HomeMy WebLinkAboutReso 188-2020 (20-916)City of South San Francisco P.O. Box 711 (City Hall,
• 400 Grand Avenue)
South San Francisco, CA
City Council
' Resolution: RES 188-2020
File Number: 20-916 Enactment Number: RES 188-2020
RESOLUTION APPROVING AND AUTHORIZING
THE CITY MANAGER TO EXECUTE THREE
AGREEMENTS FACILITATING A PUBLIC PRIVATE
PARTNERSHIP WITH GTE MOBILNET OF
CALIFORNIA LIMITED PARTNERSHIP, D/B/A
VERIZON WIRELESS
WHEREAS, digital technology and telecommunications infrastructure have grown rapidly in
all segments of society, and have become an essential aspect in the daily lives and operations of residents
and businesses in the City of South San Francisco ("City"); and
WHEREAS, high quality telecommunication and digital services support economic and
educational development education, and promotes equal access to opportunities and a higher standard of
living; and
WHEREAS, advanced telecommunications infrastructure is also essential for the City to
perform its governmental functions, provide emergency services, and sustain many other municipal
operations; and
WHEREAS, the City of South San Francisco ("City") has been receiving inquiries from
multiple wireless services and telecommunication service providers interested in deploying fiber optic
cables and new "small cell" facilities used to enhance current 4G cellular technology and employ future
5G technology within the City right-of-way, all of which would provide enhanced telecommunications
services throughout the community; and
WHEREAS, in 2018, the City adopted a small cell wireless ordinance and approved a template
master license agreement to generally establish a comprehensive set of requirements and standards to
regulate small cell facilities development, siting, installation, operation, and termination of operation,
and also specifically impose requirements for wireless deployments on City -owned light poles in the
public right-of-way; and
WHEREAS, in 2019, the City also adopted an open trench ordinance to proactively develop its
broadband network and resources to support its municipal operation, a growing population and economy,
and to provide incentives for collaborative projects in the right of way to reduce the present and
long-term impact of construction and excavation work on City streets and sidewalks; and
WHEREAS, under California law, wireless providers have the authority to install and maintain
lines and equipment in the public right-of-way to provide wireless telecommunications services; and
WHEREAS, the City also has the authority under state law to exercise reasonable control as to
the time, place, and manner in which roads, highways, and waterways are accessed; and
City of South San Francisco Page 1
File Number. 20-916
Enactment Number: RES 188-2020
WHEREAS, the City and GTE Mobilnet of California Limited Partnership, d/b/a Verizon
Wireless ("Verizon") have been in discussion to pursue a Public -Private -Partnership ("PPP") for the
deployment of wireline and wireless infrastructure within South San Francisco for the advancement of
such telecommunication and digital technology and services; and
WHEREAS, the proposed PPP aims to promote "smart city" technologies and to facilitate the
installation of fiber optic and wireless infrastructure throughout the City to promote digital connectivity
and telecommunication capacities within the community; and
WHEREAS, the PPP would serve the common goals of the City, its residents, and the business
community; and
WHEREAS, specifically, the PPP consists of a Strategic Joint Development Agreement
("SJDA"), a Conduit Occupancy Agreement ("COA"), and a Small Cell Master License Agreement
("MLA"); and
WHEREAS, the SJDA sets forth the basic framework for the PPP, provides for a contribution
of Six Hundred Thousand Dollars ($600,000) by Verizon to the City, and sets froth the general terms for
wireless and wireline deployments by Verizon within the City; and
WHEREAS, the COA, which is incorporated as a part of the SJDA, sets forth the specific
terms and conditions relating to Verizon's deployment of fiber optic cables and lease of City -owned
conduits that are in existence on or before July 2020; and
WHEREAS, the MLA, which is also incorporated as a part of the SJDA, sets forth the specific
terms and conditions relating to Verizon's deployment of small cell wireless facilities on City -owned
light poles in the public right of way, including terms such as requiring Verizon to pay license fees and
administrative processing fees for processing of applications, compliance with design guidelines, and
securing regulatory approvals; and
WHEREAS, the proposed PPP is consistent with the City's Strategic Plan to improve Quality
of Life for the community, and would provide opportunities to expand digital connections,
telecommunication services, and promote business opportunities and development.
NOW, THEREFORE, the City Council of the City of South San Francisco does hereby resolve
as follows:
1. The Recitals set forth above are true and correct, and are incorporated herein by reference.
2. The Strategic Joint Development Agreement,
Master License Agreement, attached hereto
Resolution, are approved by the City Council.
Conduit Occupancy Agreement, and Small Cell
respectively as Exhibits A, B and C to this
3. The City Manager is hereby authorized to execute the agreements in Exhibits A, B and C on
behalf of the City Council, and to make minor revisions to the agreement, with review and
approval by the City
City of South San Francisco Page 2
File Number. 20-916
Enactment Number: RES 188-2020
Attorney, which do not materially or substantially increase the City's obligations thereunder; to
sign all documents; to make all approvals and take all actions necessary or appropriate to carry
out and implement the intent of this Resolution.
E3
At a meeting of the City Council on 12/9/2020, a motion was made by Councilmember Nicolas, seconded by
Vice Mayor Nagales, that this Resolution be approved. The motion passed.
Yes: 4 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, and
Councilmember Coleman
Attest by
Li.. �&. , 'k—
iosa Govea Acosta, City Clerk
City of South San Francisco Page 3
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 1
STRATEGIC JOINT DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND
VERIZON WIRELESS
THIS STRATEGIC JOINT DEVELOPMENT AGREEMENT IS ENTERED INTO AS OF THE DATE OF
THE FULL EXECUTION BELOW (THE "EFFECTIVE DATE") BY AND BETWEEN:
The City of South San Francisco, a general law municipal corporation (the "City"); and Verizon
Business Network Services Inc., a Delaware corporation with its principal offices at One Verizon Way,
Basking Ridge, New Jersey, 07920, GTE Mobilnet of California Limited Partnership, d/b/a Verizon
Wireless, a California limited partnership with its principal offices at One Verizon Way, Basking Ridge,
New Jersey, 07920, and their Affiliates (collectively, "Verizon"). The City and Verizon may be referred
to herein collectively as the “Parties” and individually as a “Party.”
BACKGROUND
A. Verizon and the City have identified several key areas of focus for the community: building a
digitally connected community; driving economic development and enhancing the availability of an
advanced high-speed, high-capacity telecommunications network to the citizens and guests of the City.
Through the joint development framework presented in this Agreement, the Parties’ collective assets
and expertise can meaningfully impact those key areas for the community.
B. The City and Verizon share a mutual interest in the accelerated deployment of an enhanced fiber
and an advanced wireless network, including without limitation, Small Cell Facilities, in order to provide
residents, visitors and businesses located in the City with the benefits of a state-of-the-art connected
community. This undertaking will accelerate the deployment of such infrastructure and technology and
is the first step toward a 5G deployment in the City..
C. Given such mutual interest, Verizon and the City desire to form a mutually beneficial strategic
relationship in the form of a joint development to facilitate the planning, implementation and
management of the accelerated deployment of fiber, as well as a wireless network of Small Cell
Facilities, in designated areas of the City (the "Collaboration"), under the terms of this Agreement, as
described herein, including in its addendums, exhibits or statements of work (“Attachments”) which are,
or will be, attached hereto and incorporated herein by reference (together, the “Agreement”).
NOW THEREFORE, BE IT RESOLVED BY THE PARTIES THAT, in order to give effect to the
Collaboration, Verizon and the City agree as follows:
1. RELATIONSHIP OBJECTIVES
1.1 Primary Agreement Purpose. By participating in this Agreement, the Parties shall
have opportunity to realize mutually beneficial outcomes that neither Party could
implement independently, including but not limited to:
a. The cost-effective expansion of Verizon-owned fiber networks; and
b. A robust deployment of Verizon’s wireless cellular infrastructure, namely,
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 2
Small Wireless Facilities, in the City via a reduced fee arrangement, which shall
lay the foundation for bringing advanced 5G technology to the City for the
benefit of residents and visitors to the City.
1.2 Non-Exclusive Arrangement. This arrangement is non-exclusive, and each Party
remains free, subject to the terms of this Agreement, to elect or decline to, work with or enter
any agreements with any other service providers.
2. SCOPE OF COLLABORATION. This Agreement shall reflect the principles of the
Collaboration to achieve mutually beneficial goals. The parties desire to fulfill their respective
obligations under this Agreement in exchange for the mutual benefits conferred respectively
herein. The Collaboration between the City and Verizon invites significant investment from
Verizon to build required infrastructure to support the citizens living in the community, with the
commitment by the City to reduce its pole attachment rate for certain City-owned light poles and
provide existing conduit space in City-owned existing conduits to accommodate Verizon’s
wireline deployment. In addition, the broad nature of the Collaboration with the City creates a
business model to provide services to the City that would be financially constraining to provide
on a stand-alone basis. The goal of this holistic approach is to reduce deployment cost and
disruption to the community.
3. CITY BENEFITS. As part of the Collaboration, Verizon will contribute $600,000.00 to the
City, to be paid no later than thirty (30) days after the Effective Date of this Agreement.
4. WIRELESS AND WIRELINE DEPLOYMENT AND PERMITTING OPTIMIZATION.
Verizon will enhance and further densify its existing wireline and wireless networks through the
deployment of fiber and Small Cell Facilities to provide users with more broadband capacity for
current and future needs. These infrastructure investments require significant cooperation from
the City as well as access to municipal light poles and other City-owned assets. In addition, in
order to achieve the goal of permitting of Small Cell Facilities and fiber in an efficient,
expeditious and economical fashion, the parties have negotiated a Master License Agreement
(“MLA”) with respect to licensing of certain City-owned poles for the deployment of Small Cell
Facilities, and a Conduit Occupancy Agreement (“COA”) with respect to the use of the City’s
conduit system in existence as of July 31, 2020, as described in more detail in the COA, both of
which are attached to this Agreement as Exhibits [A] and [B], respectively, and incorporated
herein by this reference. These agreements aim to serve the Parties’ joint objectives and to grant
Verizon the use of designated City assets for fiber, network equipment and associated structures
based on enumerated terms in those agreements, as well as through coordination and cooperation
between Verizon and the City.
Verizon will make a significant investment in the City by further expanding its state-of-the-art
networks. To accommodate the extensive wireline and wireless deployment within the timeframe
contemplated, the City agrees to provide Verizon with the following:
4.1 Wireless Small Cell Deployment. Verizon will enhance its existing wireless network
through the deployment of Small Cell Facilities to provide users with more wireless
broadband capacity. In furtherance of this goal, deployment of Small Cell Facilities
on City-owned and non-City owned assets must be cost-efficient and expeditious.
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 3
This objective will be met through coordination between Verizon and the City on the
following:
a. Pursuant to the terms and conditions of the MLA, the City will reduce its current
$1,500 per pole/annual attachment fee to $270.00 per pole/ annual for Verizon
installations on City-owned assets.
b. City will approve a Small Cell Wireless Facility Permit for the deployment of
Small Cell Facilities pursuant to terms of the MLA and the South San Francisco
Municipal Code as outlined therein, provided, any such approval shall occur within
the FCC-mandated shot clock time frames unless otherwise agreed to by the Parties
in writing.
4.2 Wireline Deployment. Verizon is making a significant investment in the City and
intends to deploy fiber in major portions of the commercial areas of the City. The City agrees
to support Verizon’s expedient and efficient deployment of Verizon’s wireline network in
the City, in furtherance of the Collaboration, in the following manner:
a. In the event that the City Council of the City of South San Francisco imposes a
blanket city-wide moratorium suspending all construction in the public right of way,
the City agrees to reasonably cooperate with Verizon to accommodate access, to the
extent permissible to Verizon’s current and unfinished work pursuant to this
agreement so that Verizon may temporarily close out the work for the remaining
duration of the moratorium. This provision shall not apply if the moratorium is
imposed pursuant to a State or San Mateo County order or guidance requiring the
closure of all local public right of ways.
b. The City shall provide field inspections within three (3) business days of the
submission of a request by Verizon. All permits shall be valid for one (1) year
following issuance by the City and may be extended by mutual agreement of the
Parties.
c. The City will grant a non-exclusive license for its conduit segments in its existing
conduit system as of July 31, 2020 to Verizon pursuant to the terms of the COA.
d. The City shall permit multiple construction crews to work concurrently, subject to
encroachment permits required by the City as applicable, as this is essential for
mobile operations (line pulling cable) and when multiple work groups must be in
manholes that are in the same intersection.
e. Verizon shall comply with provisions of California Government Code 4216 et.
seq., commonly known as the “one call underground damage prevention
requirements.”
f. Concurrent with the execution of this Agreement, the Parties will execute the COA
and the MLA. In the event of a conflict between the MLA or the COA and this
Agreement, the terms of the MLA or the COA shall control.
g. The City will allow Verizon to submit “bulk” permit applications (up to ten every
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 4
two weeks) for larger geographic areas (up to five (5) square miles) where such
“bulk” submission consists of substantially similar type of work in the geographic
area covered.
4.3 Collaboration Team. Verizon will work in partnership with the City towards a best in
class pole attachment and fiber permitting process. The Collaboration Team (“CT”) is
defined as and will consist of:
a. Executive team from Verizon and the City who will provide leadership towards
the above objectives, identify working teams, resolve issues as required, as well as
monitor and evaluate program progress (“Executive Sponsors”).
b. Working teams from Verizon and the City who will meet on a regular basis to
identify areas needing attention, create a process for resolution, and make
recommendations to the executive team as needed to resolve issues (“Relationship
Managers”).
c. The initial CT members are identified in Exhibit [C]. Any changes to the CT
should be provided to the other Party in writing in advance.
5. CONFIDENTIALITY; PUBLIC RECORDS ACT
5.1 Definition of Confidential Information. The term “Confidential Information” means
Verizon Trademarks, Verizon trade secrets, and other Verizon proprietary or business
information provided to the City that is clearly labeled, marked or otherwise identified as
“confidential” or “proprietary information,” or would otherwise normally be considered
Confidential Information in the ordinary course and scope of business.
5.2 Exceptions. Notwithstanding the foregoing, “Confidential Information” shall exclude
(and the City shall not be under any obligation to maintain in confidence) any information
(or any portion thereof) disclosed to the City by Verizon to the extent that such information:
a. Is in the public domain at the time of disclosure; or
b. Is known, or becomes known to the City from a source other than Verizon or its
representatives, provided that disclosure by such source is not in breach of a
confidentiality agreement with Verizon; or
c. Is independently developed by the City without violating any of its obligations
under this Agreement or any other agreement between the parties; or
d. May be legally required to be disclosed under state or local law, including the
California Public Records Act, the federal Freedom of Information Act, or by
judicial or other governmental action; or
e. Is permitted to be disclosed by a formal written agreement executed by and
between the parties.
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 5
5.3 Duty to Keep Confidential. The City agrees to maintain as confidential, to the extent
permitted or required by applicable law, including applicable public records acts, all
Confidential Information furnished or otherwise made available to the City by Verizon.
Notwithstanding the above, however, in the event that the City is responding to a request for
records or information pursuant to the California Public Records Act (Gov. Code § 6250 et
seq.), the City shall not bear any responsibility or be held liable for claims, damages or
liabilities, and Verizon agrees to release and hold the City harmless from such claims,
damages or liabilities, arising from its determination of whether a record or certain
information would normally be considered “confidential” in the ordinary course and scope
of business.
5.4 Requests for Disclosure Pursuant to the Public Records Act.
a. Verizon acknowledges that the City is a public agency subject to the requirements
of the California Constitution and applicable laws relating to public records
disclosure. Verizon acknowledges that it may submit to or otherwise provide the
City with access to materials that Verizon considers Confidential Information,
which may or may not be exempt from public disclosure under applicable laws.
b. Where any third party (the “Requestor”) not otherwise authorized to access
Confidential Information under this Agreement makes a demand or request to the
City for access to Confidential Information (the “Request”), including, without
limitation, the terms and conditions being negotiated, or the production,
inspection or copying of other information designated by Verizon as Confidential
Information, City will notify Verizon within two (2) business days of the Request
before responding to the Requestor; however, Verizon shall be solely responsible
for taking whatever legal steps Verizon deems necessary to protect information
determined by Verizon to be Confidential Information and to prevent release of
information to the Requestor (including the release of such information by the
City). Verizon is responsible for all costs associated with the pursuit of such legal
steps, including the pursuit of any legal remedies.
c. Verizon understands and acknowledges that public records acts may compel the
City to respond to Requests within a specific number of days from receipt of a
Request (the “City Deadline”). Where the City has met its obligation to timely
notify Verizon as set forth in Section 5.4 (b) and Verizon fails to notify the City
that it will seek a protective order or other legal remedy to bar the disclosure of
information Verizon considers Confidential Information prior to the City
Deadline, the City may, without liability hereunder, disclose the Confidential
Information that is necessary to be disclosed in response to the Request.
d. Without limiting the more general indemnity terms of this Agreement, Verizon
will indemnify, defend, and hold harmless the City from any claims, costs, or
liability arising from such Requests, including the City’s refusal to disclose
information Verizon considers to be Confidential Information in response to any
Verizon demand that such information not be disclosed.
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 6
5.5 Execution, Return, Disposal. Upon termination or expiration of this Agreement, the
City shall, at Verizon’s direction, make reasonable efforts to either return or destroy all
Confidential Information; provided, however, any Confidential Information found in
electronic format as part of City’s off-site or on-site data storage/archival process system,
will be held by the City and kept subject to the terms of this provision or destroyed pursuant
to the City’s document retention schedule most currently in effect. In the event that a request
for disclosure is made for such Confidential Information not yet destroyed by the City, the
notification, limitation of liability, and indemnification obligations provided in this Section
5 shall apply. The obligations of this provision will survive termination or expiration of this
Agreement.
5.6 City Confidential Information. Verizon agrees to maintain as confidential, unless
otherwise required to be disclosed under state or local law or by judicial order, all information
furnished or otherwise made available to Verizon by the City that is clearly labeled, marked
or otherwise identified as “confidential” or “proprietary information”, or would otherwise
normally be considered Confidential Information in the ordinary course of business.
6. TRADEMARKS
6.1 Verizon Trademarks.
a. Verizon grants to the City the right to use Verizon Trademark for the sole purpose
of announcing the existence and content of this Agreement to third parties,
provided that the conditions for such announcements, as set forth in Section 12.2
(Publicity) of this Agreement, have been accomplished satisfied. Any other use
by the City of Verizon’s Trademarks shall require advance written consent. For
avoidance of doubt, the inclusion of other marks in any product guide or other
written policies of Verizon shall not grant the City the right to use any such other
marks apart from the specific rights granted in respect of the Verizon Trademarks
as expressly set forth in this Section or in a separate agreement. The City agrees
not to affix or otherwise reference any Verizon Trademarks other than as
contemplated in this Agreement.
b. Prior to the use of any on-line or hard copy material containing the Verizon
Trademarks for public media release purposes, the City shall submit to Verizon a
draft or prototype of such proposed material for Verizon's approval or
disapproval. No such material shall be used by the City prior to Verizon's written
approval.
c. The goodwill arising from any permitted use of the Verizon Trademarks by the
City shall inure to the benefit of Verizon. The City shall have no claim or right in
the Verizon Trademarks, including but not limited to trademarks, service marks,
or trade names owned, used or claimed now or which Verizon has authority to
grant the City the right to use in the future.
6.2 City Trademarks.
a. As and to the extent applicable, the City grants to Verizon the right to use the
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 7
name, logo, trademarks, and other marks of the City, excepting the City’s seal
(collectively "City Marks") for the sole purpose of announcing the existence and
content of this Agreement to third parties, provided that the conditions for such
announcements, as set forth in Section 12.2 (Publicity) of this Agreement, have
been accomplished. Any other use by Verizon of City Marks shall require
previous written consent of the City.
b. Prior to the use of any on-line or hard copy material containing the City Marks
for public media release purposes, Verizon shall submit to City a draft or
prototype of such proposed material for City's approval or disapproval. No such
material shall be used by Verizon prior to City’s written approval.
c. The goodwill arising from any permitted use of the City Marks by Verizon shall
inure to the benefit of the City. Verizon shall have no claim or right in the City
Marks, including but not limited to trademarks, service marks, or trade names
owned, used or claimed now or which the City has authority to grant Verizon the
right to use in the future.
7. TERM AND TERMINATION
7.1 Term. The Agreement commences on the Effective Date and shall be for a term of
twenty (20) years. The Parties may only terminate the Agreement early pursuant to the
provisions of section 7.2.
7.2 Termination. The following will be causes for the early termination of the
Agreement:
a. Mutual agreement of the Parties.
b. Failure to fulfill or material breach of any of the terms and conditions of the
Agreement. In the event that either Party commits a material breach of or default
under this Agreement or any Attachments, the Non-Defaulting Party shall give
the Defaulting Party written notice of the breach or default (including a statement
of the facts relating to the breach or default, the provisions of this Agreement that
have been breached or caused default and the action required to cure the breach
or default) and notice that the Agreement will terminate pursuant to this provision
if the breach or default is not cured within sixty (60) days after receipt of notice
(or such later date as may be specified in the notice or agreed upon by the Parties).
If the breaching Party fails to cure the specified breach or default within sixty
(60) days after receipt of such notice (or such later date as may be specified in
such notice or agreed upon by the Parties), then the Agreement will terminate
without any further notice or action by the terminating Party.
c. The Parties agree, prior to any termination notice or notice of breach and the start
of any cure period, to escalate any matters that a Party believes is a basis or cause
for termination to the Executive Sponsors for resolution prior to issuing a notice
of breach or exercising their termination rights above. The Executive Sponsors
agree to try to resolve such issues within thirty (30) days, which time period may
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 8
be extended by mutual agreement of the Parties.
d. Notice must be provided in accordance with the terms of Section 12.6(Notices)
of this Agreement.
7.3 Effect of Termination and Wind-Down Framework. If the Agreement is terminated
pursuant to and in accordance with this Section 7, then, unless otherwise specifically
provided for in writing by the Parties, the following will apply: (a) the Parties will cooperate
to effect an orderly, efficient, effective and expeditious termination of the Party's respective
activities under this Agreement pursuant to a mutually agreeable wind-down plan and in
accordance with the termination provisions in the COA and MLA governing Verizon’s
respective facilities thereunder. If any project sites are damaged by Verizon in the process
of removal, such damage shall be repaired forthwith by Verizon at its sole cost and expense.
City will return to Verizon any and all Confidential Information of Verizon in the possession
or control of City. Verizon will return to City any and all Confidential Information of City
in its possession or control.
8. DISPUTE RESOLUTION
8.1 Resolution Process. In the event that a dispute arises between Verizon and the City
pertaining to the subject matter of the Collaboration (a "Dispute"), prior to the initiation of
any formal legal action, the following dispute resolution process shall apply. The Parties'
respective Relationship Managers will initiate and execute the entire escalation and
resolution process and use discretion to resolve the Dispute through conference calls or face-
to-face meetings. Except as provided in Section 8.2, the entire escalation and resolution
process, described below, will be completed in fewer than one hundred and twenty (120)
calendar days. The Parties may agree in writing to an extension or shortening of this time
period.
a. Any Dispute (except for those related to permits) will be submitted in writing for
discussion and resolution to the Parties' respective Relationship Managers. Each
Relationship Manager will include any other relevant senior managers from their
Party. The Relationship Managers will have forty-five (45) days after referral of
the Dispute to resolve it to the Parties' mutual satisfaction. If the Relationship
Managers are unable to resolve the Dispute within the time provided, they will
refer the matter to the Executive Sponsors. The Executive Sponsors will have an
additional forty-five (45) days after referral of the Dispute to resolve it to the
Parties' mutual satisfaction.
b. In the event of a Dispute related to performance of any terms related to permitting
requirements hereunder, the Relationship Managers will have ten (10) business
days after referral of the Dispute to resolve it to the Parties’ mutual satisfaction.
If the Relationship Managers are unable to resolve the Dispute within the time
provided, they will refer the matter to the Executive Sponsors. The Executive
Sponsors will have an additional ten (10) business days after the referral of the
permitting Dispute to resolve it to the Parties' mutual satisfaction.
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 9
c. If the Parties are unable to resolve the Dispute after exhaustion of the process
specified in this Section 8 then the Parties shall be free to pursue any remedies
available to them at law or equity.
8.2 Exception. For Disputes relating to an alleged or actual breach of the confidentiality
obligations or any intellectual property ownership or licensing issues, the Parties may submit
the matter for discussion and resolution to the general counsel, city attorney or other head of
the legal service of each Party. These individuals shall use their good faith efforts to resolve
the Dispute within thirty (30) days, or such longer time as the Parties may agree.
Notwithstanding the foregoing, each Party, without waiving any remedy under this
Agreement, may seek an injunction or other equitable relief in the court of its choosing,
subject to the venue provisions set forth herein, to protect its Confidential Information.
9. INSURANCE; CITY IMMUNITY
9.1 Insurance. At all times during the performance of this Agreement, Verizon, at its
sole expense, shall obtain and keep in force, and shall ensure its contractors and agents to
obtain and keep in force, the required insurance as set forth in Exhibit [D].
9.2 Immunity. In no event shall the language in this Section constitute or be construed as a
waiver or limitation of the City's rights or defenses with regard to sovereign immunity,
governmental immunity, or other official immunities and protections as provided by the
federal and state constitutions or by law.
10. INDEMNIFICATION
10.1 Indemnification Obligation. Verizon and City shall indemnify, defend, and hold
harmless the other Party, its current and former Affiliates, its and their respective current and
former officers, directors, employees, principals (partners, shareholders or holders of an
ownership interest, as the case may be), agents, and successors and assigns, from and against
any and all liabilities, third Party claims, demands, losses, damages, and expenses (including
attorney’s fees and costs as incurred) associated with or incurred as a result of any claim,
action, or proceeding brought by a third Party arising out of or relating to such Party’s
negligence, recklessness, or willful acts or omissions in performing its obligations under this
Agreement that result in personal injury (including death) or damage to tangible property. If
any claim is brought against the Indemnitee, the Indemnifying Party shall assume the defense
of such claims, with counsel acceptable to the Indemnitee in its reasonable discretion. The
Indemnitee shall give the Indemnifying Party such assistance and information as may be
reasonably necessary to defend or settle the claim. The first Party to receive notice of a claim
will promptly notify the other Party of such claim, and each Party shall furnish the other with
a copy of each communication received relating to the claim.
10.2 Notice Obligations. Verizon and City will (i) promptly notify each other of the claim
and furnish it with a copy of each communication relating to the claim; (ii) give each other
sole authority, at its cost and expense, to defend or settle the claim and to conduct any
negotiations related to it; and (iii) give each other such assistance and information as may be
reasonably necessary to defend or settle the claim. The parties may select competent counsel
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 10
of its own choice to defend any claim, provided that such counsel does not have a conflict of
interest (as defined by applicable court or bar association rules) that the other Party does not
waive.
