGE OR DESTRUCTION .............................................................................................. 22
14.1 City Election. .............................................................................................................. 22
14.2 No Statutory Rights for Damaged City Pole. ............................................................. 22
15 EMINENT DOMAIN ............................................................................................................... 22
15.1 Eminent Domain. ....................................................................................................... 22
15.2 Temporary Takings. ................................................................................................... 23
16 ASSIGNMENT ....................................................................................................................... 23
16.1 Restriction on Assignment. ........................................................................................ 23
16.2 Notice of Proposed Assignment. ............................................................................... 23
16.3 City Response. .......................................................................................................... 23
16.4 Effect of Assignment. ................................................................................................. 24
16.5 Assumption by Transferee. ........................................................................................ 24
16.6 Permitted Assignment. ............................................................................................... 24
16.7 Licensee Carrier Customers ...................................................................................... 25
17 DEFAULT .............................................................................................................................. 25
17.1 Events of Default by Licensee. .................................................................................. 25
17.2 City’s Remedies. ........................................................................................................ 26
17.3 Licensee’s Remedy for City Defaults. ........................................................................ 27
17.4 Cumulative Rights and Remedies. ............................................................................ 27
18 LICENSEE’S INDEMNITY ..................................................................................................... 27
18.1 Scope of Indemnity. ................................................................................................... 27
18.2 Indemnification Obligations. ....................................................................................... 27
19 INSURANCE ......................................................................................................................... 27
19.1 Licensee’s Insurance. ................................................................................................ 27
19.2 Insurance of Licensee’s Property. ............................................................................. 29
19.3 City’s Insurance. ........................................................................................................ 29
19.4 Waiver of Subrogation. .............................................................................................. 29
19.5 Contractors’ Bonds and Insurance. ........................................................................... 29
20 LIMITATION OF CITY’S LIABILITY ....................................................................................... 29
20.1 General Limitation on City’s Liability. ......................................................................... 29
20.2 Consequential Damages. .......................................................................................... 30
20.3 No Relocation Assistance. ......................................................................................... 30
20.4 Non-Liability of City Officials, Employees, and Agents. ............................................. 30
21 CITY ACCESS TO LICENSE AREA ..................................................................................... 30
21.1 City’s Right of Access. ............................................................................................... 30
21.2 Emergency Access. ................................................................................................... 30
21.3 No Liability for Emergency Access. ........................................................................... 30
22 REQUIRED RECORDS ......................................................................................................... 31
22.1 Records of Account. .................................................................................................. 31
22.2 Estoppel Certificates. ................................................................................................. 31
22.3 Regulatory and Bankruptcy Records. ........................................................................ 31
23 RULES AND REGULATIONS ............................................................................................... 32
24 SECURITY DEPOSIT ............................................................................................................ 32
24.1 Application of Security Deposit. ................................................................................. 32
24.2 Further Deposits. ....................................................................................................... 32
25 SURRENDER OF LICENSE AREA ....................................................................................... 32
25.1 Surrender. .................................................................................................................. 32
25.2 Holding Over. ............................................................................................................. 33
26 HAZARDOUS MATERIALS ................................................................................................... 33
26.1 Hazardous Materials in License Area. ....................................................................... 33
26.2 Licensee’s Environmental Indemnity. ........................................................................ 33
27 SPECIAL PROVISIONS ........................................................................................................ 34
27.1 Early Termination by Either Party. ............................................................................. 34
27.2 Licensee’s Termination Rights. .................................................................................. 34
27.3 City’s Termination Rights. .......................................................................................... 35
27.4 Licensee’s Rights after Termination. ......................................................................... 36
27.5 Special Remedies for Interference with Operations. ................................................. 36
28 GENERAL PROVISIONS ...................................................................................................... 37
28.1 Notices. ...................................................................................................................... 37
28.2 No Implied Waiver. .................................................................................................... 38
28.3 Amendments. ............................................................................................................. 38
28.4 Interpretation of Licenses. ......................................................................................... 38
28.5 Successors and Assigns. ........................................................................................... 39
28.6 Brokers. ..................................................................................................................... 39
28.7 Severability. ............................................................................................................... 39
28.8 Dispute Resolution. .................................................................................................... 39
28.9 Governing Law and Venue. ....................................................................................... 40
28.10 Entire Agreement. ...................................................................................................... 40
28.11 Time of Essence. ....................................................................................................... 40
28.12 Survival. ..................................................................................................................... 40
28.13 Recording. ................................................................................................................. 40
28.14 Counterparts. ............................................................................................................. 40
28.15 Cooperative Drafting. ................................................................................................. 40
28.16 Authority to Approve Agreement. ............................................................................... 41
28.17 Conflicts of Interest. ................................................................................................... 41
28.18 Included Exhibits and Schedules. .............................................................................. 41
BASIC LICENSE INFORMATION
City: City of Dublin, a California municipal corporation
Licensee: GTE Mobilnet of California Limited Partnership, a
a California limited partnership, d/b/a Verizon
Wireless
Term (§ 3.1.1): Ten (10) years, beginning on the Effective Date.
Master License Effective Date (§ 3.1.1): The first day of the month after the date the
parties have fully executed this Master License.
Pole License term and effective dates (§
3.1.1):
For each Pole License, the term shall be ten years
from the first day of the month after the date the
parties have fully executed it.
Master License Expiration Date (§ 3.1.1): The day before the 10th anniversary of the
Effective Date.
License Fee Commencement Date (§ 4.1.1);
Acknowledgment Letter (§ 4.1.2):
For each Pole License, the earlier of: (a) the first
anniversary of the effective date of the Pole
License; and (b) the first day of the month after
the date on which Licensee has obtained all
Regulatory Approvals.
The City will confirm the Commencement Date for
each Pole License in the countersigned
Acknowledgment Letter.
License Fee rate (§ 4.2.1): As of the License Fee Commencement Date,
Licensee will be obligated to pay City an annual
License Fee at a rate based on the number of City
Poles licensed under each Pole License.
City will provide the License Fee schedule for
each Pole License with the signed
Acknowledgment Letter, and the schedule will be
deemed to be attached to the Pole License as
Exhibit A-4.
Contingent License Fee Adjustment Dates (§
4.3):
Contingent License Fee rates will escalate by 2%
on January 1 of each year of the Term.
Integrated Pole License Fee discount (§
4.2.4):
20% discount to the License Fee rate per City
Pole upgraded to an Integrated Pole over the
remaining term of each applicable Pole License.
Master License Application Processing
Payments (§ 4.6):
$4,000, to be delivered with Licensee’s partially
executed counterpart of this Master License. The
payment, and any additional amounts required,
will be used for City’s ordinary processing and
administrative costs related to the Master License
application.
Pole License Administrative Payments
(§ 4.7):
$2,000 per Standard City Pole and Nonstandard
City Poles, to be delivered with Licensee’s
application for each Pole License, which may be
subject to change after an established period of
time as provided in (§ 4.7). This initial payment,
and any necessary replenishment(s) thereof, 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.
Permitted Use (§ 5.1): Installation, operation, maintenance 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.
Emissions Report (§ 13.7): As a condition to issuance of any Pole License,
Licensee must provide City a copy of the
Emissions Report submitted for Licensee’s
Wireless Facility Permit.
Default Fee schedule (§ 17.2.4): Exhibit A-4 to each Pole License.
Security Deposit (Art. 24): Cash deposit, letter of credit, or surety bond in the
amount of $50,000, to be delivered with
Licensee’s Acknowledgment Letter for the first
Pole License issued under this Master License.
Licensee shall provide additional security in the
amount of $25,000 upon delivery of its
Acknowledgment Letter for its tenth (10th) Pole
License.
Notice address of City
(§ 28.1.2):
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
Re: Master License – Verizon Wireless
Telephone No.: (925) 833-6650
With a copy to: Meyers Nave
555 12th Street, Suite 1500
Oakland, CA 94607
Attn: John D. Bakker, Esq.
