CC Resolution 12522RESOLUTION NO. 12522
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL
ADOPTING THE SMALL CELL DESIGN GUIDELINES, SMALL CELL PERMITTING
GUIDELINES, MASTER LICENSE AGREEMENT TEMPLATE
WHEREAS, state and federal laws have changed substantially since the City last adopted
regulations for wireless telecommunication facilities; and
WHEREAS, the Federal Communication Commission (FCC) published the Declaratory
Ruling and Third Report and Order in the Matter ofAccelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure Investment (the FCC Ruling) which
substantially altered the regulatory frameworks for "small cell" wireless telecommunications
facilities, with such regulations becoming effective on January 14, 2019; and
WHEREAS, the FCC Ruling establishes new shot clock permit processing timeframes
for small wireless communication facilities ("small WCF"), as well as new tolling time periods
for -the shot clocks; and
WHEREAS, the City's current entitlement process for all the City required permits for
wireless telecommunications facilities exceeds the FCC shot clocks; and
WHEREAS, to comply with the FCC Ruling and the shot clock requirements, City staff
has developed a new process in order to provide a streamlined, uniform and comprehensive set
of rules for the development, siting and installation of small cell wireless telecommunications
facilities in the public right-of-way; and
WHEREAS, on , 2019, City staff proposed to City Council an Amendment to
Title 11 of the Campbell Municipal Code adding Chapter 11.14 "Small Cell Wireless Facilities
In the Public Right -of -Way"; and
WHEREAS, based on the foregoing, City staff developed certain standards and
regulations relating to small cell wireless communication facilities in the public right-of-way,
consistent with federal and state law limitations of that authority, by way of.
1. Small Cell Design Guidelines;
2. Small Cell Permitting Guidelines; and
3. A Master License Agreement ("MLA") template.
Small Cell Design Guidelines
WHEREAS, the FCC Ruling also confirmed that local governments may regulate the
aesthetics of small cell wireless communication facilities, subject to certain limitations; and
WHEREAS, the regulation of small cell wireless installations in the City's public rights -
of -way is necessary to protect and preserve the aesthetics in the community; and
WHEREAS, City staff developed the Small Cell Design Guidelines, applicable to both a
City owned pole and a non -City owned pole in the public right-of-way, which provides clear
design standards for wireless providers to know what is required to develop small cell facilities
in the City's right-of-way; and
Small Cell Permitting Guidelines
WHEREAS, City staff developed the Small Cell Permitting Guidelines, which provide
the process and details for implementing Campbell Municipal Code Chapter 11.14 and for
issuing a Small Cell Wireless Facilities Permit applicable to both a City pole and a non -City
owned pole in the public right-of-way; and
Master License Agreement
WHEREAS, for any small cell wireless facility proposed to be installed on a City pole
controlled by the City and located within the public right-of-way, wireless communications
providers must enter into an MLA with the City and pay rent (license fee) for the use of a City
pole; and
WHEREAS, since the City is continuing to work with the wireless carriers on finalizing
the terms of the MLA, attached in Exhibit C is a draft MLA template for reference; and
WHEREAS, an MLA is intended to create standardized terms and conditions; and
WHEREAS, an MLA will help the City process the permits more expeditiously; and
NOW THEREFORE, BE IT RESOLVED, that the foregoing recitations are true and
correct, and are included herein by reference as findings.
BE IT FURTHER RESOLVED, that the City Council hereby:
1. Adopts the Small Cell Design Guidelines for small cell wireless facilities in the
public right-of-way (attached hereto as Exhibit A) and authorizes the City Engineer to
modify or amend these Design Guidelines, as needed, to implement and comply with
Campbell Municipal Code Chapter 11.14_ and with any other applicable rules.
policies and laws.
2. Adopts the Small Cell Permitting Guidelines for small cell wireless facilities in the
public right-of-way (attached hereto as Exhibit B) and authorizes the City Engineer to
modify or amend these Permitting Guidelines, as needed, to implement and comply
with Campbell Municipal Code Chapter 11.14_ and with any other applicable rules,
policies and laws.
3. Authorizes the City Manager to enter into license agreements with wireless facilities
providers using an MLA as approved by the Director of Public Works and the City
Attorney.
PASSED AND ADOPTED this 5"' day of November, 2019, by the following roll call vote:
AYES: Councilmembers: Resnikoff, Bybee, Gibbons, Landry. Waterman
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: 41 �LLL
chard Waterman, Mayor
ATTEST:
Wendy Wood, Ci lerk
of - CA46
0 0
A
0RCH AXkQ .
DEPARTMENT OF PUBLIC WORKS
SMALL CELL DESIGN GUIDELINES
For Small Cell Wireless Facilities in the Public Right -of -Way
The City of Campbell seeks to permit wireless carriers to install small cell wireless communications Facilities, within
the public right-of-way, in order to provide robust cellular coverage and capacity throughout the City; while
ensuring Facilities are well -maintained and do not significantly detract from City streetscapes. These guidelines are
in accordance with the City of Campbell's Municipal Code (CMC) Chapter 11.14. Separate design guidelines for
small cell wireless communications facilities in the public right-of-way on City -Owned Poles and Utility -Owned
Wood Poles are provided herein. (City -Owned Poles as described herein shall not include traffic signal poles.)
Additional direction is provided separately with the Small Cell Permitting Guidelines which includes specific
elements that should be shown on the plans.
The City Engineer may amend these guidelines as needed. Any applicable Master License Agreement (MLA) should
be fully executed prior to proceeding.
DESIGN GUIDELINES FOR CITY -OWNED POLES
Pole Location Preferences
1. New streetlight and other City -Owned poles for purposes of a new collocated small cell wireless
communications facility (Facility) will not be permitted, except to replace existing poles.
2. Poles that are reserved for City use should be avoided. Contact City permit review staff for more
information. For example, poles that are for traffic signal purposes or have existing electronic or
communications devices are reserved.
3. Locations where City -owned poles are in front, and within 100 feet horizontal distance, of architecturally
significant features, or in locations where a property's primary view is impacted should be avoided.
4. Poles, appurtenances or the Facility should not be in close proximity to existing overhead utilities. Poles,
appurtenances and the Facility should have at least 10 feet of clearance from high voltage, and exceed the
minimum separation from overhead utilities required by CPUC General Order 95.
5. All new Facilities on poles require a new encroachment permit.
6. Poles showing signs of damage or corrosion should be replaced with Caltrans Type 15.
7. New foundations are required when replacement of City -Owned poles are necessary.
8. Luminaires on existing poles to be replaced should be re -installed with a luminaire approved by the City.
a. Luminaires damaged during construction should be replaced with a new luminaire approved by the
City.
b. Luminaire's height and lateral distance from face of curb should not be modified.
c. Luminaires may be converted to LED in order to free up circuit capacity for wireless equipment
electrical load. Converted LED luminaires should maintain lighting schedule, performance and
effectiveness in accordance with a lighting analysis (AGI 32 or equal), or as approved by the Engineer.
9. Pole number labels, if incorrect or missing, should be corrected.
10. Facilities should conform to the Policy on Street Cut Moratorium and other restrictions. See the following
for more information: https:www.ci.campbell.ca.us/186/Encroachment-Permits.
Typical Design
11. Typical design should show proposed plan view, detailed plan view, existing and proposed elevations, and
details of warning labels, equipment, enclosures, wiring diagram, and cabling diagram.
12. Ground level installations, such as above ground cabinets, are not preferred. The City prefers and
recommends that, except for wiring and cabling, the Facility shall be located entirely on the pole with
equipment located either within side mounted enclosures, or on top of the pole within the antenna
shroud.
a. The City recommends that the PG&E smart meter be located within the antenna shroud.
13. The Facility is limited to a maximum of 4 added equipment enclosures per pole including antenna shroud,
2 radio enclosures, and a PG&E disconnect switch.
a. All enclosures shall be in a vertical linear arrangement on one side of the pole.
b. Equipment should have long narrow profiles, and have a 2" maximum offset from the pole.
c. Dimensions of each equipment enclosure should be less than 18"xTW', except the pole top
mounted enclosure should be less than 40"x11" diameter.
d. All equipment should be 8 feet minimum above grade.
e. PG&E disconnect switch should be 10 feet maximum above grade.
14. The Facility should not impact a property's primary view if possible.
a. Enclosures should be mounted behind signs (where available) to minimize visual impact.
15. The Facility should not interfere with City operations, e.g. sign and signal visibility.
16. The Facility should be designed in accordance with the requirements for streetlight facilities and
appurtenances including: hardware, corrosion protection, signs, labels and matching finish.
17. Fans should not be utilized. An acoustical study is required for Facilities that generate noise levels
exceeding the maximum as per CIVIC Section 21.16.070.
18. The Facility may not have generators or generator sockets.
19. The Facility should include signage that accurately identifies the Facility owner/operator, the
owner/operator's site name or identification number and a toll -free number to the owner/operator's
network operations center. Facility may not bear any other signage, lights, or advertisements unless
expressly approved by the City, required by law or recommended under existing and future FCC or other
United States governmental agencies for compliance with RF emissions regulations.
20. RF notification signs should be placed where appropriate, with at least one occupational notice facing the
street on the pole below and within 12 inches of the bottom of the antenna shroud.
21. Equipment for a Facility shall minimize visual clutter and be as visually unobtrusive as possible with regard
to appearance, size, and location. If installations are available (e.g., have been installed in other
jurisdictions) that are less intrusive than those allowed by the City's telecommunications ordinance,
applicants should use those installations unless the City Engineer determines that those installations are
not feasible.
22. The antenna shroud should not impinge on removal of the mast arm.
23. The Facility should have all wiring, cabling, and conduit concealed from the public view, e.g. underground
or within the pole.
24. Wiring and cabling for the Facility should be labeled in the pole hand hole and all pull boxes with the
company name and function, e.g. "YOUR WIRELESS COMM", and "YOUR WIRELESS POWER".
25. The Facility power should be connected to a PG&E smart meter.
Site Design
26. The Facility, modifications to existing infrastructure, modified existing infrastructure or replacements
thereof, and existing circuits and service cabinets that connect the Facility, should comply with all
requirements, codes and regulations including City specifications and details, California Electrical Code,
CPUC General Orders, PG&E and FCC.
27. Circuit tracing should be completed using proper circuit tracing equipment.
28. A pull box should be existing or be installed at the base of the pole. Connection for wireless power should
be made in the pull box at the base of the pole.
29. New pull box to be City type, size #3.5 minimum.
30. Streetlight control systems without continuous power at the base of the pole should be modified. These
systems are typically either photocells integrated in the luminaires, or a photocell controlled contactor in
a service cabinet. Streetlight systems controlled with contactors should install photocells on each
luminaire, and modify or replace the service cabinet. A new luminaire is necessary wherever an existing
luminaire does not have a NEMA twist -lock photocell receptacle.
DESIGN GUIDELINES FOR UTILITY -OWNED WOOD POLES
Pole Location Preferences
1. Where a new collocated small cell wireless communications facility (Facility) is necessary, installation of the
Facility on existing City -owned poles is encouraged in order to preserve the community's aesthetic values.
a. New wood utility poles are not preferred.
b. Locations where utility poles are in front, and within 100 feet horizontal distance, of architecturally
significant features, or in locations causing visual impacts of significance should be avoided.
2. All new Facilities on poles require a new encroachment permit.
3. Facilities must conform to the Policy on Street Cut Moratorium and other restrictions. See the following
for more information: https;j/www..gi.ca.miDbell.ca.us 186 Encroachinerit_P .�rmits.
Typical Design
4. Typical design must show proposed plan view, detailed plan view, existing and proposed elevations, and
details of wireless notices, signage, equipment, enclosures, wiring diagram, and cabling diagram.
5. Ground level installations, such as above ground cabinets, are not preferred.
6. The Facility should not impact a property's primary view if possible.
7. The Facility must not interfere with City operations, e.g. sign and signal visibility, luminaire schedule,
performance, and effectiveness.
8. Equipment must have long narrow profiles that avoid wide offsets from the pole.
a. Antenna and antenna enclosure should be less than 48 inches high by 14.6 inches in diameter
b. Radio equipment, switch, mounting channel and appurtenances should be less than 11.0 feet high by
18 inches wide by 23 inches pole offset.
9. Fans should not be utilized. An acoustical study is required for Facilities that generate noise levels
exceeding the maximum as per CMC Section 21.16.070.
10. The Facility may not have generators or generator sockets.
11. Facility must include signage that accurately identifies the Facility owner/operator, the owner/operator's
site name or identification number and a toll -free number to the owner/operator's network operations
center. Facility may not bear any other signage, lights, or advertisements unless expressly approved by
the City, required by law or recommended under existing and future FCC or other United States
governmental agencies for compliance with RF emissions regulations.
12. Facility must comply with all requirements, codes and regulations including CPUC General Orders,
California Electrical Code, PG&E and FCC
13. Equipment for a Facility must minimize visual clutter and be as visually unobtrusive as possible with
regard to appearance, size, and location. If installations are available (e.g., have been installed in other
jurisdictions) that are less intrusive than those allowed by the City's telecommunications ordinance,
applicants must use those installations unless the City Engineer determines that those installations are
not feasible.
14. The Facility should be designed with corrosion protection and finish with color of Valspar Deep Earth,
Kelly Moore Mesa Brown, or equal.
E:3
OF • CA4y 6
u
0 0
Y �
0�CHAR�•
DEPARTMENT OF PUBLIC WORKS
SMALL CELL PERMITTING GUIDELINES
For Small Cell Wireless Facilities in the Public Right -of -Way
The City of Campbell seeks to permit wireless carriers to install small cell wireless communications facilities, within
the public right-of-way, in order to provide robust cellular coverage and capacity throughout the City, while
ensuring small cell facilities are well -maintained and do not significantly detract from City streetscapes. These
guidelines are in accordance with the City of Campbell's Municipal Code (CMC) Section 11.14 and Small Cell Design
Guidelines. Separate permitting guidelines for small cell wireless communications facilities on City -Owned Poles and
Utility -Owned Wood Poles are provided herein. (City -Owned Poles as described herein shall not include traffic signal
poles.)
The City Engineer may amend these guidelines as needed.
PERMIT PROCESS FOR CITY -OWNED POLES
1. Master License Agreement (MLA) should be fully executed prior to issuance of a permit.
Informational Conference
2. Informational conference is a voluntary discussion and is recommended. Public Works Department staff
will provide applicants with an appointment for the informational conference after receipt of a written
request from the applicant. The City does not intend for this voluntary informational conference to start
the review process or trigger any applicable shot clocks.
3. The purpose of the conference is to:
a. Inform the applicant of City requirements and review process;
b. Identify information and materials the City will require with the application;
c. Provide input to the applicant of possible project and design alternatives or modifications;
d. Identify potential concerns and streamline the formal application review process;
e. Provide the applicant the public notice template.
4. Applicants are encouraged to bring the following to the conference:
a. Photo simulations of typical installation;
b. Typical design;
c. Master plan of small cell deployment in City ROW;
d. Any pre -application materials for informal staff feedback and guidance.
Permit Application
1. Permit applications must be submitted by appointment only as per the MLA; as one hardcopy set, and
one set as electronic files in compressed PDF format. Appointments may be requested by email at
SMALLCELL@CITYOFCAMPBELL.COM. Electronic files must be provided on a USB drive, and provided to
the City's Public Works Department during the permit application submittal appointment. Individual file
size should not exceed 2 MB.
2. Potential applicants may generally submit one application per appointment, or up to five individual
applications per appointment for batched applications (with substantially the same equipment in the
10
same configuration on the same support structure type), with only one batch pending permit issuance at
any time.
3. Applications must be completed by the wireless carrier, or authorized party with an authorization letter
from the wireless carrier.
4. Fees must be paid in accordance with Chapter 11.14 of the Campbell Municipal Code and the MLA.
5. Security instruments must be furnished to the City per the MLA and the General Permit Conditions of the
Small Cell Wireless Permit.
6. Permit application must include all of the following which should be prepared in accordance with the
other applicable sections of these guidelines:
e. Plans which should be prepared in accordance with these guidelines;
f. Permit form with General Permit Conditions; https://www.ci.campbeil.ca.us/969/Small-Cell-Facilities-
Deployment ).
g. CPUC documentation that the wireless carrier has CPCN or WIR;
h. Structural Analysis must be per the most recently adopted CIVIC, California Building Code, and
AASHTO LTS-6 Standard Specifications for Structural Supports for Highway Sign, Luminaires, and
Traffic Signals. Analysis should evaluate the pole, pole foundation, pole modifications e.g. wielding,
and mounting of equipment. Structural analysis to include a survey of the existing pole foundation
and appurtenances. (During construction, poles that are found to be damaged or to have corrosion
must be replaced. Plans must be revised and resubmitted showing replacement of the pole and
foundation). The Structural Analysis must be signed and stamped by a CA Registered Structural
Engineer;
L Electrical Analysis must be performed by a CA Registered Electrical Engineer to evaluate conduit fill,
loading level, and voltage drop;
j. Radio Frequency --Electromagnetic Energy Compliance Report addresses all nearby spaces used by
people, has consistent formats, requirements, and conclusions for the same conditions or has
detailed reasons for atypical requirements, has a statement of compliance for the location and radio
frequencies, and is certified by a professional electrical engineer licensed in the state of California
that the report is true and accurate. Activation Report prepared by a licensed professional engineer
to be submitted within 30 days after site activation, certifying field measurements of the radio
frequencies of the facility complies with levels stated in the Electromagnetic Energy Compliance
Report.
k. Notice of Exemption form including certification, type and reasons for CEQA exemption and any other
applicable information; (https://www.ci.campbell.ca.us/969; Small-Cell-Facilities-Deplo vme.nt .
