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HomeMy WebLinkAbout2018-09-25; City Council; ; Master License Agreement with Mobilitie, LLC to allow the use of city-owned street light and utility poles within the city's right-of-way for small cell facilitiesFiscal Analysis Under the proposed MLA, the city will receive from Mobilitie a license fee of $1,872 per year per street light or signal Pole License, subject to 4% annual increases. Should Mobilitie co-locate facilities on a city pole, the city shall receive an additional $500 per facility, subject to 4% annual increases. The city will also recover from Mobilitie a one-time $8,000 administrative fee to cover the city's costs for reviewing and executing the MLA and a $1,000 administrative fee associated with each new Pole License. Additionally, Mobilitie will pay for the entire cost of the city to engage the on-call professional services of a consultant to help review Pole License applications when Mobilitie submits more than 15 applications at any single transaction. Next Steps Once the MLA is approved, Mobilitie will be required to obtain the necessary Pole Licenses for any and all new future locations. Environmental Evaluation (CEQA) The proposed action is exempt from the California Environmental Quality Act (CEQA) per State CEQA guidelines 15301-Existing Facilities. Section 15301 exempts the leasing of property involving negligible or no expansion of use beyond that existing at the time of the agency's determination. Exhibits 1. City Council Resolution. September 25, 2018 Item #3 Page 2 of 67 RESOLUTION NO. 2018-170 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, AUTHORIZING A MASTER LICENSE AGREEMENT WITH MOBILITIE LLC TO ALLOW THE USE OF CITY-OWNED STREET LIGHT AND TRAFFIC SIGNAL POLES WITHIN THE CITY'S RIGHT-OF-WAY FOR SMALL CELL FACILITIES; AND AUTHORIZING THE CITY MANAGER TO ACT ON BEHALF OF THE CITY IN ALL FUTURE DECISIONS AND ACTIONS NECESSARY TO IMPLEMENT THE MASTER LICENSE AGREEMENT WHEREAS, the city owns and operates approximately 7,350 street light and traffic signal poles in the public right-of way; and WHEREAS, Mobilitie, LLC (Mobilitie) operates as a broker of telecommunication facilities and enters into agreements to sublease their small cell-site facilities to various telecommunication carriers such as AT&T, Cricket Wireless, Sprint, T-Mobile, and Verizon; and WHEREAS, the city desires to approve a Master License Agreement (MLA) with Mobilitie for use of city street light and signal poles over the next 10 years; and WHEREAS, the MLA is for a term of ten years, and Mobilitie may request up to three (3) automatic five-year extensions on the same terms and conditions of the MLA; and WHEREAS, pursuant to the MLA, Mobilitie will be required to enter into individual Pole License Agreements ("Pole License") for use of each individual pole throughout the city; and WHEREAS, the annual fee for each Pole License is initially $1,872, subject to a 4% annual increase per pole; and WHEREAS; in order to fully implement the MLA and Pole License agreements, numerous actions must be taken and various documents must be executed; and WHEREAS, many of the actions and document executions necessary to fully implement the MLA are extremely time sensitive, and as such it would be beneficial and more expedient for the City Council September 25, 2018 Item #3 Page 3 of 67 to authorize the City Manager, or his designee, to act on behalf of the City in all future decisions and actions necessary to implement the MLA. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows that: 1. The above recitations are true and correct. 2. That the Mayor is authorized and directed to execute the Master License Agreement, which is Attached hereto as Attachment A 3. The City Manager, or his designee, is hereby authorized to act on behalf of the City of Carlsbad in all future decisions and actions necessary to implement the Master License Agreement with Mobilitie for use of city street light and traffic signal poles located throughout the city, and to do so in full compliance with the terms and conditions expressed in the aforementioned Master License Agreement and to the satisfaction of the City Attorney. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 25th day of September, 2018, by the following vote, to wit: AYES: NOES: ABSENT: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. None. None. (SEAL) September 25, 2018 Item #3 Page 4 of 67 MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES INSTALLATIONS between CITY OF CARLSBAD, A CALIFORNIA MUNICIPAL CORPORATION and MOBILITIE, LLC, A NEVADA LIMITED LIABILITY COMPANY Effective Date: 'alft.J• a D , 2018 {00011214; 1 0} September 25, 2018 Item #3 Page 5 of 67 TABLE OF CONTENTS 1. GENERAL DEFINITIONS ........................................................................................ 2 2. SCOPE OF LICENSE .............................................................................................. 4 2.1. License Area ..................................................................................................... 4 2.1.1. Pole License Issuance and Effect ............................................................ 4 2.1.2. Limitations on License Areas ................................................................... 5 2.2. Limitations on Licensee's Interests ............................................................... 5 2.2.1. Limited Interest Created ............................................................................ 5 2.2.2. Limited Rights Created ............................................................................. 5 2.2.3. No Impediment to Municipal Uses ........................................................... 6 2.3. Diminutions in Light, Air and Signal .............................................................. 6 2.4. License Area Condition ................................................................................... 6 2.4.1. "As-ls and With All Faults" Condition ..................................................... 6 2.4.2. Licensee's Due Diligence .......................................................................... 6 2.4.3. Certified Access Specialist Disclosure .................................................... 