11. ORDER OF PRECEDENCE. The order of precedence between and among this Agreement and
its Attachments attached hereto and incorporated herein by reference, with respect to a conflict
between the same subject matter, shall be as follows, but provided that the prevailing term shall
apply only to (i) the conflicting terms and (ii) the extent necessary to resolve the conflict:
a. Attachments affixed hereto; and
b. The terms and conditions set forth herein.
12. GENERAL PROVISIONS
12.1 Entire Agreement and Modifications. This Agreement, together with all Attachments
hereto, sets forth the entire agreement between the Parties relating to the Collaboration, and
supersedes any and all prior or contemporaneous agreements and representations written or
oral, of the Parties with respect to the subject matter set forth herein unless such agreements
are specifically attached hereto and incorporated herein. No change, amendment to, or
modification of this Agreement shall be valid unless set forth in a written instrument signed
by both parties. The City acknowledges that the Agreement may require an amendment from
time to time to address issues which may arise, including but not limited to unforeseen
circumstances, advances in technology, legal matters, and other issues which may result in
refinements to the Agreement. Accordingly, the City agrees that the City Manager, as
authorized by City Council Resolution No. _________, may make any non-material
revisions, amendments or modifications to this Agreement that do not increase the City’s
obligations, and are within the scope or subject matter of Agreement or will enhance the
ability of the Parties to achieve the objectives of the Agreement.
12.2 Publicity. Marketing, advertising, promotional materials (e.g., marketing collateral)
for the purposes of public media release, press releases or other public announcements
regarding this Agreement, the activities hereunder, any Amendment or any specific
agreement attached hereto, shall be made only after receiving the prior written consent of the
other Party, except as required by law, in which case the other Party shall be consulted to the
extent reasonably practicable as to the content and timing of such release, announcement or
statement. Notwithstanding the foregoing, each Party may generally describe the
collaborative nature of the relationship with the other Party in presentations, and proposals.
12.3 Attorneys' Fees. Other than as provided in Sections 10 (Indemnification Obligation)
and 5.4(b) (Public Records Act Requests) herein in any suit or proceeding relating to this
Agreement each Party shall be responsible for its own costs and fees incurred in connection
with the suit or proceeding.
12.4 Independent Contractors. The parties to this Agreement are independent contractors.
Neither Party is an agent, representative, or partner of the other Party. Neither Party shall
have any right, power, or authority to enter into any agreement for, or on behalf of, or incur
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 11
any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not
be interpreted or construed to create an association, agency, joint venture, or partnership
between the Parties or to impose any liability attributable to such a relationship upon either
Party.
12.5 Waiver. The failure of either Party to insist upon or enforce performance by the other
Party of any provision of this Agreement, or to exercise any right or remedy under this
Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such
Party's right to assert or rely upon the provision, right, or remedy in that or any other instance;
rather the provision, right or remedy will be and remain in full force and effect.
12.6 Notices. Any notice, approval, request, authorization, direction, or other
communication under this Agreement shall be given in writing, directed to the addresses of
the parties below, and shall be deemed to have been delivered and given for all purposes: (i)
on the next business day if delivered by electronic mail, and with return receipt requested;
or (ii) on the delivery date if delivered personally to the Party to whom the same is directed;
or (iii) one (1) business day after deposit with a commercial overnight carrier with written
verification of receipt; or (iv) five (5) business days after the mailing date whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and charges prepaid,
or any other means of rapid mail delivery for which a receipt is available to the contact at the
address of the Party to whom the same is directed. Either Party may from time to time change
its address for purposes of this paragraph by giving the other Party notice of the change in
accordance with this paragraph.
In the case of Verizon:
GTE Mobilnet of California Limited
Partnership, d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
In the case of the City:
__________________________
12.7 Force Majeure. Neither Party shall be deemed in breach of this Agreement if it is
prevented from performing any of the obligations under this Agreement by reason of severe
weather and storms; levee breaches; earthquakes or other natural occurrences; strikes or other
labor unrest; power failures; nuclear or other civil or military emergencies; acts of terrorism;
acts of legislative, judicial, executive or administrative authorities; or any other
circumstances which are not within its reasonable control. A delay beyond a Party’s control
automatically extends the time, in an amount equal to the period of the delay, for that Party
to perform the obligation under this Agreement. The parties shall prepare and sign an
appropriate document acknowledging any extension of time under this section.
12.8 Compliance with Laws. In performance of their respective obligations under this
Agreement, each Party will comply with Applicable Law, rules, regulations, orders and other
requirements, now or hereafter in effect, of governmental authorities having jurisdiction.
12.9 No Disqualification. Nothing herein is intended to preclude Verizon or its Affiliates
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 12
from pursuing or bidding on any future City public procurement opportunity or opportunities,
and nothing in this Agreement is intended to limit future Verizon proposals in response to
City public procurement opportunities for goods or services in any way, provided that any
such bids, proposals, responses, or other participation in the submission process by Verizon
is consistent with applicable state and local laws, regulations and policies including those
relating to conflict of interest and public procurement process.
12.10 Governing Law and Venue. This Agreement and any action related thereto shall be
governed, controlled, interpreted and defined by and under the laws of the State of California
and the United States, without regard to the conflict of law provisions thereof. Venue for any
action under this Agreement shall be: the state and federal courts serving South San
Francisco, California.
12.13 Remedies. In addition to any specific remedies listed in this Agreement, the Parties
shall have the right to bring any remedy in law or equity to enforce the provision of this
Agreement.
12.14 Assignment. The rights and obligations assumed by each of the Parties under this
Agreement shall not be assigned or otherwise transferred, in whole or in part, without the
written prior consent of the other Party, provided however that either Party may assign this
Agreement: (i) to any successor by way of any merger, consolidation, or other corporate
reorganization of such Party or sale of all or substantially all of the assets of such Party,
provided that such subsidiary or parent or successor assumes or is otherwise fully bound by
all of the obligations of the assigning Party under this Agreement; (ii) or in whole or in part
to an Affiliate. In cases where prior written consent is not required, the assigning Party shall
provide the other Party with notice of such assignment thirty (30 days prior to it becoming
effective, with such notice to contain the new entity and contact information.
12.15 Severability. This Agreement will be enforced to the fullest extent permitted by
Applicable Law. If any provision of this Agreement is held to be illegal, invalid or
unenforceable to any extent, then such provision shall be excluded to the extent of such
illegality, invalidity or unenforceability; all other provisions hereof shall remain in full force
and effect; and, to the extent permitted and possible, the excluded provision shall be deemed
replaced by a provision that is valid and enforceable and that comes closest to expressing the
intention of such excluded provision. If application of this Severability provision should
materially and adversely affect the economic substance of the transactions contemplated
hereby, the Party adversely impacted, in its sole discretion, shall have the right to terminate
the Agreement upon thirty (30) days advance written notice, provided such notice is given
within sixty (60) days of the determination of illegality, invalidity or unenforceability. The
foregoing remedies are only available to the adversely impacted Party if the reason for the
illegality, invalidity or unenforceability of a term is not due to misconduct of the Party
seeking compensation or termination.
12.16 Survival. Sections 5 (Confidentiality; Public Records Act), 7 (Term and
Termination), 8 (Dispute Resolution), 10 (Indemnification) and any and all liabilities
accrued prior to the effective date of the termination or expiration of this Agreement shall
survive expiration or termination of this Agreement for any purpose.
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 13
12.17 Counterparts. The Parties may sign this Agreement in counterparts, each of which
will be considered an original, but all of which will constitute the same agreement. Facsimile
and portable document format (PDF) signatures shall be binding as if original.
12.18 No Third-Party Beneficiaries. This Agreement and separate agreements created
pursuant to this Agreement are solely for the benefit of the City and Verizon, including
Verizon Affiliates. They are not intended to benefit any third parties.
12.19 Construction of Document. The Parties acknowledge that this document shall not be
construed in favor of or against the drafter by virtue of said Party being the drafter and that
this Agreement shall not be construed as a binding offer until signed by both Parties.
12.20 Captions. The captions preceding each section of this Agreement are intended only
for convenience of reference and in no way define, limit, or describe the scope of this
Agreement or the intent of any provision hereof.
12.21 Authorization. Each person signing this Agreement represents and warrants that he
or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each
Party represents and warrants to the others that the execution and delivery of the Agreement
and the performance of such Party's obligations hereunder have been duly authorized.
12.22 Definitions. Whenever used in this Agreement with the initial letter capitalized, the
following terms shall have the following meanings. Capitalized terms not otherwise defined
herein shall have the meaning based on the context in which the term is used.
a. “Affiliates” means an entity controlling, majority-owned, or controlled or under
common voting control by one of the Parties, or a contractual or joint venture partner,
possessing rights, whether by contract or otherwise, with respect to the respective rights or
obligations herein.
b. “Agreement” means this Joint Strategic Development Agreement together with
Attachments, attached hereto and incorporated herein by reference.
c. “Applicable Law” means any international, national, federal, state or local law
(statutory, common, civil or otherwise), constitution, treaty, convention, ordinance, code,
rule, regulation, judgment, order or similar requirement, now or hereafter in effect, enacted,
adopted, promulgated, or applied by any governmental authority or entity that is binding
upon or applicable to a Party unless expressly specified otherwise.
d. “Defaulting Party” means the Party to this Agreement that defaulted as provided for in
Section 7 of this Agreement.
e. “Master License Agreement” or “MLA” means the Master License Agreement for
Small Cell Wireless Facilities attached hereto as Attachment 1 and incorporated herein.
f. “Non-Defaulting Party” means the Party to this Agreement that has not defaulted as
provided for in Section 7 of this Agreement.
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 14
g. “Term” means the period of time specified in paragraph 7.1.
h. “Verizon Trademarks” means any Verizon trademarks, service marks, trade dress,
trade names, corporate names, proprietary logos or indicia and other source or business
identifiers.
i. “Small Cell Facility(ies)” means the equipment and associated structures needed to
transmit and/or receive electromagnetic signals as defined in 47 C.F.R. § 1.6002(l). A Small
Cell Facility typically includes antennas, supporting structures, enclosures and/or cabinets
housing associated equipment, cable, and other accessory equipment.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
__________________________, the Effective Date.
VERIZON BUSINESS NETWORK
SERVICES INC.
By:
Name:
Title:
Date:
THE CITY OF SOUTH SAN FRANCISCO
By:
Name:
Title:
Date:
GTE MOBILNET OF CALIFORNIA
LIMITED PARTNERSHIP, d/b/a Verizon
Wireless
By:
Name:
Title:
Date:
APPROVED AS TO FORM
By:
Name:
Title:
Date:
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 15
EXHIBIT [A]: SMALL CELL MASTER LICENSE AGREEMENT
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 16
EXHIBIT [B]: [CONDUIT OCCUPANCY AGREEMENT]
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 17
EXHIBIT [C]: COLLABORATION TEAM
1. Executive Sponsors:
City Contact (Primary) Name: Tony Barrera
Phone #: ______________________________
FAX #: _______________________________
email address: _________________________
City Contact (Secondary) Name:
Phone #: ______________________________
FAX #: _______________________________
email address: _________________________
Verizon Contact Name: Dan C. Feldman
Phone #: 949-286-2580
FAX #: N/A
email address: dan.feldman@verizon.com
2. Relationship Managers:
City Contact Name: ______________________________________
Phone #: ______________________________
FAX #: _______________________________
email address: _________________________
City Contact (Secondary) Name: ____________________________________
Phone #: ______________________________
FAX #: _______________________________
email address: _________________________
Verizon Contact Name: John Hatem
Phone #: 415-218-8936
FAX #: N/A
email address: john.hatem@verizon.com
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 18
EXHIBIT [D]: INSURANCE
Verizon shall procure and maintain and shall cause any agents or contractors to procure and maintain
substantially the same coverage with substantially the same limits as required of Verizon (Verizon
and/or agents and contractors shall be referred to hereinafter, as the context dictates, as “Contractor”),
for the duration of the Agreement and any applicable sublicense entered into under and/or pursuant to
the Agreement, insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the work hereunder by the Verizon or its employees.
Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage or its substantial
equivalent.
Limits of Insurance
Contractor shall maintain limits of:
1. General Liability: $1,000,000 per occurrence for bodily injury and property damage and
$2,000,000 general aggregate.
2. Commercial Automobile Liability with combined single limit of $1,000,000 each
accident for bodily injury and property damage covering all owned, non-owned and hired
vehicles.
Other Insurance Provisions
The general liability and automobile liability policies are to contain, the following provisions:
1. The City, its officers, employees and volunteers shall be included as additional insureds
as their interest may appear under this Agreement as respects: liability arising out of
activities performed by contractor; products and completed operations of the Contractor;
premises owned, occupied or used by the Contractor; or automobiles owned, leased or
borrowed by the Contractor. The coverage shall contain no special limitations on the
scope of protection afforded to the City, its officers, officials, employees or volunteers.
2. For any claims related to this project, the Contractor’s insurance coverage shall be
primary insurance as respects the City, its officers, employees and volunteers. Any
insurance or self-insurance maintained by the City, its officers, officials, employees or
volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the City, its officers,
officials, employees or volunteers.
4. The Contractor’s insurance shall apply separately to each insured against whom claim is
STRATEGIC JOINT DEVELOPMENT AGREEMENT PAGE | 19
made or suit is brought, except with respect to the limits of the insurer’s liability.
Acceptability for Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-, unless
otherwise acceptable to the City.
Verification of Coverage
Contractor shall furnish the City with original certificate of insurance evidencing coverage required by
this clause. The certificates are to be signed by a person authorized by that insurer to bind coverage on
its behalf. All certificates are to be received and approved by the City before work commences.
Subcontractors
Contractor shall require any subcontractors to obtain and maintain substantially the same coverage with
substantially the same limits as required by Contract.
3635906.2
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CONDUIT OCCUPANCY AGREEMENT
THIS CONDUIT OCCUPANCY AGREEMENT (“COA”), is made and entered
into on ____________ __, 2020 (“Commencement Date”), by and between the City of
South San Francisco, a charter municipal corporation (“City”), and MCImetro Access
Transmission Services Corp. d/b/a Verizon Access Transmission Services, a Delaware
corporation, with its principal offices at One Verizon Way, Basking Ridge, New Jersey,
07920 (“MCImetro”). When referring herein to City and MCImetro, each are deemed a
“Party” or ‘party” and collectively, the “Parties” or “Parties.”
RECITALS
1. MCImetro is an affiliate of Verizon Business Network Services Inc.
(“VBNS”).
2. City and VBNS entered into a Strategic Joint Development Agreement
(“SJDA”) on ____________ __, 2020.
3. The terms and conditions of this COA are not intended to replace, modify
or supersede the terms and conditions of the SJDA, and in the event of a conflict
between the terms and conditions of this COA and the SJDA, the terms of this
COA shall control only with respect to the intentions of the Parties contemplated
in this COA. Where the terms of the SJDA are incorporated into and applicable
to this COA, in the event of the expiration or termination of the SJDA, such
incorporated terms shall continue to be applicable under this COA.
4. MCImetro desires to place and maintain underground communications
facilities in the City Conduit System (as such term is defined below) in existence
as of July 31, 2020, subject to the terms and conditions of this COA.
5. MCImetro intends to install fiber optic cable aerially attached to poles and
in City Conduits that are in existence as of July 31, 2020.
6. The City desires to permit MCImetro to utilize its Conduit System and
City Conduit Segments (as such term is defined below) that are in existence as of
July 3 1, 2020, for the purposes described above and subject to the terms of this
COA.
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties do hereby mutually covenant and agree as
follows:
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TERMS AND CONDITIONS
The Recitals set forth in this COA are part of the terms and conditions of this COA.
I. DEFINITIONS
In addition to terms defined elsewhere in this COA or the SJDA, as used in this COA:
1.1 “Access Point” means a handhole, manhole, pedestal, vault or terminal
used to access a Conduit Segment.
1.2 “City Conduit Segment” means an existing Conduit Segment owned by
the City as of July 31, 2020. Future City Conduit Segments (as defined
below) are not included.
1.3 “City Conduit System” means the existing Conduit System owned by the
City as of July 31, 2020. Future City Conduit Segments (as defined below)
are not included.
1.4 “Conduit” means a structure, which may consist of PVC, HDPE and other
materials, usually underground, containing one or more Ducts (as defined below) or other
forms of pathways.
1.5 “Conduit Occupancy” means occupancy of a Conduit System by fiber
optic cable (as defined below).
1.6 “Conduit Segment” means a portion of Conduit in the existing Conduit
System identified by A and B end-points using lat./long. measurements with supporting
as-built data: station numbering and Access Points.
1.7 “Conduit System” means any combination of Conduit Segments and
Access Points, joined to form an integrated whole, owned solely or in part by City.
1.8 “Duct” means a single enclosed raceway for wire conductors or cables.
1.9 “Future City Conduit Segments” means any Conduit Segment(s) installed
or becoming owned by the City after July 31, 2020.
1.10 “Make-Ready Work” means all work, including, but not limited to,
rearrangement and/or transfer of existing facilities, required to accommodate MCImetro's
Communications Facilities in a Conduit System as well as placement of innerducts,
Access Points and cable.
- 3 -
1.11 “MCImetro's Communications Facilities” means all facilities owned by
MCImetro, including, but not limited to, cables, equipment and structures (including but
not limited to, vaults, Maintenance Holes and Handholes (as such terms are defined
below) installed by MCImetro and utilized by MCImetro in the Conduit System.
1.12 “Term” is defined in Section 4.1.1 of this COA.
1.13 “Force Majeure” means an unforeseen circumstance that is beyond a
party’s control and unable to be avoided or mitigated by that party’s best efforts, such as
unforeseen circumstances caused by fire, flood, pandemic, explosion, war, embargo,
government requirement, civil or military authority, or an act of God.
2. CONSIDERATION
The consideration provided by the Parties to this COA is set forth in the SJDA or as
otherwise set forth in this COA or an amendment hereto. In the event of an Extension
Term (as defined below), consideration for the use of the Conduit Segments for the first
year of the Extension Term will be calculated at the initial rate equal to Two Dollars
($2.00) per linear foot per year as adjusted by an escalator equal to the percentage change
in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index for
All Urban Consumers (“CPI”) that occurred during the Term (defined below) of this
COA. The initial rate for the first year of the Extension Term shall be subsequently
adjusted by CPI annually on each anniversary of the Commencement Date during the
Extension Term by the amount of any percentage increase in the CPI for the prior twelve
(12) month period. If the Parties later agree that MCImetro may use any Future Conduit
Segments, the rate for use of any Future Conduit Segments will be separately negotiated
by the Parties as a part of a separate amendment to this Agreement to include the Future
Conduit Segments.
3. CITY CONDUIT USAGE BY MCIMETRO
3.1 Conduit License, Use and Maintenance
3.1.1 During the Term of this COA, City grants to MCImetro a non-exclusive
license for MCImetro to place MCImetro's Communications Facilities in City Conduit
Segments within the City Conduit System as set forth in Exhibit A.1 to this COA subject
to the terms and conditions of this COA and the following:
(a) The total linear feet of conduit provided by City in such City
Conduit Segments shall be at least 16,695 feet.
(b) The width of the conduit made available to MCImetro in each City
Conduit Segment shall not be less than one and a half (1.5) inches but shall be
provided as they are available and in as-is condition.
- 4 -
(c) MCImetro may in its discretion place one or more innerducts in
City Conduit Segments, provided there is sufficient space for placement of such
innerducts without harming existing City facilities already occupying a City
Conduit Segment.
(d) MCImetro may place Access Points in City Conduit Segments
subject to obtaining an encroachment permit for each proposed location in
accordance with all City standards including standards on restoration of premises.
(e) For unoccupied conduit two (2) inches or less in City Conduit
Segment, MCImetro will have full and exclusive use of the conduit.
(f) For occupied conduit two (2) inches or less in City Conduit Segment,
MCImetro will have exclusive use of any remaining capacity.
(g) For occupied and unoccupied conduit greater than two (2) inches in
City Conduit Segment, MCImetro will fill the conduit to capacity with one and a
half (1.5) inches of innerduct and fill one (1) innerduct. The remainder of the
space in the conduit shall be reserved for City use.
(h) If an area within the City’s Conduit System contains multiple Conduit
Segments located along the same route, MCImetro’s use of the Conduit Segment
in that area shall be limited to one (1) conduit only consisting either of: one (1)
unoccupied or occupied conduit that is two (2) inches or less, or alternatively, one
(1) occupied or unoccupied conduit up to one and a half (1.5) inches of innerduct
and one innerduct only, in accordance with (e) – (g) above. The remainder of the
Conduit Segments shall be reserved for City use.
(i) City shall not place electrical cable in any innerduct occupied by
MCImetro in City Conduit Segment.
(j) City will permit MCImetro to submit “bulk” permit applications in
accordance with the provisions of the SJDA.
(k) The conduits provided by City in the City Conduit System are
provided in as-is, where-is conditions. City shall not be responsible or become
liable to MCImetro and/or VBNS for any claims, damages, liabilities or in any
manner for the conditions or circumstances relating to the conduits at the time the
conduits are made available to MCImetro. City’s responsibilities set forth in
section 3.1.5 below with respect to its Conduit Segments shall not arise until after
MCImetro’s Communications Facilities have been placed and become operational
in respective Conduit Segments.
3.1.2 Exhibit A.1 shall be revised by the Parties from time-to-time as needed
and mutually agreed as MCImetro’s Communication Facilities are installed or modified
- 5 -
in the Conduit System. Revisions to Exhibit A.1 shall be deemed attached to this COA
without requirement for the Parties to enter into an amendment to this COA. MCImetro’s
Communications Facilities and Conduit Segments owned by MCImetro shall be clearly
labelled and separated from City’s Conduit System.
3.1.3 No use, however extended, of the City Conduit System by MCImetro shall
create or vest in MCImetro any easements or any other ownership or other form of
property rights of any nature in the City Conduit System. Except as otherwise set forth in
this COA, no placement of MCImetro’s Communications Facilities in the City Conduit
System creates or vests in City or any third party any ownership, other form of property
rights or rights to access or use MCImetro’s Communications Facilities.
3.1.4 City may not permit any third party to place its facilities in any innerduct
within a City Conduit Segment where MCImetro has placed its Communications
Facilities.
3.1.5 Except as provided in section 3.1.1(k) above, City is responsible for the
maintenance and repair of the City Conduit System including Conduit occupied by
MCImetro pursuant to this COA during its Term. When City is performing maintenance
and repairs to the City Conduit System, it shall use all commercially reasonable efforts
not to impair or damage MCImetro’s Communications Facilities. City shall notify
MCImetro at 1-800-MCI-WORK of planned or emergency City Conduit System
maintenance and repairs that would involve having any exposed City Conduit to enable
MCImetro, at its option, to observe and inspect such work by City, its employees,
representatives, agents or contractors.
3.1.6 City shall provide and staff a stand-by telephone number for MCImetro to
notify City of instances where a repair to the City Conduit System may be necessary. To
the extent feasible based on available staffing and resources, City shall make reasonable
efforts to assess the repairs required within forty-eight (48) hours (or two (2) business
days if over the weekend) of becoming aware of the need for any repairs to the City
Conduit System where MCImetro’s Communications Facilities are being hindered or
damaged due to damage to the City Conduit System. To the extent feasible based on
available staffing and resources, City shall make reasonable efforts to initiate repairs to
the City Conduit System within forty-eight (48) hours (or two (2) business days if over
the weekend) of completing the initial assessment. Except as provided below, any repairs
to the City Conduit System will be at City’s cost and expense unless the repair involves
the damage resulted from MCImetro’s negligence, omission or willful conduct, in which
case MCImetro shall reimburse the City for all costs and expenses of performing the
repair work.
b. If MCImetro requests the City to initiate the initial assessment or provide
subsequent repairs sooner than the timeframes outlined above in this section, and the City
is unable to carry out the assessment or repairs sooner than the timeframes outlined
above, MCImetro may make the necessary assessment and repairs, at its option and
- 6 -
subject to a City-approved encroachment permit, at MCImetro’s sole cost and expense.
However, if the repair work involves repairing a Conduit Segment(s) occupied by both
City and MCImetro, City agrees to share the cost of such repair work, excluding any
amount based on a holiday or expedited project rate, with MCImetro for such conduit(s)
jointly occupied by both Parties.
c. The City’s maintenance/repair responsibilities provided for in this section 3.1.6
does not extend to any fiber/SIC cables within the City Conduit System and each Party
shall bear its own responsibility in maintenance and repairing their own fiber/SIC cables.
However, notwithstanding the foregoing, if MCImetro and City are jointly occupying the
same Conduit Segment and both Parties’ fiber and SIC cables are in need of repair, then
MCImetro shall, if requested by the City, be responsible for retaining a contractor or
provider to repair both Parties’ fiber and SIC cables, and in such case the City agrees to
reimburse MCImetro for the cost of repair attributable to the City’s fiber and SIC cables
only and upon receipt of an invoice from MCImetro.
3.1.7 City shall control all access to the City Conduit System. MCImetro may
access City Conduit Segments for the purpose of locating MCImetro’s Communications
Facilities pursuant to a City approved encroachment permit. MCImetro will notify City
not less than twenty-four (24) hours in advance before entering the City Conduit System
to perform non-emergency work operations. Such operations shall be conducted during
normal business hours except as otherwise agreed to by the parties. The notice shall state
the general nature of the work to be performed. Upon receipt of such notice, City will
permit unescorted access in accordance with MCImetro’s request and compliance with
City’s encroachment permit process as set forth in applicable City Code.
3.2 Specifications.
3.2.1 MCImetro's Communications Facilities shall be placed and maintained on
or in the City Conduit System in accordance with the requirements and specifications of
the current editions of the National Electrical Code (NEC), the National Electrical Safety
Code (NESC), and the rules and regulations of the Occupational Safety and Health Act
(OSHA) and any governing authority having jurisdiction over the subject matter. Except
as stated herein, where a difference in specifications may exist, the more stringent shall
apply.
3.2.2 If any part of MCImetro's Communications Facilities are not placed and
maintained in accordance with the provisions of this COA, and MCImetro has not
corrected the violation within twenty (20) working days after receipt of written notice
thereof from City, MCImetro shall pay City a penalty rate in the sum equal to ten percent
(10%) of the annual value of the City Conduit Segment occupied by MCImetro's
Communications Facilities at the time of the violation, per week of violation; provided,
however, that if MCImetro provides City with written notice at least ten (10) days prior to
the expiration of the twenty (20) day time period detailing the reasons for its inability to
cure the violation within said twenty (20) day period, then, upon the consent of City,
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which consent shall not be unreasonably withheld or delayed, the time for curing such
violation shall be extended for such period of time as may be reasonably necessary to
cure the violation. If, upon the expiration of the twenty (20) day time period or the
extended time period approved by City, and MCImetro has not corrected the violation nor
provided additional written notice to the City requesting additional extension of time,
MCImetro shall pay City a penalty rate in the sum equal to twenty (20%) of the annual
value of the City Conduit Segment occupied by MCImetro's Communications Facilities
at the time of the violation per week of violation.