Re: Master License – Verizon Wireless
Project manager and day-to-day contact for
City (§ 7.7):
Laurie Sucgang, Senior Civil Engineer
Telephone No.: 925-833-6630
Email: laurie.sucgang@dublin.ca.gov
Emergency contact for City (§ 9.4): During Business Hours:
Public Works Manager
Telephone No.: 925-833-6630
Off-Hours
Police Dispatch
Telephone No.: 925-462-1212
Instructions for payments due to City (§ 4.9): Checks should be made payable to “City of
Dublin” and delivered to:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: Finance Director
Re: Master License – Verizon Wireless
Wire transfers should be directed as follows:
Beneficiary Name: City of Dublin
Beneficiary Address:
100 Civic Plaza
Dublin, CA 94568
Beneficiary Account No.: 1416650247
ABA No.: 026009593
Bank Address:
7496 Dublin Blvd., Dublin, CA 94568
Send remittance information to:
Accounting@dublin.ca.gov
Notice address of Licensee (§ 28.1.2): GTE Mobilnet of California Limited Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, NJ 07921
Attention: Network Real Estate
(Reference: Dublin SC MLA)
With a copy to:
Project manager for Licensee (§ 7.7):
On-call and emergency contact for Licensee
(§§ 9.3, 9.4):
1-800-264-6620
NOTICE TO LICENSE APPLICANTS: The City’s acceptance of the application payment(s)
will not, to the extent consistent with Laws, obligate the City to enter into any Master License if the
City in its sole discretion determines that disapproval is warranted. If the City disapproves any
Master License, it will notify the applicant by a letter specifying the reasons for disapproval.
Disapproval will not disqualify the applicant from re-applying.
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 June 18, 2019, is made by and between the
CITY OF DUBLIN, a California municipal corporation (the “City”) and GTE Mobilnet of California
Limited Partnership, a California limited partnership, doing business as Verizon Wireless
(“Licensee”).
BACKGROUND
A. The City owns approximately 4,500 street light poles and other traffic control and
safety poles (each, a “City Pole”) in Dublin, California, many of which are suitable sites for
installing equipment to enhance wireless telecommunications services in Dublin.
B. Licensee has requested to use City Poles to install, maintain, access, and operate
communications facilities as specified in this Master License.
C. The City’s Master License Distributed Antenna System Pole Installation Program
(the “Street Light License Program”) is a revenue-generating program to license existing City
Poles for installation of outdoor distributed antenna systems to be installed and operated by
wireless telecommunications carriers using licensed spectrum and third-party hosts certificated by
the California Public Utilities Commission, as described in materials on file with the City Clerk.
The Street Light License Program and Master License have 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 proposed Street Light License
Program and forms of Master License and Pole License would not commit the City to authorize
use of specific City Poles. Therefore, the City actions described in Paragraph B.2 did not fall with
the definition of a “project” under the California Environmental Quality Act (CEQA) Guidelines
section 15378.
2. The City Council authorized 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 September 4, 2018.
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:
2
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, as provided by this Master License, nonpossessory license to use the License Area
identified in Pole Licenses issued under this Master License for the Permitted Use; (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 (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.
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 28.4 (Interpretation of Licenses).
“Acknowledgment Letter” is defined in Subsection 4.1.2.
“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 an entity that directly or indirectly controls, is controlled by, or is under
the common control with Licensee.
“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
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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 28.6.
“Business Day” is defined in Subsection 28.4.4.
“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 13.2.2.
“Default Fee” is defined in Subsection 17.2.4.
“Effective Date” means the effective date of this Master License as specified in the Basic
License Information.
“EMFs” is defined in Section 13.7.
“Emissions Report” is defined in Section 13.7.
“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 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 as specified the
Basic License Information.
“FCC” is defined in Section 4.2.1.
“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.
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“Indemnified Party” means the City, its Agents, its Invitees, and their respective heirs,
legal representatives, successors, and assigns.
“Indemnify” means to indemnify, defend (with counsel reasonably acceptable to an
Indemnified Party), and hold harmless.
“Integrated Pole” means a 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 Equipment is not connected or is removed from the Integrated Pole.
“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, assignees, and sublicensees of that party in relation to the
License Area.
“Laws” means all present and future statutes, ordinances, codes, orders, regulations, and
implementing requirements and restrictions of federal, state, county, and municipal authorities,
whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at
the time in question.
“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 street light 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.
“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, and maintenance of
Equipment for the transmission and reception of wireless, cellular telephone, and data and related
communications equipment on License Areas.
“Pole” means a street light pole or other utility pole in Dublin, 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 Location” means the geographic information identifying each City Pole on which
Licensee is authorized to install, operate and maintain Equipment under Pole Licenses. Pole
Locations will be identified in Exhibit A-1 to each Pole License.
“Property” means any interest in real or personal property, including land, air, and water
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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 street light pole installed in the
city right-of-way. Standard City Poles conform to then-applicable Public Works standards, as may
be amended from time to time.
“Subsidiary” means an entity controlled by Licensee.
“Term” is defined in Subsection 3.1.1.
“Wireless Facility Permit” is defined in Section 6.2.
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
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 right in its sole discretion to deny an application for a Pole License solely on
aesthetic grounds to the extent permitted by Laws.
2.1.5 Exclusions. Licensee acknowledges that the City will not license any
of the following to Licensee 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. 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
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approval of plans, specifications, cost estimates, materials, and acceptance of completed
improvements.
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, as provided herein, license to enter
onto and use the License Area for the Permitted Use, 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; provided, however, such third party uses shall not
interfere with Licensee’s use of the License Area; and
(d) neither this Master License nor any Pole License creates a
partnership or joint venture between the City and Licensee.
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 Agreement.
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
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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. Licensee further represents and warrants that its intended use of the License Area is
the Permitted Use as defined in Section 1.2 (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.
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 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 Agreement (the
“Term”). Each Pole License will be effective the first day of the month after the date the parties
have fully executed it and terminate ten (10) years thereafter.
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
Commencement 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.
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 the earlier of: (i) the first
anniversary of the effective date of the Pole License; and (ii) the first day of the month after the
date on which Licensee has obtained all Regulatory Approvals necessary for the Permitted Use on
the License Area. Each 12-month period beginning on the Commencement Date of each Pole
License is a “License Year” for that Pole License.
4.1.2 Acknowledgment Letter. Within 60 days after obtaining all
Regulatory Approvals for the Permitted Use on any License Area, Licensee shall deliver to the
City a letter in the form of Exhibit A-3 to the Pole License (each, an “Acknowledgment Letter”).
The purposes of the Acknowledgment Letter are to: (i) confirm the Commencement Date; (ii)
tender or confirm payment by wire transfer of the License Fee for the first License Year, and the
Security Deposit (by check, wire transfer, surety bond, or letter of credit), all in the amounts
specified in the Basic License Information; (iii) provide to the City copies of all Regulatory
Approvals; and (iv) provide to the City copies of required insurance certificates and endorsements
related to the requirements under Article 19 (Insurance).
4.1.3 City Demand for Acknowledgment Letter. If Licensee has not
delivered to the City the complete Acknowledgment Letter by the first anniversary of the effective
date of any Pole License, the City will have the right to: (i) demand that Licensee deliver the
Acknowledgment Letter, together with copies of all Regulatory Approvals, within 10 business days
8
after the date of the City’s demand; and (ii) to set the Commencement Date at the first anniversary
of the effective date if Licensee does not deliver the complete Acknowledgment Letter within that
10-business day period.
4.1.4 Correct Commencement Date. In all cases, the City will have the
right to correct the Commencement Date stated in Licensee’s Acknowledgment Letter after
examining Regulatory Approvals. The City will notify Licensee of any such correction by notice
delivered in accordance with Section 28.1 (Notices). The City’s determination under this
subsection or under Subsection 4.1.3 (City Demand for Acknowledgment Letter) will be final for
all purposes under this Master License unless the City’s determination is demonstrably arbitrary
and capricious.
4.1.5 Countersigned Acknowledgment Letter. The City will use reasonable
efforts to deliver to Licensee a countersigned copy of the Acknowledgement Letter or its
determination of the Commencement Date under Subsection 4.1.4 (Correct Commencement
Date) within ten (10) business days of the City’s receipt of the Acknowledgement Letter from the
Licensee. The fully executed Acknowledgement Letter or the City’s Commencement Date
determination letter, as applicable, will be the City’s notice to proceed under Section 7.2
(Installation).
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 and 00/100 Dollars
($270.00) per year (the “Initial License Fee”). The rate shall be specified in the License Fee
schedule attached to each Pole License. If during the term of the Master License, a court of
competent jurisdiction issues a final, non-appealable order (the “Contingent Event”)
vacating 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"), the Initial License Fee shall be replaced, upon such
order becoming final, by a revised License Fee equal to the Contingent License Fee listed for
the then-current year under Schedule A-4 (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-4. The License Fee must be delivered in cash
or its equivalent in the manner specified in Section 4.9 (Manner of Payment). 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. Upon the
happening of the Contingent Event, Licensee shall pay City the Contingent License Fees that
would have been applicable during the 18 month period preceding Contingent Event less the Initial
License Fees paid for that time period. .