L All calculations and analysis should include allowances for all current equipment and future
equipment considered by the wireless company;
m. Other permits for the work (e.g. traffic control in other cities);
Re -submittal of permit applications must include written response to all comments from the City,
including answers to specific questions, in addition to all revised documents required for a permit
application submittal. Response should be in an Excel file tracking comments individually.
Public Notice
8. Within 5 calendar days after submitting an application, applicant must mail public notices to all properties
and property owners on record within 300 feet from the project site. Public notices should be on the
applicant's letterhead and conform to the template provided by the City.
9. The notice must contain:
n. A general project description;
o. Photo simulations of typical installation;
p. Applicant's identification and contact information as provided on the application submitted to the
City;
q. Contact information for the applicant for interested parties to submit comments within 10 business
days;
r. A statement that "The City will act on the application without a public hearing but that any interested
person or entity may appeal the City's decision directly to the City Manager or his/her designee";
11
s. A general statement that the FCC requires the City to take final action on small cell applications
within 60 days or 90 days, depending on the nature of the proposed facility;
t. A statement that, "Appeals shall not be permitted when based solely on the environmental effects
from radio frequency emissions that are compliant with applicable FCC regulations and guidelines".
10. Applicants shall send an email to the City, (SMALLCELL@CITYOFCAMPBELL.COM), prior to notices being
delivered, and attach a copy of the notice in PDF format.
11. Public notification documentation including, notice, concerns, questions, responses, log (by location with
information on comments, questions, responses, and delivery including person, date, and method of
delivery), proof of notification, and list of recipients, must be submitted to the City prior to permit
issuance.
Plans
12. Plans should be prepared in a consistent and professional manner that eliminates or minimizes redundant
information. For re -submittals, comments written on plans must also be addressed.
13. Existing facilities should be determined and field verified by the applicant using record drawings,
inference, and professional skill as necessary for specific location. Contact City staff for assistance.
14. Plans should include or identify each of the following items
15. Signed and stamped by a CA licensed engineer in the responsible discipline.
16. 100% ready for construction.
17. Plans should use City Standard title sheet, border and format.
https://www.ci.campbell.ca.us/206/Documents
18. Title sheet, site survey sheet, proposed plan view, detailed plan view, existing and proposed elevations,
and details of wireless notices, signage, equipment, enclosures, foundations, wiring diagram, cabling
diagram, splicing and fusing diagram, lighting circuit diagram, load and voltage drop calculation results,
streetlight control system modifications, service pedestal modifications, a list of materials, and other
information as necessary for specific locations.
19. Formatted for 11"x17" sheet size, preferably in color, single sided, and collated, with all text legible.
20. Drawn to appropriate engineering scale, and the scale shown on all relevant sheets and details.
21. Title sheet should include, but not limited, to the following:
u. PG&E meter address;
v. Cellular System Identification Number, and latitude and longitude (WGS 84 datum);
w. Vicinity map of the general area (including 2 major streets) and the work location;
x. Contact's name, title, company, telephone, and email for persons responsible for 1) the design, 2)
construction, and 3) the completed Facility.
22. Sheet numbers on every sheet (e.g. Sheet 3 of 5).
23. North arrow on all relevant sheets.
24. Existing site survey including property boundaries, easements, trees and structures with all dimensions,
bearing, distances, elevations, monuments or other markers shown and called out.
25. Specify facility and mounting by size, type, model, manufacturer, corrosion protection and matching
finish.
26. Specify facility finish type, preparation and application.
27. Design and specification of how all parts are mounted, attached, and supported.
28. Clear dimensioning, which in plan view should be from face of curb, and for elevations should be from
finished grade, wherever possible.
29. Identify all existing improvements.
30. Indicate all future work that facilitates the proposed improvements, e.g. show future trunk line
construction for backhaul connections.
31. Legend identifying all new, retired and existing utilities.
32. Define abbreviations.
33. Use terms and definition consistent with City standard specifications and details. Define jargon and names
not included in City Specifications: https://www.ci.campbell.ca.us/210/Details.
34. Use consistent jargon and names.
12
35. Delineation of City limits.
36. Applicant's Job number, City pole badge number, City permit number (provided at the permit application
appointment), and license area (site address) on all plan sheets.
37. All streets labeled.
38. Do not include disclaimers such as proprietary information.
39. References should be previously published agency documents or industry standards, e.g. California
Electric Code, State General Orders, PG&E Green book, etc. References should cite a specific section,
page, chapter, or detail.
40. Only include information that applies to the proposed location.
41. Duplication of detailed information on the proposed work is minimal. Detailed info is shown once (on one
sheet or detail) and referenced clearly.
42. Do not show work TBD, by others, or per manufacturer's instructions, except work performed under a
separate permit may be identified by permit number.
43. Antenna, radio enclosures, existing and proposed underground work in the plan view, detailed plan view
and details.
44. Existing and proposed elevations of pole showing all dimensions with references to details of the
proposed improvements.
45. Details of wireless notices, signage, equipment and enclosures which are referenced by installation
location in the detailed plan view and elevations.
46. Wiring Diagram with elements representing radio enclosures, radios, antennas, smart meter, ground rod,
and power, bonding and grounding connections.
47. Cabling Diagram with elements representing radio enclosures, radios, antennas, and connections.
48. Show all work that provides for continuous operation of City electrical and communication systems.
49. Show electrical service shared with City streetlight pole, as follows:
y. Survey and document all loads connected to circuit involved, including any non -streetlight load.
Circuit tracing shall be completed using proper circuit tracing equipment;
z. Conduct load analysis to evaluate loading level and voltage drop. Calculations shall be completed and
plans signed by a California licensed electrical engineer;
aa. Reserve a minimum 40% of circuit load capacity (not breaker rating) for City's use;
bb. Voltage drop analysis must show California Electrical Code compliance between PG&E service point
and the end of the longest circuit connected to the service.
cc. Conduit fill calculation for conduit with new conductors that reserves 10% of cross sectional area for
future City use.
dd. Available fault current determined by PG&E. Service equipment must be rated for the available fault
current or be modified or replaced.
50. Foundations with insufficient conduit or without conduit will need to have new conduit added to the
existing foundation, or a new foundation installed, in accordance with structural analysis.
51. Conductors spliced at base of pole in pull box. If there is no existing pull box, installation of a new pull box
is required:
ee. Splicing and Fusing Diagram shows connection to the streetlight circuit in the pull box including line,
load, and continuing wiring if present;
ff. Splicing and Fusing Diagram shows fused splice connectors with 10A fuses for both streetlight and
wireless facility in the pull box.
52. If any luminaires are to be converted to LED, show the luminaires including existing type and wattage; and
proposed type, wattage and model number.
53. For conduit with conductors to be spliced, identify conduit size and type, and conductor size, number,
type, and purpose of conductors and cables, and those conductors to be spliced.
54. For conduit with conductors to be added or removed, identify conduit size and type, all wiring and
cabling, and conductor and cable size, number, type, and purpose, (e.g. new or existing, streetlighting,
ground, traffic signal, circuit ID, etc.)
55. Show the location, size, and type of electrical disconnect for each circuit to be modified, moved, or
touched.
13
56. Show a note requiring that the revised streetlight circuit diagrams be stored in modified service pedestals
(e.g. City type HIM cabinet).
57. New conduit for City use per the MLA for locations indicated by City communications master plans (Dig
Once).
58. Show support for wiring and cabling in the electrolier.
59. Wiring and cabling to the electrolier to be in a single conduit in the electrolier foundation with a three
section conduit divider. Conduit divider allocation to be in the following separate sections: City
streetlights, City future, and all wireless.
60. Wire, splice connectors, and fused splice connectors and appurtenances for radio power shall reference
City standard specifications for streetlighting. Wiring and cabling between pole and RF disconnect switch
and radios should be installed in conduit.
61. No fuses in the RF disconnect switch.
62. Wiring must be rated 600V.
63. Cabling with conductors must be rated 300V (or higher when a higher voltage is present).
64. Materials similar to City standard should reference City standard specifications, e.g. for radio power use
streetlight type wire, stranded copper for ground wires, splice connectors, and fused splice connectors.
65. Location of trench or bore path, with size and number of utilities to be installed, measured from the
nearest face of curb.
66. Show and label the communication wiring from the splice with the streetlight circuit to the RF switch as
the wireless company's equipment.
67. Consistent wattage of equipment used on the data sheets, load and voltage drop calculation, and plans.
68. Connection, mounting, attachment, and supports between and for conductors, cables, conduit, terminals,
connectors, hardware, supports, and all parts, including name, size, type, part number, corrosion and UV
protection, insulation (if any), and finish (if finish is exterior).
69. A clear design that eliminates or minimizes redundant circuits, grounds, and systems.
70. A simple and coordinated overcurrent protection design that is in accordance with the Electrical Analysis.
71. Utilities under bus pads (utilities under bus pads may be allowed provided there are no conflicts with
laterals and a directional bore will be used at a depth of 36" to 48").
72. New poles should provide Americans with Disabilities Act accessibility for adjacent public access areas.
Dimensions should also be shown for horizontal and vertical clearance showing this access.
73. Applicant should secure their own communication/backhaul arrangements independent of City Facilities.
A separate utility permit is required for such work.
PERMIT PROCESS FOR UTILITY -OWNED WOOD POLES
Informational Conference
1. Informational conference is a voluntary discussion and is recommended. Public Works Department staff
will provide applicants with an appointment for the informational conference after receipt of a written
request from the applicant.
2. The purpose of the conference is to:
a. Inform the applicant of City requirements and review process;
b. Identify information and materials the City will require with the application;
c. Provide input to the applicant of possible project and design alternatives or modifications;
d. Identify potential concerns and streamline the formal application review process;
e. Provide the applicant the public notice template.
3. Applicants are encouraged to bring the following to the conference:
a. Photo simulations of typical installation;
b. Typical design;
c. Master plan of small cell deployment in City ROW;
d. Any pre -application materials for informal staff feedback and guidance.
14
Permit Application
4. Permit applications must be submitted by appointment only; as one hardcopy set, and one set as
electronic files in compressed PDF format. Appointments may be requested by email at
SMALLCELL@CITYOFCAMPBELL.COM. Electronic files must be provided on a USB drive, and provided to
the City's Public Works Department during the permit application submittal appointment. Individual file
size should not exceed 2 MB.
5. Potential applicants may generally submit one application per appointment, or up to five individual
applications per appointment for batched applications (with substantially the same equipment in the
same configuration on the same support structure type), with only one batch pending permit issuance at
any time.
6. Applications must be completed by the wireless carrier, or authorized party with an authorization letter
from the wireless carrier.
7. Fees must be paid in accordance with Chapter 11.14 of the Campbell Municipal Code.
8. Security instruments must be furnished to the City per the General Permit Conditions of the Small Cell
Wireless Permit.
9. Permit application must include all of the following:
a. Plans, which should be prepared in accordance with these guidelines
b. Permit form with General Permit Conditions; (https://www.ci.campbell.ca.us/969/Small-Cell-
Facilities-Deployment )
c. Authorization from the pole owner for the use of the pole
d. CPUC documentation that the wireless carrier has CPCN or WIR
e. Radio Frequency --Electromagnetic Energy Compliance Report addresses all nearby spaces used
by people, has consistent formats, requirements, and conclusions for the same conditions or has
detailed reasons for atypical requirements, has statement of compliance for the location and
radio frequencies, and is certified by a professional electrical engineer licensed in the state of
California that the report is true and accurate
f. Notice of Exemption form including certification, type and reasons for CEQA exemption, and any
other applicable information (https://www.ci.campbell.ca.us/969/Small-Cell-Facilities-
Deployment)
g. Other permits for the work (e.g. traffic control in other cities)
10. Re -submittal of permit applications must include written response to all comments, including answers to
specific questions, in addition to all revised documents required for a permit application submittal.
Response should be in an Excel file tracking comments individually.
Public Notice
11. Within 5 calendar days after submitting an application, applicant must mail public notices to all properties
and property owners of record within 300 feet from the project site. Public notices should be on the
applicant's letterhead and conform to the template provided by the City.
12. The notice must contain:
a. A general project description
b. Photo simulations of typical; installation
c. Applicant's identification and contact information as provided on the application submitted to the
City
d. Contact information for the applicant for interested parties to submit comments within 10 business
days
15
e. A statement that "The City will act on the application without a public hearing but that any interested
person or entity may appeal the City's decision directly to the City Manager or his/her designee"
f. A general statement that the FCC requires the City to take final action on small cell applications
within 60 days or 90 days, depending on the nature of the proposed facility
g. A statement that, "Appeals shall not be permitted when based solely on the environmental effects
from radio frequency emissions that are compliant with applicable FCC regulations and guidelines"
13. Send email to the City, (SMALLCELL@CITYOFCAMPBELL.COM), prior to notices being delivered, and attach
a copy of the notice in PDF format.
14. Public notification documentation including, notice, concerns, questions, responses, log (by location with
information on comments, questions, responses, and delivery including person, date, and method of
delivery), proof of notification, and list of recipients, must be submitted prior to permit issuance.
Plans
15. Plans should be prepared in a consistent and professional manner that eliminates or minimizes redundant
information. For re -submittals, comments written on plans must also be addressed.
16. Plans are to include or identify each of the following items:
17. Signed and stamped by a CA licensed engineer in the responsible discipline.
18. 100% ready for construction.
19. Title sheet, site survey sheet, proposed plan view, detailed plan view, elevation views, and include,
equipment, mounting bracket, enclosures, trunk line and service connections, and wiring diagram and
other information as necessary for specific locations.
20. Formatted for 11"x17" sheet size, preferably in color, single sided, and collated, with all text legible.
21. Drawn to appropriate engineering scale, and the scale shown on all relevant sheets and details.
22. Title sheet should include, but not limited, to the following:
a. Cellular System Identification Number, and latitude and longitude (WGS 84 datum)
b. Vicinity map of the general area (including 2 major streets) and the work location
c. Contact's name, title, company, telephone, and email for persons responsible for 1) the design , 2)
construction, and 3) the completed Facility
23. Sheet numbers on every sheet (e.g. Sheet 3 of 5).
24. North arrow on all relevant sheets.
25. Existing site survey including property boundaries, easements, trees and structures with all dimensions,
bearing, distances, elevations, monuments or other markers shown and called out.
26. Specify facility and mounting by size, type, model, manufacturer, corrosion protection and finish.
27. Specify facility finish type, preparation and application.
28. Design of how all parts are mounted, and supported.
29. Dimensions from finished grade (vertical), or surface of pole (horizontal).
30. Identify all existing improvements.
31. Indicate all future work that facilitates the proposed improvements, e.g. show future trunkline
construction for backhaul connections.
32. Legend identifying all new, retired and existing utilities.
33. Define abbreviations.
34. Define jargon and names not included in City Specifications: https://www.ci.campbell.ca.us/210/Details.
Definition and use of terms consistent with City standard specifications and details
https://www.ci.campbell.ca.us/210/Details.
35. Use consistent jargon and names. Delineation of City limits.
16
36. Applicant's Job number, site address, PG&E pole badge number, and City permit number (provided at the
permit application appointment), on all plan sheets.
37. All streets labeled.
38. Do not include disclaimers such as proprietary information.
39. References should be previously published agency documents or industry standards, e.g. California
Electric Code, State General Orders, PG&E Green book, etc. References should cite a specific section,
page, chapter, or detail. Only include information that applies to the proposed location.
40. Duplication of detailed information on the proposed work is minimal. Detailed info is shown once (on one
sheet or detail) and referenced clearly.
41. Do not show work TED, by others, or per manufacturer's instructions, except work performed under a
separate permit may be identified by permit number.
42. Antenna, radio enclosures, conduit, bonding and grounding connection, service points of connection,
existing and proposed underground work in the plan view, detailed plan view and details.
43. Existing and proposed elevations of pole showing all dimensions with references to details of the
proposed improvements.
44. Details of wireless notices, signage, equipment and enclosures which are referenced by installation
location in the detailed plan view and elevations.
45. Wiring Diagram with elements representing radio enclosures, radios, antennas, smart meter, ground rod,
and power, bonding and grounding connections.
46. Available fault current determined by PG&E. Service equipment must be rated for the available fault
current.
47. New poles should provide Americans with Disabilities Act accessibility for adjacent public access areas.
Dimensions should also be shown for horizontal and vertical clearance showing this access.
48. New poles or existing poles with streetlights must show existing and proposed streetlights and
appurtenances:
a. Coordinate electrical service
b. Luminaire height and distance from face of curb should not be changed
c. Show fusing, mastarm and appurtenances, service riser, bonding and grounding, voltage, riser cover
for fusing, relamping and replacing the photocell
49. Underground conduit and ducts should be shown to be constructed within 3 feet from face of curb.
50. Applicant should secure their own communication/backhaul arrangements independent of City Facilities.
A separate utility permit is required for such work.