6 3. TERM ....................................................................................................................... 7 3.1. Master License Term ....................................................................................... 7 3.2. Pole License Term ........................................................................................... 7 4. LICENSE FEE; OTHER PAYMENTS ...................................................................... 7 4.1. License Fees ..................................................................................................... 7 4.1.1. Commencement Date ................................................................................ 7 4.1.2. Acknowledgment Letter ............................................................................ 8 4.1.3. License Fee Amount. ................................................................................. 8 4.1.4. Annual License Fee Adjustments ............................................................ 8 4.1.5. License Fee Due Date ................................................................................ 8 4.2. Administrative Fees ......................................................................................... 9 4.2.1. Master License Administrative Fee .......................................................... 9 4.2.2. Pole License Administrative Fee .............................................................. 9 4.3. Late Charges .................................................................................................... 9 4.4. Default Interest ................................................................................................. 9 4.5. Additional Fees ................................................................................................ 9 4.6. Payment Procedures ..................................................................................... 10 4.7. Liquidated Charges and Fees ....................................................................... 10 {00011214;10} September 25, 2018 Item #3 Page 6 of 67 5. USES ..................................................................................................................... 10 5.1. Permitted Use ................................................................................................. 10 5.2. Prohibition on "Macro Cell" Uses ................................................................. 11 5.3. Prohibition on Illegal Uses or Nuisances ..................................................... 11 5.4. Signs or Advertisements ............................................................................... 11 6. POLE LICENSES .................................................................................................. 11 6.1. City Approval Required ................................................................................. 11 6.2. Pole License Application ............................................................................... 12 6.3. Pole License Application Review Procedures ............................................. 12 6.3.1. City Staff Augmentation .......................................................................... 12 6.3.2. Required Changes to the Pole License Application ............................. 13 6.3.3. Consultation with Other City Departments ........................................... 13 6.3.4. Pole License Application Approval. ....................................................... 13 6.3.5. City's Right to Disapprove ...................................................................... 14 6.3.6. Waiver of Certain Federal and State Rights of Licensee ...................... 14 6.4. Reserved ......................................................................................................... 14 6.5. Modifications to Equipment in the Approved Plans ................................... 14 7. EQUIPMENT INSTALLATION ............................................................................... 15 7.1. Approved Plans and Equipment Specifications .......................................... 15 7.1.1. Site Identification Required .................................................................... 15 7.1.2. Changes Required for Regulatory Approvals ....................................... 15 7.1.3. Corrections to Approved Plans .............................................................. 15 7.2. Prior Regulatory Approvals Required .......................................................... 15 7.3. Installation; Strict Compliance with Approved Plans ................................. 16 7.3.1. Alterations to City's Property ................................................................. 16 7 .3.2. Licensee's Contractors ........................................................................... 16 7.4. Labor and Materials Costs ............................................................................ 17 7 .5. Project Managers ........................................................................................... 17 7.6. Coordination with the City ............................................................................. 18 7.7. Fiber-Optic Cables ......................................................................................... 18 7.8. Title to Licensee's Equipment and Other Improvements ........................... 18 7.9. Prevailing Wages ........................................................................................... 19 8. PUBLIC WORKS OPERATIONS .......................................................................... 20 8.1. City's Access to License Areas .................................................................... 20 {00011214;10} ii September 25, 2018 Item #3 Page 7 of 67 8.2. Repairs, Maintenance and Alterations to Poles .......................................... 20 8.3. Repairs, Maintenance and Alterations to License Areas ............................ 20 8.4. Emergencies ................................................................................................... 21 9. LICENSEE'S MAINTENANCE OBLIGATIONS ..................................................... 21 9.1. Damage to Poles ............................................................................................ 