4.2.2 Amount of License Fee; Proration. Licensee must take into account
annual License Fee adjustments under Section 4.3 (Adjustments in License Fee) when
calculating the amount of each annual License Fee. 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.
Any amounts calculated for less than a full year or a full month will be calculated based on the
actual number of days in the year or month, as applicable.
4.2.3 Due Dates.
1. Licensee shall submit the first License Year’s License
Fee with the Acknowledgment Letter without deduction for any reason.
(a) 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 each anniversary of the
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Commencement Date and will be late if the City has not received payment by the due date.
4.2.4 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). 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 20% the annual License Fee for each
Integrated Pole that the City has accepted.
4.3 On January 1 of each year of this Master License (each, an “Adjustment
Date”), the Contingent License Fee will be increased by 2%.
4.4 Late Charge.
If Licensee fails to pay any License Fee, Additional Fee, or other amount payable to the
City under this Master License within 10 days after the City’s delivery of notice that the same is
due and unpaid, such unpaid amounts will be subject to a late charge equal to 6% of the unpaid
amounts. For example, if a License Fee in the amount of $40,000 is not paid on its due date and
remains unpaid after the 10-day cure period has expired, the late charge would be $2,400.
4.5 Default Interest.
Any License Fee, Additional Fee, and other amount payable to the City (except late
charges), if not paid within 10 days after the due date, will bear interest from the due date until
paid at the default rate of 10% per year. Payment of default interest and the applicable late charge
alone will not excuse or cure any default by Licensee.
4.6 Master License Application Processing Payments.
Licensee shall pay to the City funds to cover the City’s ordinary processing and other
administrative costs related to the Master License application (“Master License Costs”). Such
payments shall compensate the City for all of the reasonable and actual costs of processing the
Master License application, including, but not limited to, all time and materials costs of City
employees, agents, consultants, and the City Attorney’s office.
4.6.1 Initial Deposit; Replenishment. Licensee shall make an initial
deposit 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 any Master License until the initial
payment is submitted. The initial payment shall be held by City in an account for the
reimbursement of City’s reasonable and actual costs incurred in processing the Master License
application. 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. If there is a
reasonable need for additional funds to facilitate review and processing of the Master License
application, the City may request, and Licensee shall replenish the deposit for the City’s
anticipated cost of such extra work. If Licensee refuses or fails to submit the replenishment for the
extra work upon City's written request, City shall have the right to cease all processing of
Licensee’s application until such time as the funds are received.
4.6.2 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.
4.6.3 Refunding of Excess Amounts; Transfer to Administrative
Processing Account. Any funds remaining in the account will be refunded to Licensee after the
Termination Date. At the completion of the processing of the Master License application, the City
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will transfer any funds remaining to a fund to be used for reimbursement of Administrative Costs
pursuant to Section 4.7.
4.7 Pole License Administrative Processing Payments.
Licensee shall pay to the City funds to cover the City’s costs to review and administer the
Pole License application process (the “Administrative Costs”). Such payments shall compensate
the City for all of the reasonable and actual costs of processing each Pole License application,
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 Deposit; Replenishment. Unless the account described in
Section 4.7.2 then contains in excess of $2,000, Licensee shall deposit with City a initial deposit in
the amount of $2,000 upon delivery of each Pole License application, including Nonstandard City
Pole License applications, to the City. City will not be obligated to begin its review of any Pole
License application until the initial deposit is made. If there is a reasonable need for additional
funds to facilitate review and processing of the Pole License application, the City may request, and
Licensee shall replenish the deposit for the anticipated cost of such extra work and any excess
funds shall be returned to Licensee. If Licensee refuses or fails to submit the replenishment for
the extra work upon City's written request, City shall have the right to cease all processing of
Licensee’s application until such time as the funds are received. Within six (6) months from the
Master License Effective Date, City shall perform a cost study (the “Cost Study”) to determine
City’s average actual Administrative Costs incurred by City in processing Licensee’s Pole License
applications. If the Cost Study concludes that the costs for each Pole License application have
averaged less than $2,000 per application, the City shall reduce the deposit amount to reflect the
average costs.
4.7.2 Account. All deposits, and any replenishments, as provided below,
shall be held by City in an account for the reimbursement of City’s reasonable and actual
Administrative Costs. Unless requested otherwise, the City will maintain the account following
issuance of each Pole License for the purpose of reimbursing the Administrative Costs of future
Pole License application. 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. If there are excess funds belonging to Licensee that exceed the funds reasonably
needed to facilitate City review and processing of the Pole License application, the City shall
return such excess to Licensee within thirty (30) days of the Master License Expiration Date.
4.7.3 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 shall pay all costs reasonably and actually
incurred by City prior to such Termination Date to the extent that such funds are not available in
the account.
4.7.4 Closure of Account. Licensee may elect to close the account at any
time, subject to the City’s right to discontinue processing. Upon closure, any funds remaining in
the account will be refunded to Licensee.
4.8 Additional Fees.
4.8.1 Defined. Sums payable to the City by Licensee, including 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.” Additional Fees are not
regulatory fees.
(a) Exclusions. Licensee’s payment of any of the following will
not be considered Additional Fees under this Master License: (i) application fees (§ 4.6);
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(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; (iv) License Fees; and (v) any other payments to the City.
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 the “City of Dublin” and delivered to the City in care of the Finance
Director of the City of Dublin 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 City directs otherwise by notice given in accordance with Section 28.1
(Notices). A check that is dishonored will be deemed unpaid.
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 PLACING HIS OR HER INITIALS BELOW, 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.
Initials: Licensee City
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.
5.2 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 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
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obligated to subordinate its municipal functions or proprietary interests in any way to Licensee’s
interest under any Pole License. In determining whether to approve Licensee’s application for any
City Pole, including the attached plans and specifications, the City may consider any matter
affecting its municipal obligations and proprietary interests as permitted by Laws. Examples of
municipal and proprietary concerns include:
(a) the resulting total load on the City Pole if the Equipment is
installed;
(b) the impact of the installation on the City’s street light
operations, including whether the Equipment would compromise the City’s street light circuits
serving City Poles;
(c) whether the installation complies with electrical codes;
(d) whether the Equipment would create a hazardous or unsafe
condition;
(e) any impacts the Equipment would have in the vicinity of the
City Pole, including size, materials, and visual clutter;
(f) aesthetic concerns; and
(g) municipal plans for the City Pole.
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 or
otherwise affect its proprietary interests negatively, it will provide notice to Licensee of the City’s
concerns as soon as reasonably practicable in the application review process. Licensee will have
the opportunity to change the Pole License application to address the City’s concerns for a period
ending 14 days after delivery of the City’s notice without affecting the priority of Licensee’s
application in relation to other potential licensees. Any other changes that Licensee makes in the
Pole License application will cause the date that the application is deemed submitted to be
changed to the date that Licensee delivers the proposed changes to the City.
6.1.3 Consultation with Community Development. In reviewing a Pole
License application, the City’s Public Works 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. Licensee acknowledges and agrees that any
consultation between Public Works Department and the Community Development Department in
accordance with the preceding sentence and any resulting actions by the City would be in its
proprietary capacity as the owner of the City Poles and would not be an exercise of regulatory
authority.
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 wireless facility permit, encroachment permit, or
other planning, design, or aesthetic approval as required by the Dublin Municipal Code (generally,
a “Wireless Facility Permit”), other applicable City 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 Master License application, 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. No later than each December 31st thereafter during the term of this Master
License, Licensee shall submit to the City a revised Master Plan, showing the number and
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approximate location(s) of each City Pole for which Licensee intends to submit a Pole License
application during the subsequent 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 reasonably designed to meet
such purposes.
6.4 Pole License Application.
Licensee shall submit Pole License applications to the City, which will review, approve, or
deny each application in its reasonable discretion. Each application will consist of: (a) partially
executed duplicate counterparts of a Pole License application in the form attached as Exhibit A;
(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 Emissions Report submitted for the Wireless Facility Permit. For Pole License applications
relating to the use 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.
6.5 Pole License Application Review Process.
The City will review and process Pole License applications in a reasonably prompt manner
in the chronological order (date and time) in which complete applications are submitted or deemed
submitted. 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. Licensee acknowledges that staff and budget considerations will limit the City’s ability to
review and process Pole License applications. During its review process, the City will provide to
Licensee the applicable License Fee and Default Fee Schedule (Exhibit A-4 to Pole License) and
City Installation Guidelines (Exhibit A-5 to Pole License), each of which will be deemed to be
attached to the Pole License upon execution by the City.