17
SMALL CELL WIRELESS PERMIT Permit No.:
CITY OF CAMPBELL (For working within the
DEPT. OF PUBLIC WORKS public right-of-way) X-Ref. File:
70 North First Street
Application Date:
Campbell,CA95008 Date Issued:
Ph. (408)866-2150 Application Expiration Date:
Fx. (408) 376-0958 Permit Expiration Date:
APPLICATION- Application is hereby made for a Public Works Pole License and/or Small Cell Wireless Permit ("Permit") in accordance with
Campbell Municipal Code, Section 11.04. (Application expires in six (6) months if the Permit is not issued. All fees are non-refundable.)
A. Work Location Info: Pole Badge No.:
Address:
PG&E meter address if different:
License Area (location description):
B. Owner/Operator of Wireless Facility (provide if Owner/Operator is different than Applicant/Permittee):
Owner of Wireless Facility Name:
Address:
Email:
Telephone number:
Person/Entity Responsible for Operating the Wireless Facility:
Operator is (check one): ❑ APPLICANT ❑ OWNER ❑ OTHER (if different than Applicant or Owner):
C. Type of Work:
❑ Collocation —Small Cell Facility (Existing City -Owned Structure)
❑ Collocation —Small Cell Facility (New/Replacement City -Owned Structure)
❑ Other Wireless Facility Expressly Permitted by State/Federal Law to be in ROW (Existing Utility -Owned)
❑ Other Wireless Facility Expressly Permitted by State/Federal Law to be in ROW (New Utility -Owned)
❑ Permit Renewal (Submit copies of original permit and prior renewals)
D. Authorizations and Licenses
Applicant represents and warrants he/she/it has regulatory approvals and required authorization to place wireless facilities in the public
rights -of -way by (check all that apply):
❑ FCC Licenses
❑ Letter from Structure's Owner
❑ Master License Agreement with City dated
By checking the Master License box, all of the terms and conditions of the Master License Agreement are incorporated
herein by reference and made a part hereof without the necessity of repeating or attaching the Master Agreement.
Unless expressly stated otherwise in this Permit, in the event of any conflict, contradictions, modification, or
inconsistency between the terms of the Master License and this Permit, the terms of the Master License shall prevail
and control.
❑ Other:
Applicant agrees that all work shall conform to the City of Campbell Standard Specifications and Details for Public Works Construction; Small Cell Design
Guidelines, Small Cell Permitting Guidelines, the General Permit Conditions listed hereto; and the Special Provisions for this Permit indicated below. Failure to
abide by these conditions and provisions may result in job shutdown and/or forfeiture of applicable security instruments and cash deposits. All such
specifications, guidelines, conditions, and provisions are incorporated herein and become a part of this Permit.
Applicant/Permittee's Contractor must have this Permit and approved plans for the small cell facility(ies) and equipment at the site and must notify the
Public Works Department at least two days before starting work. Notice must be given to Public Works at least 24 hours before restarting any work.
Name of Applicant:
Address:
E-Mail Address:
Small Cell Wireless Permit
Telephone:
24-HOUR EMERGENCY PHONE NUMBER:
OCTOBER, 2019
CERTIFICATION
The undersigned hereby certifies under penalty of perjury that: (1) the information provided herein is true, accurate, and complete to the best of my (our)
knowledge and belief; (2) the undersigned has read, understands, and agrees to all of the terms and conditions relating to this Permit, and further agrees to
comply with all applicable regulations, permits, and other requirements under federal, state, or local laws; (3) upon issuance of this Permit, all of the terms and
conditions are binding on the Applicant/Permittee, his/her/its or their respective employees, agents, contractors, subcontractors, assigns and/or successors; (4)
he/she/it has the legal authority to execute this Permit.
Accepted:
(Applicant/Permittee)
(signature)
Date
(Contractor) (Print Name) Date
PERMIT EXPIRES 12 MONTHS AFTER DATE OF ISSUANCE
For City use
SPECIAL PROVISIONS
❑ 1. Street shall not be open cut for underground installations. Minimum cuts may be allowed for connections or exploration holes. Such
cuts may be specifically approved by the Inspector prior to cutting.
❑ 2. Pavement may be cut for underground installations and must be restored in accordance with the Standard Details Trench Restoration
Method "A", unless otherwise approved by the Engineer.
❑ 3. Per section 4216 of the Government Code this permit is not valid for excavations until Underground Service Alert (USA) has been notified and the
inquiry identification number has been entered hereon. USA Phone: 1-800-227-2600. USATICKETNO.
❑ 4.
SEE PUBLIC WORKS FEE SCHEDULE FOR CURRENT FEES
PERMIT APPLICATION FEE
PLAN CHECK & INSPECTION FEE
TRAFFIC CONTROL PLAN REVIEW FEE
2%TECHNOLOGY FEE
SECURITY FOR FAITHFUL PERFORMANCE
LABOR & MATERIALS SECURITY WARRANTY
MAINTENANCE WARRANTY SECURITY
CONSTRUCTION CASH DEPOSIT
ANNUAL LICENSE FEE (PER MASTER LICENSE AGREEMENT)
AMOUNT
APPLICATION COMPLIES WITH APPLICABLE DESIGN STANDARDS AND PERMIT GUIDELINES ❑YES ❑ NO
APPROVED FOR ISSUANCE ❑ PERMIT AT LICENSE AREA ONLY -MASTER LICENSE AGREEMENT APPLIES
❑ PERMIT ONLY
GENERAL PERMIT CONDITIONS
RECEIPT NO.
1. Maintenance. Applicant/Permittee shall install and maintain wireless facilities in a manner satisfactory to the Director of Public Works, and shall maintain such
in good repair, and in a clean, safe and sightly condition at Permittee's sole expense, all to the satisfaction of the Director of Public Works. Permittee shall
perform its work in the right-of-way using reasonable care so as to not damage or unreasonably interfere with use of the right-of-way by the public. City
reserves the right to seek from Permittee any and all additional fees and costs reasonably relating to City's inspection, maintenance and/or repair of the public
right-of-way, and/or related to this permit.
2. Indemnification.
A. Applicant/Permittee shall defend, indemnify and hold the City, its officials, officers, employees, and agents ("City Parties') harmless from any and all loss,
claim, cost, liability, or expense (including attorneys' fees) and from anyjudgments or damages to any person or property (collectively, "Claims") arising
out of, either directly or indirectly, or in connection with the installation, maintenance, or presence of the wireless facility and/or the use of the public
right -of- way by the Permittee, its officers, directors, employees, agents, or others acting on Permittee's behalf or under Permittee's authority or control
("Permittee Parties").
B. Applicant/Permittee shall further defend, indemnify, and hold the City Parties harmless from and against any Claims by Permittee Parties or any other
person arising out of or in connection with City's processing, issuance, and/or revocation of said permit to the fullest extent permitted by law.
C. Applicant/Permittee's obligation to indemnify the City Parties shall not extend to any Claims that are determined to be proximately caused by the sole
negligence or willful misconduct of the City Parties.
3. Insurance.
D. Applicant/Permittee shall obtain and maintain throughout the term hereof, Commercial General Liability Insurance in a minimum amount of $5,000,000
combined single limit per occurrence and $10,000,000 in the aggregate for bodily and personal injury, property damage, including personal and
advertising injury, products and completed operations; Worker's Compensation Insurance within statutory limits and Employer's Liability Insurance not
less than $1,000,000 per accident for bodily injury or disease, endorsed with a Waiver of Subrogation in the City's favor. Such insurance shall be
Small Cell Wireless Permit OCTOBER, 2019
endorsed to name City and its officials, officers, agents, and employees as additional insureds, and shall not be cancelable or subject to modification
without reasonable written notice to the City. The insurance requirements must be met prior to commencing any work related to this permit.
Permittee shall present a certificate of insurance along with all necessary endorsements or other acceptable written evidence of such insurance and shall,
on an annual basis, provide acceptable evidence of renewal of coverage. Such insurance coverage shall be endorsed to be primary coverage as respects
City. Any insurance or self-insurance maintained by City shall be excess of the Permittee's insurance and shall not contribute with it. If Permittee
maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or
higher limits maintained by permittee.
Security. Prior to issuance of a Permit, the permittee shall file with the City, and shall maintain in good standing throughout the term of the approval, a security
instrument in the form of a letter of credit or other form of security acceptable to the City for faithful performance, labor and materials, construction cash
deposit, and maintenance warranty, are as follows:
F. Faithful Performance Security. Provide faithful performance security in the event that the use is abandoned, or the permit expires, or is revoked, or is
otherwise terminated. The security shall be in the amount equal to $15,000 per city -owned pole and $5,000 per utility -owned pole during the timefrarne
of this permit.
G. Labor and Materials Security. Provide labor and materials security in the event that labor and/or materials claims are made against the City for the work.
The security shall be in the amount equal to $15,000 per city -owned pole during the timeframe of this permit.
H. A Construction Cash Deposit. A Construction Cash Deposit shall be 4% of engineers estimate, ($500 minimum and $10,000 maximum), is required.
Charges will be made against this deposit if there is an emergency call -out, overtime inspection or when City ordered barricading is required. Any such
costs in excess of the deposit will be billed to the Permittee. Refund of the construction cash deposit balance and refund or cancellation of the applicable
securities will be initiated by the written acceptance of the work by the City.
I. Maintenance Warranty Security. Security posted shall be equal to 25% of the original Faithful Performance Security. A minimum of a one-year
maintenance period applies, and is subject to a longer maintenance period per the Master License, if applicable. Such period will begin on date of written
acceptance of the Permit application and issuance by the City.
J. Permittee shall reimburse the City for all legal fees and costs, including for staff time associated with the processing and seeking payment on the security
instrument, based on the hourly rate or fee schedule adopted by the City Council.
5. No Right, Title, or Interest. The permission granted by this Pole License/ Permit shall not in any event constitute an easement on or an encumbrance against
the public right-of-way (PROW). No right, title, or interest (including franchise interest) in the PROW, or any part thereof, shall vest or accrue in Permittee by
reason of this Permit.
6. This Permit shall be revocable by City at any time and without further notice. Within thirty (30) days after receiving notice from City of revocation of this
permit, Permittee shall, upon demand from City, at his/her/its sole cost and expense, remove all improvements installed by Permittee pursuant to this Permit,
and shall restore the premises as nearly as practicable to its condition prior to such installation.
7. Submit project schedule 10 (ten) days prior to the proposed start of work. Additional lead time may be required for work within City facilities and downtown
Campbell.
8. The Permittee must request in writing a final inspection and acceptance of the work upon completion. Acceptance by the City will be made in writing to the
Permittee.
9. Maintain safe pedestrian and vehicular crossings and free access to private driveways, bus stops, fire hydrants, and water valves.
10. A Construction Traffic Control Plan and a Construction Schedule are required for all lane closures, detours, and street closures. This plan must be reviewed and
approved prior to any lane closures. A Construction Traffic Control Plan shall conform to the most recent version of the California Manual on Uniform Traffic
Control Devices (MUTCD).
11. Replace, as directed by the City Engineer, any damaged or removed improvements in accordance with City Standards and Specifications at the sole expense of
the Permittee as expeditiously as possible.
12. Saw -cut for all PCC or AC removals. All PCC removals shall be to the nearest score mark and new PCC shall be doweled to existing improvements.
13. Prior approval of inspector is required for any work proposed after normal working hours, on weekends or holidays and may require reimbursement of
inspection costs at the current overtime rate.
14. Work on arterials and collectors may require the use of changeable message boards. Adequate signing and barricading is required on the job site. Failure to
provide such signing and barricading may result in the City's providing signing and barricades and charging the cost (including all labor and materials) against
the construction cash deposit.
15. Compaction testing of subgrade, base rock, and asphalt concrete by Permittee is required unless otherwise stated by the City Engineer.
16. The Contractor or Permittee will have a supervisory representative available for contact on the project at all times during construction. Contractor or
Permittee shall provide a phone number at which they can be contacted outside the hours of 8:00 a.m. to 4:00 p.m. and on weekends.
17. No storage of materials or equipment will be allowed near the edge of the pavement, the traveled way, or within the shoulder line which would create a
hazardous condition to the public.
18. This Permit shall not be construed as authorization for excavation and grading on private property adjacent to the work or any other work for which a separate
permit may be required, nor does it relieve the Permittee of any obligation to obtain any other permit required by law.
19. This Permit does not release the Permittee from any liabilities or the terms and conditions contained in other agreements or contracts with the City and any
other public agency.
20. This Permit is not transferable. Work must be performed by the Permittee or Permittee's designated agent or contractor as specified thereon.
21. Call back (call out) due to emergencies regarding this Permit shall be at the current overtime rate with a three (3) hour minimum charge per occurrence.
Small Cell Wireless Permit OCTOBER, 2019
22. Pursuant to Chapter 14.02 of the Campbell Municipal Code, applicant shall not cause to be discharged any material into the municipal storm drain system
other than storm water. Applicant shall adhere to the BEST MANAGEMENT PRACTICES established by the Santa Clara Valley Urban Runoff Pollution Prevention
Program.
23. If the public interest requires a modification of, or a departure from the Permit, plans, special provisions and/or specifications, the City shall have the authority
to require or approve any modification or departure and to specify the manner in which the same is to be made.
24. Permittee must provide advance notification to all parties that may be affected by the Permit activities. Notification shall be reviewed by the City prior to
distribution and include dates of work and a contact name and a phone number.
25. Applicant shall remove water from utility vaults in accordance with the requirements of State Water Resources Control Board Water Quality Order WQ 2014-
0174- DWQ. Said vault water shall not be discharged into the City of Campbell's storm drain system. For more information, see
http://www.waterboards.ca.gov/water_issues/programs/n pd es/uti I ityva u lts.shtml
Applicant/Permittee is/are hereby responsible for ensuring that Applicant, and Permittee, and all those providing services under their respective control and
authority are aware of and will abide by all of the above conditions, all other applicable permits, contracts, rules and laws.
Applicant
Contractor (Print Name)
Date:
Date:
Small Cell Wireless Permit OCTOBER, 2019
MASTER LICENSE AGREEMENT FOR
WIRELESS FACILITIES ON CITY POLES
IN THE PUBLIC RIGHT-OF-WAY
between
CITY OF CAMPBELL, a California municipal corporation
and
EFFECTIVE ®ATE: , 2019
19
MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES
ON CITY POLES
IN THE PUBLIC RIGHT-OF-WAY
This Master License Agreement for Wireless Facilities on City Poles in the Public
Right -of -Way (this "Master License") dated , 2019 (the "Effective
Date") is between the CITY OF CAMPBELL, a California municipal corporation (the
"City" or "Licensor"), and a limited liability company dba
("Licensee").
RECITALS
A. WHEREAS, technological developments in wireless communications and
consumer demand for high-speed mobile broadband and other information
services has extended beyond the capabilities of traditional macrocell wireless
communications facilities. To meet this demand, wireless providers have
accelerated their small cell and distributed antenna system deployments in the
public right-of-way and the City has a clear incentive to manage these accelerated
deployments in a way that preserves local aesthetics and public health and city
infrastructure; and
B. WHEREAS, the City owns, as its personal property, Poles (as defined below) in or
on the public right-of-way within the City's jurisdiction that may be suitable for
Licensee's Equipment (as defined below); and
C. WHEREAS, Licensee installs, maintains and operates wireless facilities as its
principal business, and represents to the City that Licensee holds all Regulatory
Approvals to provide wireless broadband services within the City's jurisdiction; and
D. WHEREAS, Licensee desires to install, maintain and operate small -cell wireless
facilities on City -owned Poles; and
E. WHEREAS, the parties desire to enter into this Master License to establish a
process by which Licensee may request to license the use of City -owned Poles for
wireless communications facilities, and also to establish the rates, terms and
conditions of such a license; and
F. WHEREAS, consistent with California law, the City intends, and Licensee
acknowledges, that this Master License will be applicable to only City -owned
Poles; and
G. WHEREAS, consistent with federal and California law, the City does not intend
this Master License to grant the Licensee any exclusive right to use or occupy the
public right-of-way within the City's jurisdiction, and Licensee expressly
acknowledges that the City may in its sole discretion enter into similar or identical
20
agreements with other entities, which include without limitation Licensee's
competitors; and
H. WHEREAS, on , 2019, the City Council of the City of
Campbell adopted Resolution No. , which approved the form
and material terms of this Master License to be used in connection with the
licensing of City -owned Poles for wireless facilities, and further delegated authority
to the City Manager to enter into such agreements.
NOW, THEREFORE, for good, valuable and sufficient consideration received and
acknowledged by the City and Licensee, the City and Licensee agree as follows:
AGREEMENT
1. GENERAL DEFINITIONS
"Administrative Fees" means, collectively, the Master License Administrative Fee (as
defined in Section 4.2.1) and any Permit Application Fees (as defined in Section 4.2.2).
"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under
Common Control with Licensee.
"Agent" means a party's agent, employee, director, officer, contractor, subcontractor or
representative in relation to this Master License and the License Area.