Notwithstanding the provisions of this Section 3.2.2, when, in the reasonable
determination of City, such violation poses an immediate threat to the health or safety of
City's employees or the public, interferes with the performance of City's then existing and
current service requirements, or poses an immediate threat to the physical integrity of the
City Conduit System, City may perform such work and/or take such action as it deems
necessary in its reasonable judgment to correct the violation without first giving written
notice to MCImetro. As soon as practicable thereafter, City will advise MCImetro in
writing of the work performed or the action taken and will endeavor to arrange for re-
accommodation of MCImetro's Communications Facilities so affected. MCImetro shall
be responsible for paying City for any actual and verifiable costs incurred by City for all
work, action and re-accommodation performed by City under this Section 3.2.2.
3.3. Legal Requirements
3.3.1 MCImetro shall be responsible for obtaining all required governmental
permits and authorizations, including paying all fees associated with such permits and
authorizations, to construct, operate and/or maintain MCImetro’s Communications
Facilities in the City Conduit System.
3.3.2 The Parties shall at all times observe and comply with the provisions of
this COA and all applicable laws, ordinances and regulations in effect which in any
manner affect the rights and obligations of the parties hereto under the provisions of this
COA.
3.4. Make-Ready Work
3.4.1 A survey jointly-conducted by City and MCImetro may be required to
determine the condition of a City Conduit Segment being provided to MCImetro for
placement of MCImetro’s Communications Facilities. A representative of City may
accompany MCImetro’s representative on the field inspection portion of such survey.
3.4.2 MCImetro shall be responsible for all Make-Ready Work at its sole
expense, provided that MCImetro shall only be obligated to perform Make-Ready Work
to accommodate MCImetro’s Communications Facilities in the City Conduit System. If
MCImetro Make-Ready Work requires cutting and removing existing non-MCImetro
cable in a City Conduit Segment, then the MCImetro shall be responsible for cutting and
- 8 -
removing such cable or shall have an inspector on site monitoring the cutting and
removal of such cable. MCImetro shall repair and restore all non-MCImetro cable that
were removed or cut for such Make-Ready Work to its original condition after the Make-
Ready Work is complete. Any Make-Ready Work needed for the City’s or a third-
party’s use of the City Conduit System shall not be the responsibility of MCImetro.
3.5 Construction, Relocation and Removal of Communications Facilities
3.5.1 MCImetro shall, at its own expense, construct and maintain MCImetro’s
Communications Facilities in the City’s Conduit System in a safe condition and in a
manner reasonably acceptable to City, so as not to physically conflict or electrically
interfere with the facilities attached thereon or placed therein by City or any other
MCImetro or permitted user of City. Placement of MCImetro Access Points in the City’s
Conduit System shall be done in a way that they would not interfere with ADA ramps or
intersection geometry impacting future signal maintenance.
3.5.2 MCImetro shall comply with the requirements of applicable City code and
regulations before MCImetro may install, remove or provide maintenance of MCImetro’s
Communication Facilities in the City Conduit System. In the event of an emergency
resulting in a customer service outage, MCImetro is permitted immediate access to
MCImetro’s Communications Facilities in the City Conduit System upon advanced
telephonic notice to the City via the phone number listed in Section 3.5.3, provided that it
will obtain a City-issued encroachment permit for the repair work from the City as soon
as possible thereafter.
3.5.3 Each Party’s Access Points shall be opened only as permitted by the
Party's authorized employees or agents. MCImetro may request access to City's Access
Points in an emergency by calling City's Public Works Standby phone number at 650-
333-2265. City's authorized employee or agent shall have the authority to suspend
MCImetro's work operations in and around City's Conduit System if, in the reasonable
discretion of said employee or agent, any hazardous conditions arise, any unsafe practices
are being followed, or the work may adversely affect City's Conduit System. The
presence of City's authorized employee or agent is for the protection of City's facilities
and shall not relieve MCImetro of its responsibility to conduct all of its work operations
in and around City's Access Points in a safe and workmanlike manner, in accordance with
the terms of this COA.
3.5.4 If the City needs to use a certain portion of a City Conduit Segment(s) for
its municipal operations or a future public facilities upgrade, then the City may require
MCImetro to relocate its Communications Facilities. In the event MCImetro is required
to relocate MCImetro’s Communications Facilities occupying a City Conduit Segment,
City shall provide MCImetro with at least ninety (90) days' advance written notice of the
need for such relocation. If such relocation is to accommodate the facilities of a third
party (other than a governmental entity requiring such relocation exclusively for a
governmental administration purposes), City agrees that MCImetro shall be required to
- 9 -
undertake such relocation only at the sole cost and expense of the third party, provided in
no event will MCImetro be required to relocate its Communications Facilities for use by
a third party telecommunications provider. In relocating MCImetro’s Communications
Facilities as required by City, MCImetro shall use all commercially reasonable efforts to
perform such work according to the schedule established by City, subject to force
majeure and events beyond the control of MCImetro.
3.5.5 MCImetro, at its expense, will remove MCImetro’s Communications
Facilities from City Conduit Segments within ninety (90) days after termination of
MCImetro’s right to occupy such Conduit Segment, or with the permission of City,
MCImetro may abandon in place all or part of MCImetro’s Communications Facilities in
such affected City Conduit Segments. If MCImetro fails to remove MCImetro’s
Communications Facilities within such ninety (90) day period or other such period agreed
upon between the Parties, City shall have the right to remove such facilities at
MCImetro's expense and without any liability on the part of City for damage to such
facilities and/or without any liability for any interruption of MCImetro's services.
Section 4. GENERAL TERMS.
4.1 Term and Termination.
4.1.1 The term (“Term”) of this COA shall be twenty (20) years beginning on
the Commencement Date. Either Party may elect not to renew this COA or to further
extend its term by providing One Hundred and Eighty (180) Days’ written notice to the
other Party; however, failure to provide such notice does not constitute an automatic
renewal of the Term and the Term of this COA may only be extended prior to the
expiration of the COA via a written amendment signed by the Parties. Any extension of
the Term shall be an “Extension Term”.
4.1.2 MCImetro may, at any time, terminate its license with respect to the
occupancy of all or a portion of the City’s Conduit System by providing Ninety (90) day
written notice to the City.
4.1.3 Actions by the Parties Related to Termination.
(a) In the event of a termination of this COA and the SJDA: (a)
MCImetro shall, abandon in place all MCImetro Communications Facilities in
the City’s Conduit System for the City’s use or disposal, provided that the City
would not be permitted to access MCImetro’s service or network via said
Communication Facilities.
(b) In the event of a termination of this COA by either Party as a result
of a breach of the terms of this COA by the other Party and such breach has not
been cured as reasonably required by the non-breaching Party, the termination
actions of each party set forth in this Section 4.1.3 shall apply.
- 10 -
4.2 Liability and Damages.
4.2.1 MCImetro, its employees, agents, representatives and contractors, shall
exercise reasonable care to avoid damaging the facilities of City and of others occupying
City Conduit Segments occupied by MCImetro, and MCImetro shall make an immediate
report to City of the occurrence of any such damage caused by MCImetro's employees,
representatives, agents or contractors. MCImetro shall repair all damage or reimburse
City for all reasonable costs incurred by City for the physical repair of such facilities
damaged by MCImetro, its employees, agents, representatives or contractors.
4.2.2 City, its employees, agents, representatives and contractors, shall exercise
reasonable care to avoid damaging MCImetro's Communications Facilities, and City shall
make an immediate report to MCImetro of the occurrence of any such damage caused by
its employees, agents, representatives or contractors. City agrees to reimburse MCImetro
for all reasonable costs incurred by MCImetro for the repair of such facilities damaged by
City, its employees, agents, representatives or contractors.
4.2.3 Confidentiality/Public Records Act. The terms of Section 5 of the SJDA
are hereby incorporated by reference and applicable to this COA.
4.2.4 Dispute Resolution. The terms of Section 8 of the SJDA are hereby
incorporated by reference and applicable to this COA.
4.2.5 Insurance; City Immunity. The terms of Section 9 of the SJDA are hereby
incorporated by reference and applicable to this COA.
4.2.6 Indemnification. The terms of Section 10 of the SJDA are hereby
incorporated by reference and applicable to this COA.
4.2.8 General Provisions. The terms of Section 12 of the SJDA, except as to the
specific parties to receive notice as set forth in Section 12.6, are hereby incorporated by
reference and applicable to this COA.
4.2.9 Notices. The specific persons to receive notice for this COA under the
provisions of Section 12.6 of the SJDA are as follows:
For MCImetro:
MCImetro
400 International Parkway
Richardson, TX 75082
Attn: Network Engineering
- 11 -
For City:
[SIGNATURES ON THE FOLLOWING PAGE]
- 12 -
IN WITNESS WHEREOF, the parties hereto have executed this COA in
duplicate as of the day and year first above written.
MCIMETRO ACCESS
TRANSMISSION SERVICES CORP.
By:
Name:
Title:
Date:
THE CITY OF SOUTH SAN
FRANCISCO
By:
Name:
Title:
Date:
APPROVED AS TO FORM
By:
Name:
Title:
ATTEST
By:
Name:
Title:
- 13 -
EXHIBIT A.1
CITY CONDUIT SEGMENTS PROVIDED TO MCIMETRO
3635917.2
12/1/2020
CITY OF SOUTH SAN FRANCISCO
MASTER LICENSE FOR
SMALL CELL WIRELESS FACILITIES
between
THE CITY OF SOUTH SAN FRANCISCO
and
GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, d/b/a VERIZON
For City of South San Francisco Pole License Program in South San Francisco, California
Effective as of , 20_______
TABLE OF CONTENTS
Page
1 PURPOSE, DEFINITIONS, AND BASIC LICENSE INFORMATION 1
1.1 Purpose 1
1.1.1 Master License 1
1.1.2 Pole Licenses 2
1.1.3 Non-City Poles 2
1.2 Basic License Information 2
1.3 Definitions 2
2 SCOPE OF LICENSE 5
2.1 License Areas 5
2.1.1 Issuance of Pole Licenses 5
2.1.2 No Competing Licenses 5
2.1.3 Limitation on Scope 5
2.2 No Property Interest in License Area or City Poles 5
2.2.1 Limited Interest. 5
2.2.2 Limited Rights 5
2.2.3 No Impediment to Municipal Use 6
2.3 Signs and Advertising 6
2.4 Light and Air 6
2.5 As-Is Condition of the License Area 6
2.5.1 As-Is Condition 6
2.5.2 Licensee Due Diligence 6
2.5.3 No City Representations or Warranties 6
2.5.4 Disclosure 6
3 TERM 7
3.1 Term of Master License and Pole Licenses 7
3.1.1 Term 7
3.1.2 Minimum Term for License Fee Purposes 7
4 LICENSE FEES; ADDITIONAL FEES; AND OTHER CHARGES 7
4.1 Commencement Date and Pole License Effective Date 7
4.1.1 Definition 7
4.1.2 Acknowledgment Letter 7
4.1.3 City Demand for Acknowledgment Letter 8
4.1.4 Correct Commencement Date. 8
4.1.5 Countersigned Acknowledgment Letter 8
4.2 License Fees 8
4.2.1 License Fee Schedule 8
4.2.2 Amount of License Fee 8
4.2.3 In-Lieu Public Benefits 8
4.2.4 Due Dates 9
4.3 Adjustments in License Fee 9
4.4 Late Charge 9
4.5 Default Interest 9
4.6 Pole License Administrative Processing Payments 9
4.6.1 Initial Payment 9
4.6.2 Account 10
4.6.3 Subsequent Payments 10
4.6.4 Early Termination 10
4.6.5 Refunding of Excess Amounts 10
4.6.6 Other City Permit and Regulatory Fees 10
4.7 Additional Fees 11
4.7.1 Defined 11
4.7.2 Exclusions 11
4.8 Manner of Payment 11
4.9 Reasonableness of Liquidated Charges and Fees 11
5 USE RESTRICTIONS 11
5.1 Permitted Use 11
5.2 No Illegal Uses or Nuisances 12
6 POLE LICENSE APPROVALS 12
6.1 City Approval Required 12
6.1.1 City Rights Superior 12
6.1.2 Changes in Application 12
6.1.3 Consultation with the Planning Division 13
6.2 Regulatory Approval Required. 13
6.3 Pole License Application 13
6.4 Pole License Application Review Process 13
6.5 Administrative Payments 14
6.6 Pole License Approval 14
7 INSTALLATION OF EQUIPMENT 14
7.1 Approved Plans and Specifications 14
7.1.1 Strict Compliance Required 14
7.1.2 Identification and Other Signage 14
7.1.3 Required Changes 14
7.1.4 Corrections 15
7.2 Installation 15
7.3 Cost of Labor and Materials 15
7.4 No Alteration of City’s Existing Equipment or Infrastructure 15
7.5 Standard of Work 15
7.6 Project Manager 16
7.7 Coordination of Work 16
7.8 Installation; Parking Regulations 16
8 ALTERATIONS 16
8.1 Licensee’s Alterations 16
8.2 Title to Improvements and Removal of Licensee’s Equipment 16
9 CITY WORK ON POLES 17
9.1 City Repairs, Maintenance, and Alterations 17
9.2 Notice to Licensee 17
9.3 Licensee’s On-Call Representative 17
9.4 Emergencies 17
10 LICENSEE’S MAINTENANCE AND REPAIR OBLIGATIONS. 18
10.1 Damage to City Property 18
10.2 Alterations to City Property 18
10.3 No Right to Repair City Property 18
10.4 Notice of Damage to City Property 18
10.5 Licensee’s Equipment 18
10.5.1 Maintenance and Repair 18
10.5.2 City Approval 18
10.5.3 Graffiti 19
10.6 Standard of Work 19
11 LIENS 19
12 UTILITIES; TAXES AND ASSESSMENTS 19
12.1 Utilities 19
12.2 Taxes and Assessments 19
12.2.1 Possessory Interest Taxes 19
12.2.2 Licensee’s Obligation if Assessed 20
12.2.3 Taxes on Equipment 20
13 COMPLIANCE WITH LAWS 20
13.1 Requirement 20
13.1.1 Current Laws 20
13.2 Personnel Safety Training 20
13.2.1 CPUC Certification 20
13.2.2 Licensee’s Indemnity 21
13.2.3 City’s Indemnity 21
13.3 Compliance with CPUC General Order 95 21
13.4 Compliance with Electric Codes 21
13.5 City’s Exercise of its Proprietary Interests 21
13.6 Regulatory Approvals. 22
13.7 Radiofrequency Radiation and Electromagnetic Fields 22
13.8 Compliance with City’s Risk Management Requirements 22
14 DAMAGE OR DESTRUCTION 22
14.1 No Statutory Rights for Damaged City Pole 22
14.2 Licensee’s Rights after Termination 23
15 ASSIGNMENT 23
15.1 Restriction on Assignment 23
15.2 Notice of Proposed Assignment 23
15.3 City Response 23
15.3.1 Timing 23
15.3.2 Effect of Default 23
15.4 Effect of Assignment 23
15.5 Assumption by Transferee 24
15.6 Permitted Assignment 24
15.6.1 Defined 24
15.6.2 Conditions 24
15.6.3 Licensee Carrier Customers 24
16 DEFAULT 25
16.1 Events of Default by Licensee 25
16.1.1 Nonpayment of Fees 25
16.1.2 Lapsed Regulatory Approvals 25
16.1.3 Prohibited Assignment 25
16.1.4 Interference with City 25
16.1.5 Failure to Maintain Insurance 25
16.1.6 Failure to Cure 25
16.1.7 Other Terms 25
16.1.8 Abandonment 25
16.1.9 Insolvency 26
16.2 City’s Remedies 26
16.2.1 Continuation of License 26
16.2.2 Termination of Pole License 26
16.2.3 Termination of Master License 26
16.2.4 Default Fees 26
16.3 Licensee’s Remedy for City Defaults 27
16.4 Cumulative Rights and Remedies 27
17 LICENSEE’S INDEMNITY 27
17.1 Scope of Indemnity 27
17.2 Indemnification Obligations 27
18 INSURANCE 28
18.1 Licensee’s Insurance 28
18.1.1 Coverage Amounts 28
18.1.2 Required Endorsements 28
18.1.3 Notice of Cancellation 28
18.1.4 Claims-Made Policies 28
18.1.5 General Aggregate Limit 29
18.1.6 Certificates 29
18.1.7 Insurance Does Not Limit Indemnity 29
18.1.8 Right to Terminate 29
18.1.9 Ratings 29
18.1.10 Effective Dates 29
18.1.11 Self-Insurance Alternative 29
18.1.12 Excess/Umbrella Insurance 29
18.2 Insurance of Licensee’s Property 29
18.3 City’s Insurance 29
18.4 Waiver of Subrogation 30
18.5 Contractors’ Bonds and Insurance 30
19 LIMITATION OF CITY’S LIABILITY 30
19.1 General Limitation on City’s Liability 30
19.2 Consequential Damages 30
19.3 No Relocation Assistance 31
19.4 Non-Liability of City Officials, Employees, and Agents. 31
19.5 Scope of Waivers 31
20 CITY ACCESS TO LICENSE AREA 31
20.1 City’s Right of Access 31
20.2 Emergency Access 31
20.3 No Liability for Emergency Access 32
21 REQUIRED RECORDS 32
21.1 Records of Account 32
21.2 Estoppel Certificates 32
21.3 Regulatory and Bankruptcy Records 32
21.3.1 Copies for City Records 32
21.3.2 Production of Documents 33
22 RULES AND REGULATIONS 33
23 FINANCIAL ASSURANCES 33
23.1 Security Deposit, Bond or Other Form of Financial Assurance 33
24 SURRENDER OF LICENSE AREA 33
24.1 Surrender 33
24.1.1 Obligations Upon Surrender 33
24.1.2 Equipment Abandoned After Termination 33
24.2 Holding Over 34
24.2.1 With Consent. 34
24.2.2 Without Consent 34
25 HAZARDOUS MATERIALS 34
25.1 Hazardous Materials in License Area 34
25.2 Licensee’s Environmental Indemnity 34
26 SPECIAL PROVISIONS 35
26.1 Early Termination by Either Party 35
26.2 Licensee’s Termination Rights 35
26.2.1 No-Fault Termination of Master License 35
26.2.2 Pole License Termination 35
26.2.3 Master License Termination 35
26.2.4 Interference Caused by City Work 35
26.3 City’s Termination Rights 35
26.3.1 Absolute Right to Terminate Pole Licenses 35
26.3.2 Removal of Equipment 36
26.3.3 City Pole Removal 36
26.3.4 Replacement, Relocation, or Upgrading of City Poles 37
26.4 Licensee’s Rights after Termination 37
26.5 Special Remedies for Interference with Operations 37
26.5.1 Licensee’s Obligation Not to Cause Interference 37
26.5.2 Impairment Caused by Change in City Use 38
26.5.3 Impairment Caused by City Access 38
27 GENERAL PROVISIONS 38
27.1 Notices 38
27.1.1 Writings Required 39
27.1.2 Manner of Delivery 39
27.1.3 Effective Date of Notices 39
27.1.4 Special Requirements 39
27.2 No Implied Waiver 39
27.3 Amendments 39
27.4 Interpretation of Licenses 39
27.4.1 General 39
27.4.2 Multi-party Licensee 40
27.4.3 Captions 40
27.4.4 Time for Performance 40
27.4.5 City Actions 40
27.4.6 Words of Inclusion 40
27.4.7 Laws 40
27.5 Successors and Assigns 40
27.6 Brokers 40
27.7 Severability 41
27.8 Governing Law and Venue 41
27.9 Entire Agreement 41
27.10 Time of Essence 41
27.11 Survival 41
27.12 Recording 41
27.13 Counterparts 41
27.14 Cooperative Drafting 42
27.15 Authority to Approve Agreement 42
27.16 Conflicts of Interest 42
27.17 Included Exhibits and Schedules 42
EXHIBIT A Form of Pole License Agreement
Exhibit A1 – Licensee’s Plans and Specifications
Exhibit A-2 – Form of Acknowledgement Letter
Exhibit A-3 – License Fee and Default Fee Schedule
Exhibit A-4 – City Installation Guidelines
EXHIBIT B Requirements for License Equipment
[Remainder of page intentionally left blank.]
BASIC LICENSE INFORMATION
City: City of South San Francisco, a California municipal corporation
Licensee: GTE Mobilnet of California Limited Partnership, a California limited
partnership, d/b/a Verizon
Term (§ 3.1.1): Ten (10) years commencing on the first day of the month after the date
the parties have fully executed this Master License and ending at midnight
on the last day of the term, unless earlier terminated. The Term shall be
renewable for two (2) subsequent five (5)-year intervals, subject to each
parties’ option to not renew the Master License after the expiration of the
initial ten (10) year term of the Master License, for any reason, upon one
hundred and eighty (180) days’ written notice to the other party.
Master License Effective Date
(§ 3.1.1):
The first day of the month after the date the parties have fully executed
this Master License.
Pole License Effective Date
(§ 3.1.1):
For each individual Pole License under the Master License, the date on
which Licensee has obtained all applicable and necessary Regulatory
Approvals following upon the parties fully executing the Pole License.
Master License and Pole License
Expiration Date:
For the Master License, the tenth anniversary of the Master License
Effective Date, unless otherwise renewed or extended.
For the Pole License, six months from the execution of the Pole License,
if Licensee fails to obtain all applicable and necessary Regulatory
Approvals within that six months.
If Licensee obtains all applicable and necessary Regulatory Approvals after
the Pole License is executed, the Pole License shall remain effective from
the Pole License Effective Date until the last day of the Pole License term
or the earlier termination of the Master License.
Pole License Commencement
Date (§ 4.1); Pole License
Effective Date (§ 4.1);
Acknowledgment Letter
(§ 4.1.2):
For each Pole License, the Commencement Date is the first day of the
month after the Pole License Effective Date. The Pole License Effective
Date is the date on which Licensee has obtained all Regulatory Approvals.
The City will confirm the Commencement Date for each Pole License in
the countersigned Acknowledgment Letter.
License Fee Commencement
Date § 4.2); License Fee Rate
(§ 4.2.1):
After the Commencement Date, Licensee will be obligated to pay City an
annual License Fee at the rate in effective at the time of full execution of
the Pole License, as specified in the current License Fee schedule as
adopted by the City Council, unless Licensee is eligible to receive a Pole-
Replacement Discount or the City Council has approved in-lieu benefits.
City will provide the License Fee schedule for each Pole License with the
signed Acknowledgment Letter, and the schedule will be deemed to be
attached to the Pole License as Exhibit A-3.
License Fee Adjustment Dates
(§ 4.3):
License Fee rates will be increased by the percentage amount set forth in
the City’s most current master fee schedule. This annual adjustment is
equal to the percentage change in the U.S. Department of Labor, Bureau
of Labor Statistics Consumer Price Index for All Urban Consumers
(“CPI”) that occurred during the previous one-year period, as reflected in
the City’s most current master fee schedule.
Pole License Administrative
Payments (§ 4.6):
$1,000 per Standard City Pole, to be delivered with Licensee’s application
for each Pole License. This initial payment, and any necessary
replenishment(s) thereof under Section 4.6.3, will be used to cover the
City’s costs to review and administer the application process upon delivery
of each Pole License application.
Permitted Use (§ 5.1): Installation, operation, and maintenance of Equipment on the License
Area specified in each Pole License and no other location.
Prohibited Use: Use of the License Area for any other purpose without City’s prior consent
is prohibited.
Equipment installation (Art. 7): All Equipment to be installed on the License Area is subject to City’s final
approval through the applicable Pole License, as provided in Article 7.
Licensee shall install Equipment at its sole cost only at the Pole Locations
specified in each Pole License.
Utilities (§ 12.1): Licensee shall be solely responsible for obtaining and maintaining the
provision of electricity to Licensee’s Equipment including but not limited
to, making payments to electric utilities and installation of separate electric
meters, if necessary.
Emissions Report (§ 13.7): As a condition to issuance of any Pole License, Licensee must provide City
a copy of the Emissions Report submitted for Licensee’s Small Cell
Attachment Permit.
Default Fee schedule (§ 16.2.4): Exhibit A-3 to each Pole License.
Security
Deposit/Bond/Financial
Assurances (Art. 23):
A bond, security deposit, or other forms of financial assurance acceptable
to the City, in the amount of Fifty Thousand Dollars ($50,000.00) to be
delivered with Licensee’s Acknowledgment Letter for the first Pole
License issued under this Master License, shall be provided prior to
erecting or installing facilities and equipment, for the removal of such
facilities and equipment in the event of termination or abandonment.
Notice address of City (§ 27.1): City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager
Re: Master License - [Wireless Company]
Telephone No.: (650) 877-8501
With a copy to: Meyers Nave
1999 Harrison St. 9th Floor
Oakland, CA 94612
Attn: Sky Woodruff, Esq.
Re: Master License – Verizon
Project manager and day-to-day
contact for City (§ 7.7):
________________________________
Telephone No.: _________________________
Emergency contact for City (§
9.4):
During Business Hours:
Public Works Call in Line
Telephone No.: 650-877-8550
Off-Hours
Police Dispatch
Telephone No.: _________________________
Instructions for payments due to
City:
Checks should be made payable to “City of South San Francisco” and
delivered to:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Finance Director
Re: Master License - [Wireless Company]
Wire transfers should be directed as follows:
____________________________________
Send remittance information to:
_________________________ [email address(es)]
Notice address of Licensee (§
27.1):
GTE Mobilnet of California Limited Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Re: SSF SC MLA
With a copy to: GTE Mobilnet of California Limited Partnership
d//b/a Verizon Wireless
15505 Sand Canyon Avenue
Irvine, CA 92618
Attention: Legal Department
Project manager for Licensee (§
7.7):
________________________________
Telephone No.: _________________________
On-call and emergency contact
for Licensee (§§ 9.3, 9.4):
________________________________
Telephone No.: _________________________
Notice to License Applicants: The City’s acceptance of the application payment(s) will not obligate the
City to enter into any Master License if application requirements are not satisfied. If the City disapproves
any Master License, it will notify the applicant by a letter specifying the application.
[Remainder of page intentionally left blank.]
[Page intentionally left blank.]
1
MASTER LICENSE FOR
[SMALL CELL WIRELESS FACILITY]
This MASTER LICENSE AGREEMENT FOR SMALL CELL WIRELESS FACILITIES
(“Master License” or “Agreement”), effective as of __________, 20__, is made by and between the
CITY OF SOUTH SAN FRANCISCO, a California municipal corporation (the “City”) and GTE
Mobilnet of California Limited Partnership, , a California limited partnership, d/b/a Verizon Wireless
(“Licensee”).