6.6 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.
6.7 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, and it will endeavor to do so within 45
days of receiving a complete Pole License application. 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’ Bonds and
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Insurance). A City decision to grant or deny a Pole License application is not a regulatory
determination subject to appeal, but is an exercise of the City’s proprietary authority over its
facilities.
6.8 Right to Disapprove.
Licensee acknowledges that the City has the absolute right consistent with Laws to
disapprove any Pole License to the extent that Licensee requests a Pole Location where the
placement of Licensee’s Equipment would interfere with the City’s use of any City Pole, any
municipal or proprietary concern, or create a hazardous or unsafe condition.
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). Licensee’s plans and specifications and any
Equipment installed, if authorized, shall comply with the minimum requirements provided in
Exhibit B to this Master License, attached to and incorporated herein. Licensee expressly agrees
that these minimum requirements are an exercise of the City’s proprietary interests as the owner
of the City Poles and are not an exercise of the City’s regulatory authority. Licensee is authorized
to install Equipment at the License Area covered by the Pole License only in strict compliance with
the plans and specifications approved by the City and, if applicable, in Regulatory Approvals
(“Approved Plans”).
7.1.2 Identification and Other Signage. Licensee shall place one
identification plate in size, material, form, and substance strictly complying with the Approved
Plans on its Equipment at each Pole Location, and one identification plate with the same
information on the ground near the Pole. The plates shall include Licensee’s corporate name and
the telephone number at which Licensee’s on-call representative listed in the Basic License
Information can be reached. If Licensee’s on-call representative changes, Licensee must provide
notice to the City of the new contact information and replace all identification plates. Licensee may
also place signage on Licensee’s Equipment that contains information and disclosures required by
the FCC. Replacement of Licensee’s signage will be considered maintenance subject to Section
10.5 (Licensee’s Equipment). If required by the City and allowed by PG&E, one additional
identification plate shall be placed on Licensee’s electrical meter box.
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 codes. Amendment of
Approved Plans will require the City’s approval. Licensee acknowledges that as of the Effective
Date of this Master License, 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
Public Works Department and the Community Development Director, if applicable, immediately
upon discovery of any omissions or errors, and Licensee shall obtain required approvals of any
amendments to previously Approved Plans.
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7.2 Installation.
Licensee shall not commence installation of Equipment on the License Area until the City
has given Licensee notice to proceed by delivery of the countersigned copy of the
Acknowledgment Letter or letter confirming the Commencement Date under Section 4.1.2
(Commencement Date). When installing Equipment, Licensee must strictly comply with Approved
Plans as originally approved, or, if applicable, as amended or corrected. Licensee shall paint and
properly maintain any cabling, support brackets, and other supporting elements to match adjacent
surfaces. If required by the Public Works Director, and consistent with the Approved Plans,
Licensee shall paint the entirety of existing City Poles and any new Poles. If necessary, Licensee
must use custom matching paint to ensure a high quality of consistency in paint texture and
appearance.
7.3 Notice Required Prior to Installation.
Upon submittal of the Pole License application, Licensee shall provide the City with a draft
of a written construction notice, a draft address list and address map indicating the parcels that will
receive the construction notice. Licensee shall not commence installation of Equipment on the
License Area until Licensee has provided at least 10 days’ prior written notice of the installation,
by first class U.S. mail, to the owner(s) of each parcel within 150 foot radius of the License Area.
7.4 Cost of Labor and Materials.
Licensee is responsible for all direct and indirect costs (labor, materials, and overhead) 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.
7.5 No Alteration of City’s Existing Equipment or Infrastructure.
Licensee shall not 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 Public Works Director.
7.6 Standard of Work.
Licensee must install and perform all other work on Equipment in strict compliance with
Approved Plans diligently and in a skillful and workmanlike manner. Licensee must use qualified
and properly trained persons and appropriately licensed contractors in conformance with Section
13.2 (Personnel Safety Training) for all work on the License Area. No later than 30 days before
commencing installation or any other work on any License Area, Licensee shall provide the City
with: (a) a schedule of all activities; and (b) a list of the names, places of business, and license
numbers of all contractors who will perform the work. 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 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 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 License applications,
and approved Pole Licenses. 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.
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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.
7.8 Coordination of Work.
Licensee shall be responsible for coordination of its installation work to avoid any
interference with existing utilities, substructures, facilities, or street light operations. 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.
7.9 Installation; Parking Regulations.
During installation, alteration, repair, and maintenance of Equipment, Licensee must abide
by all City construction regulations, including, but not limited to construction hours, waste
management, noise abatement, and traffic management ordinances 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.
7.10 Fiber-Optic Cables, Conduits, and Pull Boxes.
The City understands that Licensee’s Equipment on the License Area may include fiber-
optic cables and associated conduits. By entering into this Master License, Licensee agrees that if
it proposes the installation of conduits in a License Area, then Licensee shall have an obligation to
engage in good faith negotiations for the installation of conduit for the exclusive use of the City for
municipal use. Nothing in this agreement requires Licensee or the City to reach agreement on the
terms of such installation.
8 ALTERATIONS
8.1 Licensee’s Alterations.
Other than installation in accordance with Approved Plans, 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 not
unreasonably withhold, condition or delay. 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 by Licensee
to a City Pole, replacement of a City Pole, or installation of an Integrated Pole, will become City
Property and remain on the Pole Location should Licensee vacate or abandon use of the City
Pole. Licensee may remove 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 Section 7.9 (Fiber-Optic Cables), Article 25 (Surrender of License Area), and Article 27
(Special Provisions), unless the City has previously elected to require Licensee to remove at
Licensee’s sole expense all or part of any structural improvements to the License Area or City
Pole, whether made by the City or Licensee.
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
street light, utility, or municipal operations; and (b) correct any immediately life-threatening or
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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 any City work 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. But Licensee’s use of the License Area may not impede 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 street lights, 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. Licensee’s representative shall be qualified
and experienced in the operation of Licensee’s Equipment, and shall be authorized to act on
behalf of Licensee in any emergency and in day-to-day operations of the Equipment. The contact
information for Licensee’s on-call representative is listed in the Basic License Information and will
be listed on identification plates as required by Subsection 7.1.2 (Identification and Other
Signage). 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 48 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 48 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 is 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
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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. Licensee shall reimburse the
City for its actual and reasonable 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.
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 involves only the substitution of internal components, and
does not result in any change to the external appearance, dimensions, or weight of the Equipment
in the Approved Plans; or (iii) the City in its reasonable judgment concurs with Licensee that the
repair, maintenance, replacement, modification, or other installation of Equipment is reasonably
consistent with the Approved Plans, taking into consideration availability of the specific Equipment
and advancements in technology. 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. 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 this Master License or any
Pole License approval or disapproval under this Agreement because the City is granting them in
its proprietary capacity as the owner of the City Poles. 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 Standard of Work.
All work by or on behalf of Licensee under this Article must: (a) be at Licensee’s sole
expense; (b) be performed by duly licensed and bonded contractors or mechanics; (c) be
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performed in a manner and using equipment and materials that will not interfere with or impair the
City’s operations; and (d) comply with all applicable Laws relating to the License Area or
Licensee’s activities.
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 20 days following receipt of the
City’s demand, together with evidence of the City’s expenses. Licensee shall give the City at least
10 days’ prior notice of commencement of any construction or installation on any part of the
License Area except for minor and routine repair and maintenance of Licensee’s Equipment.
Licensee shall not create, permit, or suffer any other encumbrances affecting any portion of the
License Area.
12 UTILITIES; TAXES AND ASSESSMENTS
12.1 Utilities.
Except to the extent the City authorizes connection to its street light electric facilties in
accordance with the rules, regulations, and policies of Pacific Gas and Electric Company, which
authorization the City shall not unreasonably withhold, Licensee shall be solely responsible for
obtaining and maintaining the provision of electricity to Licensee’s Equipment, including, but not
limited to, installation of separate electric meters, if necessary. In all cases, Licensee shall be
responsible for making payments to electric utility for the service attributable to its facilities.
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.
12.2 Taxes and Assessments.
12.2.1 Possessory Interest Taxes. Licensee recognizes and understands
that this Master License may create a possessory interest subject to property taxation and that
Licensee may be required to pay possessory interest taxes. (See Rev. & Tax. Code, sections
107–107.9.) Licensee further recognizes and understands that any sublicense or assignment
permitted under this Master License and any exercise of any option to renew or extend this Master
License may constitute a change in ownership for purposes of property taxation and therefore may
result in a revaluation of any possessory interest created under this Master License.