"Approved Plans" means the detailed plans and equipment specifications, including all
equipment, mounts, hardware, utilities, cables, conduits, signage, concealment elements
and other improvements proposed by Licensee and approved by the City in connection
with the License Area, to be particularly described in application guidelines for the Pole
License/Small Cell Wireless Permit.
"City Property" means any interest in real or personal property owned or controlled by
the City, which includes without limitation any and all (1) land, air and water areas; (2)
license interests, leasehold interests, possessory interests, easements, franchises and
other appurtenant rights or interests; (3) public right-of-way or public utility easements;
and (4) physical improvements such as buildings, structures, infrastructure, utility and
other facilities, and alterations, installations, fixtures, furnishings and additions to existing
real property, personal property and improvements.
"Claim" means any and all liabilities, losses, costs, claims, judgments, settlements,
damages, liens, fines, penalties and expenses, whether direct or indirect.
"Commencement Date" means the date that City issues the Pole License/Small Cell
Wireless Permit.
"Common Control" means two or more entities that are Controlled by a same third entity.
21
"Control" means (1) as to a corporation, stock ownership with the right to exercise more
than fifty percent (50%) of the total combined voting power of all classes of stock, issued
and outstanding, of the controlled corporation; or (2) as to partnerships and other
business association forms, more than fifty percent (50%) ownership of the beneficial
interest and voting control of such association.
"CPUC" means the California Public Utilities Commission established in the California
Constitution, Article XII, § 5, or the CPUC's duly appointed successor agency.
"Environmental Laws" means any Law in relation or connection to industrial hygiene,
environmental conditions or Hazardous Materials (as defined in this Master License).
"Equipment" means antennas, radios and any associated utility or equipment box, and
battery backup, transmitters, receivers, amplifiers, ancillary fiber-optic cables and/or
wiring, and ancillary equipment used for radio or other wireless communication (voice,
data or otherwise) transmission and/or reception, which includes without limitation the
means, devices and apparatus used to attach any Equipment to any licensed City Pole,
and any ancillary equipment such as wiring, cabling, power feeds or an similar things, any
ground based equipment and/or power pedestals needed for the operation of Equipment
attached to a City Pole, and any signage attached to such Equipment that may be
approved by the City or required by any Laws.
"FCC" means the Federal Communications Commission or its duly appointed successor
agency.
"FCC Order, FCC 18-133" means the FCC's Declaratory Ruling and Third Report and
Order, FCC 18-133, Released September 27, 2018.
"Hazardous Material" means any material that, due to its quantity, concentration or
physical or chemical characteristics, is at any time now or hereafter deemed by any local,
regional, state or federal body with jurisdiction and responsibility for issuing Regulatory
Approvals in accordance with applicable Laws to pose a present or potential hazard to
human health, welfare or safety, or to the environment. The term "Hazardous Material"
includes, without limitation, the following: (1) any material or substance defined as a
"hazardous substance", or "pollutant" or "contaminant" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (codified as 42 U.S.C.
§§ 9601 et seq.) or section 25316 of the California Health & Safety Code; (2) any
"hazardous waste" listed California Health & Safety Code § 25140; or (3) any petroleum,
including crude oil or any fraction thereof, natural gas or natural gas liquids.
"Indemnified City Parties" means the same as that term is defined in Section 13
(Indemnification).
"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
22
License Area or that has been, is being, or is in danger of being Released into the
environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise
control such Hazardous Material.
"Invitee" means the client, customer, invited guest, tenant, subtenant, licensee, assignee
and/or sublicensee of a party in relation to the License Area.
"Laws" means all present and future statutes, ordinances, codes, orders, policies,
regulations and implementing requirements and restrictions by federal, state, county
and/or municipal authorities, whether foreseen or unforeseen, ordinary as well as
extraordinary, as adopted or as amended at the time in question.
"License Area" means those certain spaces on the City's Pole and City Right of Way,
which includes without limitation any conduits, chases, risers, trays, pipes, vaults, pull
boxes, hand holes, identified on the Approved Plans as occupied by the Equipment and
licensed to Licensee. The parties may use the term "License Area" to refer to those
spaces licensed to Licensee under any Pole License and related Permit issued to
Licensee in connection with this Master License.
"Licensee's On -Call Representative" mean the person(s) assigned by Licensee to be
on -call and available to the City regarding the operation of Licensee's Equipment. Such
person(s) shall be qualified and experienced in the operation of Equipment and shall be
authorized to act on behalf of Licensee in any emergency and in day-to-day operations
of the Equipment.
"NESC" means the National Electrical Safety Code, as may be amended or superseded,
published by the Institute of Electrical and Electronics Engineers.
"New Laws" means any legislative, regulatory, judicial, or other action affecting the rights
or obligations of the City or Licensee, or establishing rates, terms or conditions for the
construction, operation, maintenance, repair or replacement of Licensee's Equipment on
public infrastructure or in the right-of-way, that differ, in any material respect from the
rates, terms or conditions of the Master License.
"Pole" or "City Pole" means pole located in the City Right of Way subject to this Master
License except that it shall not include traffic signal poles.
"Pole License" or "Permit" or "Small Cell Wireless Permit" means the approval of a
license and applicable permits to use` a City Pole in a specific License Area and use of
the City Right of Way, respectively, for wireless telecommunication facilities after
submittal of an application meeting all City requirements.
"Regulatory Approvals" means all licenses, permits and other approvals necessary for
Licensee to install, operate and maintain Equipment on the License Area.
23
"Release" when used with respect to Hazardous Material includes any actual or
imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing on, under or about the License Area, other City
Property or the environment.
"RF" means radio frequency or electromagnetic waves.
"Term" means the term of this Master License, as defined in Section 3.1 (Master License
Term).
"Utility Infrastructure" means any and all forms of existing power supply, conduit, or
other form of infrastructure fixtures or equipment for the delivery of power: (i) approved
by the City for use by Licensee and (ii) reasonably related to the operation of a City Pole
or otherwise located in the public right of way or other location controlled or owned by
City and reasonably capable of being used in connection with a Vertical Infrastructure.
2. SCOPE OF LICENSE
2.1. Pole License Issuance and Effect
Pursuant and subject to the terms and conditions in this Master License, the City will issue
a Pole License/Small Cell Wireless Permit for Wireless Facilities ("Pole License" or
"Permit" or "Small Cell Wireless Permit"), which will grant Licensee a non-exclusive
license to access, use, replace, upgrade and occupy certain space on a City Pole, the
use of a specified License Area and City Right of Way, as provided herein and to install,
maintain and operate the Equipment as shown in the Approved Plans. The license
granted herein is revocable only in accordance with the terms and conditions of this
Master License.
2.2. License Area
2.2.1. Limitations on License Areas
This Master License applies to only City Pole(s) identified in the Permit. This Master
License does not authorize Licensee or any other persons or entities to enter on to or use
any other City Property, except the License Area specified in the approved Permit.
Furthermore, neither this Master License nor any Permit authorizes or confers any rights
in Licensee or any other persons or entities to use any portions of the public right-of-way
("ROW"), or any improvements or other personal property within the ROW owned by any
third parties. In the event of a conflict between this Master License and the Permit, the
terms of the Master License will govern.
2.2.2. License Area Condition
Licensee expressly acknowledges and agrees to enter on to and use the License Area
and City Right of Way in its "as -is and with all faults" condition. The City makes no
24
representations or warranties whatsoever, whether express or implied, as to the condition
or suitability thereof for Licensee's use. Licensee expressly acknowledges and agrees
that neither the City nor its Agents have made, and the City expressly disclaims, any
representations or warranties whatsoever, whether express or implied, with respect to the
License Area's or City Right of Way's physical, structural or environmental condition, the
License Area's present or future suitability or safety for the Permitted Use (as defined in
Section 5) or any other matter related to the License Area.
2.2.3. Licensee's Due Diligence
Licensee expressly represents and warrants to the City that Licensee has conducted a
reasonably diligent and independent investigation, either for itself or through an Agent
selected by Licensee, into the License Area's condition and suitability for Licensee's
intended use, and that Licensee relies solely on its due diligence for such determination.
Licensee further expressly represents and warrants to the City that Licensee's intended
use is the Permitted Use.
2.2.4. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, as may be amended or superseded, and to the
extent applicable to this Master License, the City expressly advises Licensee, and
Licensee expressly acknowledges, that a Certified Access Specialist (as defined in
California Civil Code § 55.53) has not inspected any License Area in whole or in part to
determine whether it meets all applicable construction -related accessibility requirements.
2.3. Limitations on Licensee's Interests
2.3.1. Limited Interest Created
Licensee expressly acknowledges and agrees that: (1) Licensee does not have any rights
to use or have any interest in any City Pole or other City Property for any purpose
whatsoever until and unless the City authorizes use of the License Area; and (2) neither
this Master License nor any Permit issued pursuant to this Master License creates or will
be deemed to create any leasehold, easement, franchise or any other possessory interest
(whether present, future, contingent or otherwise) or real property interest whatsoever in
the License Area.
2.3.2. Limited Rights Created
Any Pole License the City approves pursuant to this Master License grants Licensee only
a non -possessory, non-exclusive and revocable license to enter on to and use the
License Area for the Permitted Use in accordance with the terms and conditions in this
Master License and the Permit. Licensee expressly acknowledges and agrees that: (1)
neither this Master License nor any Permit will be coupled with an interest; (2) the City
retains legal possession and control over the City Pole, License Area, and City Property
for the City's municipal functions, which will be superior to Licensee's rights and interest
25
in the City Pole and License Area; (3) subject to the terms and conditions in this Master
License, the City may terminate the Permit for a Pole License in whole or in part at any
time under the terms, conditions, and restrictions set forth in Section 19.3; (4) except as
specifically provided otherwise in this Master License, the City may enter into any
agreement with third parties to use and/or occupy any City Pole, and/or other City
Property; and (5) neither this Master License nor any Pole License creates or will be
deemed to create any partnership or joint venture between the City and Licensee.
2.3.3. No Impediment or Limitations on City's Municipal Functions
Except as specifically provided otherwise in this Master License, neither this Master
License nor any Pole License will limit, alter or waive the City's absolute right to use any
License Area, in whole or in part, as infrastructure established and maintained for the
City's and the public's benefit.
2.3.4. Diminutions in Light, Air or Signal Transmission or Reception
In the event that any existing or future structure diminishes any light, air or signal
propagation, transmission or reception, whether erected by the City or not, Licensee shall
not be entitled to any reduction in any License Fee or any other sums payable to the City
under this Master License or any Pole License, the City shall have no liability to Licensee
whatsoever and such diminution will not affect this Master License, any Pole License or
Licensee's obligations except as may be expressly provided in this Master License.
3. TERM
3.1. Master License Term
The Term will commence on the Effective Date and automatically expire ten (10) years
from the Effective Date, unless earlier terminated in accordance with this Master License.
This Master License may seek renewal from the City at the City's sole discretion for two
(2) consecutive five-year periods (each, a "Renewal Term") for up to twenty (20) years,
unless Licensee notifies the City in writing of Licensee's intent not to renew this Master
License at least sixty (60) days, or City notifies Licensee in writing of City's intent not to
renew this Master License at least one hundred twenty (120) days prior to the expiration
of the Initial Term or any Renewal Term. The Initial Term and all Renewal Terms shall be
collectively referred to herein as the "Term."
3.2. Pole License Term
Each Pole License will begin on the Commencement Date and will be effective until the
expiration of this Master License, unless earlier terminated in accordance with this Master
License. In the event that this Master License expires or is terminated, any Pole License
still in effect shall also be terminated.
26
4. LICENSE FEE AND OTHER PAYMENTS
4.1. License Fee
4.1.1. License Fee Amount
Licensee shall pay an annual fee ("License Fee") as specified in the City's Fee Schedule,
attached hereto as Exhibit A, for each licensed City Pole. Increases to the annual License
Fee on the anniversary of the Commencement Date of a Pole License are specified in
Exhibit A, and may be further adjusted to comply with state and/or federal law, the City's
Fee Schedule, and to reflect City's actual and objectively reasonable costs associated
with licensing, such as conducting inspections of the City Pole and use of the City's ROW.
Any adjustment to the License Fee will be similar to those assessed to other third parties
who are similarly situated. Notice of any fee adjustment per a new Fee Schedule will be
provided to Licensee at least ninety (90) days prior to the anniversary of the
Commencement Date or renewal of the Master License.
4.1.2. License Fee Payment
Licensee shall tender the first License Fee payment to the City, without any deduction or
setoff for any reason, at the time the Permit is issued. After the first License Fee payment,
on or before the Commencement Date anniversary, Licensee shall pay each annual
License Fee (as increased pursuant to Section 4.1.1) in advance without any prior
demand, deduction, setoff or counterclaim for any reason, except to account for a partial
year in the event this Master License expires or terminates or any abatement rights
expressly granted in this Master License. Any amounts for less than a full year or full
month will be calculated based on a 360-day year and a 30-day month. Licensee may
make payments by check made out to the order of the City and sent to the following
address or through electronic transfer subject to the City's approval and necessary bank
routing instructions. Permit numbers and site locations are to be included on the check
for tracking purposes.
City of Campbell
Attention:
27
4.2. Administrative Fees
4.2.1. Master License Administrative Fee
At the time Licensee delivers to the City a partially executed counterpart to this Master
License, Licensee shall also deliver to the City a nonrefundable administrative fee, as
specified in Exhibit A, representing payment in full of Licensee's share of the City's
costs to prepare, negotiate and execute this Master License (the "Master License
Administrative Fee"). The City will not be obligated to execute this Master License until
the City receives the Master License Administrative Fee; however, the City may return
up to 50% of the Master License Administrative Fee to Licensee if for any reason or no
reason, the City does not execute this Master License after negotiations have
commenced. This fee is subject to an adjustment to reflect the City's actual and
objectively reasonable costs associated with preparing and negotiating the Master
License, as determined by the City's authorized agent, and/or per City's Fee Schedule.
4.2.2. Pole License/Small Cell Wireless Permit Application Fee
Licensee shall pay to the City, non-refundable Pole License/Small Cell Wireless Permit
("Permit") application and processing fees for proposed City Pole (the "Permit
Application Fee"), as specified in Exhibit A. The Permit Application Fee is based on the
City's actual and reasonable costs calculated in a competitively neutral and non-
discriminatory manner related to reviewing and processing the application.
4.3. Late Charges
In the event that Licensee fails to pay any applicable fees or any other amount payable
to the City within thirty (30) days after Licensee's receipt of the City's written notice that
such amounts are due and unpaid, then thereafter a late fee will be assessed monthly for
every month it is late and charged to Licensee for failure to make timely payment ("Late
Fee"). Late Fee amounts will be equal to five percent (5%) of unpaid amounts.
4.4. Default Interest
Any fees and all other amounts payable to the City. other than Late Fees will bear interest
at ten percent (10%) per annum (simple interest) from the due date when not paid within
15 days after due and payable to the City; provided, Licensee is only subject to this
interest if the City notifies Licensee in writing of any unpaid amounts and Licensee does
not pay within 15 days after Licensee's receipt of such notice. Any sums received shall
be first applied towards any interest, then to the late charge and lastly to principle amount
owed. Any interest or late charge payments will not alone excuse or cure any default by
Licensee.
28
4.5. Method of Fee Payments to City
Licensee shall pay all fees and all other amounts payable to the City in cash or other
immediately available funds by either: (1) local check payable to the City at the address
listed in Section 4.1.2 or (2) electronic wire transfer. Any payment made with a dishonored
check will be deemed unpaid and assessed applicable fees pursuant to state law.
5. USE
5.1. Permitted Use
Licensee may use the City Pole within the approved and authorized License Area solely
for the installation, construction, use, maintenance, operation, repair, modification,
removal, replacement and upgrade of Equipment for the purpose of providing wireless,
voice, data, messaging, or similar type of wireless service now or in the future offered to
the public in general using spectrum radio frequencies licensed or authorized by the FCC
(the "Permitted Use") in compliance with this Master License, the applicable Permit, all
applicable Laws, and any conditions in any Regulatory Approvals and for no other use
whatsoever without the City's prior written consent.
5.2. Prohibition on "Macro Cell" Uses
The City and Licensee intend this Master License and an approved Permit to cover only
"small cell" and/or distributed antenna system installations, as those terms are defined by
the FCC, state, and/or federal law. Licensee expressly acknowledges and agrees that the
Permitted Use under this Master License does not include the right to use any City Pole
as a support structure for a "macro cell" or a traditional wireless tower typically constructed
on private property.
5.3. Prohibition on Nuisances and Illegal Uses
Licensee shall not use the License Area in whole or in part in any unlawful manner or for
any illegal purpose. In addition, Licensee shall not use the License Area in whole or in
part in any manner that constitutes a nuisance as determined by the City in its reasonable
judgment; however, the City acknowledges and agrees that the Permitted Use is not and
shall not, in and of itself, be considered a nuisance. Licensee shall take all precautions to
eliminate any nuisances or hazards in connection with its uses and activities on or about
the License Area.
5.4. Signs or Advertisements
Licensee acknowledges and agrees that its rights under this Master License and any
Permit do not authorize Licensee to erect, post or maintain, or permit others to erect, post
or maintain, any signs, notices, graphics or advertisements whatsoever on the License
Area, except as may be specifically authorized under this Master License, Permit or as
may be required for compliance with any applicable Laws.