RECITALS
A. The City owns street light poles, traffic signal poles, safety poles, and other poles (each, a
“City Pole”) within the public right-of-way and owns or controls public right-of-way within the City
of South San Francisco located in San Mateo County, State of California.
B. Licensee is a limited partnership organized under the laws of the State of California,
legally qualified to do business within the State of California whose business includes the installation
and maintenance of small cell antenna facilities.
C. Licensee has the authority under applicable Laws to install and maintain telephone lines in
the public right-of-way to provide wireless telecommunications services.
D. The City has the authority under applicable Laws to exercise reasonable control as to the
time, place, and manner in which roads, highways, and waterways are accessed.
E. Licensee has requested to use City Poles to install, maintain, and operate Small Cell
Wireless Facilities (“SCWF”) as specified in this Master License.
F. In order to encourage wireless infrastructure investment and promote the management of
the rights-of-way in the overall interests of the public health, safety and welfare, the City desires to
permit Licensee to license the City Poles in accordance with the terms, conditions, and covenants
contained in this Agreement.
NOW THEREFORE, IN RECOGNITION OF MUTUAL CONSIDERATION,
THE ABOVE PARTIES AGREE TO THE FOLLOWING:
AGREEMENT
1 PURPOSE, DEFINITIONS, AND BASIC LICENSE INFORMATION
1.1 Purpose.
1.1.1 Master License. This Master License: (i) establishes the legal relationship and
framework under which Licensee may apply to the City for and obtain a revocable, non-
possessory privilege to use the License Area identified in Pole Licenses issued under this
Master License for the Permitted Use; (ii) governs the fees, charges, procedures,
requirements, terms, and conditions by which the City will issue Pole License(s) to Licensee;
and (iii) authorizes Licensee to engage in the Permitted Use only after individual Pole
Licenses are issued under this Master License. The Parties acknowledge that the City and
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Licensee are executing additional agreements to pursue a form of a joint strategic
development to facilitate the planning, implementation and management of the accelerated
deployment of fiber in South San Francisco, and in the event that the terms and conditions of
such additional agreements conflict with that of this Master License, the terms and conditions
of this Master License shall control.
1.1.2 Pole Licenses. Pole Licenses that the City issues under this Master License
will: (i) authorize Licensee to engage in the Permitted Use; (ii) specify approved Pole
Locations and any site constraints and installation, operation, and maintenance requirements
specific to those Pole Locations; (iii) grant a license, but not a leasehold interest, to Licensee
only as a part of and subject to the terms and conditions of this Master License; and (iv) not
amend any term or condition of this Master License. In the event that a Pole License term or
condition conflicts with that of this Master License, the term or condition under this Master
License shall control.
1.1.3 Non-City Poles. The parties agree that Licensee may seek to install
Equipment on poles owned by any other public or private party, or as otherwise permitted by
Laws, which is not subject to the terms of this Master License.
1.2 Basic License Information.
The Basic License Information in the preceding pages is intended to provide a summary of
certain provisions relating to the licenses that the City will grant to Licensee in accordance with this
Master License and is for the parties’ reference only. If any information in the Basic License
Information conflicts with any more specific provision of this Master License or any Pole License
issued under it, the more specific provision will control.
1.3 Definitions.
Capitalized and other defined terms used in this Master License and all exhibits have the
meanings given to them in this Section or in the text where indicated below, subject to the rules of
interpretation set forth in Section 27.4 (Interpretation of Licenses).
“Acknowledgment Letter” is defined in Subsection 4.1.2.
“Additional Fees” is defined in Subsection 4.7.1.
“Adjustment Date” is defined in Section 4.3.
“Administrative Payments” is defined in Section 4.6.
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under the
common control with Licensee and has a net worth of at least $10 million.
“Agents” when used with respect to either party includes the agents, employees, officers,
contractors, subcontractors, and representatives of that party in relation to this Master License and
the License Area.
“Approved Plans” is defined in Subsection 7.1.1.
“Assignee” is defined in Section 15.2.
“Assignment” means any of the following: (a) a merger, acquisition, or other transfer of a
controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee’s sale, assignment,
encumbrance, pledge, or other transfer of any part of its interest in or rights with respect to the
License Area; and (c) any action by Licensee to permit any portion of the License Area to be
occupied by anyone other than itself, including a sublicensee.
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“Assignment Response Period” is defined in Subsection 15.3.1.
“Basic License Information” means the summary attached in chart form immediately
preceding the text of this Master License.
“Broker” is defined in Section 27.6.
“Business Day” is defined in Subsection 27.4.4.
“CERCLA” means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.), also commonly known as the “Superfund” law.
“City” is defined in the preamble.
“City Pole” is defined in Recital A.
“Claim” is defined in Section 17.1.
“Commencement Date” is defined in Subsection 4.1.1.
“Common Control” means two entities that are both Controlled by the same third entity.
“Control” means: (a) as to a corporation, the ownership of stock having the right to exercise
more than 50% of the total combined voting power of all classes of stock of the controlled
corporation, issued and outstanding; and (b) as to partnerships and other forms of business
associations, ownership of more than 50% of the beneficial interest and voting control of such
association.
“CPUC” is defined in Subsection 13.2.1.
“Default Fee” is defined in Subsection 16.2.4.
“Master License Effective Date” means the effective date of this Master License as
specified in the Basic License Information.
“EMFs” is defined in Section 13.7.
“Emissions Report” is defined in Section 13.7.
“Environmental Laws” means any Law relating to industrial hygiene, environmental
conditions, or Hazardous Materials.
“Equipment” means antennas and any associated utility or equipment box, and battery
backup, transmitters, receivers, radios, amplifiers, ancillary fiber-optic cables and wiring, and ancillary
equipment for the transmission and reception of radio communication signals for voice and other
data transmission, including the means and devices used to attach, mount or install other Equipment
to a licensed pole in the public right of way, peripherals, and ancillary equipment and installations,
including wiring, cabling, power feeds, and any approved signage attached to Equipment.
“Expiration Date” means the last day of the Term of this Master License and any Pole
Licenses issued under it as specified in the Basic License Information.
“FCC” is defined in Section 7.1.2.
“Hazardous Material” means any material that, because of its quantity, concentration, or
physical or chemical characteristics, is at any time now or hereafter deemed by any Regulatory Agency
to pose a present or potential hazard to human health, welfare, or safety or to the environment.
Hazardous Material includes any material or substance defined as a “hazardous substance,” or
“pollutant” or “contaminant” in CERCLA or section 25316 of the California Health & Safety Code;
and any “hazardous waste” listed in section 25140 of the California Health & Safety Code; and
petroleum, including crude oil or any fraction thereof, natural gas, or natural gas liquids.
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“Indemnified Party” means the City, its Agents, its Invitees, and their respective heirs, legal
representatives, successors, and assigns.
“Indemnify” means to indemnify, defend (with counsel reasonably acceptable to an
Indemnified Party), and hold harmless.
“Investigate and Remediate” means the undertaking of any activities to determine the
nature and extent of Hazardous Material that may be located in, on, under, or about the License Area
or that has been, is being, or is in danger of being Released into the environment, and to clean up,
remove, contain, treat, stabilize, monitor, or otherwise control such Hazardous Material.
“Invitees” when used with respect to either party includes the clients, customers, invitees,
guests, tenants, subtenants, licensees, assignees, and sublicensees of that party in relation to the
License Area.
“Laws” means all present and future statutes, ordinances, codes, orders, regulations, and
implementing requirements and restrictions of federal, state, county, and municipal authorities,
whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the
time in question.
“License Area” means, individually and collectively for all licensed City Poles, the portion of
the City Poles approved for installation of Equipment, including conduits housing the circuits
delivering power to the City Poles and street light pull boxes and other City Property necessary for
access.
“License Fee” is defined in Subsection 4.2.1. “License Year” is defined in Subsection
4.1.1. “Licensee” is defined in the preamble.
“Master License” is defined in the preamble, and where appropriate in the context, includes
all Pole Licenses issued under it.
“NESC” is defined in Section 13.4.
“Nonstandard City Pole” means a City Pole other than a Standard City Pole, including
historic, decorative, or concrete City Poles, traffic signal poles, or intersection traffic control and
safety poles.
“Notice of Proposed Assignment” is defined in Section 15.2.
“Permitted Use” means Licensee’s installation, operation, and maintenance of Equipment
for the transmission and reception of wireless, cellular telephone, and data and related
communications equipment on License Areas.
“Pole” means a street light pole or other utility pole in South San Francisco, whether owned
and operated by the City or another entity.
“Pole License” means the document in the form of Exhibit A that, when fully executed,
incorporates the provisions of this Master License and authorizes Licensee to install, operate, and
maintain Equipment for the Permitted Use on City Poles identified in the Pole License.
Pole License Effective Date is defined in Subsection 4.1.1.
“Pole Location” means the geographic information identifying each City Pole on which
Licensee is authorized to install, operate and maintain Equipment under Pole Licenses. Pole
Locations will be identified in Exhibit A to each Pole License.
“Property” means any interest in real or personal property, including land, air, and water
areas, leasehold interests, possessory interests, easements, franchises, and other appurtenances, public
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rights-of-way, physical works of improvements such as buildings, structures, infrastructure, utility,
and other facilities, and alterations, installations, fixtures, furnishings, and additions to existing real
property, personal property, and improvements.
“Regulatory Agency” means the local, regional, state, or federal body with jurisdiction and
responsibility for issuing Regulatory Approvals in accordance with applicable Laws.
“Regulatory Approvals” means licenses, permits, and other approvals necessary for
Licensee to install, operate, and maintain Equipment on the License Area.
“Release” when used with respect to Hazardous Material includes any actual or imminent
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing on, under, or about the License Area, other City Property, or the environment.
“RFs” is defined in Section 13.7.
“Standard City Pole” means a standard steel or aluminum tapered City street light pole
installed in the City right-of-way. Standard City Poles conform to then-applicable Public Works
standards, as may be amended from time to time.
“Subsidiary” means an entity controlled by Licensee that has a net worth of at least $5
million.
“Term” is defined in Subsection 3.1.1.
“Small Cell Attachment Permit” is defined in Section 6.2.
2 SCOPE OF LICENSE
2.1 License Areas.
2.1.1 Issuance of Pole Licenses. Subject to the terms, covenants, and conditions set
forth in this Master License, the City will issue to Licensee one or more Pole Licenses, each
of which will be effective as of the first day of the month after the date on which both parties
have executed it. Each Pole License will grant Licensee a contractual privilege to use the
License Area specified in the Pole License.
2.1.2 No Competing Licenses. The City, absent prior written consent from
Licensee, will not issue a Pole License to any third party for any City Pole that is licensed to
Licensee under a valid Pole License.
2.1.3 Limitation on Scope. This Master License applies only to City Poles identified
in final, fully executed Pole Licenses. This Master License does not authorize the Permitted
Use on any other City Property except the License Areas specified in the Pole Licenses.
2.2 No Property Interest in License Area or City Poles.
2.2.1 Limited Interest. Licensee acknowledges and agrees that neither this Master
License nor any Pole License issued under it creates a lease, possessory interest, easement,
franchise, or any other real property interest in any part of the License Area. Licensee further
acknowledges and agrees that in the absence of a fully executed Pole License, Licensee does
not have the right to use any City Pole for any purpose.
2.2.2 Limited Rights. Pole Licenses that the City issues under this Master License
grant to Licensee only a non-possessory, revocable license to enter onto and use the License
Area for the Permitted Use, which means that:
(a) the City retains possession and control of all License Areas and City
Poles for City operations, which will at all times be superior to Licensee’s interest;
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(b) the City may terminate a Pole License in whole or in part at any time,
but only in accordance with this Master License;
(c) except as specifically provided otherwise in this Master License, this
Master License does not limit, restrict, or prohibit the City from entering into
agreements with third parties regarding the use of other City facilities, including City
Poles or other City Property in the vicinity of any License Area; and
(d) neither this Master License nor any Pole License creates a partnership
or joint venture between the City and Licensee.
2.2.3 No Impediment to Municipal Use. Except as limited in this Master License,
neither this Master License nor any Pole License limits, alters, or waives the City’s right to use
any part of the License Area as infrastructure established and maintained for the benefit of
the City. And for such purpose, City may require Licensee to relocate its equipment and
facilities at Licensee’s sole expense to another location mutually acceptable to Licensee and
City upon at least ninety (90) days’ prior notice from City to Licensee.
2.3 Signs and Advertising.
Licensee agrees that its rights under Pole Licenses do not authorize Licensee to erect or
maintain, or permit to be erected or maintained by anyone under Licensee’s control, any signs (except
as provided in Section 7.1.2 (Identification and other Signage)), logos, notices, graphics, or
advertising of any kind on any part of the License Area.
2.4 Light and Air.
Licensee agrees that no diminution of light, air, or signal transmission by any structure
(whether or not erected by the City) will entitle Licensee to any reduction of the License Fees or
Additional Fees under any Pole License, result in any liability of the City to Licensee, or in any other
way affect this Master License, any Pole License, or Licensee’s obligations, except as specifically
provided in this Master License.
2.5 As-Is Condition of the License Area.
2.5.1 As-Is Condition. Licensee expressly acknowledges and agrees to enter onto
and use each License Area in its “as-is, with all faults” condition. The City makes no
representation or warranty of any kind as to the condition or suitability for Licensee’s use of
any License Area.
2.5.2 Licensee Due Diligence. Licensee represents and warrants to the City that
Licensee has conducted a reasonably diligent investigation, either independently or through
Agents of Licensee’s choosing, of the condition of the License Area and of the suitability of
the License Area for Licensee’s intended use, and Licensee is relying solely on its independent
investigation. Licensee further represents and warrants that its intended use of the License
Area is the Permitted Use as defined in Section 1.3 (Definitions) and as described in the
Basic License Information.
2.5.3 No City Representations or Warranties. Except as may be expressly provided
herein, Licensee agrees that neither the City nor any of its Agents have made, and the City
disclaims, any representations or warranties, express or implied, with respect to the physical,
structural, or environmental condition of the License Area, the present or future suitability of
the License Area for the Permitted Use, or any other matter relating to the License Area.
2.5.4 Disclosure. Under California Civil Code section 1938, to the extent applicable
to this Master License, Licensee is hereby advised that a Certified Access Specialist (as defined
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in that Law) has not inspected any License Area to determine whether it meets all applicable
construction-related accessibility requirements.
3 TERM
3.1 Term of Master License and Pole Licenses.
3.1.1 Term. The term of this Master License shall be ten (10) years commencing on
the first day of the month after the date the parties have fully executed this Master License
(“Master License Effective Date”) and ending at midnight on the last day of the term,
unless earlier terminated (the “Term”) as provided in this Master License. The Term shall be
renewable for two (2) subsequent five (5)-year intervals, subject to each parties’ option to not
renew the Master License after the expiration of the initial ten (10) year term of the Master
License, for any reason, upon one hundred and eighty (180) days’ written notice to the other
party. Each Pole License will be effective on the date on which Licensee has obtained all
applicable and necessary Regulatory Approvals following the parties fully executing the Pole
License, and shall terminate upon the last day of the Term or earlier termination of this
Master License, which may result in a partial License Year (as defined in Subsection 4.1.1
below) at the end of the Pole License Term.
3.1.2 Minimum Term for License Fee Purposes. The minimum Term for the
purpose of establishing the License Fee for each Pole License will be one License Year
immediately following the Commencement Date under Section 4.1 (Commencement Date).
This minimum Term provision will prevail over any rights of abatement or termination
afforded to Licensee under this Master License except under Section 26.1 (Early Termination
by Either Party).
4 LICENSE FEES; ADDITIONAL FEES; AND OTHER CHARGES
4.1 Commencement Date and Pole License Effective Date.
4.1.1 Definition. Licensee shall pay an annual License Fee under each Pole License
beginning on its “Commencement Date,” which will be the first day of the month after the
Pole License Effective Date, as defined below. Each 12-month period beginning on the
Commencement Date of each Pole License is a “License Year” for that Pole License. Each
Pole License shall only become effective upon the date on which Licensee has obtained all
applicable and necessary Regulatory Approvals after the Pole License is fully executed (“Pole
License Effective Date”). Unless resulting from circumstances that are beyond Licensee’s
reasonable control without its fault or negligence and cannot be reasonably mitigated,
overcome or avoided by its due diligence, Licensee’s failure to obtain all Regulatory
Approvals within six (6) months from Licensee execution of a Pole License (“Pole License
Expiration Date”) shall automatically terminate the Pole License, and the underlying Pole
associated with such license shall become available for application and licensing by other
applicants.
4.1.2 Acknowledgment Letter. Within fifteen (15) business days after obtaining all
Regulatory Approvals for the Permitted Use on any License Area, Licensee shall deliver to the
City a letter in the form of Exhibit A-2 to the Pole License (each, an “Acknowledgment
Letter”). The purposes of the Acknowledgment Letter are to: (i) confirm the
Commencement Date and the Pole License Effective Date; (ii) acknowledge that Licensee
will tender payment of the License Fee for the first License Year within ninety (90) days of
the Pole License Commencement Date, and the Security Deposit/Bond/Financial Assurance
under Article 23, all in the amounts specified in the Basic License Information; (iii) provide
to the City copies of all Regulatory Approvals; and (iv) provide to the City copies of required
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insurance certificates and endorsements related to the requirements under Article 18
(Insurance).
4.1.3 City Demand for Acknowledgment Letter. If Licensee has not delivered to the
City the complete Acknowledgment Letter by the first anniversary of the Effective Date of
any Pole License, the City will have the right to: (i) demand that Licensee deliver the
Acknowledgment Letter, together with copies of all Regulatory Approvals, within ten (10)
business days after the date of the City’s demand; and (ii) to set the Commencement Date at
the first anniversary of the Pole License Effective Date if Licensee does not deliver the
complete Acknowledgment Letter within that 10-business day period.
4.1.4 Correct Commencement Date. In all cases, the City will have the right to
correct the Commencement Date stated in Licensee’s Acknowledgment Letter after
examining Regulatory Approvals. The City will notify Licensee of any such correction by
notice delivered in accordance with Section 27.1 (Notices). The City’s determination under
this subsection or under Subsection 4.1.3 (City Demand for Acknowledgment Letter) will be
final for all purposes under this Master License.
4.1.5 Countersigned Acknowledgment Letter. The City will use reasonable efforts to
deliver to Licensee a countersigned copy of the Acknowledgement Letter or its determination
of the Commencement Date under Subsection 4.1.4 (Correct Commencement Date) within
ten (10) business days of the City’s receipt of the Acknowledgement Letter from the Licensee.
The fully executed Acknowledgement Letter or the City’s Commencement Date
determination letter, as applicable, will be the City’s notice to proceed under Section 7.2
(Installation).
4.2 License Fees.
4.2.1 License Fee Schedule. Within ninety (90) days of the Commencement Date,
Licensee shall pay to the City the License Fee for the initial License Year at the rate in effect
at the time of full execution of the Pole License, as specified in the License Fee Schedule
attached hereto which has been adopted by the City Council, and attached to each Pole
License (the “License Fee”), unless the City Council has approved in-lieu benefits as set
forth in Subsections 4.2.3 and 4.2.4. The License Fee Schedule will reflect annual calendar-
year adjustments as provided in Section 4.3 (Adjustments in License Fee).The License Fee
must be delivered in cash or its equivalent in the manner specified in Section 4.10 (Manner of
Payment).
4.2.2 Amount of License Fee. Licensee must take into account annual License Fee
adjustments under Section 4.3 (Adjustments in License Fee) when calculating the amount of
each annual License Fee. After the initial License Fee payment, each annual License Fee is
payable in advance without prior demand or any deduction, setoff, or counterclaim, except to
account for a partial year at the end of the Term or earlier termination of this Master License
or a right of abatement or refund expressly granted under this Master License. Any amounts
calculated for less than a full year or a full month will be calculated based on a 360-day year
and 30-day months.
4.2.3 In-Lieu Public Benefits. Subject to City Council review and approval, Licensee
may provide the City with public benefits in lieu of paying a License Fee for a Pole License. In
the event that Licensee provides the City with such in-lieu public benefits, the City Council
shall review and shall approve those public benefits in lieu of paying a License Fee. The in-
lieu benefits shall be identified in a separate agreement for each Pole License for which a
License Fee is waived or reduced, and such agreement shall become an exhibit to this Master
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License Agreement, and shall set forth the terms and conditions under which the Licensee
shall provide in-lieu benefits to the City. The terms and conditions may include, but are not
limited to the in kind contributions, public improvements, other charges, and/or
contributions as mutually agreed, and any such other terms which promote the public health,
safety, and welfare of the City. Providing in-lieu benefits pursuant to this subsection shall not
relieve Licensee of the obligations to pay any other required Master License Application
Processing Payments and Additional Fees as prescribed under Sections 4.6 through 4.10 of
this Agreement.
4.2.4 Due Dates.
(a) Licensee shall submit the initial License Fee within ninety (90) days of
the City providing to Licensee the signed Acknowledgment Letter for the Pole
License without deduction for any reason.
(b) The annual License Fee for each subsequent License Year of the Term
of each Pole License will be due and payable to the City on each anniversary of the
Commencement Date and will be late if the City has not received payment by the due
date.
4.3 Adjustments in License Fee.
On January 1 of each year during the term of the Master License (each, an “Adjustment
Date”), the License Fee will be increased by the percentage amount set forth in the City’s most
current master fee schedule. This annual adjustment is equal to the percentage change in the U.S.
Department of Labor, Bureau of Labor Statistics Consumer Price Index for All Urban Consumers
(“CPI”) that occurred during the previous one-year period, as reflected in the City’s most current
master fee schedule.
4.4 Late Charge.
If Licensee fails to pay any License Fee, Additional Fee, or other amount payable to the City
under this Master License within thirty (30) days after the City’s delivery of notice that the same is
due and unpaid, such unpaid amounts will be subject to a late charge equal to 1% of the unpaid
amounts. For example, if a License Fee in the amount of $40,000 is not paid on its due date and
remains unpaid after the 30-day cure period has expired, the late charge would be $400.
4.5 Default Interest.
Any License Fee, Additional Fee, and other amount payable to the City (except late charges),
if not paid within ten (10) business days after the receipt of written notice that the same is past due,
will bear interest from the due date until paid at the default rate of 10% per year. Payment of default
interest and the applicable late charge alone will not excuse or cure any default by Licensee.
4.6 Pole License Administrative Processing Payments.
Licensee shall pay to the City funds to cover the City’s costs to review and administer the
application process (the “Administrative Payments”). Such payments shall compensate the City for
all of the actual costs of processing each Pole License application, including, but not limited to, all
time and materials costs of City employees, agents, consultants, and the City Attorney’s office.
4.6.1 Initial Payment. Licensee shall pay to the City an initial Administrative
Payment in the amount of One Thousand ($1,000) upon delivery of each Pole License
application to the City. City will not be obligated to begin its review of any Pole License
application until the initial Administrative Payment is paid. This initial payment shall be
subject to an annual adjustment on each anniversary of the Master License Effective Date
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consisting of the percentage amount set forth in the City’s most current master fee schedule.
This annual adjustment is equal to the percentage change in the U.S. Department of Labor,
Bureau of Labor Statistics Consumer Price Index for All Urban Consumers (“CPI”) that
occurred during the previous one-year period, as reflected in the City’s most current master
fee schedule.
4.6.2 Account. The initial Administrative Payment, and any subsequent payments,
as provided below, shall be held by City in an account for the reimbursement of City’s costs.
Upon Licensee’s request, City shall provide to Licensee a monthly accounting of the account
with a description of City’s costs and expenses withdrawn from the account.
4.6.3 Subsequent Payments. In the event that (1) Licensee submits Pole License
applications that are not within the design standards or other requirements set forth in the
South San Francisco Municipal Code or otherwise adopted by the City or agreed to between
the parties; (2) submits more than fifteen (15) Pole License applications per calendar month;
(3) the City receives an appeal on the application within the appeal period set forth pursuant
to South San Francisco Municipal Code Chapter 20.375; or (4) in other unusual circumstances
in which the City would need to perform activities that exceed those described in Section 4.7
or activities that significantly exceed the complexity of those typically performed by City in
processing the Pole License applications, the City may require Licensee to provide additional
deposits to recoup its reasonable costs for such unusual services or unusual levels of service
that exceed those typically associated with processing Pole License applications.
Notwithstanding the foregoing, prior to requiring any additional deposit amounts, the City
shall notify Licensee of the unusual circumstances presented that requires the additional
deposit and an estimate of the additional deposit required within fifteen (15) business days of
its receipt of the applications or an appeal and Licensee shall have an opportunity for a period
of thirty (30) days to consider the additional costs or amend or withdraw its application(s) to
alleviate the additional costs. If Licensee does not amend or withdraw those application(s)
resulting in such additional costs within such thirty (30) day period, Licensee shall be deemed
to have elected to proceed with those application(s) and shall provide the City with the
required additional deposits. The City shall not be obligated to continue processing those
application(s) until receipt of the additional deposits. The parties agree that any applicable
shot clock shall be tolled during these fifteen (15) and thirty (30) day periods described in this
section.
4.6.4 Early Termination. Licensee shall have the right to terminate processing of
the application by providing written notice to the City. Upon receipt of such notice by City
(for purposes of this section, “Termination Date”), City shall cease all processing on
Licensee’s application as of the Termination Date and shall pay all costs incurred by City prior
to such Termination Date from the account.
4.6.5 Refunding of Excess Amounts. Any funds remaining in the deposits set forth
in this section 4.6 upon issuance of all approvals and installation of equipment authorized
under the Pole, or upon termination of processing by Licensee, shall be returned to Licensee
within ninety (90) days following such equipment installation or the Termination Date,
respectively. If further staff time is required to administer or process a Pole License after the
excess amounts have been returned to Licensee, Licensee is obligated to pay the City
additional one-time deposits to recoup its costs for such additional processing consistent with
section 4.6.3 above.
4.6.6 Other City Permit and Regulatory Fees. The foregoing processing payment
obligation does not relieve Licensee from paying City permit and regulatory fees including
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deposits and fees for an encroachment permit, plan check, and administrative payments
required by the County of San Mateo, all as provided in the City’s most recently adopted
master fee schedule.
4.7 Additional Fees.
4.7.1 Defined. Sums payable to the City by Licensee, including any late charges,
default interest, costs related to a request for the City’s consent to an Assignment under
Section 15.2 (Notice of Proposed Assignment), and Default Fees under Subsection 16.2.4
(Default Fees), are referred to collectively as “Additional Fees.” Additional Fees are not
regulatory fees.