12.2.2 Licensee’s Obligation if Assessed. Licensee agrees to pay taxes of
any kind, including possessory interest taxes, excises, licenses, permit charges, and assessments
based on Licensee’s usage of the License Area that may be imposed upon Licensee by Law,
when the same become due and payable and before delinquency. Licensee agrees not to allow or
suffer a lien for any taxes to be imposed upon the License Area without promptly discharging the
same, provided that Licensee, if so desiring, will have a reasonable opportunity to contest the
validity of the same. The City will provide Licensee with copies of all tax and assessment notices
on or including the License Area promptly, along with sufficient written documentation detailing
any assessment increases attributable to Licensee’s Equipment, but in no event later than 30 days
20
after receipt by the City.
12.2.3 Taxes on Equipment. Licensee shall be responsible for all taxes and
assessments levied upon Licensee’s Equipment. Licensee agrees not to allow or suffer a lien for
any such taxes to be imposed upon the Equipment without promptly discharging the same,
provided that Licensee, if so desiring, will have a reasonable opportunity to contest the validity of
the same.
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 and 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.
13.2 Personnel Safety Training.
13.2.1 CPUC Certification. Licensee shall ensure that all persons installing,
operating, or maintaining its Equipment are properly trained and licensed to the extent required 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
track 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 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 co-employer 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
or any third party 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
to the extent resulting from Licensee's negligence, recklessness, or willful misconduct.
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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 City’s Exercise of its Proprietary Interests.
Licensee acknowledges and agrees that the City is entering into this Master License in its
capacity as a property owner with a proprietary interest in the License Area and not as a
Regulatory Agency with police powers. Nothing in this Master License limits in any way Licensee’s
obligation to obtain required Regulatory Approvals from applicable Regulatory Agencies. By
entering into this Master License, the City is in no way modifying or limiting Licensee’s obligation
to cause the License Area to be used and occupied in accordance with all applicable Laws.
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
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) and any other applicable Laws.
13.7 Radiofrequency Radiation 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; provided,
however, Licensee shall not be responsible for any liability or damages of any kind resulting from
the RF or EMF of any other sources at or near the License Area. Upon the City’s request,
Licensee shall provide to the City a copy of the report required for Licensee’s Wireless Facility
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 “Emissions
Report”). If not provided earlier at the City’s request, Licensee shall submit the Emissions Report
to the City with the applicable Pole License application. If the 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.
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
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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 by
Licensee or its Agents, 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 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 terminate the affected Pole
License on 30 days’ notice to the City. 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 with City permit requirements. In such case, 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.
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 reasonable determination, the Equipment on the City Pole cannot be operated, the City may
decide to terminate affected Pole License on 30 days’ notice to Licensee and require Licensee to
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,
which Pole License application City will review on an expedited basis.
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
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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.
15.1.3 No Statutory Right to Terminate. The parties understand and agree
that this Section is intended to govern fully the rights and obligations of the parties in the event of
a permanent taking. Licensee and the City each hereby waives and releases any right to terminate
this Master License in whole or in part under 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.
This Section 16.2 shall apply to all Assignments other than Permitted Assignments under
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 complete information, including financial statements or
information, business history, and references and other information about the proposed assignee
(the “Assignee”) that the City needs to make a fully informed decision about Licensee’s request. 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. As a condition of the City’s consent, the City shall be entitled to seventy-five percent
(75%) of the amount payable by the assignee to the assignor as additional rent for the assigned
License Area created by this Master Agreement and related Pole License (“Bonus Rent”). The
City shall be entitled to review Licensee’s books and records relating to Bonus Rent, provided that
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the City agrees in writing to keep the information in such books and records confidential, to the
extent permitted by law, with the agreement to be in a form of commercially reasonable
confidentiality agreement.
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 (or any event has occurred
that with notice or the passage of time or both would constitute a default) under this Master
License.
16.4 Effect of Assignment.
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. 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 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. The City agrees that its right to reimbursement under this
Section during the Term will be limited to $2,000 for each request.
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:
(a) The Assignee uses the License Area only for the Permitted
Use and holds all Regulatory Approvals necessary to lawfully install, operate, and maintain
Equipment on the License Area.
(b) Licensee provides the City with notice 30 days before 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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(c) Licensee is in good standing under this Master License.
16.7 Licensee Carrier Customers
The Parties acknowledge that Equipment deployed by Licensee in the License Areas
pursuant to this Agreement may be owned and/or remotely operated by third-party wireless carrier
customer (“Carriers”) and installed and maintained by Licensee pursuant to existing agreements
between Licensee and a Carrier. Such Equipment shall be treated as Licensee’s Equipment for
all purposes under this Master License and any applicable Pole License. A Carrier’s ownership
and/or operation of such Equipment shall not constitute an Assignment under this Master License,
provided that Licensee shall not actually or purport to sell, assign, encumber, pledge, or otherwise
transfer any part of its interest in the License Area to a Carrier, or otherwise permit any portion of
the License Area to be occupied by anyone other than itself. Licensee shall remain solely
responsible and liable for the performance of all obligations under this Master License and
applicable Pole Licenses with respect to any Equipment owned and/or remotely operated by a
Carrier.
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 10 days after receipt of 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 10 days after
receipt of 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) if the failure continues for 30 days after written notice from
City to Licensee of such failure.
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) if the failure
continues for 30 days after written notice from City to Licensee of such failure.
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 Subsection 17.2.4 (Default Fees).
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 notice from the City, or, if such default is not 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 City’s
notice.
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 longer
being used for the Permitted Use. The City shall not deem a License Area abandoned if the
Licensee is diligently pursuing completion of the work necessary to make the facility operational,
which the City acknowledges may include separate fiber optic network connections
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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 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, if any, 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 default is of such a
serious nature in the City’s sole judgment that the default materially affects the purposes of this
Master License, the City may terminate this Master License in whole or in part. Termination of this
Master License in whole will affect the termination of 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 notice to Licensee providing 30-days’ notice of termination and specifying whether the
termination affects the entire Master License or only certain Pole Licenses as specified in the
notice. The City will specify the amount of time Licensee will have to remove its Equipment from
any affected City Pole, which will be at least 30 days after the date of the City’s notice for up to 50
City Poles and an additional 30 days for more than 50 City Poles. If Licensee does not remove its
Equipment within the specified period, the City will be entitled to remove Licensee’s Equipment
from the 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. Once
the City has accepted a Default Fee for a particular violation, which it is not in any way obligated to
do, the City shall be prohibited from pursuing any other remedies for such violation. Default Fees
will apply to any of the following events:
(a) 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.
(b) Licensee fails to make a repair required by Article 10
(Licensee’s Maintenance and Repair Obligations) on a timely basis.
(c) Licensee fails to notify the City, through its project manager,
before accessing the License Area for the initial installation of the Equipment or to follow the plan
approval procedures as set forth in Article 7 (Installation of Equipment).
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(d) 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 remedies 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 and Pole
License issue 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 Indemnity.
Licensee, on behalf of itself and its successors and assigns, shall Indemnify the City
Indemnified Parties 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”), to the extent arising 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 and arising from 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 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 (e) 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, or any of them.
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
Licensee by the Indemnified Party 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 procure and keep in effect at all
times during the Term, at Licensee’s cost, insurance in the following amounts and coverages:
(a) Commercial General Liability insurance (including premises
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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.
(b) Worker’s Compensation Insurance in compliance with
applicable state law with Employer’s Liability Limits of $1 million each accident/disease/policy.
(c) Commercial Automobile Liability Insurance with a combined
single limit of $2 million each accident for bodily injury and property damage, covering all owned
and non-owned and hired vehicles.
19.1.2 Required Endorsements. Commercial General Liability and
Commercial Automobile Liability Insurance policies shall:
(a) Include the “City of Dublin, and its officers, officials, and
employees” as additional insureds as their interest may appear under this Agreement; and
(b) 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. 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 use commercially reasonable efforts to provide the City with thirty (30) days prior
written notice of cancellation of any coverage required herein.
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 one (1) year 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 Certificates. Licensee shall deliver to the City certificates of
insurance and blanket additional insured endorsements from insurers in a form reasonably
satisfactory to the City, evidencing the coverages required under this Master License, on the
Effective Date, and Licensee shall provide the City with certificates of insurance thereafter
promptly upon the City’s request.
19.1.6 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.