21 9.1.1. Notice to the City ..................................................................................... 21 9.1.2. Damage Caused by Licensee ................................................................. 21 9.1.3. No Right to Repair ................................................................................... 22 9.2. Equipment Maintenance ................................................................................ 22 9.3. Graffiti Abatement.. ........................................................................................ 22 9.4. Standard of Work ........................................................................................... 22 10. LIENS .................................................................................................................. 22 11. UTILITIES ........................................................................................................... 23 12. TAXES AND ASSESSMENTS ............................................................................ 23 12.1. Possessory Interest Taxes ......................................................................... 23 12.2. Licensee's Tax Obligations ........................................................................ 23 13. COMPLIANCE WITH LAWS ............................................................................... 24 13.1. Compliance with Current and Future Laws .............................................. 24 13.2. Licensee's Personnel ................................................................................. 24 13.2.1. Personnel Training and Certification .................................................. 24 13.2.2. Licensee's Indemnification for Personal Injuries and/or Property Damage 24 13.3. Compliance with CPUC GO 95 ................................................................... 25 13.4. Compliance with Electric Codes ................................................................ 25 13.5. Compliance with RF Exposure Regulations ............................................. 25 14. DAMAGE OR DESTRUCTION ........................................................................... 25 14.1. City's Rights After Damage or Destruction .............................................. 25 14.1.1. Election to Repair or Replace Damaged Pole .................................... 26 14.1.2. Election to Remove Damaged Pole .................................................... 26 14.1.3. Election to Remove Equipment from Damaged Pole ........................ 26 14.2. Licensee's Rights upon Termination ........................................................ 26 14.3. Waiver of Statutory Rights ......................................................................... 26 15. CONDEMNATION ............................................................................................... 27 15.1. Permanent Takings ..................................................................................... 27 15.1.1. Termination ........................................................................................... 27 {00011214;10} iii September 25, 2018 Item #3 Page 8 of 67 15.1.2. Award .................................................................................................... 27 15.1.3. No Statutory Right to Terminate ......................................................... 27 15.2. Temporary Takings ..................................................................................... 27 16. ASSIGNMENT AND OTHER TRANSFERS ....................................................... 28 16.1. General Restriction ..................................................................................... 28 16.2. Proposed Assignment Procedures ........................................................... 28 16.2.1. Proposed Assignment Notice ............................................................. 28 16.2.2. City Response ...................................................................................... 28 16.3. Permitted Assignments .............................................................................. 29 16.3.1. Definition ............................................................................................... 29 16.3.2. Conditions ............................................................................................. 29 16.4. Effect of Assignment .................................................................................. 29 16.5. Assumption by Transferee ......................................................................... 29 16.6. Licensee's Customers ................................................................................ 30 17. DEFAULT ............................................................................................................ 30 17 .1. Events of Default by Licensee ................................................................... 31 17.2. City's Remedies .......................................................................................... 31 17.2.1. License Continuation ........................................................................... 31 17.2.2. Pole License Termination .................................................................... 31 17.2.3. Master License Termination ................................................................ 32 17 .2.4. Default Fees .......................................................................................... 32 17.3. Licensee's Remedies ..................................................................................... 33 17.4. Cumulative Rights and Remedies ................................................................. 33 18. LICENSEE'S INDEMNIFICATION OBLIGATIONS ............................................ 33 19. INSURANCE ....................................................................................................... 34 19.1. Licensee's Insurance .................................................................................. 34 19.1.1. Required Coverages ............................................................................ 34 19.1.2. Required Endorsements ...................................................................... 