4.7.2 Exclusions. Licensee’s payment of any of the following will not be considered
Additional Fees under this Master License: (i) application fees (§ 4.6); (ii) Administrative
Payments (§ 4.7); (iii) any other amount paid to the City in compensation for reviewing
Licensee’s applications and coordinating and inspecting its installation of Equipment on the
License Area under Pole Licenses; (iv) License Fees; and (v) any other payments to the City
including permit and regulatory fees under section 4.6.6.
4.8 Manner of Payment.
Licensee shall pay License Fees, Administrative Payments, Additional Fees, and all other
amounts payable to the City under this Master License in cash or other immediately available funds
by: (i) check payable to the “City of South San Francisco” and delivered to the City in care of the Finance
Director of the City of South San Francisco at the address for payment specified in the Basic License
Information; or (ii) wire transfer in accordance with the instructions in the Basic License Information,
unless the City directs otherwise by notice given in accordance with Section 27.1 (Notices). A check
that is dishonored will be deemed unpaid.
4.9 Reasonableness of Liquidated Charges and Fees.
The parties agree that the Additional Fees payable under this Master License represent a fair
and reasonable estimate of the administrative costs that the City will incur in connection with the
matters for which they are imposed and that the City’s right to impose the Additional Fees is in
addition to and not in lieu of its other rights under this Master License. More specifically:
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CITY’S ACTUAL
ADMINISTRATIVE COSTS AND OTHER DETRIMENT ARISING FROM LICENSEE
DEFAULTS AND OTHER ADMINISTRATIVE MATTERS UNDER THIS MASTER
LICENSE WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. BY PLACING HIS OR HER INITIALS BELOW, AN AUTHORIZED
REPRESENTATIVE OF EACH PARTY ACKNOWLEDGES THAT THE PARTIES
HAVE AGREED, AFTER NEGOTIATION, ON THE AMOUNT OF THE
ADDITIONAL FEES AS REASONABLE ESTIMATES OF THE CITY’S ADDITIONAL
ADMINISTRATIVE COSTS AND OTHER DETRIMENT.
Initials: Licensee City
5 USE RESTRICTIONS
5.1 Permitted Use.
Licensee shall use the License Area solely for the Permitted Use and for no other use, subject
to all applicable Laws and conditions of Regulatory Approvals. Licensee shall not interfere with the
City’s use and operation of any portion of the License Area or any other City Property for any
purpose. Each Pole License will be subject to and conditioned upon Licensee obtaining and
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maintaining throughout the Term all Regulatory Approvals to use the License Area for the Permitted
Use. Licensee acknowledges that City Laws and Regulatory Approvals include design review,
engineering, radio interference, and zoning or telecommunications ordinances.
5.2 No Illegal Uses or Nuisances.
Licensee shall not use or occupy any of the License Area in any unlawful manner or for any
illegal purpose or in any manner that constitutes a nuisance as determined by the City in accordance
with applicable law. Licensee shall not do or permit to be done anything that unreasonably disturbs
the City’s use of City poles. Licensee shall take all precautions to eliminate any nuisances or hazards
in connection with its use of the License Area, including but not limited to unreasonable odors, noise,
vibration, power emissions which exceed the level permitted by the FCC or other item to emanate
from the Licensee’s antennas, facilities or equipment. No materials or articles of any nature shall be
stored outside adjacent to any portion of the License Area without City’s consent or as provided in
the approved Pole License.
6 POLE LICENSE APPROVALS
6.1 City Approval Required.
6.1.1 City Rights Superior. Licensee’s use of any part of the License Area for the
Permitted Use is subject to the City’s prior approval in connection with a Pole License
application. Subject to any limitations expressly provided in this Master License, the City is
not obligated to subordinate its municipal functions or proprietary interests in any way to
Licensee’s interest under any Pole License. In determining whether to approve Licensee’s
application for any City Pole, including the attached plans and specifications, the City may
consider any matter affecting its municipal obligations and proprietary interests in accordance
with applicable Laws. Examples of municipal and proprietary concerns include:
(a) the resulting total load on the City Pole if the Equipment is installed;
(b) the impact of the installation on the City’s street light operations,
including whether the Equipment would compromise the City’s street light circuits
serving City Poles;
(c) whether the installation complies with electrical codes;
(d) whether the Equipment would create a hazardous or unsafe condition;
(e) any impacts the Equipment would have in the vicinity of the City Pole,
including size, materials, and visual clutter;
(f) aesthetic concerns; and
(g) municipal plans for the City Pole.
6.1.2 Changes in Application. If the City reasonably and lawfully determines for any
reason that the Permitted Use at any particular Pole Location would impede its municipal
functions or otherwise affect its proprietary interests negatively, it will provide notice to
Licensee of the City’s concerns as soon as reasonably practicable in the application review
process. Licensee will have the opportunity to change the Pole License application to address
the City’s concerns for a period ending fourteen (14) days after delivery of the City’s notice
without affecting the priority of Licensee’s application in relation to other potential licensees.
Any other changes that Licensee makes in the Pole License application will cause the date that
the application is deemed submitted to be changed to the date that Licensee delivers the
proposed changes to the City.
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6.1.3 Consultation with the Planning Division. In reviewing a Pole License
application, the City’s Public Works Department may consult with the City’s Planning
Division to assess whether Licensee’s proposed Equipment is appropriate for a given location
or, for historic and decorative Nonstandard City Poles, whether the proposed Equipment
poses particular aesthetic concerns. Licensee acknowledges, but does not agree with the City’s
position that any consultation between Public Works Department and the Planning Division
in accordance with the preceding sentence and any resulting actions by the City would be in
the City’s proprietary capacity as the owner of the City Poles and would not be an exercise of
regulatory authority. Notwithstanding anything contained herein to the contrary, the Parties
agree that any pole attachment applications are subject to federal shot clock timeframes.
6.2 Regulatory Approvals Required.
Licensee’s installation of Equipment is also subject to the prior approval of, and Licensee’s
compliance with all conditions of, applicable staff-level design review as outlined in Requirements for
Licensee Equipment (Exhibit B to Pole License) and a Small Cell Attachment Permit as required by
the South San Francisco Municipal Code (generally, a “Small Cell Attachment Permit”), other
applicable City requirements, and implementing regulations and orders, if any. The City acknowledges
that the review and approval of a Small Cell Attachment Permit is subject solely to the provisions of
South San Francisco Municipal Code Chapter 20.375, including section 20.375.007(C) which provides
that all small cell wireless not otherwise exempt shall be issued a Small Cell Attachment Permit, an
encroachment permit and building permit by City, provided that all applicable Regulatory Approvals
have been obtained.
6.3 Pole License Application.
Licensee shall submit Pole License applications to the City, which will review, approve, or
deny each application in its reasonable and lawful discretion. Each application will consist of:
(a) partially executed duplicate counterparts of a Pole License application in the form attached as
Exhibit A, including the location and other identifying information about each City Pole covered by
the Application, including whether it is a Standard City Pole or a historic or decorative Nonstandard
City Pole; (b) Exhibit A-1, consisting of all plans and specifications required under Subsection 7.1.1
(Strict Compliance Required); (c) the initial Administrative Payment as specified in Section 4.7 (Pole
License Administrative Processing Payments); and (d) if not previously provided, a copy of the
Emissions Report submitted for the Small Cell Attachment Permit. For Pole License applications
relating to the use a License Area that is not solely owned by the City, including, but not limited to,
City easements located on private property, Licensee shall also provide evidence demonstrating, to
the satisfaction of the City Attorney, Licensee’s entitlement to use the proposed License Area for the
Permitted Use.
6.4 Pole License Application Review Process.
The City will review and process Pole License applications in a reasonably prompt manner in
the chronological order (date and time) in which complete applications are submitted or deemed
submitted. Except as stated in the preceding sentence or as otherwise specified in this Master License,
the City will not give priority to any application or licensee over another application or licensee.
Licensee acknowledges that staff and budget considerations will limit the City’s ability to review and
process Pole License applications. During its review process, the City will provide to Licensee the
applicable License Fee and Default Fee Schedule (Exhibit A-3 to Pole License),City Installation
Guidelines (Exhibit A-4 to Pole License), and Requirements for Licensee Equipment (Exhibit B to
Pole License) each of which will be deemed to be attached to the Pole License upon execution by the
City.
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6.5 Administrative Payments.
The City is not obligated to begin its review of any Pole License application if Licensee has
failed to pay the applicable initial Administrative Payment under Section 4.7 (Pole License
Administrative Processing Payments) when due. If Licensee does not timely deliver the required
initial Administrative Payment, the supplement for any Nonstandard City Pole, or any additional
Administrative Payment required for the City to complete its review, the City may suspend its review
of the Licensee’s Pole License application associated with such fees then under review by the City.
The date and time of submission of any suspended Pole License application will be deemed to be the
date and time that Licensee submits the required payment.
6.6 Pole License Approval.
The City will notify Licensee that the City has approved each Pole License by returning one
fully executed counterpart of the Pole License to Licensee, and City will do so within sixty (60) days
for each Pole License after receiving a complete Pole License application unless otherwise agreed to
by the parties in writing. Licensee acknowledges that the Parties may need to evaluate whether the 60-
day review period may need to be extended if Licensee submits more than fifteen (15) Pole License
applications during a calendar month. The City requires as a condition to approval of any Pole
License that Licensee provide proof that contractors installing Equipment have bonds and insurance
coverage as required by Section 18.5 (Contractors’ Bonds and Insurance).
7 INSTALLATION OF EQUIPMENT
7.1 Approved Plans and Specifications.
7.1.1 Strict Compliance Required. Licensee must submit its plans and specifications
for the City’s review as Exhibit A-1 to its Pole License application. Plans and specifications
must cover all Equipment, including signage required or permitted under Subsection 7.1.2
(Identification and Other Signage). Licensee’s plans and specifications and any Equipment
installed, if authorized, shall comply with the minimum requirements provided in Exhibit B
to this Master License, attached to and incorporated herein. Licensee acknowledges, but does
not agree with the City’s position that these minimum requirements are an exercise of the
City’s proprietary interests as the owner of the City Poles and are not an exercise of the City’s
regulatory authority. Licensee is authorized to install Equipment at the License Area covered
by the Pole License only in strict compliance with the plans and specifications approved by
the City and, if applicable, in Regulatory Approvals (“Approved Plans”).
7.1.2 Identification and Other Signage. Licensee shall place one identification plate
in size, material, form, and substance strictly complying with the Approved Plans on its
Equipment at each Pole Location. The plates shall include Licensee’s corporate name and the
telephone number at which Licensee’s on-call representative listed in the Basic License
Information can be reached. If Licensee’s on-call representative changes, Licensee must
provide notice to the City of the new contact information and replace all identification plates.
Licensee may also place signage on Licensee’s Equipment that contains information and
disclosures required by the Federal Communications Commission (the “FCC”). Replacement
of Licensee’s signage will be considered maintenance subject to Section 10.5 (Licensee’s
Equipment). If required by the City and allowed by PG&E, one additional identification plate
shall be placed on Licensee’s electrical meter box.
7.1.3 Required Changes. Licensee may amend previously Approved Plans if
required to obtain or comply with other Regulatory Approvals necessary for installation of
Equipment, including construction or installation-related temporary street occupancy permits,
traffic control permits, and building permits, as may be required by City codes. Subject to
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Section 10.5.2 of this Master License, an amendment of Approved Plans will require the
City’s approval. Licensee acknowledges that as of the Effective Date of this Master License,
the City has not approved or promised to approve any plans, specifications, or permits
necessary for Licensee to install Equipment on any City Poles. The City will provide notice of
its decision in accordance with Section 27.1 (Notices).
7.1.4 Corrections. The City’s approval of plans, specifications, and amendments to
Approved Plans, and the issuance of related Regulatory Approvals will not release Licensee
from the responsibility for and obligation to correct any errors or omissions that may be
contained in the Approved Plans and related Regulatory Approvals. Licensee shall notify the
Public Works Department and the Community Development Director, if applicable,
immediately upon discovery of any omissions or errors, and Licensee shall obtain required
approvals of any amendments to previously Approved Plans.
7.2 Installation.
Licensee shall not commence installation of Equipment on the License Area until the City has
given Licensee notice to proceed by delivery of the countersigned copy of the Acknowledgment
Letter or letter confirming the Pole License Effective Date under Section 4.1.2. When installing
Equipment, Licensee must strictly comply with Approved Plans as originally approved, or, if
applicable, as amended or corrected. Licensee’s Equipment as installed must be consistent with the
requirements of Exhibits A-4 and B to this Master License and in the event the designs, plans and
equipment in a Pole License conflicts with the sample designs, plans, and equipment under Exhibit B
of this Master License, the designs, plans, and equipment included in the Pole License shall control,
all as approved by the City. Licensee shall paint and properly maintain any cabling, support brackets,
and other supporting elements to match adjacent surfaces. If required by the Public Works Director
or his or her designee, and consistent with the Approved Plans, Licensee shall paint the entirety of
existing City Poles and any new Poles. If necessary, Licensee must use custom matching paint to
ensure a high quality of consistency in paint texture and appearance.
7.3 Cost of Labor and Materials.
Licensee is responsible for all direct and indirect costs (labor, materials, and overhead) for
designing, purchasing, and installing Equipment in accordance with the Approved Plans and all
applicable Laws. Licensee also shall bear all costs of obtaining all Regulatory Approvals required in
connection with the installation, and Licensee shall satisfy any conditions or mitigation measures
arising from Licensee’s proposed installation. Licensee shall timely pay for all labor, materials, and
Equipment and all professional services related to the Permitted Use.
7.4 No Alteration of City’s Existing Equipment or Infrastructure.
Licensee shall not remove, damage, or alter in any way any City Property, including City Poles
and supporting infrastructure, pull boxes, electrical equipment, wiring, and electrical vaults, without
the express permission of the Public Works Director.
7.5 Standard of Work.
Licensee must install and perform all other work on Equipment in strict compliance with
Approved Plans diligently and in a skillful and workmanlike manner. Licensee must use qualified and
properly trained persons and appropriately licensed contractors in conformance with Section 13.2
(Personnel Safety Training) for all work on the License Area. No later than ten (10) business days
before commencing installation or any other work on any License Area, Licensee shall provide the
City with: (a) a schedule of all activities; and (b) a list of the names, places of business, and license
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numbers of all contractors who will perform the work. After performing any work on the License
Area, Licensee shall leave it and other City Property in a condition as good as it was before the work.
7.6 Project Manager.
The City and Licensee shall designate and list in the Basic License Information a project
manager to coordinate the design and installation of Licensee’s Equipment and serve as the respective
primary point of contact between the City and Licensee for all engineering, construction, and
installation issues. Licensee acknowledges that the City project manager is not exclusively assigned to
this Master License, and the authority delegated to the project manager is limited to the
administration of this Master License, Pole License applications, and approved Pole Licenses.
Licensee shall be fully responsible for obtaining and satisfying the requirements of all required
Regulatory Approvals necessary for installation of Equipment on the License Area, and Licensee shall
not rely upon the City or the City’s project manager to do so. Either party may change the name and
contact information of its project manager by providing written notice thereof in the manner
provided in this Master License.
7.7 Coordination of Work.
Licensee shall be responsible for coordination of its installation work to avoid any
interference with existing utilities, substructures, facilities, or street light operations. Licensee shall be
the City’s point of contact for all Equipment installation and except in case of emergency, all
communications concerning all engineering, construction, and installation issues relating to the
Equipment.
7.8 Installation; Parking Regulations.
During installation, alteration, repair, and maintenance of Equipment, Licensee must abide by
all City construction regulations, including, but not limited to construction hours, waste management,
noise abatement, and traffic management ordinances and regulations. Licensee must pay all parking
fees and citation fines incurred by Licensee and its contractors for vehicle parking. The City will not
pay or void any citations or reimburse Licensee for traffic citations or fines.
8 ALTERATIONS
8.1 Licensee’s Alterations.
Other than installation in accordance with Approved Plans and subject to Section 10.5.2 of
this Master License, Licensee shall not make or permit any alterations to the License Area or anything
that is part of, installed on, or appurtenant to the License Area, except with the City’s prior consent in
each instance, which the City may not unreasonably withhold, condition or delay. The City may
condition its consent reasonably in each instance based on the scope and nature of the alterations to
be made. All alterations must be at Licensee’s sole expense in accordance with plans and
specifications approved by the City and be performed only by duly licensed and bonded contractors
or mechanics. Licensee shall not be required to seek consent for the maintenance, replacement,
modification or other installation of Equipment or signage in a License Area as provided in Section
10.5.
8.2 Title to Improvements and Removal of Licensee’s Equipment.
Except as otherwise provided in this Master License, the City has no claim of ownership of
Licensee’s Equipment installed on the License Area, but any structural improvements to a City Pole,
or replacement of a City Pole, will become City Property and remain on the Pole Location should
Licensee vacate or abandon use of the City Pole. Licensee may remove all of its Equipment (which
excludes structural improvements to or replacement of any City Pole) from the License Area after
thirty (30) days’ prior notice to the City, subject to Article 24 (Surrender of License Area) and Article
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26 (Special Provisions), unless the City has previously elected to require Licensee to remove at
Licensee’s sole expense all or part of any structural improvements to the License Area or City Pole,
whether made by the City or Licensee.
9 CITY WORK ON POLES OR LICENSE AREA
9.1 Repairs, Maintenance, and Alterations.
City will: (a) maintain and repair the City Poles as needed, in its sole but reasonable judgment,
for its street light, utility, or municipal operations; and (b) correct any immediately life-threatening or
hazardous condition. Except as specified in Article 26 (Special Provisions), neither City work on the
City Poles, nor the condition of the City Poles, will entitle Licensee to any damages, relieve Licensee
of the obligation to pay the License Fees and Additional Fees or perform each of its other covenants
under this Master License, or constitute or be construed as a constructive termination of this Master
License.
9.2 Notice to Licensee.
The City reserves the right at any time to make alterations, additions, repairs, removals, and
improvements to all or any part of the License Area for any operational purpose, including
maintenance and improvement of street lighting services, City compliance with mandatory regulations
or voluntary controls or guidelines, subject to: (i) making good faith efforts to give Licensee at least
72 hours’ prior notice, except in a case of emergency as provided in Section 9.4 and Section 20.2, of
any City work in accordance with Section 9.3 (Licensee’s On-Call Representative); (ii) allowing a
representative of Licensee to observe the City’s work; and (iii) taking reasonable steps not to disrupt
Licensee’s normal use of Equipment on the License Area. But Licensee’s use of the License Area may
not impede or delay in any way the City’s authority and ability to make changes to any License Area
necessary to maintain its street lights, utility services, or other municipal services.
9.3 Licensee’s On-Call Representative.
Licensee shall at all times have a representative assigned to be on call and available to the City
regarding the operation of Licensee’s Equipment. Licensee’s representative shall be qualified and
experienced in the operation of Licensee’s Equipment, and shall be authorized to act on behalf of
Licensee in any emergency and in day-to-day operations of the Equipment. The contact information
for Licensee’s on-call representative is listed in the Basic License Information and will be listed on
identification plates as required by Subsection 7.1.2 (Identification and Other Signage). Before the
City performs non-emergency maintenance, repair, or other activities on the License Area in the
regular course of its business that may impair the operation of Licensee’s Equipment on the License
Area, the City will attempt to provide at least 48 hour’s telephonic notice to Licensee’s on-call
representative. The City will not be required to delay non-emergency repair or maintenance activities
more than 48 hours after attempting to contact Licensee’s on-call representative.
9.4 Emergencies.
The parties agree to notify each other of any emergency situation related to any City Poles at
the emergency phone numbers listed in the Basic License Information at the earliest opportunity. In
an emergency, however, the City’s work and needs will take precedence over the operations of any of
Licensee’s Equipment on the License Area, and the City may access any portion of the License Area
that it determines is necessary in its sole discretion in accordance with Section 20.2 (Emergency
Access), whether or not the City has notified Licensee of the emergency. Licensee acknowledges that
City personnel will be entitled to exercise their judgment in an emergency caused by any person, and
in the exercise of judgment may determine that the operation of Licensee’s Equipment must be
interrupted, the power must be shut off or terminated, or that the circumstances require the removal
18
of any part of Licensee’s Equipment. Licensee agrees that the City will bear no liability to Licensee
for the City’s interruption of Licensee’s Equipment operations, shutting down or termination of the
power source, removal of Equipment, or other actions with respect to Licensee’s Equipment in an
emergency except to the extent caused by the gross negligence or willful misconduct of the City, and
that Licensee shall be solely responsible for the costs required to resume operations or repair or
replace Equipment following the emergency.
10 LICENSEE’S MAINTENANCE AND REPAIR OBLIGATIONS
10.1 Damage to City Property.
If the acts, omissions, or negligence of Licensee or its Agents or Invitees when installing or
removing Equipment damages any City Pole, License Area, or other City Property, the City will
provide notice describing the damage and thirty (30) days’ opportunity to cure. If Licensee fails to
repair or replace the damaged City Pole in accordance with the requirements of Section 8.1
(Licensee’s Alterations) within the 30-day cure period, or any longer period to which the City agrees
in its reasonable discretion, the City may do so at Licensee’s expense. Licensee shall reimburse the
City for its actual and reasonable costs of repair or replacement within thirty (30) days after receipt of
the City’s demand for payment, together with copies of invoices or other evidence of its costs.
10.2 Alterations to City Property
If Licensee or any of its Agents or Invitees alters or removes any City Property without the
City’s express prior approval, Licensee shall restore the City Property to the condition existing before
the damage or alteration, unless the City directs otherwise. The City may condition its approval of any
alteration to City Property on restoration in accordance with this Section.
10.3 No Right to Repair City Property.
Absent notice from the City providing an opportunity to repair damage to City Property,
Licensee is not authorized to make any repairs to City Property. In all cases, except as provided in
this Master License, Licensee waives any right it may have to make repairs at the City’s expense under
any applicable Law.
10.4 Notice of Damage to City Property.
Licensee agrees to give the City notice of the need for any repair to any City Pole, License
Area, or other City Property promptly after Licensee’s discovery of damage from any cause.
Licensee’s agreement to provide notice is not an assumption of liability for any life-threatening or
hazardous conditions unless caused by the acts, omissions, or negligence of Licensee or its Agents or
Invitees.
10.5 Licensee’s Equipment.
10.5.1 Maintenance and Repair. Licensee shall at its sole expense install, maintain,
and promptly repair any damage to Equipment installed on the License Area whenever repair
or maintenance is required, subject to the City’s prior approval if required under Article 8
(Alterations).
10.5.2 City Approval. Licensee is not required to seek the City’s approval for any
repair, maintenance, replacement, modification or other installation of Equipment or signage
in a License Area if : (i) the Equipment or signage in question was in the Approved Plans; (ii)
the repair, replacement, modification, or installation involves only the substitution of internal
components, or and does not result in any change to the external appearance, dimensions, or
weight of the Equipment in the Approved Plans; or (iii) the City in its reasonable judgment
concurs with Licensee that the repair, maintenance, replacement, modification, or other
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installation of Equipment is reasonably consistent with the Approved Plans, taking into
consideration availability of the specific Equipment and advancements in technology. In no
event, however, will Licensee be authorized to install larger, different, or additional
Equipment on a City Pole without the City’s express prior consent. In this regard, Licensee
acknowledges, but does not agree with the City’s position that section 6409(a) of the Middle
Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) does not apply
to this Master License or any Pole License approval or disapproval because the City is
granting them in its proprietary capacity as the owner of the City Poles. Any work on
Licensee’s Equipment installed on City Poles that is authorized or permitted under this
Subsection is subject to Licensee obtaining any required Regulatory Approvals.
10.5.3 Graffiti. Licensee’s repair and maintenance obligation includes the removal of
any graffiti from the Licensee’s Equipment.
10.5.4 Standard of Work. All work by or on behalf of Licensee under this Article
must: (a) be at Licensee’s sole expense; (b) be performed by duly licensed and bonded
contractors or mechanics; (c) be performed in a manner and using equipment and materials
that will not interfere with or impair the City’s operations; and (d) comply with all applicable
Laws relating to the License Area or Licensee’s activities.
11 LIENS
Licensee shall keep the License Area free from any liens arising out of any work performed,
material furnished, or obligations incurred by or for Licensee. Licensee shall inform each and every
contractor and material supplier that provides any work, service, equipment, or material to Licensee
in any way connected with Licensee’s use of the License Area that the License Area is public property
and is not subject to mechanics’ liens or stop notices for Equipment, other materials, or services
provided for Licensee’s Equipment. If Licensee does not cause the release of lien of a mechanic’s lien
or stop notice by any contractor, service provider, or equipment or material supplier purporting to
attach to the License Area or other City Property as a result of work performed, material furnished,
or obligations incurred on behalf of Licensee within sixty (60) days after notice or discovery of the
lien, the City will have the right, but not the obligation, to cause the same to be released by any means
it deems proper, including payment of the Claim giving rise to such lien. Licensee must reimburse the
City for all expenses it incurs in connection with any such lien (including reasonable attorneys’ fees)
within thirty (30) days following receipt of the City’s demand, together with evidence of the City’s
expenses. Licensee shall give the City at least ten (10) days’ prior notice of commencement of any
construction or installation on any part of the License Area except for minor and routine repair and
maintenance of Licensee’s Equipment. Licensee shall not create, permit, or suffer any other
encumbrances affecting any portion of the License Area.
12 UTILITIES; TAXES AND ASSESSMENTS
12.1 Utilities.
Licensee shall be solely responsible for obtaining and maintaining the provision of electricity
to Licensee’s Equipment, including, but not limited to, making payments to electric utilities and
installation of separate electric meters, if necessary. Licensee shall comply with all Laws and rules and
regulations of the electric utility relating to installation and connection of Licensee’s Equipment to
electricity.
12.2 Taxes and Assessments.
12.2.1 Possessory Interest Taxes. Licensee recognizes and understands that this Master
License may create a possessory interest subject to property taxation and that Licensee may be
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required to pay possessory interest taxes. (See Rev. & Tax. Code, sections 107–107.9.) Licensee
further recognizes and understands that any sublicense or assignment permitted under this
Master License and any exercise of any option to renew or extend this Master License may
constitute a change in ownership for purposes of property taxation and therefore may result in
a revaluation of any possessory interest created under this Master License.
12.2.2 Licensee’s Obligation if Assessed. Licensee agrees to pay taxes of any kind,
including possessory interest taxes, excises, licenses, permit charges, and assessments based
on Licensee’s usage of the License Area that may be imposed upon Licensee by Law, when
the same become due and payable and before delinquency. Licensee agrees not to allow or
suffer a lien for any taxes to be imposed upon the License Area without promptly discharging
the same, provided that Licensee, if so desiring, will have a reasonable opportunity to contest
the validity of the same. The City will provide Licensee with copies of all tax and assessment
notices on or including the License Area promptly, along with sufficient written
documentation detailing any assessment increases attributable to Licensee’s Equipment, but
in no event later than thirty (30) days after receipt by the City.