19.1.7 Right to Terminate. The City may elect, in the City’s sole and
absolute discretion, to terminate this Master License if Licensee allows any required insurance
coverage to lapse by: (i) providing Licensee notice of the event of default; and (ii) including in the
notice of default or a notice of termination if Licensee fails to reinstate the lapsed coverage within
three business days after the City delivers notice.
19.1.8 Ratings. Licensee’s insurance companies must be licensed or
authorized to do business in California and must meet or exceed an A.M. Best rating of A-VII or its
equivalent.
19.1.9 Effective Dates. All insurance must be in effect before the City will
authorize Licensee to install Equipment on any City Pole and remain in force until all Equipment
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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.
19.1.10 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. The City’s acceptance of an alternative
insurance program will not effect 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.
19.1.11 Excess/Umbrella Insurance. The coverage amounts set forth
for Commercial General Liability and Commercial Auto Liability may be met by a combination of
primary and excess/umbrella policies as long as in combination the limits equal or exceed the
amounts stated.
19.2 Insurance of 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 Licensee’s property.
19.3 City’s Insurance.
Licensee acknowledges that the City maintains insurance, self-insurance, or equivalent
risk management coverage against casualty, property damage, and public liability risks. The City
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.
19.5 Contractors’ Bonds and Insurance.
Licensee shall require its contractors that install, maintain, repair, replace, or otherwise
perform work on the License Area: (a) to provide bonds to guarantee the performance of the
work and the payment of subcontractors and suppliers for any installation of Equipment; and
(b) to have and maintain substantially the same insurance with substantially the same amounts
as required of Licensee.
20 LIMITATION OF CITY’S LIABILITY
20.1 General Limitation on City’s Liability.
Except as expressly provided in this Master License, 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 or breach of this Master
License by City), 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,
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or other accidental “knock downs” or similar occurrences on or about the License Area or other
City Property.
20.2 Consequential 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 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.
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.
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 negligence or willful misconduct of the City or its Agents and not
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contributed to by the acts, omissions, or negligence of Licensee, its Agents, or Invitees.
22 REQUIRED RECORDS
22.1 Records of Account.
Licensee shall maintain during the Term and for a period ending 3 years after the
Expiration Date or earlier termination of this Master License 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 under active Pole Licenses; (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 specifically described in this section at Licensee’s place of business during
regular business hours on 10 business days’ notice to Licensee. Such inspection and audit shall
be at City’s sole expense, except for any costs incurred by the Licensee in making Licensee’s
records available for inspection.
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 nonacceptance); (b) the
Commencement Dates of any Pole Licenses then in effect; (c) the Effective Date and Expiration
Date of this Master License; (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 the License Fees and Additional Fees have been paid; and (h) any other
information that may be reasonably required by any such persons.
22.3 Regulatory and Bankruptcy Records.
22.3.1 Copies for City Records. Licensee shall provide to the City without
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
Licensee’s installation or operation of Equipment on City Poles or other 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.
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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, except that no amendments to
rules, regulations, and instructions shall apply retroactively unless required by law. City shall give
written notice of any amendments to rules, regulations, and instructions at least 30 days prior to
the amendments’ effectiveness.
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 as either, at its option, cash, or a letter of credit 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 letter of credit
shall be in a form acceptable to the City Attorney and issued by a financial institution that is
subject to regulation by the state or federal government guaranteeing that all or any portion of the
funds available pursuant to the letter of credit will be paid upon written demand of the City and that
such written demand need not present documentation of any kind as a condition of payment,
including proof of loss. 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 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), 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 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 peaceably remove its Equipment from applicable
portions of the License Area, repair any damage resulting from the removal, and surrender it 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. Licensee’s obligations under this Article will survive
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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 termination of any Pole 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 termination of any Pole
License 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 150% of the
License Fee in effect immediately before the Expiration Date, and the Master License otherwise
will be on its express terms and conditions.
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 termination of any Pole License.
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 in the performance of activities pursuant
to this License 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 gross
negligence or willful misconduct of the City or its Agents. Licensee’s Indemnification obligation
includes costs incurred in connection with any activities required to Investigate and Remediate any
Hazardous Material brought onto the License Area or other City Property by Licensee or any of its
Agents or Invitees and to restore the License Area or other City Property to its condition prior to
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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 gross negligence or willful misconduct of the
City or its Agents. Licensee shall afford the City a full opportunity to participate in any discussions
with Regulatory Agencies regarding any settlement agreement, cleanup or abatement agreement,
consent decree, or other compromise or proceeding involving Hazardous Material.
27 SPECIAL PROVISIONS
27.1 Early Termination by Either Party.
If Licensee does not obtain all Regulatory Approvals for any Pole License by the first
anniversary of its 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 effective date of the Pole License to be terminated. 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 all Regulatory
Approvals 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 90 days’ notice at any time following the first anniversary of the Commencement Date
of the Pole License. Licensee may remove its Equipment from the applicable License Area at any
time after giving the required notice.
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 30 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).
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27.3 City’s Termination Rights.
27.3.1 Absolute Right to Terminate Pole Licenses.
(a) 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 in
accordance with Laws that 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 street lights, utilities, or other municipal operations, or requires the City to
maintain a City Pole that is no longer required for City purposes; provided, however, Licensee
shall have the option to assume the Pole from City at Licensee’s cost if City intends to terminate
the Pole License for a Pole that is no longer required for City purposes and the City elects not to
remove.
(b) 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. Provided, however, that the Agreement shall not be terminated if the
condition cannot reasonably be cured within thirty (30) days of such notice and Licensee
commences the cure within such thirty (30) day period and thereafter diligently and continuously
pursues the cure to completion.
(c) If the condition is not susceptible to cure in the City’s
reasonable judgment, the City will have the right to terminate the affected Pole Licenses on 30
days’ notice to Licensee of the City’s determination.
(d) 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 but reasonable discretion
may determine that exigent circumstances require, for reasons of public, health, safety, or
immediate needs of the City to provide street lighting, utilities, or other municipal services, that
Licensee remove the Equipment from a particular City Pole on 48 hours’ notice. Licensee shall
remove the Equipment from the identified City Pole within the 48-hour period or any longer time to
which the City agrees, after which time the Pole License will terminate as to the identified City
Pole.
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 street light operations. If the City
decides to remove a City Pole, it will make reasonable efforts to provide at least 60 days’ notice to
Licensee, but the City’s rights under this Subparagraph will not be affected by its failure to provide
less than 60 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
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discretion of the City’s Public Works 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.
27.3.5 Future Use of Existing City Conduit.
(a) 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 street light 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 180 days’ notice that the wiring will be removed, but
the City’s failure to give notice or delivery of less than 180 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.
(b) 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 use 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, but City shall grant Licensee an alternate Pole License without demanding reimbursement
of its Administrative Costs as consideration for loss of the affected Pole License.
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.
(a) 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
whose communication or computer equipment or use preceded Licensee’s use of the Pole,
including the City or any of its Agents. In the event such interference occurs and is not cured
within ten (10) 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.
(b) 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.
(c) Impairment Caused by Change in City Use.
(d) 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
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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 thirty (30)
days of its receipt of notice from Licensee.
(e) 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.
(f) 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.
(g) 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.
27.5.2 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 reasonable proof, License Fees will be abated ratably for the entire
period that Licensee is unable to operate any Equipment on any affected City Pole.
28 GENERAL PROVISIONS
28.1 Notices.
This Section applies to all notices, requests, responses to requests, and demands made
under this Master License.
28.1.1 Writings Required. All notices will be effective only if given in writing
and delivered in accordance with this Section.
28.1.2 Manner of Delivery. Except as provided in Subsection 28.1.4
(Special Requirements), 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 notices under this Master License will
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be deemed to have been delivered: (i) two (2) days after deposit if delivered by certified mail; (ii)
the date delivery is made by personal delivery or overnight delivery; or (iii) 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 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.
28.3 Amendments.
No part of this Master License (including all Pole Licenses) may be changed, waived,
discharged, or terminated orally, nor may any breach thereof be waived, altered, or modified,
except by a written instrument signed by both parties.
28.4 Interpretation of Licenses.
The following rules of interpretation apply to this Master License.
28.4.1 General. Whenever required by the context, the singular includes
the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice
versa; and defined terms encompass all correlating forms of the terms (e.g., the definition of
“indemnify” applies to “indemnity,” “indemnification,” etc.).
28.4.2 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.
28.4.3 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.
28.4.4 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.
28.4.5 City Actions. All approvals, consents, or other determinations
permitted or required by the City under this Master License will be made by or through the City
Manager of the City or his or her designee, unless otherwise provided in this Master License or by
39
any City ordinance.