29
6. POLE LICENSE/SMALL CELL WIRELESS PERMIT REQUIRED
6.1. City Approval Required
Licensee shall not have any right to use a particular City Pole or the License Area in whole
or in part for any purpose until and unless the City grants the applicable Permit. Licensee
may obtain the Permit only during the term of this Master License and only after the City
approves the Permit. Subject to any express limitations in this Master License, the City
will not be obligated to subordinate its municipal functions in any manner whatsoever to
Licensee's interest under the Permit. The City shall not be obligated to consider or
approve any application for a Permit after this Master License expires or is terminated.
When the City considers whether to approve or disapprove the Permit application, the
City may consider any matter that affects its municipal functions, which include without
limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance
with any applicable Laws; (3) impacts on the City's street light, traffic control or other
municipal operations; (4) any potential hazards or unsafe conditions that could result from
Licensee's installation, operation or maintenance; (5) any potential visual or aesthetic
impacts, provided the proposed Equipment is not in conformance with objective design
standards adopted by the City; (6) the additional load on the City Pole the proposed
Equipment would create; and (7) any municipal plans for the City Pole, other City Property
or the ROW in proximity to the subject City Pole.
6.2. Pole License/Small Cell Wireless Permit Application Required
Licensee must file with the City a complete application meeting all of the requirements for
the Pole License/Small Cell Wireless Permit for Wireless Facilities, which may be updated
from time to time by the City's authorized representative, in order to receive a Permit for
a City Pole where Licensee seeks to install the Equipment.
A complete application must include at least the following:
a) identify the location of the City Pole;
b) a detailed construction plan for the proposed design and installation(s), including
Equipment specifications, concealment elements, and any other proposed
improvements which are consistent with all applicable City guidelines, rules and
Laws; and a detailed traffic control plan for all work on and adjacent to City
roadways;
c) all other information and materials required for all Regulatory Approvals and
City's approval in accordance with City's guidelines and applicable Laws.
6.3. Permit Application Review Procedures
6.3.1. Permit Application Priority
Licensee expressly acknowledges that the City either already has or may in the future
enter into similar master license agreements for its City Poles with other persons or
30
entities, and that Licensee and such third parties may from time -to -time desire to license
the same City Pole. To promote a fair and competitively neutral process, the City will
review each application for a Permit in the order received by appointment only. Each
application will be date and time stamped when received by the City, and such stamp will
control the City's review priority relative to other applications. This does not guarantee a
priority in the actual issuance of the Permit, however, which may be subject to various
factors beyond the City's control, such as an application's incompleteness or other
impediment to processing the application.
6.3.2. Timeframe for City's Review
The City will review, and either approve or reject the Permit applications within the
applicable timeframes prescribed by the prevailing order or law, unless the timeframes
are extended in writing by mutual consent of the Licensee and the City.
6.3.3. Permit Application Approvals/Denials
City may approve, approve with conditions, or disapprove an application. Subject to
applicable state and federal laws, Licensee acknowledges that the City reserves the right
to disapprove any Permit application in whole or in part when the City determines in its
sole judgment that the proposed Equipment would unreasonably interfere with the City's
municipal functions or create a hazardous or unsafe condition. The City shall provide
Licensee with a written denial that states the basis for the denial.
6.3.4 Change of Law; Further Proceedings or Interpretations
If, during the Term of this Master License, any New Laws are adopted, or any applicable
Laws are interpreted or clarified through further regulatory orders or regulations, either
the City or Licensee may, upon sixty (60) days' written notice to the other, request
that the terms of this Agreement be renegotiated to conform to such New Laws or
regulations for all existing and new Permits. The City and Licensee shall meet and
confer to negotiate in good faith for an amendment to this Agreement to fully and fairly
implement the terms of any New Laws or regulations or orders.
6.4. Pre -Approval Condition - Replacement of City Pole
In the event that Licensee desires to replace any existing City Pole, or in the event that
the City requires Licensee to replace any existing City Pole as a condition of the City's
approval for a Permit, Licensee shall: (1) design and/or procure the replacement City Pole
to be (a) substantially the same as the existing City Pole to be replaced, (b) consistent
with the City's specifications for similar City Pole, and (c) consistent with the City's
objective design standards; and (2) install the replacement City Pole at Licensee's sole
cost and expense and in accordance with all applicable provisions in this Master License,
which includes without limitation Section 7 (Equipment Installation). After Licensee installs
any replacement City Pole, the City will have the right to inspect the improvements and
installation work and accept, reject and require corrections to such improvements or
31
installation work. Licensee shall make any and all necessary corrections to any
replacement City Pole within 60 days after a rejection by the City. Paying for the cost of
the replacement City Pole does not provide Licensee with any ownership interest in the
replacement City Pole. The City shall be deemed to own the replacement City Pole.
Licensee acknowledges and agrees that the City's approval of the Permit will be the only
consideration due to Licensee in exchange for any replacement of the City Pole, and
Licensee will not be entitled to any additional pecuniary or non -pecuniary consideration.
7. EQUIPMENT INSTALLATION
7.1. Prior Regulatory Approvals Required
Licensee shall not commence any installation, construction, repair, upgrade,
maintenance or modification or other work on or about the License Area until and unless
Licensee first obtains all necessary prior Regulatory Approvals required by the City in its
regulatory capacity, which includes without limitation any encroachment permits, building
permits, excavation permits, water or sewer permits, electrical permits and any other
permits or approvals issued by the City. Any installation, construction and other work
performed by Licensee or its Agents or Invitees without such Regulatory Approvals will
be a default under this Master License in addition to any other liabilities or penalties the
City, in its regulatory capacity, may impose on Licensee for the same acts or omissions.
7.2. Installation Work
Licensee shall not commence any work at the License Area until Licensee has obtained
a Permit. Licensee shall perform all installation, construction and other work in connection
with the License Area in strict compliance with the Approved Plans and in a diligent, good
and workmanlike manner. After any work at the License Area concludes, Licensee shall
restore the License Area and any other City Property to the condition that existed
immediately prior to when the work commenced.
7.2.1. Changes to Approved Plans Required by Regulatory Approvals
Licensee may amend any Approved Plans when such changes are required to obtain or
maintain compliance with Regulatory Approvals necessary to install the Equipment, so
long as Licensee obtains the City's prior written consent, which the City shall not
unreasonably withhold.
7.2.2. Corrections to Approved Plans
Licensee shall have the obligation at its sole cost to correct any errors or omissions in
any Approved Plans and related Regulatory Approvals. Either Licensee or City may
provide prompt written notice to the other in the event of discovery of any such defects.
32
7.2.3. Alterations to City Property
Licensee shall not remove, damage, or in any manner alter any City Property without prior
written consent from the City and any other public agencies with jurisdiction over the
subject City Property, unless otherwise allowed herein. The City may withhold its consent
in its sole and absolute discretion, and may reasonably condition its consent in each
instance based on scope and nature of the proposed alterations. Licensee shall
immediately notify the City if any removal, damage or other alteration occurs to City
Property for any reason and through .any cause. Licensee agrees to be responsible for
all costs and expenses related to altering any City Property which is necessitated in
connection with its Equipment and this Master License.
7.2.4. Licensee's Contractors
Licensee shall use only qualified and trained persons and appropriately licensed
contractors for all installation, construction and other work performed on or about the
License Area. At least ten (10) business days before to any installation, construction and
other work commences on or about the License Area, Licensee or its authorized agent
shall provide the City with: (1) a schedule with all activities to be performed in connection
with the installation, construction and other work; and (2) a list with all the names,
contractors' license numbers, contact information, and business addresses for all
contractors and all subcontractors who will perform the installation, construction and other
work.
7.3. Labor and Material Costs
Licensee shall be responsible for all direct and indirect costs (labor, materials and
overhead) in connection with designing, purchasing and installing all Equipment, including
any approved alterations to City Property related thereto, in accordance with the
Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and
maintain all Regulatory Approvals required in connection with the installation, which
includes without limitation all direct and indirect costs to comply with any approval
conditions or mitigation measures that arise from Licensee's proposed installation.
Licensee shall timely pay for all labor, materials, Equipment and all professional services
related to the Permitted Use or furnished to the License Area at Licensee's direction or
for Licensee's benefit.
7.4. Project Managers
The City and Licensee each will notify the other of each party's respective primary contact
person(s) ("project manager") for all design, engineering, construction and installation
issues that may arise between the parties in connection with this Master License. If no
person is designated by either party prior to the Effective Date, then each party shall
designate a person through a written notice promptly following the written request of either
party to do so.
33
Licensee acknowledges that the City's contact person is not exclusively assigned to this
Master License or any Permit, and that the City's contact person may not always be
immediately available to Licensee or its project manager. Licensee further acknowledges
that the authority delegated by the City to the City's project manager is limited to the
administration of this Master License, any application and/or approval of a Permit. The
parties' respective project managers will have no obligation to personally perform any
term or covenant to be performed by the other party under this Master License. Notices
to the parties' respective project managers alone will not be deemed effective notice for
any purpose under this Master License.
7.5. Coordination with the City
Licensee must coordinate all its installation, construction and other work on or about the
License Area with the City so as to avoid any interference (physical, electronic or
otherwise) with any existing utilities, substructures, facilities, City Property and the City's
municipal operations.
7.6. Title to Licensee's Equipment and Other Improvements
Except as specifically provided otherwise in this Master License, all Equipment and other
improvements installed, constructed or placed on or about the License Area by Licensee
or its Agents will be and remain at all times Licensee's personal property. All structural
improvements to any City Pole, any replacement City Pole as approved by the City and
shown in the Approved Plans for any fiber installed by or on behalf of Licensee, will
become City Property and remain should Licensee vacate or abandon such License Area,
unless the City elects in a written notice to Licensee that it does not wish to take title to
such structural improvements. Subject to Section 25 (Surrender of License Area),
Licensee may remove its Equipment from the License Area at any time after 30 days'
written notice to the City.
7.7. Prevailing Wages
7.7.1. . Compliance with Prevailing Wage Policies
The services to be provided under the Master License may be subject to prevailing wage
rate payment as set forth in California Labor Code § 1771. Accordingly, to the extent that
any such services are subject to the prevailing wage rate payment requirements,
Licensee and its Agents shall comply with all applicable California Labor Code
requirements pertaining to "public works," including the payment of prevailing wages in
connection with the services to be provided to the City hereunder (collectively, "Prevailing
Wage Policies"). Licensee shall submit, upon request by the City, certified copies of
payroll records to the City and shall maintain and make such records available to the City
or the City's duly authorized representative for inspection and copying in a manner
consistent with Licensee's obligations under Section 23 (Records Maintenance and
Audits).
34
Licensee shall defend, indemnify and hold the City and its Indemnified City Parties
harmless from and against any and all present and future Claims, that arise from or in
connection with Licensee's obligation to comply with all Laws and Prevailing Wage
Policies relating to this Master License, which includes without limitation any and all
Claims that may be made by Agents or other third parties pursuant to California Labor
Code §§ 1726 and 1781, and as may be amended or superseded in the future.
Licensee hereby waives, releases and discharges forever the City and Indemnified City
Parties from any and all present and future Claims that arise from or in connection with
Licensee's obligation to comply with all Laws and Prevailing Wage Policies. Licensee
hereby acknowledges that Licensee is aware of and familiar with the provisions in
California Civil Code § 1542 which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the release, which if known by him must
have materially affected his or her settlement with the debtor.
Licensee hereby waives and relinquishes all rights and benefits which it may have under
California Civil Code § 1542, as such relates to the Master License and any Permit.
Licensee's obligations under this Section 7.7 will survive the expiration or earlier
termination of this Master License and any Permit.
7.7.2. Compliance with DIR Rules
(a) No contractor or subcontractor may be qualified to bid on, be listed in a bid proposal
subject to the requirements of Section 4104 of the California Public Contracts Code, or
engage in the performance of any contract for public work, unless currently registered
with the Department of Industrial Relations ("DIR") and qualified to perform public work
pursuant to California Labor Code Section 1725.5 (Cal. Lab. Code § 1771.1(a)); (b) no
contractor or subcontractor may be awarded a public works contract unless registered
with the DIR to perform public work pursuant to California Labor Code Section 1725.5
(Cal. Lab. Code § 1771.1(b)); and (c) work performed on the project is subject to
compliance monitoring and enforcement by DIR (Cal. Lab. Code § 1771.4).
7.7.3. Job Site Notices
Licensee shall post at the job site notices in compliance with Title I of the California Code
of Regulations Section 16451.
8. LICENSEE'S MAINTENANCE OBLIGATIONS
8.1. Equipment Maintenance
Licensee shall, at its sole cost and expense, regularly inspect and maintain all Equipment
installed on the License Area in good condition, reasonable wear,. tear and casualty
damage excepted, at all times, and shall promptly repair any damage to any Equipment
35
installed on the License Area whenever repair or maintenance may be required, subject
to the City's prior approval if required under Section 7 (Equipment Installation). With the
exception of administrative encroachment permits for access to the License Area,
Licensee will not be required to seek the City's prior approval for any Equipment repair,
maintenance, replacement or other installation on the License Area when such
Equipment appears on the Approved Plans. Licensee must obtain the City's prior written
approval and all applicable permits and other Regulatory Approvals for any Equipment
repair, maintenance, modification, upgrade, replacement or other installation that involves
different or additional Equipment than as appears on the Approved Plans. Licensee
expressly acknowledges and agrees that Licensee shall not perform any repair,
maintenance, replacement or other work authorized under this subsection until and
unless Licensee obtains all applicable permits and Regulatory Approvals required for
such work.
8.2. Damage to License Area
8.2.1. Notice to City
If Licensee discovers any damage to the City Pole or License Area from any cause,
Licensee shall promptly give notice to the City that describes damage and the location(s)
where the damage occurred. Licensee will not be deemed to have assumed liability for
any life -threatening or hazardous conditions by giving such notice, unless such conditions
were caused by or arose in connection with Licensee's or its Agent's or Invitee's acts,
omissions or negligence.
8.2.2. Damage Caused by Licensee
In the event that Licensee or its Agents or Invitees cause any damage to any City Pole or
License Area, Licensee must repair such damage at its sole cost and expense within 30
days after Licensee receives notice from City that describes such damage or, if the
damage cannot reasonably be repaired in such time, then Licensee will have additional
time as is, in City's estimation, reasonably required to repair such damage, as long as
Licensee has commenced repair and diligently pursues it to completion. In the event that
Licensee fails to timely cure the damage, the City may repair the damage at Licensee's
expense. Licensee will reimburse the City for all costs incurred to repair such damage
within 30 days after Licensee receives the City's demand for payment, together with
copies of invoices or other evidence to document the costs incurred. The City's right to
repair any damage and receive reimbursement from Licensee pursuant to this Section
8.2.2 shall be in addition to (and not exclusive of) any legal and equitable remedies the
City may have under applicable Laws.
8.2.3. No Right to Repair
Absent notice from the City with a demand to cure any damage to any City Pole or
License Area, or an authorization to proceed with such work, Licensee is not authorized
to make any repairs. Licensee expressly waives all rights it may have under any
36
applicable Laws to make repairs at the City's expense. However, Licensee shall have the
right to conduct testing and maintenance activities, and repair and replace damaged or
malfunctioning Equipment at any time during the Term.
8.3. Graffiti Abatement
In addition to Licensee's other maintenance obligations under this Master License and
any Permit, Licensee shall remove any graffiti or other similar markings from the License
Area promptly upon actual notice (but in no event later than ten (10) days after Licensee's
receipt of written notice from the City of the presence of graffiti at a particular License
Area identified in the City's written notice). If the graffiti is not abated by Licensee as
required, then the City may abate the graffiti at Licensee's expense. If the costs are not
paid within thirty (30) days of Licensee's receipt of the City's invoice, City shall have the
right to suspend the issuance of any further permits under this Agreement until the
abatement costs are paid in full, or otherwise declare Licensee in default pursuant to the
applicable Permit and of this Master License.
8.4. Maintenance Work Performance Standards
All work performed by or for Licensee under this Section 8 shall be performed: (1) at
Licensee's sole cost and expense; (2) by only appropriately licensed contractors, (3) in a
manner and with equipment and materials that will not unreasonably interfere with or
impair the City's municipal operations on or about the License Area during any approved
installations; and (c) in a manner compliant with all applicable Laws.
9. UTILITIES
Licensee shall be solely responsible to secure its own electrical power for its Permitted
Use and shall use a SmartPole Meter approved by the utility.
While the City is not obligated to make its utilities available to Licensee, if the City agrees
to allow use of City's Utility Infrastructure, Licensee will agree to pay the City a separate
negotiated fee for use of the City's Utility Infrastructure and also for the actual and
reasonable administrative costs associated with furnishing the electrical service and/or
other utilities to Licensee in the License Area.
10. TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
If City is required by law to collect any federal, state, or local tax, fee, or other
governmental imposition (each, a "Tax") from Licensee with respect to the transactions
contemplated by this Master License, then City shall bill such Tax to Licensee in the
manner and for the amount required by law, Licensee shall promptly pay such billed
amount of Tax to City, and City shall remit such Tax to the appropriate tax authorities as
required by law; provided, however, that City shall not bill to or otherwise attempt to collect
from Licensee any Tax with respect to which Licensee has provided City with an
37
exemption certificate or other reasonable basis for relieving City of its responsibility to
collect such tax from Licensee. Licensee shall be responsible for all Taxes that are
assessed against or are otherwise the legal responsibility of Licensee with respect to itself
and its property.