12.2.3 Taxes on Equipment. Licensee shall be responsible for all taxes and
assessments levied upon Licensee’s Equipment. Licensee agrees not to allow or suffer
a lien for any such taxes to be imposed upon the Equipment without promptly
discharging the same, provided that Licensee, if so desiring, will have a reasonable
opportunity to contest the validity of the same.
13 COMPLIANCE WITH LAWS
13.1 Requirement.
13.1.1 Current Laws. Licensee shall install, use, and maintain the Equipment in strict
compliance with Laws and conditions to Regulatory Approvals relating to the use or
occupancy of the License Area, including all Laws relating to health and safety and radio
signal transmission. Any work or installations made or performed by or on behalf of Licensee
or any person or entity claiming through or under Licensee is subject to applicable Laws. The
parties agree that Licensee’s obligation to comply with all Laws is a material part of the
bargained-for consideration under this Master License, irrespective of the degree to which
such compliance may interfere with Licensee’s use or enjoyment of the License Area, the
likelihood that the parties contemplated the particular Law involved and whether the Law
involved is related to Licensee’s particular use of the License Area. No occurrence or situation
arising during the Term arising under any current or future Law, whether foreseen or
unforeseen and however extraordinary, will relieve Licensee from its obligations under this
Master License or give Licensee any right to terminate this Master License or to otherwise
seek redress against the City, except that Licensee may terminate a Pole License by removing
its Equipment and surrendering rights to the License Area if Licensee determine in its
judgment that compliance with a future law makes continued use of the Equipment in the
License Area undesirable. After termination of any Pole License under this Section, the City
will refund the portion of the previously-paid License Fee attributable to the terminated
portion of the License Year, subject to the Minimum Term.
13.2 Personnel Safety Training.
13.2.1 CPUC Certification. Licensee shall ensure that all persons installing, operating,
or maintaining its Equipment are appropriately trained and licensed by the California State
Contractors Licensing Board and as required by applicable regulations and rules of the
California Public Utilities Commission (the “CPUC”). Licensee shall ensure that these
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persons are trained in and observe all safety requirements established by the City, the CPUC,
and the California Division of Occupational Safety & Health, Department of Industrial
Relations, including site orientation, tag-out lock-out de- energization rules, ladder and lift
restrictions, and track and street right-of-way safety requirements.
13.2.2 Licensee’s Indemnity. During any period when Licensee or any Agent of
Licensee is installing, operating, or maintaining its Equipment, Licensee acknowledges and
agrees that the City has delegated control of the License Area to Licensee, which will be solely
responsible for any resulting injury or damage to property or persons, except for injury or
damage resulting from the City’s negligence, recklessness, or willful misconduct. The City is
not a co-employer of any employee of Licensee or any employee of Licensee’s Agents, and
the City will not be liable for any Claim of any employee of Licensee or any employee of
Licensee’s Agents, except for Claims arising from the City’s negligence, recklessness, or willful
misconduct. Licensee agrees to Indemnify the City fully (as provided in Article 17 (Licensee’s
Indemnity)) against any Claim brought by any employee of Licensee, any employee of
Licensee’s Agents, or any third party arising from or related to Licensee’s access to and use of
the License Area and other activities of Licensee or its Agents in or around the License Area,
except to the extent the Claims result from the City’s negligence, recklessness, or willful
misconduct.
13.2.3 City’s Indemnity. During any period when the City or any Agent of the City is
installing, operating, or maintaining its Equipment, the City acknowledges and agrees that the
City has control of the License Area and will be solely responsible for any resulting injury or
damage to property or persons, except for injury or damage resulting from Licensee's
negligence. Licensee is not a co-employer of any employee of the City or any employee of the
City’s Agents, and Licensee will not be liable for any Claim of any employee of the City or any
employee of Licensor’s Agents, except for Claims arising from Licensee's negligence. The City
agrees to Indemnify Licensee fully (as provided in Article 17 (Licensee’s Indemnity)) against
any Claim brought by any employee of the City or any employee of the City’s Agents or any
third party arising from or related to the City’s access to and use of the License Area and
other activities of the City or its Agents or around in the License Area, except to the extent of
or damage or injury resulting from Licensee's negligence, recklessness, or willful misconduct.
13.3 Compliance with CPUC General Order 95.
Licensee shall conduct all activities on the License Area in accordance with CPUC General
Order 95 and the rules and other requirements enacted by the CPUC under that General Order, as
applicable and as amended.
13.4 Compliance with Electric Codes.
Licensee shall conduct all activities on the License Area in accordance with the requirements
of California Electric Code, National Electric Safety Code IEEE C2 (“NESC”), and any applicable
local electrical code, as any of those codes may be amended. To the extent that CPUC General Order
95 does not address installation of cellular telephone antennas on Poles carrying electrical lines,
Licensee shall apply applicable provisions of the NESC, with particular attention to paragraphs 224,
235C, 235F, 238, 239, and 239H and sections 22, 41, and 44. Where any conflict exists between the
NESC, the California Electric Code, any local code, and CPUC General Order 128, the more
stringent requirements will apply, as determined by the City.
13.5 City’s Exercise of its Proprietary Interests.
Licensee acknowledges, but does not agree with the City’s position that the City is entering
into this Master License in its capacity as a property owner with a proprietary interest in the License
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Area and not as a Regulatory Agency with police powers. Nothing in this Master License limits in any
way Licensee’s obligation to obtain required Regulatory Approvals from applicable Regulatory
Agencies. By entering into this Master License, the City is in no way modifying or limiting Licensee’s
obligation to cause the License Area to be used and occupied in accordance with all applicable Laws.
13.6 Regulatory Approvals.
Licensee represents and warrants that prior to, and as a condition of, conducting its activities
on the License Area, Licensee will acquire all Regulatory Approvals required for Licensee’s use of the
License Area. Licensee shall maintain all Regulatory Approvals for Licensee’s Permitted Use on the
License Area throughout the Term of this Master License and for as long as any Equipment is
installed on any portion of the License Area. Following submission of a Pole License application by
Licensee, such Regulatory Approvals (or written denials explaining with specificity all reasons for
such denials) shall be issued by the City within the timeframe allowed by the FCC and 47 U.S.C. §
332(c)(7)(B)(i)(II).
13.7 Radiofrequency Radiation and Electromagnetic Fields.
Licensee’s obligation to comply with all Laws includes all Laws relating to allowable presence
of or human exposure to Radiofrequency Radiation (“RFs”) or Electromagnetic Fields (“EMFs”) on
or off the License Area, including all applicable FCC standards, whether such RF or EMF presence
or exposure results from Licensee’s Equipment alone or from the cumulative effect of Licensee’s
Equipment added to all other sources on or near the License Area. Licensee must provide to the City
a copy of the report required for Licensee’s Small Cell Attachment Permit, of an independent
engineering consultant analyzing whether RF and EMF emissions at the proposed Pole Locations
would comply with FCC standards, taking into consideration the Equipment installation
specifications and distance to residential windows (each, an “Emissions Report”). If not provided
earlier at the City’s request, Licensee shall submit the Emissions Report to the City with the
applicable Pole License application. If the Emissions Report does not identify the type(s) of
frequencies or bandwidth used by the Equipment, Licensee shall include such information in its Pole
License application. If written evidence exists and is provided to Licensee or the City that Licensee’s
RF or EMF emissions are in violation of applicable FCC standards, and within fifteen (15) business
days of receipt of such evidence Licensee does not provide information that reasonably refutes the
same, then City has the right to hire a third party to validate the claim that Licensee’s RF or EMF
emissions are in violation of applicable FCC standards. If such third party validates such claim within
thirty (30) days after it is retained based on the same evidence provided to Licensee, then Licensee
shall be responsible for all costs of the third party hired by City pursuant to this Section 13.7.
13.8 Compliance with City’s Risk Management Requirements
Licensee shall not do anything, or permit anything to be done by anyone under Licensee’s
control, in, on, or about the License Area that would create any unusual fire risk, and shall take
commercially reasonable steps to protect the City from any potential liability by reason of Licensee’s
use of the License Area. Licensee, at Licensee’s expense, shall comply with all reasonable rules,
orders, regulations, and requirements of the City Manager and City’s Risk Manager.
14 DAMAGE OR DESTRUCTION
14.1 No Statutory Rights for Damaged City Pole.
The parties understand and agree that this Master License governs fully their rights
and obligations in the event of damage or destruction of City Poles, and, to the extent
applicable, Licensee and the City each hereby waives and releases the provisions of
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section 1932, subdivision 2, and section 1933, subdivision 4, of the Civil Code of
California (when hirer may terminate the hiring) or under any similar Laws.
14.2 Licensee’s Rights after Termination.
After termination of any Pole License under this Section, the City will: (i) refund the
portion of the previously-paid License Fee attributable to the terminated portion of
the License Year, subject to Section 3.1.2 (Minimum Term); and (ii) give priority to
Licensee’s Pole License application for a replacement City Pole.
15 ASSIGNMENT
15.1 Restriction on Assignment.
Except as specifically provided in Section 15.6 (Permitted Assignment), Licensee shall not
directly or indirectly Assign any part of its interest in or rights with respect to the License Area
without the City’s prior consent. The City will not unreasonably withhold, condition or delay its
consent to an Assignment other than an Assignment covered by Article 11 (Liens).
15.2 Notice of Proposed Assignment.
This Section 15.2 shall apply to all Assignments other than Permitted Assignments under
Section 15.6 (Permitted Assignment). If Licensee desires to enter into an Assignment of this Master
License or any Pole License issued under this Master License, Licensee shall give notice (a “Notice
of Proposed Assignment”) to the City, stating in detail the terms and conditions for such proposed
Assignment and complete information, including financial statements or information, business
history, and references and other information about the proposed assignee (the “Assignee”) that the
City needs to make a fully informed decision about Licensee’s request. If Licensee does not deliver all
information that the City reasonably requires simultaneously with the Notice of Proposed
Assignment, the date of Licensee’s delivery of notice will be deemed to have occurred only when it
has delivered any additional information the City requests.
15.3 City Response.
15.3.1 Timing. The City will grant or deny any request for consent to an Assignment
within thirty (30) days after the City’s receipt or deemed receipt, if delayed under Section 15.2
(Notice of Proposed Assignment), of the Notice of Proposed Assignment (the “Assignment
Response Period”). If the City consents to the proposed Assignment, then Licensee will
have one hundred and eighty (180) days following the date the City delivers its consent notice
to Licensee to complete the Assignment. As a condition of the City’s consent, the City shall
be entitled to seventy-five percent (75%) of the bonus rent and/or net bonus consideration
under any Assignment, except for a Permitted Assignment under Section 15.6 below, to the
extent that such rent or other consideration is attributable to the value of the interest in the
License Area created by this Master Agreement and related Pole License. The City shall be
entitled to review Licensee’s books and records relating to the economic value of the
Assignment as it may relate to the value of the interest in the License Area, provided that the
City agrees in writing to keep the information in such books and records confidential, to the
extent permitted by law, with the agreement to be in a form of commercially reasonable
confidentiality agreement.
15.3.2 Effect of Default. Licensee acknowledges that it would be reasonable for the
City to refuse to consent to an Assignment during any period during which any monetary or
other material event of default by Licensee is outstanding (or any event has occurred that with
notice or the passage of time or both would constitute a default) under this Master License.
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15.4 Effect of Assignment.
No Assignment by Licensee, consent to Assignment by the City, or Permitted Assignment
will relieve Licensee of any obligation on its part under this Master License. Any Assignment that is
not in compliance with this Article will be void and be a material default by Licensee under this
Master License without a requirement for notice and a right to cure. The City’s acceptance of any
License Fee, Additional Fee, or other payments from a proposed Assignee will not be deemed to be
the City’s consent to such Assignment, recognition of any Assignee, or waiver of any failure of
Licensee or other transferor to comply with this Article.
15.5 Assumption by Transferee.
Each Assignee shall assume all obligations of Licensee under this Master License and each
assigned Pole License and will be and remain liable jointly and severally with Licensee for all
obligations to be performed by Licensee. No Assignment will be binding on the City unless Licensee
or the Assignee delivers to the City evidence satisfactory to the City that the Assignee has obtained all
Regulatory Approvals required to operate as a wireless telecommunications service provider on the
assigned License Area, a copy of the assignment agreement (or other document reasonably
satisfactory to the City in the event of a Permitted Assignment under Section 15.6 (Permitted
Assignment)), and an instrument in recordable form that contains a covenant of assumption by such
Assignee satisfactory in substance and form to the City, consistent with the requirements of this
Article. However, the failure or refusal of an Assignee to execute such instrument of assumption will
not release such Assignee from its liability as set forth in this Section. Except for a Permitted
Assignment as provided in Section 15.6 (Permitted Assignment), Licensee shall reimburse the City
on demand for any reasonable costs that the City incurs in connection with any proposed
Assignment, including the costs of investigating the acceptability of the proposed Assignee and legal
costs incurred in connection with considering any requested consent. The City agrees that its right to
reimbursement under this Section during the Term will be limited to $2,000 for each request.
15.6 Permitted Assignment.
15.6.1 Defined. The City agrees that Licensee will be permitted to enter into an
Assignment of this Master License and Pole Licenses issued under it (a “Permitted
Assignment”), without the City’s prior consent but with notice to the City as provided
below, to: (i) an Affiliate; (ii) a Subsidiary; (iii) an entity that acquires all or substantially all of
Licensee’s assets in the market in which the License Area is located (as the market is defined
by the FCC under an order or directive of the FCC; (iv) an entity that acquires Licensee by a
change of stock ownership or partnership interest; or (v) an entity Controlled by Licensee or
that, with Licensee, is under the Common Control of a third party.
15.6.2 Conditions. A Permitted Assignment is subject to the following conditions:
(a) The Assignee uses the License Area only for the Permitted Use and
holds all Regulatory Approvals necessary to lawfully install, operate, and maintain
Equipment on the License Area.
(b) Licensee provides the City with notice no later than thirty (30) days
before the effective date of the Permitted Assignment, stating the contact information
for the proposed Assignee and providing information that demonstrates the transfer
to the Assignee would qualify as a Permitted Assignment as provided for by this
section.
(c) Licensee is in good standing under this Master License.
15.6.3 Licensee Carrier Customers.
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(a) Licensee represents that it does not, and will not in the future, deploy
any Equipment in the License Area pursuant to this Master License that may be
owned and/or remotely operated by a third-party wireless carrier customer
(“Carriers”) and installed and maintained by Licensee pursuant to existing agreements
between Licensee and a Carrier. However, in the event that Licensee does deploy such
Carrier Equipment, such Equipment shall be treated as Licensee’s Equipment for all
purposes under this Master License and any applicable Pole License. A Carrier’s
ownership and/or operation of such Equipment shall not constitute an Assignment
under this Master License, provided that Licensee shall not actually or purport to sell,
assign, encumber, pledge, or otherwise transfer any part of its interest in the License
Area to a Carrier, or otherwise permit any portion of the License Area to be occupied
or any work to be performed by anyone other than itself. Licensee shall remain solely
responsible and liable for the performance of all obligations under this Master License
and applicable Pole Licenses with respect to any Equipment owned and/or remotely
operated by a Carrier.
16 DEFAULT
16.1 Events of Default by Licensee.
Any of the following will constitute an event of default by Licensee under this Master License
and any Pole Licenses issued under it:
16.1.1 Nonpayment of Fees. Licensee fails to pay any License Fee or Additional Fees
as and when due, if the failure continues for thirty (30) days after the receipt of written notice
from City to Licensee of such failure.
16.1.2 Lapsed Regulatory Approvals. Licensee fails to maintain all Regulatory
Approvals required for the Permitted Use, if the failure continues for thirty (30) days after
receipt of written notice from City to Licensee of such failure.
16.1.3 Prohibited Assignment. Licensee enters into an Assignment in violation of
Article 15 (Assignment ) if the failure continues for thirty (30) days after written notice from
City to Licensee of such failure.
16.1.4 Interference with City. Licensee interferes with the City’s operations in
violation of Section 26.5.1 (Licensee’s Obligation Not to Cause Interference) if the failure
continues for thirty (30) days after written notice from City to Licensee of such failure.
16.1.5 Failure to Maintain Insurance. Licensee fails to maintain insurance as required
by Article 18 (Insurance) if the failure continues for thirty (30) days after written notice from
City to Licensee of such failure.
16.1.6 Failure to Cure. Licensee fails to cure noncompliance with the specified
requirements of this Master License after initial and follow-up notices or to pay the Default
Fees as set forth in Subsection 16.2.4 (Default Fees).
16.1.7 Other Terms. Licensee fails to perform or comply with any other obligation
or representation made under this Master License, if the failure continues for thirty (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 sixty (60)
days after the City’s notice.
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16.1.8 Abandonment. Licensee removes its Equipment or abandons the License
Area for a continuous period of more than sixty (60) days, such that the License Area is
longer being used for the Permitted Use. The City shall not deem a License Area abandoned
if the Licensee is diligently pursuing completion of the work necessary to make the facility
operational, which the City acknowledges may include separate fiber optic network
connections.
16.1.9 Insolvency. Any of the following occurs: (i) the appointment of a receiver due
to Licensee’s insolvency to take possession of all or substantially all of the assets of Licensee;
(ii) an assignment by Licensee for the benefit of creditors; or (iii) any action taken by or
against Licensee under any insolvency, bankruptcy, reorganization, moratorium, or other
debtor relief Law, if any such receiver, assignment, or action is not released, discharged,
dismissed, or vacated within sixty (60) days.
16.2 City’s Remedies.
In addition to all other rights and remedies available to the City at law or in equity, the City
will have the following remedies following the occurrence of an event of default by Licensee.
16.2.1 Continuation of License. Without prejudice to its right to other remedies, the
City may continue this Master License and applicable Pole Licenses in effect, with the right to
enforce all of its rights and remedies, including the right to payment of License Fees,
Additional Fees, and other charges as they become due.
16.2.2 Termination of Pole License. If a default specific to one or more Pole
Licenses is not cured by Licensee within the applicable cure period, if any, specified in
Section 16.1 (Events of Default by Licensee), the City may terminate each Pole License in
default.
16.2.3 Termination of Master License. If Licensee’s default is of such a serious
nature in the City’s sole but reasonable judgment that the default materially affects the
purposes of this Master License, the City may terminate this Master License in whole or in
part. Termination of this Master License in whole will affect the termination of all Pole
Licenses issued under it automatically and without the need for any further action by the City.
In either case, the City will deliver notice to Licensee providing 30-days’ notice of termination
and specifying whether the termination affects the entire Master License or only certain Pole
Licenses as specified in the notice. The City will specify the amount of time Licensee will have
to remove its Equipment from any affected City Pole, which will be at least sixty (60) days
after the date of the City’s notice for up to 50 City Poles and an additional thirty (30) days for
more than fifty (50) City Poles. If Licensee does not remove its Equipment within the
specified period, the City will be entitled to remove Licensee’s Equipment from the License
Areas and store such equipment at Licensee’s sole cost and expense and at a location to be
determined by the City’s sole discretion. City shall provide Licensee reasonable notification to
pick up the Equipment. Licensee agrees that the City shall not be liable for any damages,
losses, claims or liabilities relating to the removal and storage of Licensee’s Equipment
pursuant to this section.
16.2.4 Default Fees. Without limiting the City’s other rights and remedies under this
Master License, the City may require Licensee to pay Additional Fees for the City’s
administrative costs in providing notice or performing inspections for the events described
below (each, a “Default Fee”), by giving notice of the City’s demand that Licensee cure the
default and specifying the cure period. The Default Fee for the initial notice from the City will
be due and payable to the City thirty (30) days after delivery of notice to Licensee. In addition,
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if Licensee fails to cure the condition within the cure period set forth in the initial notice, and
the City then delivers to Licensee a follow-up notice requesting compliance, then the Default
Fee for the follow-up notice will be due and payable to the City fifteen (15) days after delivery
of the follow-up notice to Licensee. Default Fees will apply to any of the following events:
(a) Licensee constructs or installs any alteration or improvement without
the City’s prior approval as required by Article 6 (Pole License Approvals), Article 7
(Installation of Equipment), or Article 8 (Alterations) of this Master License.
(b) Licensee fails to make a repair required by Article 10 (Licensee’s
Maintenance and Repair Obligations) on a timely basis.
(c) Licensee fails to follow the plan approval procedures and installation
requirements as set forth in Article 7 (Installation of Equipment).
(d) Licensee fails to provide evidence of the required bonds and insurance
coverage described in Article 18 (Insurance) on a timely basis.
16.3 Licensee’s Remedy for City Defaults.
Licensee’s remedies for the City’s breach or threatened breach of this Master License or any
Pole License issued under it will be an action for damages and/or an injunction, subject to Article 19
(Limitation of City’s Liability), and termination of this Master License or any Pole License upon thirty
(30) days’ prior written notice to the City. The City’s failure to comply with the terms and conditions
of this Master license or any Pole License within thirty (30) days of the receipt of a notice of default
from Licensee will constitute an event of default by City.
16.4 Cumulative Rights and Remedies.
All rights and remedies under this Master License are cumulative, except as otherwise
provided.
17 LICENSEE’S INDEMNITY
17.1 Scope of Indemnity.
Licensee, on behalf of itself and its successors and assigns, shall Indemnify the City, its
officers, employees and agents (“Indemnified Parties”) from and against any and all liabilities, losses,
costs, claims, judgments, settlements, damages, liens, fines, penalties, and expenses, including direct
and vicarious liability of every kind (each, a “Claim”), incurred in connection with or arising in whole
or in part from: (a) injury to or death of a person, including employees of Licensee, or loss of or
damage to property, occurring on or about the License Area or arising in connection with Licensee’s
or its Agents’ or Invitees’ authorized or unauthorized use of the License Area; (b) any default by
Licensee in the observation or performance of any of the terms, covenants, or conditions of this
Master License to be observed or performed on Licensee’s part; (c) the use or occupancy or manner
of use or occupancy of the License Area by Licensee, its Agents, or Invitees, or any person or entity
claiming through or under any of them; (d) the presence of or exposure to RFs or EMFs resulting
from Licensee’s failure to comply with FCC standards in its use of the License Area; (e) the condition
of the License Area or any occurrence on the License Area from any cause attributable to the events
described in clauses (a), (b), (c), or (d) of this Section; or (f) any acts, omissions, or negligence of
Licensee, its Agents, or Invitees, in, on, or about the License Area; all regardless of the negligence of,
and regardless of whether liability without fault is imposed or sought to be imposed on, the
Indemnified Parties, except to the extent that such Indemnity is void or otherwise unenforceable
under applicable Law in effect on or validly retroactive to the date of this Master License and further
except to the extent such Claim is caused by the willful misconduct or gross negligence of the
Indemnified Parties.
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17.2 Indemnification Obligations.
Licensee’s Indemnification obligation includes reasonable fees of attorneys, consultants, and
experts and related costs, including the City’s costs of investigating any Claim. Licensee specifically
acknowledges and agrees that it has an immediate and independent obligation to defend the City and
the other Indemnified Parties from any Claim that actually or potentially falls within the scope of
Section 17.1 (Scope of Indemnity) even if allegations supporting the Claim are groundless,
fraudulent, or false, which obligation arises at the time such Claim is tendered to Licensee by the
Indemnified Party and continues at all times until finally resolved. Licensee’s obligations under this
Article will survive the termination of the Master License.
18 INSURANCE
18.1 Licensee’s Insurance.
As a condition to issuance of any Pole License, Licensee must provide proof of compliance
with the insurance requirements in this Article except to the extent the City’s Risk Manager agrees
otherwise in writing.
18.1.1 Coverage Amounts. Licensee shall procure and keep in effect at all times
during the Term, at Licensee’s cost, insurance in the following amounts and coverages:
(a) Commercial General Liability insurance (including premises
operations; explosion, collapse and underground hazard; products/completed
operations; contractual liability; independent contractors; personal and advertising
injury) with limits of $2 million per occurrence for bodily injury and property damage
and $4 million general aggregate.
(b) Worker’s Compensation Insurance in compliance with the statutory
requirements of the state of California and Employer’s Liability Limits of $1 million
each accident/disease/policy limit.
(c) Commercial Automobile Liability Insurance with a combined single
limit of $2 million each occurrence combined single limit for bodily
injury and property damage, including owned and non-owned and
hired vehicles.
18.1.2 Required Endorsements. Commercial General Liability and Commercial
Automobile Liability Insurance policies must provide the following:
(a) Include as additional insured as their interest may appear under this
Agreement the “City of South San Francisco, and its officers, and employees;” and
(b) That such policies are primary insurance to any other insurance
available to the additional insureds, with respect to any Claims arising out of this
Master License, and that insurance applies separately to each insured against whom
Claim is made or suit is brought. Such policies shall also provide for severability of
interests and that an act or omission of one of the named insureds that would void or
otherwise reduce coverage shall not reduce or void the coverage as to any insured,
and shall afford coverage for all Claims based on acts, omissions, injury, or damage
that occurred or arose (or the onset of which occurred or arose) in whole or in part
during the policy period.
18.1.3 Notice of Cancellation. Upon receipt of notice from its insurer(s) Licensee
shall provide the City with thirty (30) days’ prior written notice of cancellation of any
coverage required herein.
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18.1.4 Claims-Made Policies. Should any of the required insurance be provided under
a claims-made form, Licensee shall maintain such coverage continuously throughout the
Term and, without lapse, for a period of one (1) year after the expiration or termination of
this Master License, to the effect that, should occurrences during the Term give rise to Claims
made after expiration or termination of this Master License, such Claims shall be covered by
such claims-made policies.
18.1.5 General Aggregate Limit. Should any of the required insurance be provided
under a form of coverage that includes a general annual aggregate limit or provides that
Claims investigation or legal defense costs will be included in such general annual aggregate
limit, such general aggregate limit shall be double the occurrence limits specified above.
18.1.6 Certificates. Licensee shall deliver to the City certificates of insurance and
blanket additional insured policy endorsements from insurers in a form reasonably
satisfactory to the City, evidencing the coverages required under this Master License, within
five (5) days of the Effective Date, and Licensee shall provide the City with certificates
thereafter promptly upon the City’s request.
18.1.7 Insurance Does Not Limit Indemnity. Licensee’s compliance with the
provisions of this Section shall in no way relieve or decrease Licensee’s liability under Article
17 (Licensee’s Indemnity) or any other provision of this Master License.
18.1.8 Right to Terminate. The City may elect, in the City’s reasonable discretion, to
terminate this Master License if Licensee allows any required insurance coverage to lapse by: (i)
providing Licensee notice of the event of default; and (ii) including in the notice of default or
a notice of termination if Licensee fails to reinstate the lapsed coverage within three (3) business
days after the City delivers notice.