28.4.6 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.
28.4.7 Laws. References to all Laws, including specific statutes, relating to
the rights and obligations of either party mean the Laws in effect on the 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.
28.5 Successors and Assigns.
The terms, covenants, and conditions contained in this Master License bind and inure to
the benefit of the City and Licensee and, except as otherwise provided herein, their successors
and assigns.
28.6 Brokers.
Neither party has had any contact or dealings regarding the license of the License Area, or
any communication in connection therewith, through any licensed real estate broker or other
person who could claim a right to a commission or finder’s fee in connection with the license
contemplated herein (“Broker”), whose commission, if any is due, is to be paid pursuant to a
separate written agreement between such Broker and the party through which such Broker
contracted. In the event that any Broker perfects a claim for a commission or finder’s fee based
upon any such contact, dealings, or communication, Licensee shall indemnify the City from all
Claims brought by the Broker. This Section will survive expiration or earlier termination of this
Master License.
28.7 Severability.
If any provision of this Master License or the application thereof to any person, entity, or
circumstance is or becomes invalid or unenforceable, the remainder of this Master License, or the
application of such provision to persons, entities, or circumstances other than those as to which it
is invalid or unenforceable, will not be affected thereby, and each provision of this Master License
will be valid and be enforced to the full extent permitted by Law, except to the extent that
enforcement of this Master License without the invalidated provision would be unreasonable or
inequitable under all the circumstances or would frustrate a fundamental purpose of this Master
License.
28.8 Dispute Resolution.
28.8.1 Good Faith Participation. Prior to the initiation of any litigation, the
Parties shall in good faith attempt to settle any dispute arising out of or relating to this Agreement
through the upper management escalation and non-binding mediation processes set forth herein.
Good faith participation in these processes shall be a condition precedent to any litigation. All
negotiations pursuant to this Article shall be confidential and shall be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence and any state’s rules of
evidence.
28.8.2 Upper Management Escalation and Mediation. Either Party may
give the other Party written notice of any dispute not resolved in the normal course of business.
The dispute shall be escalated to upper management and, thereafter, representatives of both
Parties with authority to settle the dispute shall meet at a mutually acceptable time and place
40
within fourteen (14) business days after receipt of such notice, and thereafter as often as
reasonably deemed necessary, to exchange relevant information and attempt to resolve the
dispute. If the matter has not been resolved within thirty (30) business days of receipt of the
disputing Party’s notice, or if the Parties fail to meet within fourteen (14) business days, or such
later date as may have been agreed upon by both Parties, either Party may initiate mediation.
Such mediation shall take place at a mutually agreeable location. In the event that such dispute is
not resolved within ninety (90) calendar days following the first day of mediation, either Party may
initiate litigation.
28.8.3 Enforcement. The parties regard the aforesaid obligation to escalate
to upper management and mediate as an essential and material provision of this Agreement and
one that is legally binding upon them. In case of a violation of such obligation by either Party, the
other may seek specific enforcement of such obligation in the courts having jurisdiction hereunder.
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,
entered, and will be performed in the City of Dublin. Any action concerning this Master License
must be brought and heard in the state or federal courts encompassing the City of Dublin.
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
41
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.
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 – Form of Acknowledgment Letter
Exhibit A-4 – Sample License Fee and Default Fee Schedule
Exhibit A-5 – Sample City Installation Guidelines
42
The City and Licensee have executed this Master License as of the date last written
below:
CITY:
CITY OF DUBLIN, a California municipal
corporation
By:
Christopher L. Foss
City Manager
Date: _______________________________
Attest:
By: _______________________________
Caroline P. Soto
City Clerk
Approved as to Form:
By: _______________________________
John Bakker
City Attorney
LICENSEE:
GTE Mobilnet of California Limited
Partnership, a California limited partnership
d/b/a Verizon Wireless By: Cellco Partnership
Its: General Partner
By: Cellco Partnership
Its: General Partner
By:
Name: ______________
Its: _____________
Date: _______________________________
[Remainder of page intentionally left blank.]
Exhibit A – Form of Pole License
Page 1
EXHIBIT A
FORM OF POLE LICENSE
Master License between ________________, a ______ limited liability company and City
of Dublin Pole License No. [Start with 1 and number each subsequent application
consecutively.]
In accordance with Section 6.4 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 6.6 of the Master License;
and
4. If not previously provided, the Emissions Report.
Licensee acknowledges that: (a) this Pole License will not be effective until the City
returns a fully executed copy to Licensee; (b) the City may require Licensee to supplement the
Administrative Payment on conditions specified in Section 6.6 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 a complete Acknowledgment Letter to the City with all information
and funds required; (ii) submitted insurance information to City as specified in Exhibit A-3; and
(iii) the City has provided notice to proceed by returning to Licensee a countersigned copy of
the Acknowledgment Letter.
Should this Pole License extend beyond the end of the Term (as that term is defined in
Section 3.1.1) of the Master License, all of the terms of the Master License that were
applicable to and governed the Pole License at the time of its execution shall survive and
remain in effect until the end of the Term of this Pole License.
This Pole License is executed and effective as of the last date written below and, upon
execution will be the City’s authorization for the City’s Community Development Department to
begin its review of the Pole Locations and plans and specifications proposed in this Pole
License application.
CITY:
CITY OF DUBLIN, a California municipal
corporation
By:
Christopher L. Foss
City Manager
Date: _______________________________
LICENSEE:
______________, a ______ limited liability
company
By:
Name:
_______________________________
Its: _______________________________
Date: _______________________________
Exhibit A – Form of Pole License
Page 2
EXHIBIT A-1
POLE LOCATIONS/LICENSE AREA
Pole License No.
[Licensee to complete and submit with Pole License application.]
Pole Locations Standard or Nonstandard City Pole
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, to this cover sheet and submit with Pole License application.]
Exhibit A-3 - Form of Acknowledgement Letter
Page 1
EXHIBIT A-3
Form of Acknowledgment Letter [Licensee to complete and submit.]
[Alternative to be used if Licensee obtains all Regulatory Approvals within 365 (366 in any
leap year) days after Pole License is issued.]
[Date]
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: Management Analyst–Contracts
Re: Pole License No.
Dear ____________________:
This letter will confirm the following: (1) that Licensee has obtained the Wireless Facility
Permit and all other Regulatory Approvals required for the Permitted Use under this Pole License,
copies of which are attached to this letter, as specified below; and (2) the Commencement Date of
this Pole License is , 20 , which is the first day of the month after Licensee obtained all
Regulatory Approvals.
This letter also confirms that Licensee has submitted all required insurance information to
the City. A check, surety bond, or letter of credit for the Security Deposit (if not already provided)
and the License Fee for the first License Year of this Pole License is attached [or funds for the
Security Deposit, if applicable, and the License Fee for the first License Year of this Pole License
have been wired to the City].
Please acknowledge the City’s receipt of this letter and the items listed below, and issue
the City’s approval for Licensee to begin installation of Equipment on the License Are by signing
and returning a copy of this letter.
Very truly yours,
By: Title:
Enc.
[ ] Wireless Facility Permit
[ ] [List other Regulatory Approvals.]
[ ] [List other Regulatory Approvals.]
[ ] [List other Regulatory Approvals.]
[ ] Insurance certificates and endorsements
[ ] Contractor’s bonds, insurance certificates, and endorsements
[ ] Security Deposit, by, as the case may be, check, wire transfer, surety bond, or letter
of credit (if applicable)
[ ] First License Year’s License Fee
Exhibit A-3 - Form of Acknowledgement Letter
Page 2
[Alternative to be used if Licensee does not obtain all Regulatory Approvals within 365
(366 in any leap year) days after Pole License is issued.]
[Date]
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: Management Analyst–Contracts
Re: Pole License No.
Dear ____________________:
This letter will confirm the following:
that Licensee has not obtained the following Regulatory Approvals required for the
Permitted Use under this Pole License:
; and
the Commencement Date of this Pole License is , 20 , which is the first anniversary of
the effective date of this Pole License.
A check, surety bond, or letter of credit for the Security Deposit (if not already provided)
and the License Fee for the first License Year of this Pole License is attached [or funds for the
Security Deposit, if applicable, and the License Fee for the first License Year of this Pole License
have been wired to the City].
When Licensee has obtained all Regulatory Approvals, it will provide copies to the City,
submit all required insurance documents and information, and request that the City issue its
approval for Licensee to begin installation of Equipment on the License Area.
Very truly yours,
By: Title:
Enc.
[ ] [List Regulatory Approvals acquired.]