34 19.1.3. Cancellation Notices ............................................................................ 34 19.1.4. Claims-Made Policies ........................................................................... 35 19.1.5. General Aggregate Limit. ..................................................................... 35 19.1.6. Certificates ............................................................................................ 35 19.1.7. Insurer Qualifications .......................................................................... 35 19.1.8. Effective Dates ...................................................................................... 35 {00011214;10} iv September 25, 2018 Item #3 Page 9 of 67 19.1.9. Licensee's Self-Insurance Alternative ................................................ 35 19.1.10. No Limitation on Indemnification Obligations ................................ 36 19.1.11. Right to Terminate ............................................................................ 36 19.2. City's Insurance .......................................................................................... 36 19.3. Subrogation Waiver .................................................................................... 36 19.4 Contractors' Insurance ............................................................................... 36 20. LIMITATIONS ON THE CITY'S LIABILITY ........................................................ 37 20.1. General Limitations on the City's Liability ............................................... 37 20.2. Consequential Damages ............................................................................ 37 20.3. No Relocation Assistance .......................................................................... 37 20.4. Non-Liability for City Officials, Employees and Agents .......................... 38 20.5. Licensee's Waiver ....................................................................................... 38 21. RECORDS .......................................................................................................... 38 21.1. Accounting Records ................................................................................... 38 21.2. Estoppel Certificates .................................................................................. 39 22. RULES AND REGULATIONS ............................................................................ 39 23. SURETY BOND .................................................................................................. 39 23.1. Provision of Surety Bond ........................................................................... 39 23.2. Replenishment of Surety Bond .................................................................. 39 23.3. Application .................................................................................................. 40 24. SURRENDER OF LICENSE AREA .................................................................... 40 24.1. Surrender ..................................................................................................... 40 24.2. Abandonment. ............................................................................................. 40 24.3. Holding Over ............................................................................................... 41 25. HAZARDOUS MATERIALS ................................................................................ 41 25.1. Hazardous Materials in License Area ........................................................ 41 25.2. Licensee's Environmental Indemnity ........................................................ 41 26. TERMINATION ................................................................................................... 42 26.1. Termination for Failure to Obtain Regulatory Approvals ........................ 42 26.2. Licensee's Termination Rights .................................................................. 42 26.2.1. Master License Termination Rights .................................................... 42 26.2.2. Pole License Termination Rights ........................................................ 42 26.2.3. Termination Rights after Pole Replacement ...................................... 43 26.3. City's Absolute Right to Terminate Pole Licenses .................................. 43 {00011214; 10} V September 25, 2018 Item #3 Page 10 of 67 26.4. Licensee's Rights after Termination ......................................................... 43 27. INTERFERENCE ................................................................................................ 43 27.1. Obligation Not to Cause Interference ........................................................ 43 27.2. Impairment Caused by Change in City Use .............................................. 44 27.3. Impairment Caused by City Access .......................................................... 45 28. MISCELLANEOUS PROVISIONS ...................................................................... 45 28.1. Notices ......................................................................................................... 45 28.1.1. Writings Required ................................................................................ 45 28.1.2. Delivery Method .................................................................................... 45 28.1.3. Notice Effective Date ............................................................................ 45 28.1.4. Special Requirements .......................................................................... 45 28.2. Waiver; No Implied Waivers ....................................................................... 46 28.3. Amendments ............................................................................................... 46 28.4. Interpretation ............................................................................................... 46 28.4.1. General .................................................................................................. 46 28.4.2. Multi-party License ............................................................................... 46 28.4.3. Captions ................................................................................................ 