11. LICENSEE'S OBLIGATIONS TO MAINTAIN COMPLIANCE WITH LAWS
11.1. Compliance with CPUC General Orders
In addition to all other Laws, Licensee shall conduct all activities on the License Area in
accordance with all applicable CPUC general orders, which includes without limitation
CPUC General Order 95 and CPUC General Order 128 as those orders may be amended
or superseded in the future, and the rules, regulations and other requirements adopted
or enacted by the CPUC under such general orders.
11.2. Compliance with Building and Electric Codes
In addition to Licensee's compliance with all other Laws and to the extent not in
contravention of any applicable Law, Licensee shall conduct all activities on the License
Area in accordance with the applicable requirements in the California Building Code, the
California Electric Code, and any applicable local, state, and federal building and
electrical code, as those codes exist now or may be amended in the future. To the extent
that CPUC General Order 95 does not address small cell wireless installations on City
Poles or Utility Infrastructure, Licensee shall comply with all City requirements to the
extent that such City requirements do not conflict with other applicable Laws.
11.3. Compliance with RF Exposure Regulations
Licensee's obligation to comply with all Laws includes all Laws related to maximum
permissible exposure to RF emissions on or about the License Area, which includes all
applicable FCC standards, applicable to Licensee's Equipment. Prior to submitting, or
concurrently with, an application for a Permit, Licensee must comply with the City's
ordinance and design and permitting standards, for each proposed City Pole on which
the Licensee desires to install or operate its Equipment In the event any subsequent RF
Compliance Report submitted by Licensee or other permittee determines that the RF
levels at the License Area exceed FCC standards for the maximum permissible exposure
to RF emissions, Licensee must promptly demonstrate to the satisfaction of the City
compliance with the requirements of 47 Code of Federal Regulations Section 1.1307 or
any other then -applicable Laws related to RF levels from Licensee's Equipment.
12. PUBLIC WORKS' OPERATIONS
12.1. City's Access to License Area
Except as specifically provided otherwise in this Master License, the City and its Agents
have the absolute right to access any License Area in whole or in part at any time without
38
notice for any purpose. City will not be liable in any manner whatsoever, and Licensee
expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or
other damages that may arise related to the City's or its Agents' access to the License
Area, which includes, without limitation, any Equipment removed in an emergency or
other exigent circumstances pursuant to Section 12.4 (Emergencies), except to the extent
that the damage is caused by the City's or its Agent's sole negligence or willful
misconduct.
12.2. City's Maintenance, Repairs or Alterations to Vertical Infrastructure
The City will: (1) maintain and repair City Pole (including the Utility Infrastructure serving
the City Pole, as the case may be) as needed, in the City's sole judgment, for its street
light operations and other municipal functions; and (2) correct any immediately hazardous
condition. Except as provided in Section 19 (Termination), and unless such damages are
caused by the City's active negligence or willful misconduct, neither any City work on any
City Pole nor any condition on any License Area will: (a) entitle Licensee to any damages;
(b) excuse or reduce any obligation by Licensee to pay any License Fees or Additional
Fees or perform any covenant under this Master License; or (c) constitute or be construed
as a constructive termination of this Master License or any Permit.
12.3. City's Maintenance, Repairs or Alterations to Other City Property
The City may, at any time, alter, add to, repair, remove from and/or improve the License
Area in whole or in part for any municipal function, which includes without limitation
maintenance and improvements in connection with street light services and compliance
with all applicable Laws; provided, however, that the City: (1) makes a good -faith effort to
provide prior notice to Licensee's On -Call Representative; (2) allows Licensee's On -Call
Representative to observe the City's work; and (3) the City takes reasonable steps not to
disrupt Licensee's ordinary operations on the License Area, taking into account any
exigencies that may threaten persons or property. The provisions in this Section 12.3 will
not be construed to allow Licensee's ordinary operations to impede or delay the City's
authority and ability to make changes to the License Areas necessary to maintain street
light services, traffic control services, any municipal utility services (to the extent
permissible under applicable Laws) or any other municipal functions carried out for the
public's health, safety, welfare or benefit.
12.4. Emergencies
In emergencies, and unless expressly provided in applicable Laws, the City's work and
operations will take precedence over Licensee's operations, which includes without
limitation any Equipment operated on the License Area, and the City may access the
License Area in whole or in part as the City deems necessary in its sole and absolute
determination and in accordance with this Section 12.4, with or without notice to Licensee.
When safe and practicable, as determined by the City, the City will notify Licensee of any
emergency or other exigent circumstances that requires the City to remove or replace
any City Pole or the Utility Infrastructure serving the City Pole, as the case may be, or
39
other City Property and will allow Licensee to remove its Equipment before the City
removes or replaces such City Pole (including the Utility Infrastructure serving the City
Pole, as the case may be) or other City Property; provided, however, that the City will
remove the Equipment from the License Area when in the City's sole determination it
would: (1) be unsafe or not practicable to wait for Licensee to perform (or cause to be
performed) the work; (2) otherwise threaten or compromise public health, safety, welfare
or public services. The City will remove any Equipment with reasonable care and store
such Equipment for retrieval by Licensee. Licensee shall have the right to reinstall such
removed Equipment (or equivalent replacement Equipment) at Licensee's sole expense
on the repaired or replaced City Pole and/or License Area and in accordance with Section
7 (Equipment Installation). Licensee expressly acknowledges that any act(s) taken by the
City pursuant to this Section 12.4, which includes without limitation any Equipment
removal or storage, will not be deemed to be a forcible or unlawful entry onto the License
Area or any interference with Licensee's contractual privilege to use the License Area.
13. Indemnification
13.1. Licensee's Indemnification Obligations
Licensee, for itself and its successors and assigns shall indemnify, defend, and hold the
City and its Agents, elected and appointed officials and volunteers (collectively, the
"Indemnified City Parties") harmless from and against any and all Claims incurred in
connection with or arising in whole or in part from Licensee's obligations under this Master
License and/or Permit, including but not limited to the installation, use, maintenance,
repair or removal of the Equipment.
Licensee's indemnity obligation provided for in this Section shall not apply to any Claim
resulting from the sole negligence or willful misconduct of the City or other Indemnified
City Parties. Licensee's obligations under this Section 13 includes, without limitation, all
reasonable fees, costs and expenses for attorneys, consultants and experts, and the
City's actual costs to investigate any Claim. Licensee's obligations under this Section 13
shall survive this Master License's and any applicable Permit's expiration or termination.
13.2. Licensee's Defense of City
In the event that any Claim is brought against any Indemnified City Parties in connection
with any subject matter for which any Indemnified City Parties are indemnified by
Licensee under this Master License or any Permit, Licensee shall not, without the City's
written consent, enter into any compromise or settlement agreement on any Indemnified
City Parties' behalf that (a) admits any liability, culpability or fault whatsoever on any
Indemnified City Party's part; or (b) requires any Indemnified City Party to take any action,
which includes without limitation any change in the City's policies, or pay any money.
Nothing in this Master License shall be construed to limit or preclude any Indemnified City
Parties or their respective legal counsel from cooperating with Licensee and participating
in any judicial, administrative or other litigation or proceeding.
40
14. INSURANCE
Prior to any activities by Licensee on the License Area or other City Property, Licensee
shall comply with all insurance requirements and other obligations contained in Exhibit
B.
15. LIMITATIONS ON LIABILITY
15.1. General Limitation on City's Liability
Except where otherwise provided in this Master License, Licensee expressly
acknowledges that the City is not responsible or liable to Licensee for any and all Claims
that arise in connection with (1) acts or omissions by persons or entities using the
sidewalk, street or other areas adjoining, adjacent to or connected with any License Area;
(2) any utility service interruption; (3) theft, (4) burst, stopped or leaking water, gas, sewer,
steam or other pressurized pipes; (5) fires, floods, earthquakes or other force majeure, or
(6) any vehicular collision on or about the License Area or other City Property; all except
to the extent such events are caused directly and exclusively by the City's sole negligence
or willful misconduct.
15.2. Consequential, Indirect or Punitive Damages
Licensee expressly acknowledges and agrees that the License Fee and other fees
payable under this Master License do not take into account any potential liability on the
City's part or any Indemnified City Parties' part for consequential or incidental damages.
The City would not be willing to enter into this Master License or issue the Permit unless
Licensee completely waived any Claims against the City or any Indemnified City Parties,
to the fullest extent permitted by applicable Laws, for consequential or incidental damages
due to the acts or omissions by the City or its Agents, and Licensee expressly assumes
the risk with respect thereto.
Accordingly, except for the indemnification obligation placed on Licensee or other waivers
contained in this Master License, and except where caused by either party's gross
negligence or willful misconduct, as material consideration for this Master License and a
Permit, the parties agree that neither party will be liable under this Master License or any
Permit for consequential, indirect, special or punitive damages (including lost revenues,
loss of equipment, interruption, loss of service, or loss of data, inconvenience,
disturbance, lost business or other damages) for any cause of action, whether in contract,
tort, or otherwise, even if the party was or should have been aware of the possibility of
these damages, whether under theory of contract, tort (including negligence), strict
liability, or otherwise.
15.3. No Relocation Assistance
41
Neither this Master License nor any Permit creates any right in Licensee to receive any
relocation assistance or payment for any reason under the California Relocation
Assistance Law (California Government Code §§ 7260 et seq.), the Uniform Relocation
Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.), as
either may be amended or superseded, or any similar Laws upon or after any termination.
To the extent that any such Laws may apply, Licensee waives, releases and relinquishes
forever any and all Claims that it may have against the City for any compensation from
the City except as provided in Section 22 (Condemnation).
16. HAZARDOUS MATERIALS
16.1. Hazardous Materials in the License Area
Licensee covenants and agrees that neither Licensee nor its Agents or Invitees will 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 City
Property, in whole or part, or transported to or from any City Property in violation of any
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 all Environmental Laws.
16.2. Hazardous Material Release Notice
Licensee shall promptly notify the City if and when Licensee learns or has reason to
believe any Hazardous Material Release has occurred in, on, under or about the License
Area or other City Property caused by Licensee, its Agents or its Invitees, however, no
default may be declared by the City pursuant to this Section 16.2 unless Licensee has
actively concealed the Hazardous Material Release after Licensee learns or has reason
to believe that the Hazardous Material Release has occurred. Licensee will not be
deemed to have assumed liability for any such Release by giving such notice, unless
such Release was caused by or arose in connection with Licensee's or its Agent's or
Invitee's acts, omissions or negligence.
16.3. Licensee's Hazardous Material Indemnification Obligations
If Licensee breaches any obligations contained in this Section 16 (Hazardous Material),
or if any act, omission or negligence by Licensee or its Agents or Invitees results in any
contamination on or about the License Area or other City Property, or in a Hazardous
Material Release from, on, about, in or beneath the License Areas or any other City
Property, in whole or in part, or any Environmental Law violation, then Licensee, for itself
and its successors and assigns, shall indemnify, defend and hold the City and any
Indemnified City Parties harmless, 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
42
paid in settlement of Claims, attorneys' fees, consultants' fees, and experts' fees and
related costs) that arises during or after the Term related to or in connection with such
Release or violation; provided, however, Licensee shall not be liable for any Claims to the
extent such Release or violation was caused directly and exclusively by the City's gross
negligence or willful misconduct. Licensee's indemnification obligation includes all costs
incurred in connection with any activities required to Investigate and Remediate any
Hazardous Material brought or Released onto the License Area or other City Property by
Licensee or its Agents or Invitees and to restore the License Area or other City Property
to its condition prior to such introduction or Release, or to correct any Environmental Law
violation. Licensee specifically acknowledges and agrees that it has an immediate and
independent obligation to defend the City and the other Indemnified City 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, and that said
obligation arises at the time such Claim is tendered to Licensee by the Indemnified City
Party and continues until the Claim is finally resolved.
Without limiting the foregoing, if Licensee or any of its Agents or Invitees causes any
Hazardous Material Release on, about, in or beneath the License Area or other City
Property, then in any such event Licensee shall, promptly, at no expense to any
Indemnified City Party, take any and all necessary actions to return the License Area
and/or other City Property, as applicable, to substantially the same condition existing prior
to such Hazardous Materials Release 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 directly by the City's negligence or willful misconduct.
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 that involves Hazardous
Material Release on or about the License Area. Notwithstanding the foregoing or any
other provision in this Agreement, Licensee shall not be liable or responsible for
environmental or industrial hygiene conditions that existed before the execution of this
Agreement, or that otherwise did not result from the activities of Licensee.
17. INTERFERENCE
17.1. Licensee's Obligations Not to Cause Interference
Licensee will not install, maintain or operate any Equipment in a manner that interferes
with or impairs other communication (radio, telephone, data and/or other transmission or
reception) or computer equipment lawfully used by any persons or entities, which includes
the City and its Agents and Invitees, consistent with applicable FCC rules in place at such
time. Such interference will entitle the City to declare a default under this Master License
and any applicable Permit by Licensee. Upon notice from the City, Licensee shall
promptly work to eliminate such interference at no cost to the City. Licensee will be
required to use its best efforts to remedy and cure such interference without any
impairment to any City operations. If Licensee does not promptly cure such default, the
parties acknowledge that continued interference may cause irreparable injury to the City
43
and, therefore, the City will have the right to bring an action against Licensee to, at the
City's election, immediately enjoin such interference and/or to terminate the Permit where
the Equipment causes interference or impairment to other communications signal
equipment existing at the time of installation of Licensee Equipment.
17.2. Interference Caused by City
City reserves the right, but not the obligation, to maintain and operate its facilities in such
reasonable manner as will best enable City to fulfill its own service requirements or
obligations. However, City agrees that City and/or any other tenants, licensees, or users
of the ROW who currently have or in the future take possession of space within the ROW
will be permitted to install only such equipment that is of the type and frequency that will
not cause interference to the then existing Equipment of Licensee, consistent with the
applicable FCC or other rules in place at such time, and will not interfere with Licensee's
use.
If any change in any use on or about the License Area by the City during the Term results
in measurable, material and adverse impairment to Licensee's normal and lawful
operations, which makes it necessary for Licensee to alter the Equipment to mitigate the
adverse effect, Licensee shall notify the City and provide evidence to substantiate the
claimed impairment. After the City receives such notice, the City will have the right to
make its own reasonable determination and, if it agrees with Licensee, the City will
investigate whether it can reasonably and economically mitigate that interference. The
City will provide notice to Licensee of the City's determination. If the City determines, in
its sole and absolute discretion, that mitigation is reasonably and economically feasible,
the City's notice will specify when the City will mitigate the adverse effect. The City's
mitigation will effect a cure, and the City will not be liable to Licensee in any other way or
be required to take any other measures with respect to the Equipment.
If the City determines, in its sole and absolute discretion, that mitigation is not reasonably
or economically feasible, Licensee may elect either to: (1) terminate the affected Permit
and receive a ratable refund in the License Fee for the Permit terminated after the first
License Year; or (2) take steps itself at its own cost to mitigate the adverse effect and
continue to operate the Equipment on the License Area, and receive from the City a
written waiver from the obligation to pay the License Fee for the first twelve (12) months
in the next License Year under the affected Permit to offset the mitigation costs.
Licensee agrees that the City's temporary and partial License Fee abatement or waiver
under this Section 17.2 will be the only compensation due to Licensee for costs incurred
or otherwise arising from the adverse effect as liquidated damages fully compensating
Licensee for all Claims that may arise from or be related to the adverse effects. Under no
circumstances will the City be required to alter its operations at the identified License Area
or provide a replacement License Area to Licensee
The Parties acknowledge that there will not be an adequate remedy at law for
noncompliance with the provisions of this Section and therefore the Parties shall have the
44
right to equitable remedies such as, without limitation, injunctive relief and specific
performance.
17.3. Interference Caused by City Access
Licensee acknowledges and agrees that it will not be entitled to any License Fee
abatement if the City exercises its rights to access, remove and/or store Equipment under
Section 12 (Public Works' Operations) unless the City's acts or omissions cause Licensee
to be unable to operate Equipment on the License Area for its permitted use for a period
of more than 5 days, in which case, subject to proof, License Fees will be abated ratably
for the entire period that Licensee is unable to operate any Equipment on any affected
License Area calculated from the first day of such City acts or omissions
18. DEFAULT
18.1. Defaults and Cure Periods
Any of the following will constitute an event of default under this Master License and any
Permits issued under it: (1) Licensee fails to pay any License Charge or additional fees
as and when due if the failure continues for 30 days after notice from the City; (2) Licensee
fails to perform or comply with any other material 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, (3)
Licensee, except where otherwise permitted under this Master License, removes its
Equipment or abandons the License Area for a continuous period of more than 60 days,
such that the License Area is no longer being used for the Permitted Use; or (4) any of
the following occurs: (i) the appointment of a receiver due to Licensee's insolvency to take
possession of all or substantially all of the assets of Licensee, (ii) an assignment by
Licensee for the benefit of creditors; or (iii) any action taken by or against Licensee under
any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief Laws, if any
such receiver, assignment, or action is not released, discharged, dismissed, or vacated
within 60 days.