[ ] [List other Regulatory Approvals acquired.]
[ ] [List other Regulatory Approvals acquired.]
[ ] Security Deposit, by, as the case may be, check, wire transfer, surety bond or letter
of credit (if applicable)
[ ] First License Year’s License Fee
Exhibit A-3 - Form of Acknowledgement Letter
Page 3
Exhibit A-3 - Form of Acknowledgement Letter
Page 4
[Alternative to be used if Licensee obtains all Regulatory Approvals within 365 (366 in any
leap year) days after Pole License is issued.]
Dear [Licensee]:
This countersigned copy of your Acknowledgment Letter serves as the City’s notice to
Licensee that the City has: (1) received the Security Deposit and First Year’s License Fee for this
Pole License; (2) approved the requested Pole Locations and the plans and specifications for
installation of Equipment on the License Area; (3) received satisfactory evidence of insurance,
including contractors’ insurance and bonds; and (4) received copies of the Regulatory Approvals
listed above, as well as a copy of the Emissions Report Licensee submitted to the Community
Development Department.
The City concurs with the Commencement Date for this Pole License as specified above.
[After reviewing the Regulatory Approvals, the City has determined that the correct
Commencement Date for this Pole License is: , 20 .] The Licensee Fee and Default Fee
Schedule and City Installation Guidelines for the Pole License are attached. Upon receipt, they
will be deemed to be attached to the Pole License as Exhibits A-4 and A-5, respectively.
Licensee is authorized proceed with the installation of Equipment on the License Area
identified in Exhibit A-1 to the Pole License in accordance with the Approved Plans and other
requirements of the Master License.
CITY OF DUBLIN, a California municipal corporation
By:
Christopher L. Foss (or designee)
City Manager
Date:
Enc.
[ ] Licensee Fee and Default Fee Schedule [ ] City Installation Guidelines
[Alternative to be used if Licensee does not obtain all Regulatory Approvals within 365
(366 in any leap year) days after Pole License is issued.]
Dear [Licensee]:
This countersigned copy of your Acknowledgment Letter serves as the City’s notice to
Licensee that the City has: (1) received the Security Deposit and First Year’s License Fee for this
Pole License; (2) reserved the requested Pole Locations and approved the plans and
specifications for installation of Equipment on the License Area, subject to Regulatory Approvals.
The City concurs with the Commencement Date for this Pole License as specified above.
The Licensee Fee and Default Fee Schedule and City Installation Guidelines for the Pole License
are attached. Upon receipt, they will be deemed to be attached to the Pole License as Exhibits A-
4 and A-5, respectively.
The City will provide notice to proceed with installation of Equipment on the License Area
in accordance with Approved Plans and other requirements of the Master License after Licensee
has submitted to the City copies of the Regulatory Approvals listed above, along with a copy of
the Emissions Report Licensee submitted to the Community Development Department, and
provided satisfactory evidence of insurance, including contractors’ insurance and bonds.
By:
Christopher L. Foss (or designee)
City Manager
Date:
Enc.
[ ] Licensee Fee and Default Fee Schedule
[ ] City Installation Guidelines
SCHEDULE A-4
LICENSEE FEE AND DEFAULT FEE SCHEDULE
Pole License
[EXAMPLE ONLY - To be updated for each new Pole License]
LICENSE FEE SCHEDULE
Initial License Fee
Annual License Fee per City
Pole $270.00
Contingent License Fee
Annual License Fee per City
Pole for 2019
$1020.00
2020 $1040.40
2021 $1061.21
2022 $1082.43
2023 $1104.08
2024 $1126.16
2025 $1148.68
2026 $1171.65
2027 $1195.08
2028 $1218.98
2029 $1243.36
DEFAULT FEE SCHEDULE
Violation Master
License
location
Initial notice
Follow up
notice
Installation of equipment or alterations
that are not approved by the City.
Arts. 6, 7, 8 $350 $400
Failure to make required repairs. Art. 10 $300 $350
Violation of requirements regarding
access to License Area.
Art. 7 $300 $350
Failure to provide evidence of insurance
and bonds or maintain insurance
Art. 19 $300 $350
EXHIBIT A-5
CITY INSTALLATION GUIDELINES
[To be updated with each Pole License.]
Unless the City authorizes the connection to its street light electric facilities in accordance
with the rules, regulations, and policies of Pacific Gas and Electric Company, Licensee shall install
a dedicated conduit for its use; however, Licensee may use 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.
If a separate meter pedestal is installed for Licensee’s use, Licensee shall pull a dedicated
electrical wire through the new conduit or City street light conduit from the PG&E point of service
connection to a new Licensee pull box and/or meter pedestal, as may be the case, and shall not
share the City pull box, on each licensed City Pole. If there is no City pull box, Licensee shall
install a new pull box and conduit for the City’s future use.
Licensee shall apply for and install an electric meter, if required by the City and the
applicable electric utility, and obtain any necessary building permits from the City for the
installation and connection.
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 street light 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 and Specifications. Licensee agrees to make any repairs or modifications to its service
installations that are necessary to ensure compliance with the Approved Plans and Specifications.
Licensee shall provide the City’s Public Works Department with as-built drawings showing
all circuits installed by Licensee in existing street light conduits promptly after installation is
complete. If the installations are in a City cabinet or a facility to which the City may need access,
Licensee shall provide a laminated copy of the as-built drawings to the City and, if space is
reasonably available, and shall place a copy within any new or existing cabinet at each Pole
Location, 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 open any City pull boxes unless a member of the City’s street light
maintenance crew is present or City’s Public Works Department representative approves opening
the pull boxes unattended by such maintenance crew. Licensee shall contact the City’s Public
Works Department to complete the service connection.
EXHIBIT B
MINIMUM REQUIREMENTS FOR LICENSEE EQUIPMENT
Licensee’s plans and specifications submitted with each Pole License application, and any
Pole License application approved by the City shall comply with the following minimum
requirements:
1. Licensee’s Equipment shall be concealed or enclosed as much as possible in an
equipment box, cabinet, or other unit that may include ventilation openings.
2. Equipment shelters, cabinets, or electrical distribution panels shall not be installed
at ground level, except after all reasonable alternative pole locations have been explored and
found unavailable or lacking in some substantial way and only with prior City approval upon a
good faith showing of necessity, in City’s sole discretion. Ground-mounted equipment, if any,
shall incorporate appropriate techniques to camouflage, disguise and/or blend the equipment into
the surrounding environment. Any ground-mounted equipment shall not inhibit or block
pedestrian path of travel and shall comply with the Americans with Disabilities Act (ADA)
standards. Any ground-mounted equipment shall not obstruct or interfere with storm drainage
facilities, drainage channels, or change the existing drainage pattern. City shall have reasonable
discretion to approve or disapprove, which approval or reasons for disapproval shall not be
unreasonably withheld, conditioned or delayed, the installation of a battery backup unit, whether
pole-mounted or ground-mounted.
3. Licensee shall verify each Pole’s condition, size and foundation, and provide
structural calculations and drawings for any pole-mounted equipment.
4. Any pole-mounted equipment shall be placed at least eight (8) feet above
sidewalks or sixteen (16) feet above streets on the street side of the pole, and shall not obstruct
line of sight to any intersection, signage, traffic control devices or other directional markings.
5. Any pole-mounted equipment shall be incorporated into the design of the pole with
the use of a shroud or other stealthing techniques.
6. Any pole-mounted equipment shall conform to the development standards set forth
in Dublin Municipal Code section 7.04.440. All conduits, conduit attachments, cables, wires and
other connectors shall be placed within the pole when feasible, or otherwise concealed from
public view.
7. All antennas and associated cables, connectors, and hardware shall be placed
within a shroud or equivalent. A maximum of one (1) antenna shroud per pole is allowed
(excluding any radio relay unit shroud).
8. The antennas and related equipment shall be constructed out of non-reflective
materials, painted and/or textured to match the existing support structure and painted to blend
with their surroundings. Paint shall be reviewed and shown on the Approved Plans and
Specifications.
9. Any fiber optic cable or wiring connecting the antenna to the equipment cabinet or
pedestal shall be located inside the City Pole and shall be located underground to the equipment
cabinet.
10. All other conduit, cable and wiring shall be located underground.
11. The height of a pole that includes pole-mounted equipment shall not exceed more
than five (5) feet above the height of the average City Pole in the area, as determined by the City
Engineer.
12. Licensee’s Equipment must be high quality, safe, fire-resistant, modern in design,
and attractive in appearance, all as approved by the City.
3213764.3