46 28.4.4. City Actions .......................................................................................... 47 28.4.5. Words of Inclusion ............................................................................... 47 28.4.6. Laws ...................................................................................................... 47 28.5. 28.6. 28.7. 28.8. 28.9. 28.10. 28.11. 28.12. Successors and Assigns ........................................................................... 4 7 Brokers ........................................................................................................ 47 Severability .................................................................................................. 47 Governing Law; Venue ............................................................................... 48 Attorneys' Fees ........................................................................................... 48 Time for Performance .............................................................................. 48 Survival ..................................................................................................... 48 Recording ................................................................................................. 48 28.13. Counterparts ............................................................................................ 49 28.14. Approval Authority .................................................................................. 49 EXHIBIT A .................................................................................................................... 51 EXHIBIT A-1 ................................................................................................................. 52 EXHIBIT A-2 ................................................................................................................. 53 EXHIBIT A-3 ................................................................................................................. 54 {00011214; 1 O} vi September 25, 2018 Item #3 Page 11 of 67 SCHEDULE A-4 ............................................................................................................ 55 {00011214;10} vii September 25, 2018 Item #3 Page 12 of 67 MASTER LICENSE AGREEMENT FOR WIRELESS COMMUNICATIONS FACILITIES INSTALLATIONS This MASTER LICENSE AGREEMENT FOR WIRELESS COMMUNICATIONS FACILITIES INSTALLATIONS ("Master License") dated~= r 1,6, 2018 (the "Effective Date") is between the CITY OF CARLSBAD, a Calif rnlamunicipal corporation (the "City") and MOBILITIE, LLC, a Nevada limited liability company (the "Licensee"). BACKGROUND A. WHEREAS, technology developments and demand for high-speed mobile data service and capacity has extended beyond the capabilities of traditional macrocell wireless communications facilities. To meet this demand, wireless providers have accelerated their small cell and distributed antenna system ("Small Cell") deployments in the public right-of-way and the City has a clear incentive to develop public-private arrangements that manage these accelerated deployments in a way that preserves local aesthetics and public health and safety while also deriving the benefits of these new technologies for the City's residents to the greatest extent practicable; and 8. WHEREAS, Licensee has represented to the City that Licensee has the authority under applicable Laws to install and maintain telephone lines within the State of California, which include communications facilities, in the public right-of-way to provide communications services which may, in part, include Small Cells; and C. WHEREAS, Licensee installs and maintains communications facilities on existing vertical infrastructure in the public right-of-way; and D. WHEREAS, the City owns a substantial number of existing poles in the public right- of-way that are potentially suitable for installing communications facilities within the City's jurisdiction and has a duty under California law to derive appropriate value from the City's property and assets held by the City for the public good; and E. WHEREAS, Section 253 of the Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56, codified as 47 U.S.C. § 253, preserves the City's authority to control access to and use of the public rights-of-way within the City's jurisdictional boundaries, and to require reasonable compensation for such use on a competitively-neutral and nondiscriminatory basis so long as such compensation is disclosed; and {00011214; 1 0} September 25, 2018 Item #3 Page 13 of 67 NOW THEREFORE, for good, valuable and sufficient consideration received and acknowledged by the City and Licensee, the City and Licensee agree as follows: AGREEMENT 1. GENERAL DEFINITIONS "Agent" means agent, employee, officer, contractor, subcontractor, and representative of a party in relation to this Master License and the License Area. "Assignment" means any of the following: (a) a merger, acquisition or other transfer of a controlling interest in Licensee, voluntarily or by operation of Law; and (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. "Backhaul" means the transmission link between individual nodes and the core Internet and telephone networks. "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 fifty percent (50%) of the total combined voting power of all classes of stock of the controlled corporation, issued and outstanding; or (b) as to partnerships and other forms of business associations, ownership of more than fifty percent (50%) of the beneficial interest and voting control of such association. "CPUC" means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or it's duly appointed successor agency. "EMF" means electromagnetic fields or radio frequency generally between 30 kHz and 300 GHz in the electromagnetic spectrum range. "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 Equipment to, or adjacent to, a licensed City Pole, peripherals, and ancillary equipment and installations, including wiring, cabling, power feeds, vaults, pull boxes, pedestals, and any approved signage attached to Equipment. "FCC" means the Federal Communications Commission or its duly appointed successor agency. {00011214; 1 O} 2 September 25, 2018 Item #3 Page 14 of 