18.1.9 Ratings. Licensee’s insurance companies must be licensed or authorized to do
business in California and must meet or exceed an A.M. Best rating of A-VII or its equivalent.
18.1.10 Effective Dates. All insurance must be in effect before the City will authorize
Licensee to install Equipment on any City Pole and remain in force until all Equipment has
been removed from the License Area. Licensee is responsible for determining whether the
above insurance coverages are adequate to protect its interests. The above coverages are not
limitations upon Licensee’s liability.
18.1.11 Self-Insurance Alternative. Licensee may propose and the City may accept an
alternative insurance program, if that program provides equivalent protections to the City as
the insurance requirements in this Section, which the City will determine in consultation with
the City’s Risk Manager. The City’s acceptance of an alternative insurance program will not
effect an implied waiver or amendment of any other requirement of this Master License. Any
amendment of these insurance requirements must be in a written amendment to this Master
License, executed in the same manner as this Master License.
18.1.12 Excess/Umbrella Insurance. The coverage amounts set forth for Commercial
General Liability and Commercial Auto Liability may be met by a combination of primary and
excess/umbrella policies as long as in combination, the policies’ limits equal the requirements
stated herein.
18.2 Insurance of Licensee’s Property.
Licensee shall be responsible, at its expense, and in its sole discretion, for separately insuring
Licensee’s property if it chooses to do so.
18.3 City’s Insurance.
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Licensee acknowledges that the City maintains insurance, self-insurance, or equivalent risk
management coverage against casualty, property damage, and public liability risks. The City agrees to
maintain adequate coverage for public liability risks during the Term and is not required to carry any
additional insurance with respect to the License Area or otherwise.
18.4 Waiver of Subrogation.
The City and Licensee each hereby waives any right of recovery against the other party for
any loss or damage sustained by such other party with respect to the License Area or any portion
thereof or the contents of the same or any operation therein, whether or not such loss is caused by
the fault or negligence of such other party, to the extent such loss or damage is covered by insurance
obtained by the waiving party under this Master License or is actually covered by insurance obtained
by the waiving party. Each waiving party agrees to cause its insurers to issue appropriate waiver of
subrogation rights endorsements to all policies relating to the License Area, but the failure to obtain
any such endorsement will not affect the waivers in this Section.
18.5 Contractors’ Bonds and Insurance.
Licensee shall require its contractors that install, maintain, repair, replace, or otherwise
perform work on the License Area: (a) to provide bonds to guarantee the performance of the work
and the payment of subcontractors and suppliers for any installation of Equipment; and (b) to have
and maintain insurance of substantially the same coverage with substantially the same limits as
required of Licensee.
19 LIMITATION OF CITY’S LIABILITY
19.1 General Limitation on City’s Liability.
Except as otherwise expressly provided in this Master License, the City is not responsible or
liable to Licensee for, and Licensee hereby waives all Claims against the City and its Agents and
releases the City and its Agents from, all Claims from any cause (except to the extent caused by the
gross negligence or willful misconduct of the City and its Agents, or the City’s breach of this Master
License Agreement), including acts or omissions of persons using the sidewalk or street adjoining or
adjacent to or connected with the License Area; utility interruption; theft; burst, stopped, or leaking
water, gas, sewer, or steam pipes; or gas, fire, oil, or electricity in, flood, vehicle collision, or other
accidental “knock downs” or similar occurrences on or about the License Area or other City
Property.
19.2 Consequential Damages.
Licensee expressly acknowledges and agrees that the License Fees and Additional Fees
payable under this Master License do not take into account any potential liability of the City for
consequential or incidental damages. The City would not be willing to enter into this Master License
or issue any Pole Licenses in the absence of a complete waiver of liability, to the fullest extent
permitted by Law, for consequential or incidental damages due to the acts or omissions of the City or
its Agents, and Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting
any Indemnification obligations of Licensee or other waivers contained in this Master License, and as
a material part of the consideration for this Master License, Licensee fully releases, waives, and
discharges forever any and all Claims against the City for consequential and incidental damages
arising out of this Master License or any Pole License, including lost profits arising from the
disruption to Equipment, any interference with uses conducted by Licensee under this Master
License and Pole Licenses, regardless of the cause, and whether or not due to the active or passive
negligence or willful misconduct of the City or its Agents, and covenants not to sue for such damages
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the City or its officers, directors, and employees, and all persons acting by, through, or under each of
them.
19.3 No Relocation Assistance.
This Master License creates no right in Licensee to receive any relocation assistance or
payment for any reason under the California Relocation Assistance Law (Cal. Gov. Code §§ 7260 et
seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§
4601 et seq.), or similar Law upon any termination of occupancy. To the extent that any relocation law
may apply, Licensee waives, releases, and relinquishes forever any and all Claims that it may have
against the City for any compensation from the City except as specifically provided in this Master
License upon termination of its occupancy of all or any part of the License Area.
19.4 Non-Liability of City Officials, Employees, and Agents.
No elective or appointive board, commission, member, officer, employee, or other Agent of
the City will be personally liable to Licensee, its successors, or its assigns, in the event of any default
or breach by the City or for any amount which may become due to Licensee, its successors, or its
assigns, or for any obligation of the City under this Master License.
19.5 Scope of Waivers.
Licensee acknowledges the City’s rights under this Article and waives any Claims arising from
the exercise of its rights. In connection with the preceding sentence and releases and waivers under
Section 10.3 (No Right to Repair City Property), Section 14.1 (No Statutory Rights for Damaged
City Pole), Section 18.4 (Waiver of Subrogation), Section 19.1 (General Limitation on City’s
Liability), Section 19.2 (Consequential Damages), Section 19.3 (No Relocation Assistance), Section
20.3 (No Liability for Emergency Access), and any other waiver by Licensee under this Master
License, Licensee acknowledges that it is familiar with section 1542 of the California Civil Code,
which reads:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
Licensee realizes and acknowledges that the waivers and releases contained in this Master
License include all known and unknown, disclosed and undisclosed, and anticipated and
unanticipated Claims. Licensee affirms that it has agreed to enter into this Master License in light of
this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of
Civil Code section 1542 and any similar Law. The releases and waivers contained in this Master
License will survive its expiration or earlier termination.
20 CITY ACCESS TO LICENSE AREA
20.1 City’s Right of Access.
Except as specifically provided otherwise, the City and its designated Agents have the right of
access to any part of the License Area at any time without notice for any purpose, provided that,
except in a case of an emergency as specifically provided in this Master License, the City shall provide
at least fifteen (15) days’ prior written and telephonic notice to Licensee at 866-862-4404 if City
intends to turn off power to Licensee’s Equipment.
20.2 Emergency Access.
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If safe and practicable, the City will notify Licensee of any emergency that requires the City to
remove and replace a City Pole and allow Licensee to remove its Equipment before the City removes
or replaces a City Pole in an emergency situation or other exigent circumstances. But if in the City’s
sole but reasonable judgment it is not safe or practicable to wait for Licensee to perform the work or
where such delay would cause significant delay to or otherwise compromise public safety or services,
the City will remove the Equipment from the City Pole, exercising reasonable care to avoid damage.
The City will hold the Equipment for retrieval by Licensee, and Licensee will have the right to
reinstall the Equipment or equivalent Equipment at Licensee’s expense on the repaired or replaced
City Pole in accordance with Article 7 (Installation of Equipment). As provided in Section 9.4
(Emergencies), the City’s removal of Licensee’s Equipment in emergency or exigent circumstances
may not be deemed to be a forcible or unlawful entry into or interference with Licensee’s rights to
the License Area.
20.3 No Liability for Emergency Access.
The City will not be liable in any manner, and Licensee hereby waives any Claims, for any
inconvenience, disturbance, loss of business, nuisance, or other damage arising out of the City’s entry
onto the License Area, including the removal of Licensee’s Equipment from a City Pole in an
emergency as described in Subsection 20.2(Emergency Access), except damage resulting directly and
exclusively from the negligence or willful misconduct of the City or its Agents and not contributed to
by the acts, omissions, or negligence of Licensee, its Agents, or Invitees.
21 REQUIRED RECORDS
21.1 Records of Account.
Licensee shall maintain during the Term and for a period ending three (3) years after the
Expiration Date or earlier termination of this Master License the following records at a place of
business within the Alameda County area or in an electronic format: (a) identification and location of
all City Poles under active Pole Licenses; (b) amounts and dates of License Fees paid to the City; (c)
Regulatory Approvals issued for the installation, operation, and maintenance of Equipment on City
Poles; and (d) correspondence with the City concerning any matter covered by this Master License.
The City, or a consultant acting on its behalf, will have the right to inspect and audit Licensee’s
records at Licensee’s place of business during regular business hours on ten (10) days’ notice to
Licensee. Such inspection and audit shall be at City’s sole expense, except for any costs incurred by
the Licensee in making Licensee’s records available for inspection.
21.2 Estoppel Certificates.
Licensee, at any time and from time to time on not less than thirty (30) days’ notice from the
City, shall execute, acknowledge, and deliver to the City or to any party designated by the City, a
certificate of Licensee stating: (a) that Licensee has accepted the License Area (or, if Licensee has not
done so, that Licensee has not accepted all or any part of the License Area and specifying the
applicable portions of the License Area and reasons for non-acceptance); (b) the Commencement
Dates of any Pole Licenses then in effect; (c) the Effective Date and Expiration Date of this Master
License; (d) that this Master License and Pole Licenses are unmodified and in full force and effect or,
if modified, the manner in which they are modified; (e) to Licensee’s knowledge, whether any
defenses then exist against the enforcement of any of Licensee’s obligations under this Master
License (and if so, specifying the same); (f) to Licensee’s knowledge, whether any of the City’s
obligations under this Master License are outstanding (and if so, identifying any City obligations that
Licensee believes that the City has failed to meet); (g) the dates, if any, to which the License Fees and
Additional Fees have been paid; and (h) any other information that may be reasonably required by
any such persons.
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21.3 Regulatory and Bankruptcy Records.
21.3.1 Copies for City Records. After receipt of written request from City, Licensee
shall provide to the City copies of: (a) any non-privileged, non-proprietary pending
applications or other non-privileged, non-proprietary filing by or against Licensee of an
action for bankruptcy, receivership, or trusteeship; and (b) all relevant non-privileged, non-
proprietary petitions, applications, communications, and reports submitted by Licensee to the
FCC or any other Regulatory Agency having jurisdiction directly related to Licensee’s
installation or operation of Equipment on City Poles or other City property.
21.3.2 Production of Documents. The City will attempt to notify Licensee promptly
after delivery of any request for copies of these records made under any public records Law
or in any court proceeding and of the date on which the records are to be made available. If
Licensee believes that any of the requested records are confidential or contain proprietary
information, Licensee must identify those records to the City before the date of required
production. If the request is made through any court or administrative proceeding, or the
requesting party otherwise makes a formal complaint regarding nondisclosure, Licensee will
have the burden to obtain any protective order needed to withhold production at its sole cost
and expense. Licensee acknowledges that the City’s compliance with any court order,
including a subpoena duces tecum, will not violate this Subsection. The City’s failure to notify
Licensee will not affect the City’s legal obligation to produce records or give rise to any Claim
by Licensee against the City.
22 RULES AND REGULATIONS
Licensee shall faithfully comply during the Term with any and all reasonable rules, regulations,
and instructions that the City establishes, as amended from time to time, with respect to use of any
part of the License Area, to the extent that the rules, regulations, and instructions do not materially
conflict with Laws or with any express, material terms and conditions of this Master License.
23 FINANCIAL ASSURANCES
23.1 Security Deposit, Bond or Other Forms of Financial Assurance.
Prior to erecting or installing facilities and equipment, Licensee shall either secure a bond,
make a security deposit, or provide other forms of financial assurance acceptable to the City, for the
removal of the facility in the event that its use is abandoned or the approval is otherwise terminated
pursuant to the terms of this Master License, in the one-time amount of Fifty thousand Dollars
($50,000.00) to be delivered with Licensee’s Acknowledgement Letter for the first Pole License issued
under this Master license. Licensee shall replenish the bond, security deposit or other form(s) of
financial assurance to remain at the amount of Fifty Thousand Dollars ($50,000.00) in the event City
draws down that amount in compliance with the terms of this Master License.
24 SURRENDER OF LICENSE AREA
24.1 Surrender.
24.1.1 Obligations Upon Surrender. Licensee shall peaceably remove its Equipment
from applicable portions of the License Area, repair any damage resulting from the removal,
and surrender it to the City in good order and condition, normal wear and tear excepted, free
of debris and hazards, and free and clear of all liens and encumbrances in accordance with the
timeframes outlined in Section 16.2.3. Licensee’s obligations under this Article will survive the
Expiration Date or other termination of this Master License.
24.1.2 Equipment Abandoned After Termination. The removal or abandonment of
Licensee’s equipment after termination shall be governed by the provisions outlined in
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Section 16.2.3. Licensee agrees that California Civil Code sections 1980 et seq. and similar
provisions of the Civil Code addressing abandoned property by residential or commercial
tenants do not apply to any abandoned Equipment.
24.2 Holding Over.
24.2.1 With Consent. Any holding over after the termination of any Pole License
with the express consent of the City will be construed to automatically extend the Term of
this Master License for a period of one License Year at a License Fee equal to 125% of the
License Fee in effect immediately before such termination, and the Master License otherwise
will be on its express terms and conditions.
24.2.2 Without Consent. Any holding over without the City’s consent will be a default
by Licensee and entitle the City to exercise any or all of its remedies, even if the City elects to
accept one or more payments of License Fees, Additional Fees, or other amounts payable to
the City from Licensee after the Expiration Date.
25 HAZARDOUS MATERIALS
25.1 Hazardous Materials in License Area.
Licensee covenants and agrees that neither Licensee nor any of its Agents or Invitees shall
cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed
of, or Released in, on, under, or about the License Area or any other part of City Property, or
transported to or from any City Property in violation of Environmental Laws, except that Licensee
may use small quantities of Hazardous Materials as needed for routine operation, cleaning, and
maintenance of Licensee’s Equipment that are customarily used for routine operation, cleaning, and
maintenance of such equipment and so long as all such Hazardous Materials are contained, handled,
and used in compliance with Environmental Laws. Licensee shall immediately notify the City if and
when Licensee learns or has reason to believe any Release of Hazardous Material has occurred in, on,
under, or about the License Area or other City Property.
25.2 Licensee’s Environmental Indemnity.
If Licensee breaches any of its obligations contained in this Article, or if any act, omission, or
negligence of Licensee or any of its Agents or Invitees in the performance of activities pursuant to
this license results in any contamination of the License Area or other City Property, or in a Release of
Hazardous Material from, on, about, in, or beneath any part of the License Area or other City
Property, or the violation of any Environmental Law, then Licensee, on behalf of itself and its
successors and assigns, shall Indemnify the City, its Agents, and their respective successors and
assigns from and against any and all Claims (including damages for decrease in value of the License
Area or other City Property, the loss or restriction of the use of usable space in the License Area or
other City Property and sums paid in settlement of Claims, attorneys’ fees, consultants’ fees, and
experts’ fees and related costs) arising during or after the Term of this Master License relating to such
Release or violation of Environmental Laws; provided, however, Licensee shall not be liable for any
Claims to the extent such Release was caused by the gross negligence or willful misconduct of the
City or its Agents. Licensee’s Indemnification obligation includes costs incurred in connection with
any activities required to Investigate and Remediate any Hazardous Material brought onto the License
Area or other City Property by Licensee or any of its Agents or Invitees and to restore the License
Area or other City Property to its condition prior to Licensee’s introduction of such Hazardous
Material or to correct any violation of Environmental Laws. Licensee specifically acknowledges and
agrees that it has an immediate and independent obligation to defend the City and the other
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Indemnified Parties from any Claim that actually or potentially falls within this Indemnity provision
even if the allegations supporting the Claim are or may be groundless, fraudulent, or false, which
obligation arises at the time such Claim is tendered to Licensee by the Indemnified Party and
continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any of its
Agents or Invitees causes the Release of any Hazardous Material on, about, in, or beneath the License
Area or other City Property, then in any such event Licensee shall, immediately, at no expense to any
Indemnified Party, take any and all necessary actions to return the License Area or other City
Property, as applicable, to the condition existing prior to the Licensee’s Release of any such
Hazardous Materials on the License Area or other City Property or otherwise abate the Release in
accordance with all Environmental Laws, except to the extent such Release was caused by the gross
negligence or willful misconduct of the City or its Agents. Licensee shall afford the City a full
opportunity to participate in any discussions with Regulatory Agencies regarding any settlement
agreement, cleanup or abatement agreement, consent decree, or other compromise or proceeding
involving Hazardous Material.
26 SPECIAL PROVISIONS
26.1 Early Termination by Either Party.
If Licensee does not obtain all Regulatory Approvals for any Pole License within six (6)
months of the full execution by both parties of the Pole License, unless such failure to obtain
Regulatory Approvals is due to circumstances that are beyond Licensee’s reasonable control without
its fault or negligence and cannot be reasonably mitigated, overcome or avoided by its due diligence,
either party will have the right to terminate that Pole License on sixty (60) days’ notice (“Notice
Period”), which the terminating party must deliver to the other party the Pole License to be
terminated. If a Pole License is terminated under this provision, the Commencement Date will be
deemed not to occur, and Licensee will have no obligation to pay the License Fee. If Licensee obtains
all Regulatory Approvals within the sixty (60)- day Notice Period, the termination shall be revoked
and the Pole License shall remain in full force and effect.
26.2 Licensee’s Termination Rights.
26.2.1 No-Fault Termination of Master License. This Subsection will apply after the
Commencement Date of any Pole Licenses. If Licensee fails to obtain or loses Regulatory
Approvals for the Permitted Use with respect to a majority of the City Poles subject to Pole
Licenses for reasons other than its failure to comply with the conditions of this Master
License or Regulatory Approvals and in spite of reasonable efforts by Licensee to obtain or
maintain its Regulatory Approvals, Licensee may terminate this Master License at any time on
ninety (90) days’ prior notice to the City.
26.2.2 Pole License Termination. Absent the circumstances described in Subsection
26.2.1 (No-Fault Termination of Master License), Licensee may terminate a Pole License on
ninety (90) days’ notice at any time following the first anniversary of the applicable Pole
License Effective Date. Licensee may remove its Equipment from the applicable License
Area at any time after giving the required notice.
26.2.3 Master License Termination. Licensee may terminate this Master License at
any time on one year’s notice.
26.2.4 Interference Caused by City Work. If any City work described in Section 9.1
(Repairs, Maintenance, and Alterations) prevents Licensee from using a City Pole or other
License Area for more than thirty (30) days, Licensee will be entitled to: (i) a pro rata
abatement of the License Fee for the period Licensee is unable to use the City Pole; (ii)
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terminate the Pole License on thirty (30) days’ notice; or (iii) both abatement of the License
Fee under clause (i) and termination under clause (ii).
26.3 City’s Termination Rights .
26.3.1 Absolute Right to Terminate Pole Licenses.
(a) The City has the absolute right in its sole discretion to terminate any
or all Pole Licenses if the City Manager (or his or her designee) determines that
Licensee’s continued use of the License Area adversely affects or poses a threat to
public health and safety, constitutes a public nuisance pursuant to applicable laws
(however, City and Licensee agree that there is a rebuttable presumption that the
Permitted Use is not or will not be a nuisance or a hazard), interferes with the City’s
street lights, utilities, or other municipal operations, or requires the City to maintain a
City Pole that is no longer required for City purposes; provided, however, Licensee
may request and the City may determine in its sole discretion, to either relocate to
another City Pole reasonably acceptable to City and Licensee.
(b) If the condition is susceptible to cure, the City will provide notice to
Licensee of the City’s determination, the underlying reasons for the determination,
and provide a 30-day cure period following which the affected Pole Licenses will
terminate if Licensee has not effected a cure. Provided, however, that the Agreement
shall not be terminated if the condition cannot reasonably be cured within thirty (30)
days of such notice and Licensee commences the cure within such thirty (30) day
period and thereafter diligently and continuously pursues the cure to completion.
(c) If the condition is not susceptible to cure in the City’s sole judgment, the
City will have the right to terminate the affected Pole Licenses on thirty (30) days’
notice to Licensee of the City’s determination.
(d) The City will endeavor to accommodate a request by Licensee to relocate
the Pole License and related Equipment, at Licensee’s sole cost and expense, to
another City Pole.
26.3.2 Removal of Equipment. The City in its sole but reasonable discretion may
determine that exigent circumstances require, for reasons of protecting public health and safety as
shown based on evidence collected and provided to Licensee with regard to Licensee’s
Equipment on such Pole, that Licensee remove the Equipment from a particular City Pole on
thirty (30) days’ notice. Licensee shall remove the Equipment from the identified City Pole within
the 30-day period or any longer time to which the City agrees. The applicable Pole License will
terminate as to the identified City Pole upon expiration of the 30-day period. After termination of
any Pole License under this section, the City will (i) refund the portion of the previously-paid
License Fee attributable to the terminated portion of the License Year, subject to Section 3.1.2
(Minimum Term); and (ii) give priority to Licensee’s Pole License application for a replacement
City Pole. If Licensee fails to remove the Equipment in accordance with this Subparagraph, the
City will be entitled to remove Licensee’s Equipment and store such equipment at Licensee’s sole
cost and expense and at a location to be determined by the City’s sole discretion. City shall
provide Licensee reasonable notification to pick up the Equipment. Licensee agrees that the City
shall not be liable for any damages, losses, claims or liabilities relating to the removal and storage
of Licensee’s Equipment pursuant to this Subparagraph.
26.3.3 City Pole Removal. The City has the right to remove any City Pole that it
determines in its sole judgment is unnecessary for its street light operations. If the City decides to
remove a City Pole, it will make reasonable efforts to provide at least ninety (90) days’ notice to
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Licensee, but the City’s rights under this Subparagraph will not be affected by its failure to
provide less than ninety (90) days’ notice. Upon removal of a City Pole, either party will have the
right to terminate the Pole License as to the affected City Pole as of the last day of the month of
removal. After termination of any Pole License under this section, the City will (i) refund the
portion of the previously-paid License Fee attributable to the terminated portion of the License
Year, subject to Section 3.1.2 (Minimum Term); and (ii) give priority to Licensee’s Pole License
application for a replacement City Pole.
26.3.4 Replacement, Relocation, or Upgrading of City Poles. The City has the right to
replace, relocate, or add City equipment to, and remove Licensee’s Equipment from, any City Pole
that the City determines in its sole but reasonable judgment is necessary for its municipal
operations, including, but not limited to, LED conversion or installation of solar capabilities, or
repair or modifications to the public right of way pursuant to a development project in the City. If
the City decides to replace or relocate a City Pole or add equipment requiring the removal of
Licensee’s Equipment, the City will make reasonable efforts to provide at least sixty (60) days’
notice to Licensee, but the City’s rights under this Subparagraph will not be affected by its failure
to provide less than sixty (60) days’ notice. Licensee may choose either to terminate the applicable
Pole License as to the replacement, relocated, or upgraded City Pole or, only if feasible in the
discretion of the City’s Public Works Department, install Licensee’s Equipment on the
replacement, relocated, or upgraded City Pole at Licensee’s sole cost. The City will endeavor to
accommodate a request by Licensee to relocate the Pole License and related Equipment, at
Licensee’s sole cost and expense, to another City Pole mutually acceptable to Licensee and City.
26.4 Licensee’s Rights after Termination.
Promptly after the effective date of any termination of any Pole License under Subsection
26.2.4 (Interference caused by City Work) or Section 26.3 (City’s Termination Rights), the City will
refund the portion of any previously-paid License Fee attributable to the terminated portion of the
License Year, subject to Section 3.1.2 (Minimum Term). In addition, if Licensee wishes to replace
the City Pole with a different Pole Location, the City will give priority to Licensee’s Pole License
applications for an equal portion of replacement City Poles, but the grant of priority will not affect
Licensee’s obligations under this Master License, including the requirement to obtain all Regulatory
Approvals for the replacement City Poles.
26.5 Special Remedies for Interference with Operations.
26.5.1 Licensee’s Obligation Not to Cause Interference.
(a) Licensee will not operate or maintain its Equipment in a manner that
causes measurable interference with City’s current and future emergency response,
communication or computer equipment, or with pre-existing communication (radio,
telephone, and other transmission or reception) or computer equipment lawfully and
correctly used by any person adjacent to the License Area, including the City or any of
its Agents. In the event such interference occurs and is not cured within thirty (30)
days of notice from City, or the interfering Equipment is not powered down during
such thirty (30) day period (except for intermittent testing) such interference will be
an event of default under this Master License by Licensee as to such Pole License, and
upon notice from the City, Licensee shall be responsible for eliminating such
interference promptly and at no cost to the City. Licensee will be required to use its
best efforts to remedy and cure such interference with or impairment of City
operations. Prior to installation of any equipment, Licensee shall conduct an in-field
test at the License Area to determine what existing communications are transmitted
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from or received in the License Area. A report of the in-field test shall be submitted
with each application for a Pole License.
(b) If Licensee does not cure the default promptly or power down the
interfering Equipment (except for intermittent testing), the parties acknowledge that
continuing interference may cause irreparable injury and, therefore, the City will have
the right to bring an action against Licensee to enjoin such interference or to
terminate all Pole Licenses where the Equipment is causing interference or
impairment, at the City’s election.
26.5.2 Impairment Caused by Change in City Use.
(a) If any change in the nature of the City’s use of the License Area
during the Term results in measurable material adverse impairment to Licensee’s
normal operation of its Equipment making it necessary to alter the Equipment to
mitigate the adverse effect, Licensee shall notify the City and provide evidence of the
claimed impairment. Upon receipt of such notice, the City will have the right to make
its own reasonable determination and, if it agrees with Licensee, investigate whether it
can reasonably and economically mitigate that interference. The City will provide
notice to Licensee of the City’s determination within thirty (30) days of its receipt of
notice from Licensee.
(b) If the City determines in its sole discretion that mitigation is feasible
and can be achieved for a reasonable cost in the City’s reasonable judgment, the City’s
notice will specify when the City will mitigate the adverse effect. The City’s mitigation
will effect a cure, and the City will not be liable to Licensee in any other way or be
required to take any other measures with respect to the Equipment.
(c) If the City determines in its sole discretion that mitigation is not
feasible or cannot be achieved for a reasonable cost in the City’s reasonable judgment,
Licensee may elect either to: (i) terminate the Pole License as to the affected City Pole
and receive a ratable reduction in the License Fee; (ii) request to relocate the Pole
License and related Equipment, at Licensee’s sole cost and expense, to another City
Pole, subject to City’s approval in its sole but reasonable discretion; or (iii) or (iii) take
steps itself at its own cost to mitigate the adverse effect and continue to operate the
Equipment on the City Pole, and receive from the City a waiver of the License Fee
for the first 6 months of the following License Year under the affected Pole License
to offset the cost of mitigation.