18.2 City's Remedies
In addition to all other rights and remedies available to the City at law or in equity, if
Licensee does not cure its default within the applicable cure period in Section 18.1, then
thereafter City may elect any of the following remedies:
(a) suspend Licensee's access to the City Pole to which the default pertains
and/or terminate the Master License;
(b) suspend the issuance of any further permits under this Master License,
45
(c) terminate the specific Permit(s) or affected portion thereof covering the
City Pole to which the default pertains;
(d) continue in effect the Master License and require Licensee's obligation to
which the default has been declared to be specifically performed; and/or
(e) continue in effect any applicable Permit to which the default pertains, with
the right of the City to enforce all its rights and remedies, which includes without limitation
the right to receive all License Fees, other fees, and other sums as they may become due
and to maintain an action at law against Licensee for damages directly incurred by the
City arising directly from Licensee's uncured default.
18.3. Licensee's Remedies
Except as may be otherwise provided elsewhere in this Master License, in addition to all
other rights and remedies available to Licensee at law or in equity, Licensee's remedy
for the City's uncured default will be: (1) to terminate the Permit(s) affected by the
uncured default on 30 days' prior written notice; and (2) an action for damages subject
to the provisions in Section 15 (Limitations on Liability).
18.4. Cumulative Remedies
Except as otherwise provided in this Master License, all rights and remedies available to
the City or Licensee are cumulative, and not a substitute for, any rights or remedies
otherwise available to the City or Licensee.
19. TERMINATION
19.1. Master License Termination by Licensee
Except as otherwise provided in this Master License, Licensee may not terminate this
Master License during the Initial Term. After the Initial Term, Licensee may, in Licensee's
sole discretion, terminate this Master License on one (1) year's prior written notice to the
City. To avoid any doubts, Licensee may not terminate this Master License within the
Initial Term for any reason other than cause as provided in this Master License.
19.2. Permit Termination by Licensee
(a) A Permit may be terminated by Licensee for any reason or no
reason, and without further liability to Licensee, at any time prior to the Commencement
Date effective upon written notice to the City.
(b) Except as otherwise provided in this Master License, and/or unless
the Master License is terminated, Licensee may not terminate any Permit within the first
License Year. At any time after the first License Year, Licensee may, in Licensee's sole
discretion and for any or no reason, terminate any Permit on 90 days' prior written notice
to the City.
al.
19.3. City's Right to Terminate Permits
The City has the right to terminate any or all Permits on 30 days' prior written notice to
Licensee if the City determines, in the City's sole reasonable judgment, that Licensee's
operations on or about the License Area adversely affect or threaten public health and
safety, materially interfere with the City's municipal functions or require the City to
maintain the City Pole for an applicable Permit that the City no longer needs for its own
purposes.
In the event that the City terminates any Permit for reasons unrelated to Licensee's failure
to perform its obligations under this Master License, the City shall refund any pre -paid
Licensee Fee on a pro-rata basis. In addition, the City shall prioritize Licensee's Permit
application to replace the terminated Permit; provided, however, that (1) the City shall
prioritize only as many Permit Applications equivalent to the number of Permits
terminated by the City and (2) the City's prioritization will not affect Licensee's obligations
under this Master License.
20. ASSIGNMENT AND OTHER TRANSFERS
20.1. General Restriction on Assignment and Other Transfers
Except as specifically provided in Section 20.3 (Permitted Assignments), Licensee shall
not directly or indirectly assign or transfer its interests or rights, whether in whole or in
part, in connection with this Master License, any Permit or the License Area without the
City's prior written consent, which consent shall not be unreasonably withheld,
conditioned, or delayed.
20.2. General Assignment and Other Transfer Procedures
20.2.1. Proposed Assignment Notice
In the event that Licensee desires to assign or otherwise transfer any right, title or interest
in this Master License or any Permit, whether in whole or in part, and such assignment or
other transfer is not a Permitted Assignment, Licensee shall first send written notice to
the City (the "Proposed Assignment Notice"), which states in detail the proposed terms
and conditions for the proposed assignment or other transfer and complete information
that the City reasonably requires to fully evaluate Licensee's request and render an
informed decision, which includes without limitation, non -confidential financial
statements, business track records, references and other information about the proposed
assignee or transferee (the "Proposed Assignee"). In the event that Licensee does not
provide all the such information simultaneously with the Proposed Assignment Notice, the
Proposed Assignment Notice shall not be deemed effective until Licensee delivers all
such information as the City may reasonably require.
47
20.2.2. City's Response to Proposed Assignment Notice
The City shall approve or disapprove any request for consent to an assignment or other
transfer within 30 days after the City receives a complete Proposed Assignment Notice
(the "Assignment Response Period"). The City shall not unreasonably withhold
approval if the proposed assignee has a demonstrated ability to perform all the obligations
of Licensee under this Master License and any Permit issued hereunder. Notwithstanding
anything in this Master License or any Permit to the contrary, the City may, in its sole and
absolute discretion, refuse consent to any assignment to a Proposed Assignee with (i)
liquid assets or other immediately available funds less than Ten Million Dollars
($10,000,000); (ii) any history of discrimination or other employment practices that conflict
with the City's non-discrimination policies; or (iii) any pending or past criminal convictions
or civil judgements that would impugn or damage the City's reputation by association with
said Proposed Assignee. If the City delivers to Licensee written consent to the proposed
assignment or other transfer, then Licensee shall have 100 days from such written
consent to complete the assignment or other transfer. The City's consent will be deemed
to be automatically revoked if Licensee fails to complete the proposed assignment or
other transfer within said 100-day period; provided, however, that the 100-day period may
be extended to a date certain in a written agreement, which the City shall not
unreasonably refuse if the extension is necessitated by circumstances outside Licensee's
control.
20.3. Permitted Assignments
20.3.1. General Authorization
The City agrees that Licensee will be permitted to assign or otherwise transfer this Master
License and any Permit(s) issued under it without the City's prior consent but with notice
to the City as provided below, to: (1) an Affiliate; (2) an entity that acquires all or
substantially all Licensee's assets in the market in which the License Area is located (as
the "market area" is or may be defined by the FCC); (3) an entity that acquires a
Controlling interest of Licensee by a change in stock ownership or partnership interest;
(4) an entity Controlled by Licensee; or (5) an entity that is a successor to Licensee either
by merger or other consolidation of Licensee (each such assignment or transfer, a
"Permitted Assignment").
20.3.2. Conditions on Permitted Assignments
All Permitted Assignments will be subject to all the following conditions: (1) the Proposed
Assignee may use 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; (2) Licensee or its assignee provides the City notice of the Permitted Assignment
no later than thirty (30) days before the date of the assignment and assumption of the
Master License or the applicable Permits; and (3) Licensee is not in default of its
obligations under this Master License beyond any applicable notice and cure period.
48
20.4. Effect of Assignment or Other Transfer
No assignment or other transfer by Licensee, consent to assignment by the City, or
Permitted Assignment under Section 20.3 (Permitted Assignments) will relieve Licensee
from any obligation on its part under this Master License or any Permit unless the
Proposed Assignee agrees in writing to assume all of Licensee's obligations under the
Master License and Permits. Any assignment or other transfer that is not in compliance
with this Master License will be void and be a material default by Licensee 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 or other transfer, recognition of any assignee or
transferee or waiver of any failure of Licensee or other transferor to comply with this
Section 20 (Assignments and Other Transfers).
20.5. Assumption by Assignee or Transferee
Each Proposed Assignee shall assume all Licensee's obligations under this Master
License and each assigned Permit. Except for a Permitted Assignment, no assignment
or other transfer will be binding on the City unless Licensee or the Proposed Assignee
delivers to the City evidence satisfactory to the City that the Proposed Assignee has
obtained all Regulatory Approvals required to operate as a wireless communications
service provider on the assigned License Area, a copy of the assignment or other transfer
agreement and an instrument in recordable form that contains a covenant of assumption
by such Proposed Assignee satisfactory in substance and form to the City, consistent
with the requirements in this Section 20 (Assignment and Other Transfers). However, the
failure or refusal by a Proposed Assignee to execute such instrument will not release such
Proposed Assignee from its liability as set forth in this Section. Except for a Permitted
Assignment as provided in Section 20.3 (Permitted Assignments), Licensee shall
reimburse the City on demand for any reasonable costs that the City incurs in connection
with any proposed assignment, which includes the costs to investigate the acceptability
of the Proposed Assignee and legal costs incurred in connection with considering any
requested consent.
21. DAMAGE OR DESTRUCTION OF LICENSE AREA
21.1. City's Rights after Damage or Destruction
21.1.1. City's Election to Repair or Replace City Pole
Within 30 days after the date on which the City discovers damage or destruction on or
about any City Pole and/or License Area, the City will give Licensee notice of the City's
decision as to whether to repair or replace the damaged City Pole and/or License Area
and its good faith estimate as to the time the City will need to complete the work. Licensee
is not responsible for any damage or destruction not caused by Licensee, its Agent and/or
Invitees or outside of Licensee's control. If the City's time estimate exceeds 30 days, or if
49
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 Permit(s) immediately upon written notice to the City.
21.1.2. City's Election to Remove City Pole
If the City elects to remove, rather than repair or replace, any damaged City Pole or
License Area licensed to Licensee, then the applicable Permit will automatically terminate
on the last day of the month in which the removal occurs.
21.1.3. City's Election to Remove Equipment
If the acts by third parties or other force majeure circumstance outside the Licensee's or
its Agent's or Invitee's control destroys or damages any City Pole, License Area or other
City Property to such an extent that, in the City's reasonable determination, the
Equipment on the City Pole, License Area or other City Property cannot be operated, the
City and/or Licensee may decide to terminate the affected Permit on 30 days' notice to
the other party. Upon such termination, Licensee shall remove the Equipment from the
damaged City Pole within 90 days of such notice.
21.2. Licensee's Rights after Termination
After any termination of a Permit pursuant to Section 21.1 (City's Rights After Damage or
Destruction), the City will: (1) refund any pre -paid License Fee in connection with the
terminated Permit on a pro-rata basis determined by the number of months left in the
current License Year at the time such termination occurs, unless the termination occurs
in the first 12 months after the Commencement Date; and (2) prioritize Licensee's Permit
application for one replacement Permit for each such license terminated by the City.
21.3. Licensee's Statutory Waiver
The parties understand, acknowledge and agree that this Master License fully governs
their rights and obligations in the event that any licensed City Pole and/or License Area
becomes damaged or destroyed, and, to the extent applicable, the City and Licensee
each hereby waives and releases the provisions in California Civil Code §§ 1932(2) and
1933(4), as either may be amended or superseded, or any similar Laws.
22. Condemnation
22.1. Permanent Takings
In the event that any person or entity with the power to condemn permanently takes any
License Area, in whole or in part, or in the event that the City transfers any License Area
in whole or in part to such entity in lieu of eminent domain, the City must make a good -
faith effort to provide 60 days prior written notice to Licensee of any proposed taking and
the following provisions will apply:
50
22.1.1. Termination Rights after Condemnation
Any affected Permit will automatically terminate as to the part taken or transferred on the
date the permanent taking or transfer occurs. At the same time, the License Fee under
the affected Permit will be ratably reduced to account for the reduction in License Area.
Notwithstanding the forgoing, Licensee shall have the right to terminate any Permit upon
30-days written notice to the City if Licensee determines in its sole discretion that any
such condemnation (or other transfer in lieu of condemnation) will interfere with
Licensee's operations.
22.1.2. Award
The City will be entitled to any award paid or made in connection with the taking or any
sums paid in lieu of such taking. Licensee will have no Claim against the City for the value
of any unexpired Term under either this Master License, any Permit or otherwise except
that Licensee may claim any portion of the award that is specifically allocable to
Licensee's loss or damage to Licensee's Equipment.
22.1.3. No Statutory Right to Terminate
The parties understand, acknowledge and agree that this Section 22.1 (Permanent
Takings) is intended to fully govern the parties' rights and obligations with respect to a
permanent taking for which just compensation is due. Licensee and the City each hereby
waives and releases any right to terminate this Master License and or Permit in whole or
in part under California Code of Civil Procedure §§ 1265.120 and 1265.130, as both may
be amended or superseded, and under any similar Laws to the extent applicable to this
Master License and the Permit(s).
22.2. Temporary Takings
Any taking that affects any License Area or City Pole, in whole or in part, for less than 30
days will have no effect on the affected Permit, except that Licensee may be entitled to a
pro-rata abatement in the applicable License Fee to the extent that such temporary taking
materially impairs Licensee's ability to use the City Pole.
23. RECORDS MAINTENANCE AND AUDITS
Licensee shall maintain throughout the Term (and for at least four years after this
License expires or terminates) the following records in physical format at Licensee's
office and in an electronic format: (a) identification information and physical location
(e.g., a physical address and/or GPS coordinates) for all Equipment within the City's
territorial and/or jurisdictional boundaries; (b) a ledger or other similar document that
contains the amount, payment date and reason for all sums paid to the City pursuant to
this License; (c) true and correct copies of all as -built plans, maps and Regulatory
51
Approvals in connection with the Equipment; (d) copies of all insurance policies,
endorsements and other related documents required to be obtained and maintained;
(e) all correspondence with the City in connection with any matter related to this Master
License. To determine whether Licensee has fully and accurately paid all sums payable
to the City under this License, if any, and to determine whether Licensee has complied
with its other obligations, the City will have the right (but not the obligation) to inspect,
audit and make copies of Licensee's records at Licensee's Office during regular
business hours on 10 days' notice to Licensee.
In the event that any such inspection or evaluation concludes that Licensee installed
Equipment without proper authorization or that five percent (5%) or more sites were not
installed in substantial compliance with the Approved Plans or all applicable Laws,
Licensee shall reimburse the City for the reasonable, actual and documented costs and
expenses to conduct the investigation or evaluation.
24. RULES AND REGULATIONS
At all times throughout the Term, Licensee shall fully and faithfully comply with any and
all reasonable rules, regulations and instructions that the City may from time -to -time
establish and/or amend with respect to the License Area and/or the City Pole(s), as long
as they are provided in advance to Licensee and not inconsistent with the terms of this
Master License, any Permit or applicable Law.
25. SURRENDER OF LICENSE AREA
25.1. Licensee's Removal and Restoration Obligations
No later than sixty (60) days after this Master License or any Permit expires or terminates,
as the case may be, Licensee shall (1) remove its Equipment from the License Area(s)
affected by the expiration or termination; (2) restore any such License Areas and other
City Property affected by the removal to the condition that existed immediately before
Licensee installed its Equipment, reasonable wear and tear and loss by casualty or other
causes beyond Licensee's control excepted; and (3) surrender such License Areas to the
City free and clear from any debris, hazards, liens and encumbrances caused by
Licensee. The City may, in its sole discretion, grant an additional thirty (30) days for
Licensee to fulfill its obligations as set forth in this Section 25.1. The obligations under
this Section 25.1 will survive this Master License's or any Permit's expiration or
termination.
25.2. Abandonment
At its option, the City may deem any Equipment to be abandoned that remains on any
City Pole, License Area or other City Property for more than 60 days after this Master
License or any applicable Permit expires or terminates. In any case, the City may dispose
of abandoned Equipment in any lawful manner, at Licensee's sole cost. Licensee agrees
that California Civil Code sections 1980 et seq., as may be amended or superseded, and
52
similar Laws addressing abandoned property by residential or commercial tenants do not
apply to any abandoned Equipment.
25.3. Hold Over
If Licensee fails to surrender the License Area under a particular Permit as required in
this Master License, and the City consents to Licensee's holdover, the Term will be
automatically extended for such Permit on a month -to -month basis for up to one (1) year
on the same terms and conditions, except that the License Fee shall automatically
increase by one hundred twenty-five percent (125%) over the then -current License Fee.
Any further month to month holdover after one (1) year will be subject to a License Fee
increase of 150% over the License Fee in effect at the start of the holdover. Any holdover
without the City's consent will be a default by Licensee and will entitle the City to exercise
any or all rights and remedies.
26. Security Instruments
26.1. Faithful Performance/Labor and MaterialsNVarranty Security
Prior to any installation, construction or other work performed by Licensee pursuant to
this Master License or any Permit, Licensee shall furnish the City with a security in the
form of a surety bond or letter of credit or another form of security approved by the City
as follows:
(a) Faithful Performance Security: Fifteen Thousand and 00/100 Dollars ($15,000.00) per
City Pole as security to provide recourse for the City in the event that Licensee defaults
on its performance obligations under this Master License; (b) Labor and Materials
(Payment) Security: Fifteen Thousand and 00/100 Dollars ($15,000.00) per City Pole as
security to provide recourse for the City in the event that Licensee defaults on payment
of its contractors, subcontractors, laborers and suppliers; (c) Maintenance Warranty
Security: Amount shall be equal to 25% of the original Faithful Performance Security to
cover Licensee's maintenance obligations.
26.2 Cash Deposit
In lieu of obtaining a security, Licensee shall have the right to instead make a cash
deposit with Licensor securing Licensee's security obligations under the Master License.