67 "Hazardous Material" means any material that, because of its quantity, concentration, or physical or chemical characteristics, is at any time now or hereafter deemed by any Regulatory Agency to pose a present or potential hazard to human health, welfare or safety or to the environment. Hazardous Material includes any material or substance defined as a "hazardous substance," or "pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or section 25316 of the California Health & Safety Code; and any "hazardous waste" listed California Health & Safety Code § 25140; and petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids. "Investigate and Remediate" means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. "Invitee" means the client, customer, invitee, guest, tenant, subtenant, licensee, assignee and/or sublicensee of a party in relation to the License Area. "Laws" means all present and future statutes, ordinances, codes, orders, policies, regulations and implementing requirements and restrictions of federal, state, county and municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question. "Licensee's On-Call Representative" mean the person(s) assigned by Licensee to be on-call and available to the City regarding the operation of Licensee's Equipment. Such person(s) shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency in and in day-to-day operations of the Equipment. "Permitted Use" means Licensee's installation, operation and maintenance of Equipment for the transmission and reception of wireless, cellular telephone and data and related communications equipment on License Areas. "Pole" means a street light pole, utility pole or other support structure located in the public right-of-way within the City and owned by the City. "Pole License" means the document in substantially the form as shown in Exhibit A (attached hereto and incorporated herein by this reference) 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. {00011214; 1 O} 3 September 25, 2018 Item #3 Page 15 of 67 "Pole Location" means the geographic information identifying each City Pole on which Licensee is authorized to install, operate and maintain Equipment under Pole Licenses. Pole Locations will be identified in Exhibit A-1 to each Pole License. "Property" means any interest in real or personal property, including land, air and water areas, leasehold interests, possessory interests, easements, franchises and other appurtenances, public rights-of-way, physical works of improvements such as buildings, structures, infrastructure, utility and other facilities, and alterations, installations, fixtures, furnishings and additions to existing real property, personal property and improvements. "Regulatory Agency" means the local, regional, state or federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance with applicable Laws. "Regulatory Approvals" means licenses, permits and other approvals necessary for Licensee to install, operate and maintain Equipment on the License Area, which includes without limitation any licenses, permits or other approvals required under City Council Policy No. 64, as it exists on the Effective Date and may be amended or superseded in the future. "Release" when used with respect to Hazardous Material includes any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment. "RF" means radio frequency or electromagnetic waves generally between 30 kHz and 300 GHz in the electromagnetic spectrum range. "RF Compliance Report" means a report prepared and certified by an RF engineer acceptable to the City that certifies that the proposed facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts ERP) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. 2. SCOPE OF LICENSE 2.1. License Area 2.1.1. Pole License Issuance and Effect Subject to the terms and conditions in this Master License, the City in its proprietary capacity as the Pole owner, will issue to Licensee one or more Pole Licenses, which will {00011214;10} 4 September 25, 2018 Item #3 Page 16 of 67 grant Licensee a contractual privilege to use the space on the subject Pole approved for the Equipment, which includes any conduits, pull boxes or other City Property specifically identified in the Approved Plans attached to the Pole License (individually for each licensed Pole and collectively for all licensed Poles, the "License Area"). Any approved Pole License will become effective on the first day of the month following the date on which both the City and Licensee execute such Pole License. After the City approves a Pole License, the City will not license any space on the license Pole to any third party who desires to use the Pole for the Permitted Use, except as otherwise permitted pursuant to Section 16.6 (Licensee's Customers), below. 2.1.2. Limitations on License Areas This Master License applies to only Poles identified in final and fully executed Pole Licenses. This Master License does not authorize Licensee or any other persons or entities to enter on to or use any other City Property, except the License Areas specified in any fully executed Pole Licenses. Licensee expressly acknowledges and agrees that the City will not be obligated to issue any Pole License or other license to Licensee for any purpose related to any decorative Pole, which includes any Pole or light standard with ornate features or characteristics designed or intended to enhance the appearance of the Pole or light standard. 