(d) Licensee agrees that the City’s temporary and partial abatement or
waiver of the License Fee under this Subsection will be the only compensation due to
Licensee for costs incurred or otherwise arising from the adverse effect as liquidated
damages fully compensating Licensee for all Claims that may arise or be related to the
adverse effects. Under no circumstances may the City be required to alter its
operations at the identified City Pole or provide a replacement City Pole to Licensee.
26.5.3 Impairment Caused by City Access. Licensee agrees that it will not be entitled
to any abatement of License Fees if the City exercises its rights of access under Article 20
(City Access to License Area) unless the City’s activities cause Licensee to be unable to
operate Equipment on the License Area for its permitted use for a period of more than ten
(10) days, in which case, subject to proof, License Fees will be abated ratably for the entire
period that Licensee is unable to operate any Equipment on any affected City Pole.
27 GENERAL PROVISIONS
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27.1 Notices.
This Section applies to all notices, requests, responses to requests, and demands made under
this Master License.
27.1.1 Writings Required. All notices will be effective only if given in writing and
delivered in accordance with this Section.
27.1.2 Manner of Delivery. Except as provided in Subsection 27.1.4 (Special
Requirements), notices may be delivered by: (i) personal delivery; ; (ii) certified mail, postage
prepaid, return receipt requested; or (iii) prepaid overnight delivery, return receipt requested.
Notices must be delivered to: (1) Licensee at Licensee’s address set forth in the Basic License
Information, or at any place where Licensee or any Agent of Licensee may be personally
served if sent after Licensee has vacated, abandoned, or surrendered the License Area; (2) the
City at the City’s address set forth in the Basic License Information; or (3) any new notice
address that either the City or Licensee specifies by no less than ten (10) days’ notice given to
the other in accordance with this Section.
27.1.3 Effective Date of Notices. All notices under this Master License will be
deemed to have been delivered: (i) five (5) days after deposit if delivered by first class mail; (ii)
two (2) days after deposit if delivered by certified mail; (iii) the date delivery is made by
personal delivery or overnight delivery by a Nationally recognized courier; or (iv) the date an
attempt to make delivery fails because a party has failed to provide notice of a change of
address or refuses to accept delivery. The parties will transmit copies of notices by email to
the email addresses listed in the Basic License Information, but failure to do so will not affect
the delivery date or validity of any notice properly delivered in accordance with this Section.
27.1.4 Special Requirements. Any notice of default, demand to cure, or notice of
termination must be sent by certified mail, overnight delivery by a Nationally recognized
courier, or personally delivered.
27.2 No Implied Waiver.
No failure by either party to insist upon the strict performance of any obligation of the other
under this Master License or to exercise any right, power, or remedy arising out of a breach thereof,
irrespective of the length of time for which such failure continues, will constitute a waiver of such
breach. No acceptance by the City or any of its Agents of full or partial payment of License Fees or
Additional Fees during the continuance of any such breach will constitute a waiver of such breach or
of the City’s right to demand strict compliance with such term, covenant, or condition or operate as a
waiver of any requirement of this Master License. No express waiver by either party of any default or
the performance of any provision hereof will affect any other default or performance, or cover any
other period of time, other than the default, performance or period of time specified in such express
waiver. One or more waivers of a default or the performance of any provision hereof by either party
will not be deemed to be a waiver of a subsequent default or performance. The City’s consent given
in any instance under the terms of this Master License will not relieve Licensee of any obligation to
secure the City’s consent in any other or future instance under the terms of this Master License.
27.3 Amendments.
No part of this Master License (including all Pole Licenses) may be changed, waived,
discharged, or terminated orally, nor may any breach thereof be waived, altered, or modified, except by
a written instrument signed by both parties.
27.4 Interpretation of Licenses.
The following rules of interpretation apply to this Master License.
40
27.4.1 General. Whenever required by the context, the singular includes the plural
and vice versa; the masculine gender includes the feminine or neuter genders and vice versa;
and defined terms encompass all correlating forms of the terms (e.g., the definition of
“indemnify” applies to “indemnity,” “indemnification,” etc.).
27.4.2 Multi-party Licensee. If there is more than one Licensee, the obligations and
liabilities under this Master License imposed on Licensee will be joint and several among
them.
27.4.3 Captions. The captions preceding the articles and sections of this Master
License and in the table of contents have been inserted for convenience of reference and such
captions in no way define or limit the scope or intent of any provision of this Master License.
27.4.4 Time for Performance. Provisions in this Master License relating to number
of days mean calendar days, unless otherwise specified. “Business day” means a day other
than a Saturday, Sunday, or a bank or City holiday. If the last day of any period to give notice,
reply to a notice, or to undertake any other action occurs on a day that is not a business day,
then the last day for undertaking the action or giving or replying to the notice will be the next
succeeding business day.
27.4.5 City Actions. All approvals, consents, or other determinations permitted or
required by the City under this Master License will be made by or through the City Manager
of the City or his or her designee, unless otherwise provided in this Master License or by any
City ordinance.
27.4.6 Words of Inclusion. The use of the term “including,” “such as,” or words of
similar import when following any general or specific term, statement, or matter may not be
construed to limit the term, statement, or matter to the stated terms, statements, or matters,
whether or not language of non-limitation, such as “including, but not limited to” and
“including without limitation” are used. Rather, the stated term, statement, or matter will be
interpreted to refer to all other items or matters that could reasonably fall within the broadest
possible scope of the term, statement, or matter.
27.4.7 Laws. References to all Laws, including specific statutes, relating to the rights
and obligations of either party mean the Laws in effect on the Effective Date specified in the
Basic License Information and as they are amended, replaced, supplemented, clarified,
corrected, or superseded at any time while any obligations under this Master License or any
Pole License are outstanding, whether or not foreseen or contemplated by the parties. In the
event of a conflict between the design requirements under the applicable City of South San
Francisco Municipal Code and the terms of this Master License, this Master License shall
control.
27.5 Successors and Assigns.
The terms, covenants, and conditions contained in this Master License bind and inure to the
benefit of the City and Licensee and, except as otherwise provided herein, their successors and
assigns.
27.6 Brokers.
Neither party has had any contact or dealings regarding the license of the License Area, or any
communication in connection therewith, through any licensed real estate broker or other person who
could claim a right to a commission or finder’s fee in connection with the license contemplated
herein (“Broker”), whose commission, if any is due, is to be paid pursuant to a separate written
agreement between such Broker and the party through which such Broker contracted. In the event
41
that any Broker perfects a claim for a commission or finder’s fee based upon any such contact,
dealings, or communication, the party through whom such claim is made shall indemnify the other
party from all Claims brought by the Broker. This Section will survive expiration or earlier
termination of this Master License.
27.7 Severability.
If any provision of this Master License or the application thereof to any person, entity, or
circumstance is invalid or unenforceable, the remainder of this Master License, or the application of
such provision to persons, entities, or circumstances other than those as to which it is invalid or
unenforceable, will not be affected thereby, and each provision of this Master License will be valid
and be enforced to the full extent permitted by Law, except to the extent that enforcement of this
Master License without the invalidated provision would be unreasonable or inequitable under all the
circumstances or would frustrate a fundamental purpose of this Master License.
27.8 Governing Law and Venue.
This Master License must be construed and enforced in accordance with the laws of the State
of California without regard to the principles of conflicts of law. This Master License is made,
entered, and will be performed in the City of South San Francisco, California. Any action concerning
this Master License must be brought and heard in the state or federal courts encompassing the City
of South San Francisco, California.
27.9 Entire Agreement.
This Master License, including all exhibits and schedules, contains the entire agreement
between the parties, and all prior written or oral agreements regarding the same subject matter are
merged into this document. The parties further intend that this Master License, all Pole Licenses, and
all exhibits and schedules will constitute one agreement that contains the complete and exclusive
statement of its terms and that no extrinsic evidence (including prior drafts and revisions) may be
introduced in any judicial, administrative, or other legal proceeding involving this Master License.
Licensee hereby acknowledges that neither the City nor the City’s Agents have made any
representations or warranties with respect to the City Poles or this Master License except as expressly
set forth herein, and no rights, easements, or additional licenses are or will be acquired by Licensee by
implication or otherwise unless expressly set forth herein.
27.10 Time of Essence.
Time is of the essence with respect to all provisions of this Master License in which a definite
time for performance is specified.
27.11 Survival.
Expiration or earlier termination of this Master License will not affect the right of either party
to enforce any and all Indemnities and representations and warranties given or made to the other
party under this Master License, or any provision of this Master License that expressly survives
termination.
27.12 Recording.
Licensee agrees not to record this Master License, any Pole License, or any memorandum or
short form of any of them in the Official Records of the County of San Mateo.
27.13 Counterparts.
This Master License may be executed in two or more counterparts, each of which will be
deemed an original, but all of which taken together will be one and the same instrument.
42
27.14 Cooperative Drafting.
This Master License has been negotiated at arm’s length between persons sophisticated and
knowledgeable in the matters it addresses and was drafted through a cooperative effort of both
parties, each of which has had an opportunity to have this Master License reviewed and revised by
legal counsel. No party will be considered the drafter of this Master License, and no presumption or
rule (including that in Cal. Civil Code § 1654) that an ambiguity will be construed against the party
drafting the clause will apply to the interpretation or enforcement of this Master License.
27.15 Authority to Approve Agreement.
Each party signing this Master License and any Pole License warrants and represents that: (i)
that the person signing on behalf of such party has the full right, power, and capacity to act on behalf
of such party and has the authority to bind such party to the performance of its obligations under
those agreements without the subsequent approval or consent of any other person or entity; (ii) such
party is a duly authorized and existing entity; (iii) such party is qualified to do business in California;
and (iv) such party has full right and authority to enter into this Master License and Pole Licenses.
Upon request, each party shall provide the other with evidence reasonably satisfactory to the other
party confirming the representations and warranties above.
27.16 Conflicts of Interest.
Through its execution of the Master License, Licensee acknowledges that it is familiar with
Sections 87100 et seq. and Sections 1090 et seq. of the Government Code of the State of California,
and certifies that it does not know of any facts which would constitute a violation of said provisions,
and agrees that if Licensee becomes aware of any such fact during the term of the Master License,
Licensee shall immediately notify the City.
27.17 Included Exhibits and Schedules.
The following exhibits and schedules are attached to and are incorporated by reference into
this Master License.
EXHIBIT A – Form of Pole License
Exhibit A-1 – Licensee’s Plans and Specifications
Exhibit A-2 – Form of Acknowledgment Letter
Exhibit A-3 – License Fee and Default Fee Schedule
Exhibit A-4 – City Installation Guidelines
EXHIBIT B – Requirements for Licensee Equipment
43
The City and Licensee have executed this Master License as of the date last written below.
CITY:
CITY OF SOUTH SAN FRANCISCO, a
California municipal corporation
By:
Mike Futrell
City Manager
Date:
LICENSEE:
GTE Mobilnet of California limited
Partnership, a California limited partnership,
d/b/a Verizon Wireless
By: Cellco Partnership
Its: General Partner
Name:_______________________________
___
Title:
__________________________________
Date:
Attest:
By:
Rosa Acosta
City Clerk
Approved as to Form:
By:
Sky Woodruff
City Attorney
3564331.3
[Remainder of page intentionally left blank.]
EXHIBIT A
FORM OF POLE LICENSE
Master License between and City of South San Francisco Pole License No. [Start with 1
and number each subsequent application consecutively.]
In accordance with Section 6.3 of the Master License, Licensee submits to the City two partially
executed counterparts of this form of Pole License and each of the following as its Pole License
application:
1. Pole Location/License Area:
Pole License No.:
2. Exhibit A-1, complete and final plans and specifications for Equipment to be installed in the
License Area subject to Regulatory Approvals;
3. The sum of $ for the initial Administrative Payment in amounts
based on the number of City Poles identified in Exhibit A-1, subject to Section 6.5 of the
Master License; and
4. If not previously provided, the Emissions Report.
Licensee acknowledges that: (a) this Pole License will not be effective until Licensee obtains all
applicable and necessary Regulatory Approvals after the Pole License is fully executed; (b) the City
may require Licensee to supplement the Administrative Payment on conditions specified in Section
6.5 of the Master License; (c) Licensee will not have the right to access or install Equipment on the
License Area until after Licensee has: (i) submitted a complete Acknowledgment Letter to the City
with all information and funds required; (ii) submitted insurance information to City as required by
the Master License Agreement; and (iii) the City has provided notice to proceed by returning to
Licensee a countersigned copy of the Acknowledgment Letter.
This Pole License is executed and effective as of the last date written below and, upon execution will
be the City’s authorization for the City’s Community Development Department to begin its review of
the Pole Locations and plans and specifications proposed in this Pole License application.
LICENSEE:
[Wireless Company], a ________[California corporation, Nevada LLC, etc.]
By:
Its:
Date: _
APPROVAL:
CITY:
CITY OF SOUTH SAN FRANCISCO, a California municipal corporation
By:
Mike Futrell (or designee)
City Manager
Date:
EXHIBIT A-1
LICENSEE’S PLANS AND SPECIFICATIONS
Pole License No.
[Licensee to attach plans and specifications for all Equipment, including required and
permitted signage, to this cover sheet and submit with Pole License application.]
EXHIBIT A-2
Form of Acknowledgment Letter [Licensee to complete and submit.]
[Alternative to be used if Licensee obtains all Regulatory Approvals within 365 (366 in any
leap year) days after Pole License is issued.]
[Date]
City of South San Francisco
835 East 14th Street
South San Francisco, CA 94577
Attention: Sailesh Mehra
Re: Pole License No. Dear ____________________:
This letter will confirm the following: (1) that Licensee has obtained the Small Cell
Attachment Permit and all other Regulatory Approvals required for the Permitted Use under this
Pole License, copies of which are attached to this letter, as specified below; (2) the Commencement
Date of this Pole License is , 20__, which is the first day of the month after the Pole License
Effective Date pursuant to section 4.1.1; and (3) the Effective Date of this Pole License is ________,
20_____, which is the date on which Licensee obtained all applicable and necessary Regulatory
Approvals after the Pole License is fully executed.
This letter also confirms that Licensee has submitted all required insurance information to the
City. The Security Deposit/Bond/Financial Assurance (if not already provided) and the License Fee
for the first License Year of this Pole License shall be paid within ninety (90) days from the Pole
License Commencement Date.
Please acknowledge the City’s receipt of this letter and the items listed below, and issue the
City’s approval for Licensee to begin installation of Equipment on the License Are by signing and
returning a copy of this letter.
Very truly yours,
By:
Title:
Enc.
[ ] Small Cell Attachment Permit
[ ] [List other Regulatory Approvals.]
[ ] [List other Regulatory Approvals.]
[ ] [List other Regulatory Approvals.]
[ ] Insurance certificates and endorsements
[ ] Contractor’s bonds, insurance certificates, and endorsements
[Alternative to be used if Licensee does not obtain all Regulatory Approvals within 365 (366
in any leap year) days after Pole License is issued.]
[Date]
City of South San Francisco
835 East 14th Street
South San Francisco, CA 94577
Attention: Sailesh Mehra
Re: Pole License No.
Dear ____________________:
This letter will confirm the following:
(1) that Licensee has not obtained the following Regulatory Approvals required for the
Permitted Use under this Pole License:
; and
(2) the Commencement Date of this Pole License is , 20 , which is the
first day of the month after the Pole License Effective Date.
The Security Deposit/Bond/Financial Assurance (if not already provided) and the License
Fee for the first License Year of this Pole License shall be paid within ninety (90) days from the Pole
License Commencement Date.
When Licensee has obtained all Regulatory Approvals, it will provide copies to the City,
submit all required insurance documents and information, and request that the City issue its approval
for Licensee to begin installation of Equipment on the License Area.
Very truly yours,
By:
Title:
Enc.
[ ] [List Regulatory Approvals acquired.]
[ ] [List other Regulatory Approvals acquired.]
[ ] [List other Regulatory Approvals acquired.]
[Alternative to be used if Licensee obtains all Regulatory Approvals within 365 (366 in any
leap year) days after Pole License is issued.]
Dear [Licensee]:
This countersigned copy of your Acknowledgment Letter serves as the City’s notice to
Licensee that the City has: (1) received the Security Deposit/Bond/Financial Assurance and First
Year’s License Fee for this Pole License; (2) approved the requested Pole Locations and the plans
and specifications for installation of Equipment on the License Area; (3) received satisfactory
evidence of insurance, including contractors’ insurance and bonds; and (4) received copies of the
Regulatory Approvals listed above, as well as a copy of the Emissions Report Licensee submitted to
the Community Development Department.
The City concurs with the Pole License Effective Date for this Pole License as specified
above. [After reviewing the Regulatory Approvals, the City has determined that the correct
Commencement Date for this Pole License is: , 20___.] The Licensee Fee and
Default Fee Schedule and City Installation Guidelines for the Pole License shall be paid within ninety
(90) days from the Pole License Commencement Date. Upon receipt, they will be deemed to be
attached to the Pole License as Exhibits A-3 and A-4, respectively.
Licensee is authorized proceed with the installation of Equipment on the License Area
identified in Exhibit A to the Pole License in accordance with the Approved Plans and other
requirements of the Master License.
CITY OF SOUTH SAN FRANCISCO, a California municipal corporation
By:
Mike Futrell (or designee)
City Manager
Date:
Enc.
[ ] City Installation Guidelines
[Alternative to be used if Licensee does not obtain all Regulatory Approvals within 365 (366
in any leap year) days after Pole License is issued.]
Dear [Licensee]:
This countersigned copy of your Acknowledgment Letter serves as the City’s notice to
Licensee that the City has: (1) received the Security Deposit/Bond/Financial Assurance and First
Year’s License Fee for this Pole License; (2) reserved the requested Pole Locations and approved the
plans and specifications for installation of Equipment on the License Area, subject to Regulatory
Approvals.
The City concurs with the Commencement Date for this Pole License as specified above.
The Licensee Fee and Default Fee Schedule and City Installation Guidelines for the Pole License are
attached. Upon receipt, they will be deemed to be attached to the Pole License as Exhibits A-3 and
A-4, respectively.
The City will provide notice to proceed with installation of Equipment on the License Area
in accordance with Approved Plans and other requirements of the Master License after Licensee has
submitted to the City copies of the Regulatory Approvals listed above, along with a copy of the
Emissions Report Licensee submitted to the Community Development Department, and provided
satisfactory evidence of insurance, including contractors’ insurance and bonds.
By:
Mike Futrell (or designee)
City Manager
Date:
Enc.
[ ] Licensee Fee and Default Fee Schedule
[ ] City Installation Guidelines
SCHEDULE A-3
LICENSEE FEE AND DEFAULT FEE SCHEDULE
Pole License
LICENSE FEE SCHEDULE
2020 Annual License Fee
per City Pole
$270*
Provision of in-lieu public benefits
pursuant to Subsection 4.2.3,
subject to City Council review and
approval
Annual License Fee
reduced to an initial rate
of $270 per year per City
Pole
* Annual License Fee will be increased as set forth in Section 4.3 of the
Master License
DEFAULT FEE SCHEDULE
Violation Master
License
location
Initial notice
Follow up
notice
Installation of equipment or alterations
that are not approved by the City.
Arts. 6, 7, 8 $350 $400
Failure to make required repairs. Art. 10 $300 $350
Violation of requirements regarding
access to License Area.
Art. 7 $300 $350
Failure to provide evidence of insurance
and bonds or maintain insurance
Art. 18 $300 $350
EXHIBIT A-4
CITY INSTALLATION GUIDELINES
[To be updated with each Pole License.]
Licensee shall install a dedicated conduit for its use; however, Licensee may use the City’s
existing non-traffic signal conduits, subject to the allowable conduit fill percentage under the NESC
and the review and approval of the City’s Public Works Department. Licensee is not permitted to
install or arrange for installment of external conduits on any City Poles.
Licensee shall pull a dedicated electrical wire through the new conduit or City street light
conduit from the electrical provider’s point of service connection to a new Licensee pull box, and
shall not share the City pull box, on each licensed City Pole without splicing. If there is no City pull
box, Licensee shall install a new pull box and conduit for the City’s future use.
Licensee shall apply for and install an electric meter, if required by the City and the electrical
provider, and, and shall obtain any necessary building permits from the City for the installation and
connection.
Licensee shall install the correct fuses and fuse holders for the dedicated circuit used for
Licensee’s Equipment at the point of interconnection of the main service and the Licensee’s pull box.
Fuse and fuse holder specifications shall be provided by Licensee and shown on the Approved Plans
and Specifications.
Licensee shall be responsible for repairing any City conduits that Licensee or its Agents
damage during installation of electrical facilities, including pulling of wires into street light conduits.
If following Licensee’s failure to make such repairs within thirty (30) days of notice from City, the
City’s crew makes repairs to remedy damage caused by Licensee or its Agents, the City will charge
Licensee the full cost of those repairs by notice with evidence of the City’s costs.
The City will inspect Licensee’s service installations to ensure compliance with Approved
Plans and Specifications. Licensee agrees to make any repairs or modifications to its service
installations that are necessary to ensure compliance with the Approved Plans and Specifications.
Licensee shall provide the City’s Public Works Department with as-built drawings showing all
circuits installed by Licensee in existing street light conduits promptly after installation is complete.
Licensee shall provide the City’s Public Works Department with the final coordinates and/or
digital GIS shape file for inclusion in the City’s GIS inventory.
Licensee shall not: (a) connect or use any electrical equipment that exceeds the capacity of the
electrical system available to service the City Pole; or (b) connect any apparatus, machine, or device
through the electrical service except in the manner for which such service is designed or as otherwise
approved by the City in the Approved Plans.
Licensee shall not open any City pull boxes unless a member of the City’s street light
maintenance crew is present or City’s Public Work department approves opening the pull boxes
unattended by City’s maintenance crew. Licensee shall contact the City’s Public Works Department to
complete the service connection.
EXHIBIT B
REQUIREMENTS FOR LICENSEE EQUIPMENT
Licensee’s plans and specifications submitted with each Pole License application, and any Pole
License application approved by the City shall comply with the following minimum requirements:
1. Licensee’s Equipment shall be concealed or enclosed as much as possible in an
equipment box, cabinet, or other unit that may include ventilation openings. All
equipment and facilities shall be constructed out of non-reflective materials
(visible exterior surfaces only), or materials and colors consistent with
surrounding backdrop.
2. All ancillary equipment, equipment shelters, cabinets, or electrical distribution
panels shall not be installed at ground level, except after all reasonable alternative
pole locations have been explored and found unavailable or lacking in some
substantial way and only with prior City approval upon a good faith showing of
necessity, in City’s sole discretion. Ground-mounted equipment, if any, shall
incorporate appropriate techniques to camouflage, disguise and/or blend the
equipment into the surrounding environment. Any ground-mounted equipment
shall not inhibit or block pedestrian path of travel and shall comply with the
Americans with Disabilities Act (ADA) standards. Any ground-mounted
equipment shall not obstruct or interfere with storm drainage facilities, drainage
channels, or change the existing drainage pattern. The ideal installation shall:
a. Minimize aesthetic impacts and visual clutter:
i. The licensee shall conform its facilities to the City’s preferred pole design
standards, including having the antenna concealed in radome, the
Remote Radio Units incorporated into the pole, and all other associated,
ancillary equipment be incorporated at the base of the pole or
undergrounded consistent with the requirements of this Exhibit, as
shown in the attached Exhibit B-1: Sample Acceptable Pole Design
attached hereto and incorporated herein. All small cell facilities shall
employ the latest technology and equipment. If new, smaller/compact
technology becomes available and has the same or better functionality,
the carrier may elect to replace the older technology at its discretion.
ii. The City will not allow installations that degrade the aesthetics of the
community at-large and/or add to the visual clutter of the neighborhood.
An example of an unacceptable design is attached hereto as Exhibit B-2:
Sample Unacceptable Pole Design and incorporated herein.
iii. The City will not allow small cell facilities to be installed on historic poles
in the downtown.
b. Minimize noise to abutting residents and occupants:
i. Noise – All small cell facilities shall be constructed and operated in such
a manner as to minimize the amount of noise impacts and to comply
with the noise standards set forth under the Municipal Code. Noise
attenuation measures shall be required for all equipment.
ii. Testing and maintenance activities of small cell facilities, which generate
audible noise, including the idling of maintenance vehicle(s), shall occur
between the hours of 8:00 a.m. and 5:00 p.m., weekdays (Monday
through Friday, non-holiday) excluding emergency repairs. Testing and
maintenance activities which do not generate audible noise may occur at
any time. Generators may be allowed only for temporary equipment
testing, and such temporary operations shall comply with noise standards
set forth under the Municipal Code.
iii. The proposed equipment associated with small cell facilities is not
expected to produce significant noise; however, the cooling fan may
produce sound emissions that do not exceed 65 dBs when it is activated.
The City anticipates that any noise-generating equipment will be housed
in a sound-rated enclosure. Moreover, the distance of the equipment
from the adjacent properties, will effectively mitigate noise and vibration
to an insignificant level as perceived by adjoining neighbors.
iv. The small cell facilities are anticipated to require maintenance at a
maximum of once a month. All maintenance activities shall occur on
weekdays during daytime hours. Noise from these maintenance activities
is not expected to adversely impact adjacent neighbors.
3. Licensee shall verify each Pole’s condition, size and foundation, and provide structural
calculations and drawings for any pole-mounted equipment. Any pole-mounted equipment shall be
placed at least eight (8) feet above sidewalks or sixteen (16) feet above streets on the street side of the
pole, and shall not obstruct line of sight to any intersection, signage, traffic control devices or other
directional markings. Any pole-mounted equipment shall be incorporated into the design of the pole
with the use of a shroud or other stealthing techniques.
4. The antennas and related equipment shall be constructed out of non-reflective materials,
painted and/or textured to match the existing support structure and painted to blend with their
surroundings. Paint shall be reviewed and shown on the Approved Plans and Specifications.
5. Any fiber optic cable or wiring connecting the antenna to the equipment cabinet or
pedestal shall be located inside the City Pole and shall be located underground to the equipment
cabinet.
6. All other conduit, cable and wiring shall be located underground; if undergrounding is
infeasible, antennas and associated cables, connectors,, and hardware shall be placed within a shroud
or equivalent.
7. The height of a pole that includes pole-mounted equipment shall not exceed more than
five (5) feet above the height of the average street light in the area.
8. Licensee is required to maintain and preserve design and aesthetic features for each
facility, equipment and any support infrastructure, including but not limited to color, tint, shade,
treatment, painting, surface treatment, replacement landscaping, stealth design, and concealment.
9. Licensee may not attach any Equipment to any decorative pole.
EXHIBIT B-1
ACCEPTABLE POLE DESIGN
EXHIBIT B-2
UNACCEPTABLE POLE DESIGN
3613010.1
3635996.2