26.3. Security Amount Replenishment
In the event that the City applies or uses any of the security amounts, in whole or in part,
to cure any default by Licensee, then Licensee shall replenish the security amounts to
their original required amounts ,within thirty (30) business days following Licensee's
receipt of written notice from the City that the City has applied or used the security. The
City may, in its absolute sole discretion require Licensee to increase any of the security
amounts from time -to -time if the City determines that Licensee has been habitually placed
in default of its obligations under this Master License.
53
26.4. Use of Security
Licensee agrees that the City may use the security, in whole or in part, to remedy any
failure by Licensee to perform any term, covenant or condition of this Master License. In
the event that the City uses the security amounts in whole or in part, the City will not be
deemed to have waived any rights under this Master License, or legal or equitable rights
whatsoever. Licensee expressly waives any rights it may have under California Civil Code
§ 1950.7, as may be amended or superseded, or any similar Laws and agrees that the
City may retain from any security any portion reasonably necessary to compensate the
City for any foreseeable or unforeseeable loss or damage caused by Licensee's, its
Agents' or Invitee's acts or omissions.
26.5 Construction Cash Deposit
A construction cash deposit of $10,000 is also required. Charges will be made against
this deposit if there is an emergency call -out, overtime inspection or when City ordered
barricading is required. Any such costs in excess of the deposit will be billed to the
Licensee. Refund of the construction cash deposit balance and refund or cancellation of
the applicable securities will be initiated by the written acceptance of the work by the City.
27. Miscellaneous Provisions
27.1 Notices
Except as may be specifically provided otherwise in this Master License, all notices,
demands or other correspondence required to be given in connection with or pursuant to
this Master License must be written and delivered through (i) an established national
courier service that maintains delivery records and confirmations; (ii) hand delivery; or (iii)
overnight Federal Express or priority U.S. Mail, and addressed as follows:
TO CITY: City of Campbell
Attention:
With a required copy to: City of Campbell
Attention: City Attorney
TO LICENSEE:
With a required copy to:
54
All notices, demands or other correspondence in connection with this Master License
shall be deemed effective upon delivery or refusal of delivery. Telephone, facsimile and
email information are provided for convenience and for couriers who may require such
information, and any notice given solely through electronic means will not be deemed to
be effective notice. Any copies required to be given constitute an administrative step for
the parties' convenience and not actual notice. The parties may change the notice
addresses above from time -to -time through written notice to the addresses above or the
then -current notice address.
27.2. Waivers
No failure by either the City or Licensee to insist that the other strictly perform any
obligation, term, covenant or condition under this Master License or to exercise any rights,
powers or remedies in connection with the other party's failure to strictly perform such
obligation, term, covenant or condition no matter how long the failure to insist on such
performance or exercise such rights, powers or remedies, will be deemed to waive any
default for non-performance. No behaviors, patterns or customs that may arise between
the parties with respect to their performance required under this Master License will be
deemed to waive any rights, powers or remedies the parties' may have to insist on strict
performance. Neither Licensee's payment nor the City's or its Agents' acceptance of any
License Fees, Additional Fees or any other sums due to the City or its Agents under this
Master License during any such default will be deemed to cure any such default, waive
the City's right to demand material compliance with such obligation, term, covenant or
condition or be deemed to be an accord and satisfaction for any Claim the City may have
for further or additional sums. Any express waiver by either the City or Licensee in
connection with any default or obligation to perform any provision, term, covenant or
condition under this Master License will: (i) be limited to the specific default or
performance for which the express waiver is granted; (ii) not be deemed to be a continuing
waiver; and (iii) not affect any other default or performance no matter how similar or
contemporaneous such other default or performance may be. The City's or Licensee's
consent given in any specific instance in connection with or pursuant to this Master
License will not relieve the City or Licensee from the obligation to secure the other's
consent in any other or future specific instances, no matter how similar or
contemporaneous the request for consent may be.
27.3. Integration; Amendments
This Master License, and any attachments hereto, constitute the entire agreement and
understanding between the parties, and supersedes any and all prior agreements and
understandings, whether written or oral, with respect to the subject matter covered in this
Master License. This Master License and any Permit (and any default in connection with
this Master License or any Permits) may not be changed, waived, discharged, altered,
modified, amended or terminated, except by a written instrument signed by both parties.
27.4. Interpretation
55
The parties acknowledge and agree that the following interpretive rules will be applicable
to this Master License and any Permit:
27.4.1. Joint and Several Liability
In the event that the City consents to enter into this Master License or Permit with more
than one Licensee, which consent the City may withhold or condition in the City's sole
and absolute discretion, the obligations and liabilities imposed on Licensee under this
Master License will be joint and several among the multiple Licensees to this Master
License and/or Permit.
27.4.2. Captions and Other Reference Material
The section captions in this Master License and the table of contents have been included
for the parties' convenience and reference and neither the captions nor the table of
contents in no way define or limit the scope or intent of any provision in this Master
License.
27.4.3. Time
References in this Master License to "days" mean calendar days, unless specifically
provided otherwise. A "business day" means a day other than a Saturday, Sunday or a
bank or City holiday. If the last day in 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 giving notice, replying to the notice or undertaking any other action will be the next
business day. Except as modified in this Section, time is of the essence with respect to
all provisions in this Master License for which a definite time for performance is specified.
27.5. Successors and Assigns
Except as may be expressly provided in this Master License, the conditions, covenants,
promises and terms contained in this Master License will bind and inure to the benefit of
the City and Licensee and their respective successors and assigns.
27.6. Governing Law; 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 Campbell, County of Santa Clara,
State of California. Any action concerning this Master License must be brought and heard
in the Superior Court for the County of Santa Clara or the United States District Court,
Northern District of California if federal law applies.
27.7. Litigation Fees and Costs
56
In the event the City or Licensee prevails in an action to enforce its rights under this
Master License or individual Permit, the prevailing shall be entitled to recover its costs
and expenses, including reasonable attorneys' fees, incurred in connection with such
action.
27.8. No Third -Party Beneficiaries
Neither this Master License nor any Permit is intended to (and shall not be construed to)
give any third party, which includes without limitation Licensee's customers or any other
third -party beneficiaries, any right, title or interest in this Master License, any Permit or
the real or personal property(ies) that may be affected by the same.
27.9. Survival
All terms, provisions, covenants, conditions and obligations in this Master License and
any Permit will survive this Master License's or the subject Permit's expiration or
termination when, by their sense or context, such provisions, covenants, conditions or
obligations: (1) cannot be observed or performed until this Master License's or any
Permit's expiration or earlier termination; (2) expressly so survive; or (3) reasonably
should survive this Master License's or any Permit's expiration or earlier termination.
Notwithstanding any other provision in this Master License or any Permit, the parties
rights to enforce any and all indemnities, representations and warranties given or made
to the other party under this Master License, any Permit or any provision in this Master
License or any Permit will not be affected by this Master License or any Permit expiration
or termination.
27.10. Severability
If any provision in this Master License, any Permit or such provision's application to any
person, entity or circumstances is or held by any court with competent jurisdiction to be
invalid or unenforceable: (1) such provision or its application to such person, entity or
circumstance will be deemed severed from this Master License or any Permit; (2) all other
provisions in this Master License, any Permit or their application to any person, entity or
circumstance will not be affected; and (3) all other provisions in this Master License, any
Permit or their application to any person, entity or circumstance will be valid and
enforceable to the fullest extent permitted by Law, except to the extent that such
enforcement would (a) be manifestly unreasonable or manifestly inequitable under all the
circumstances or (b) undermine one or both parties' fundamental purpose in entering this
Master License.
27.11 Jointly Drafted
This Master License has been jointly negotiated and, although formulated at the outset
by counsel for the City, the Master License has been reviewed by counsel for Licensee,
and each such counsel has participated in the preparation of the final Master License.
The language of this Master License shall be construed as a whole according to its fair
57
meaning and not strictly for or against any party, and it is agreed that no provision hereof
shall be construed against any party hereto by virtue of the activities of that party or such
party's attorneys.
27.12 Authority
The undersigned hereby represent and warrant that he/she has full authority to execute
this Master License on behalf of the Licensee or the Licensor, respectively.
[END OF MASTER LICENSE — SIGNATURE PAGE APPEARS ON NEXT PAGE]
58
IN WITNESS WHEREOF, the City and Licensee executed this Master License on
the Effective Date:
THE CITY:
City of Campbell,
a California municipal corporation
City Manager
Date:
APPROVED AS TO FORM:
By:
City Attorney
Date:
APPROVED BY CITY COUNCIL
RESOLUTION NO.
ATTEST:
By:
City Clerk
Date:
LICENSEE:
a
limited liability company
By:
Its: Manager
By:
Name:
Title:
Date:
[END OF SIGNATURE PAGE — EXHIBITS & SCHEDULES BEGIN ON NEXT PAGE]
59
EXHIBIT A
FEE SCHEDULE
1. Annual License Fee Per Pole
a. Initial Fee: The Licensee Fee payable for Licensee's Equipment located on the
City's Pole, in connection with each Pole License/Small Cell Wireless Permit)
shall be a minimum $270 per City Pole for the first year from the effective date of
the License.
b. Annual Increases: The License Fee shall increase annually on the first
anniversary of the Effective Date of the Pole License at the rate of Three Percent
(3%) until the Pole License or Master License Term expires.
C. Additional administrative fees and costs related to inspecting Licensee's
Equipment or License Area related to this License will be charged at the following
hourly rates: $230/hour, adjusted annually.
d. Additional Actual Costs: Licensee acknowledges that the City reserves the right
to seek the City's documented actual costs associated with Licensee's use of the
City's conduits and/or electrical circuits serving the City Pole as part of City's
Costs.
2. Pole License/Small Cell Wireless Permit Application Fee
a. The Pole License/Small Cell Wireless Permit Application Fee for reviewing and
processing based on reasonable costs is a minimum of $8,000 for 35 hours of
staff time.
b. Any additional actual costs relating to processing the Permit Application will be
charged at the following hourly rates: $230/hour, adjusted annually.
C. Annual Increases: All Permit Application fees and staff hourly rates are subject to
annual increases and adjustment based on a determination of the actual and
reasonable costs relating to the processing of the Permit Application, and/or
based on Council resolution and approved fee schedule.
d. Master License Administrative Fee - $8,000 plus actual additional costs.
e. Other Administrative Permit Fees - as set by Council Resolution
Exhibit B
LICENSEE'S INSURANCE OBLIGATIONS
Licensee shall procure and maintain for so long as may be necessary to fully protect the
Licensor and, in any event, for at least the duration of the Agreement and all Pole
License/Small Cell Wireless Permit, the following insurance coverage, with no less than
the specified minimum limits. The cost of such insurance shall be borne by Licensee.
Such coverage shall fully conform to these Insurance Requirements.
A. Minimum Scope and Limit of Insurance
(1) Commercial General Liability (CGL): coverage must be at least as broad as
Insurance Services Office (ISO) Form CG 00 01 covering CGL on an "occurrence" basis,
including, but not limited to, products and completed operations, contractual liability,
broad form property damage, including damage to licensed area, injury to or destruction
of Licensor's property, death, bodily injury and personal and advertising injury, coverage
for explosion, collapse and underground damages, and limited pollution liability
endorsement, with limits no less than $5,000,000 per occurrence, $10,000,000
aggregate.
(2) Automobile Liability on an "Any Auto" Basis: coverage must be at least as broad
as ISO Form CA 00 01 covering any auto (Code 1), or if Licensee has no owned autos,
hired, (Code 8) and non -owned autos (Code 9), with limit no less than $1,000,000
combined single limit each occurrence/per accident for bodily injury and property damage.
(3) Workers' Compensation insurance as required by the State of California, with
Statutory Limits, and Employer's Liability Insurance: with limits of no less than $1,000,000
per accident for bodily injury or disease — policy limit, $1,000,000 disease — each
employee. The Workers Compensation policy shall be endorsed with a waiver of
subrogation in favor of Licensor (and its officials, officers, employees, volunteers and
agents). The insurers shall agree to waive all rights of subrogation against Licensor and
its officials, officers, employees, volunteers, and agents for all work performed by
Licensee and its employees, agents, and contractors.
(4) "All Risk" Property Insurance: against all risks of loss or damage to any Licensee
Small Cell Facility(ies) and Equipment or betterments, personal property, trade fixtures,
equipment, and/or merchandise located in, on, at, under, above, or about the City's ROW,
License Area, and/or City Pole(s) (including, but not limited to, loss resulting from fire,
windstorm, hail, lightning, vandalism, malicious mischief, and such other perils ordinarily
included in extended coverage casualty insurance policies). Such insurance shall be
maintained with limits no less than $2,000,000 or in an amount sufficient to cover not less
than one hundred percent (100%) of the full replacement value thereof (whichever is
greater) with no coinsurance penalty provision.
(5) Professional Liabilitv: (Applicable to all contractors and subcontractors of any tier
performing any professional services including engineers, surveyors, or consultants
relating to this agreement) with limits no less than $2,000,000 per occurrence or claim,
and $2,000,000 policy aggregate.
(6) Pollution Liability: coverage include pollution condition with limits no less than
$2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
B. Other Insurance Provisions.
(1) Required Endorsements and Provisions. All insurance required to be carried by
Licensee (and/or its contractors and subcontractors, if applicable) shall be subject to the
Licensor's reasonable approval. The CGL insurance policy (and the Contractor's
Pollution Liability policy if the work includes abatement, removal, remediation,
transportation or disposal 'of HTC Material), Automobile Liability insurance policy, and any
and all excess or umbrella insurance policies are to contain, or be endorsed to contain,
the following provisions:
(a) Additional Insured Status. The City of Campbell, its officials, officers,
employees, agents, and volunteers ("Additional Insureds") are to be covered as additional
insureds with respect to liability arising out of work, activities, use, or operations
performed by, under the direction of, or on behalf of Licensee, including, but not limited
to, materials, parts, and/or equipment furnished in connection with such work or
operations and automobiles owned, leased, hired, or borrowed by or on behalf of
Licensee.
(2) Primary Coverage. For any Claims related to the Master License and/or any Pole
License/Small Cell Wireless Permit(s), the License Area, the City's ROW, and/or any City
Pole and/or the improvements located thereon, Licensee's insurance coverage shall be
primary insurance as respects the Licensor and other Additional Insureds. Any insurance
or self-insurance maintained by the Licensor or other Additional Insureds shall be excess
of Licensee's insurance and shall not contribute with it.
(3) Notice of Cancellation. Licensee shall notify (and shall use all commercially
reasonable efforts to have its insurers notify) Licensor not less than thirty (30) days prior
to cancellation (for any reason) of any of the insurance policies required to be maintained
by Licensee under the Agreement.
(4) Deductibles and Self -Insured Retentions. Any deductibles or self -insured
retentions must be declared to and approved by the Licensor. Licensor may require the
Licensee (and/or applicable contractor) to purchase coverage with a lower retention or
provide proof of ability to pay losses and related investigations, claim administration, and
defense expenses within the retention. The policy language shall provide, or be endorsed
to provide, that the self -insured retention may be satisfied by either the named insured or
Licensor.
(5) Claims Made Policies. If any insurance coverage required in the Master License
is written on a "claims made" policy: (a) the retroactive date must be shown, and this date
must be before the execution date of the contract or the beginning of contract work; (b)
insurance must be maintained and evidence of insurance must be provided for at least
the duration of the Master License (and the applicable Permit(s)) and five (5) years after
completion of the subject work; (c) if coverage is canceled or non -renewed, and not
replaced with another claims -made policy form with a retroactive date prior to the contract
effective; or start of work date, Licensee must purchase extended reporting period
coverage for a minimum of five (5) years after completion of any work; and (d) a copy of
the claims reporting requirements must be submitted to the Licensor for review.
(6) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best rating of no less than A-: VII, unless otherwise acceptable to the Licensor.
(7) Verification of Coverage.1 Licensee shall furnish the Licensor with a certificate of
the insurance (ACORD form 25S) and amendatory endorsements, or copies of the
applicable insurance language! effecting coverage required by the Master License,
satisfactory to Licensor, evidencing that the coverage required under this Master License
is in place, and stating policy numbers, dates of expiration, and required limits of liability
thereunder. All certificates and endorsements are to be received and approved by the
Licensor before Licensee enters the City's ROW, License Area, or any City Pole and
before any work in, on, over, under, across, at, or about the City's ROW, License Area,
or any City Pole commences and thereafter upon renewal of such policies prior to the
expiration of the term of such coverage.
(8) Waiver of Subrogation. Licensee hereby grants to Licensor a waiver of any right
to subrogation which any insurer of said Licensee may acquire against the Licensor by
virtue of the payment of any loss under such insurance. Licensee agrees to obtain any
endorsement that may be necessary to affect this waiver of subrogation, but this provision
applies regardless of whether or not the Licensor has received a waiver of subrogation
endorsement from the insurer. 1.
(9) Contractors and Subcontractors. Licensee shall require and verify that all
contractors and subcontractors (if any) maintain the same insurance limits as required of
Licensee.
I
(10) Special Risk or Circumstances. Licensor reserves the right to modify these
insurance requirements at any'time, including, but not limited to, limits, based on the
nature of the risk, prior experience, insurer, coverage, or other special circumstances.