2.2. Limitations on Licensee's Interests 2.2.1. Limited Interest Created Licensee expressly acknowledges and agrees that (1) Licensee does not have any rights to use or interest in any Pole for any purpose whatsoever until and unless the City issues a Pole License for such Pole; and (2) neither this Master License nor any Pole License issued pursuant to this Master License creates or will be deemed to create any leasehold, easement, franchise or any other possessory interest or real property interest whatsoever in the License Area. 2.2.2. Limited Rights Created Any Pole License the City approves pursuant to this Master License grants to Licensee only a non-possessory and revocable license to enter on to and use the License Area for the Permitted Use. Licensee expressly acknowledges and agrees that (1) neither this Master License or any Pole License will be coupled with an interest; (2) the City retains legal possession and control over all Poles for the City's operations, which will be superior to Licensee's interest at all times; (3) subject to the terms and conditions in this Master License, the City may terminate a Pole License in whole or in part at any time; (4) except as specifically provided otherwise in this Master License, the City may enter into any agreement with third parties in connection with use and occupancy of Poles and other City Property; and (5) neither this Master License nor any Pole License creates or will be deemed to create any partnership or joint venture between the City and Licensee. {00011214; 1 O} 5 September 25, 2018 Item #3 Page 17 of 67 2.2.3. No Impediment to Municipal Uses Except as specifically provided otherwise in this Master License, neither this Master License nor any Pole License limits, alters or waives the City's right to use any License Area in whole or in part as infrastructure established and maintained for the City's and the public's benefit. 2.3. Diminutions in Light, Air and Signal In the event that any existing or future structure diminishes any light, air or signal propagation, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Additional Fees or any other sums payable to the City under this Master License or any Pole License, the City shall have no liability to Licensee whatsoever and such diminution will not affect this Master License, any Pole License or Licensee's obligations except as may be expressly provided in this Master License. 2.4. License Area Condition 2.4.1. "As-ls and With All Faults" Condition Licensee expressly acknowledges and agrees to enter on to and use the License Area in its "as-is and with all faults" condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the License Area's condition or suitability for Licensee's use. Licensee expressly acknowledges and agrees that neither the City nor its Agents have made, and the City expressly disclaims, any representations or warranties whatsoever, whether express or implied, with respect to the physical, structural or environmental condition of the License Area, the present or future suitability of the License Area for the Permitted Use or any other matter related to the License Area. 2.4.2. Licensee's Due Diligence Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee, into the License Area condition and suitability for Licensee's intended use, and that Licensee relies solely on its due diligence for such determination. Licensee further expressly represents and warrants to the City that Licensee's intended use is the Permitted Use as defined in Section 5 in this Master License. 2.4.3. Certified Access Specialist Disclosure Pursuant to California Civil Code § 1938, and to the extent applicable to this Master License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has not inspected any License Area in whole or in part to determine whether it meets all applicable construction-related accessibility requirements. {00011214; 1 O} 6 September 25, 2018 Item #3 Page 18 of 67 3. TERM 3.1. Master License Term The term under this Master License (the "Initial Term") will commence on the Effective Date and will automatically expire ten (10) years from the Effective Date (the "Expiration Date"), unless earlier terminated in accordance with this Master License or unless extended as provided herein. Licensee may request up to three (3) five (5) year extensions upon the same terms and conditions stated herein (each an "Extension Term"). Licensee must submit a written request to the City for an Extension Term at least ninety (90) days prior to the expiration of the Master License Term or the then-current Extension Term. The City shall not unreasonably withhold, condition, or delay its approval of the written request for an Extension Term. The City may deny, condition, or delay the requested extension if any uncured default by Licensee exists at the time Licensee submits such a request. Each Extension Term will be deemed approved by the City if the City fails to respond to Licensee's written request before the expiration of the Master License Term or the then-current Extension Term. Licensee shall not be entitled to any further extensions upon the expiration of the third and final five-year Extension Term. Collectively, the Initial Term and any Extension Term shall be defined as the "Term" and the Expiration Date shall be extended to the end of the last approved Extension Term. 3.2. Pole License Term The term under each Pole License will commence on the Commencement Date and will automatically expire on the Expiration Date, unless earlier terminated in accordance with this Master License. To determine the applicable License Fee for each Pole License, the minimum term will be one year from the Commencement Date (the "Minimum Term"). Except as specifically provided otherwise in this Master License, the Minimum Term will prevail over Licensee's right to abate rent or terminate this Master License or any Pole License. All Pole Licenses will end on the Expiration Date, even if such expiration results in less than a one-year term for any particular Pole License. 4. LICENSE FEE; OTHER PAYMENTS 4.1. License Fees 4.1.1. Commencement Date Licensee shall pay an annual License Fee under each Pole License beginning on its "Commencement Date," which will be the earlier of: (1) the first anniversary of the effective date of the Pole License; or (2) the first day of the month after the date on which Licensee has obtained all Regulatory Approvals necessary for the Permitted Use on the License Area, in which case payment for the first year shall be due at the same time Licensee delivers the Acknowledgement Letter as provided in Section 4.1.2 (Acknowledgement Letter) and Section 4.1.5 (License Fee Due Date). The parties define {00011214;10} 7 September 25, 2018 Item #3 Page 19 of 67 a "License Year" to mean any 12-month period (or shorter period in the event that a Pole License commences less than 12 months from the Expiration Date) that begins on the Commencement Date for each Pole License. 4.1.2. Acknowledgment Letter Licensee shall deliver to the City a letter in the form shown in Exhibit A-3 to the Pole License (the "Acknowledgment Letter") within ten (10) business days after Licensee obtains all Regulatory Approvals necessary for the Permitted Use on any License Area. The parties intend the Acknowledgement Letter to: (1) confirm the Commencement Date; (2) tender or confirm payment by wire transfer of the License Fee for the first License Year and the Security Deposit; (3) provide the City with copies of all permits issued by the City's departments; and (4) confirm that Licensee has submitted all information required in Section 19 (Insurance) under this Master License. Upon written notice to Licensee, the City shall have the right to correct the Commencement Date stated in Licensee's Acknowledgement Letter after the City examines the Regulatory Approvals if, in the City's reasonable determination, the Commencement Date stated on the Acknowledgement Letter is incorrect or inaccurate. The City's reasonable determination in connection with this Section 4.1.2 will be final for all purposes under this Master License. The City will use reasonable efforts to deliver a countersigned Acknowledgement Letter to Licensee within five (5) business days after the City receives the partially executed Acknowledgment Letter with all required attachments and enclosures from Licensee. The fully executed Acknowledgment Letter will be Licensee's notice to proceed with its installation. The date on which the City countersigns the Acknowledgement Letter will be the effective date for the subject Pole License. 4.1.3. License Fee Amount Licensee shall pay to the City an annual fee at the rate specified in the License Fee Schedule as shown in Schedule A-4 attached to this Master License and as attached to each Pole License (the "License Fee"). The License Fee Schedule will reflect the annual License Fee adjustments as provided in Section 4.1.4 (Annual License Fee Adjustments) and Schedule A-4. Licensee shall pay each annual License Fee in advance without any prior demand, deduction, setoff or counterclaim for any reason, except to account for a partial year in the event this Master License expires or terminates or any abatement rights expressly granted in this Master License. Any amounts for less than a full year or full month will be calculated based on a 360-day year and a 30-day month. 4.1.4. Annual License Fee Adjustments Except in the first License Year for any Pole License, each year throughout the Term on January 1 (each an "Adjustment Date"), the License Fee will be increased 4% over the License Fee payable in the immediately previous year. 4.1.5. License Fee Due Date {00011214;10} 8 September 25, 2018 Item #3 Page 20 of 67 Licensee shall pay the License Fee for the first year at the same time Licensee delivers the Acknowledgement Letter without any deduction or setoff for any reason. Thereafter, Licensee shall pay the annual License Fee on or before January 1 in each year throughout the Term. 4.2. Administrative Fees 4.2.1. Master License Administrative Fee At the time Licensee delivers to the City a partially executed counterpart to this Master License, Licensee shall pay to the City a nonrefundable administrative fee equal to Eight Thousand and 00/100 Dollars ($8,000.00) (the "Master License Administrative Fee") to cover the City's costs to review and execute this Master License. The City will not be obligated to execute any Master License until the City receives the Master License Administrative Fee. 4.2.2. Pole License Administrative Fee At the time Licensee delivers to the City a Pole License Application, Licensee shall pay to the City a nonrefundable administrative fee equal to One Thousand and 00/100 Dollars ($1,000.00) per pole (the "Pole License Administrative Fee"). The City will not be obligated to commence its review for any Pole License Application until the City receives the Pole License Administrative Fee. The parties to this Master License collectively refer to the Master License Administrative Fee and the Pole License Administrative Fee as "Administrative Fees." 4.3. Late Charges In the event that Licensee fails to pay any License Fee, Additional Fee, Administrative Fees or any other amount payable to the City within ten (10) days after the City provides written notice that such amounts are due and unpaid, such amounts will be subject to a late charge equal to 6% of unpaid amounts. 4.4. Default Interest Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City other than late charges will bear interest at ten percent (10%) per annum from the due date when not paid within ten (10) days after due and payable to the City. Any sums received shall be first applied towards any interest, then to the late charge and lastly to the principal amount owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee. 4.5. Additional Fees The parties to this Master License define "Additional Fees" to collectively mean any sums payable by Licensee to the City in its proprietary capacity as the licensor, which {00011214;10} 9 September 25, 2018 Item #3 Page 21 of 67 includes without limitation any late charges, default interest, costs in connection with a request for the City's consent to an Assignment under Section 16.2 (Proposed Assignment Procedures) and Default Fees under Section 17.2.4; provided, however, that the term excludes any (1) License Fees; (2) Administrative Fees; (3) any other amounts payable to the City by Licensee in connection with the City's review of Pole License Applications or coordinating and inspecting Equipment installed on the License Area; and (4) any payments made to the City in its regulatory capacity. 4.6. Payment Procedures Licensee shall pay all License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City in cash or other immediately available funds by (1) local check payable to 1635 Faraday Avenue, Carlsbad, California 92008 or (2) electronic wire transfer to an account specified by the City. Any payment made with a dishonored check will be deemed unpaid. 4.7. Liquidated Charges and Fees The parties agree that the Additional Fees payable under this Master License represent a fair and reasonable estimate of the administrative costs that the City will incur in connection with the matters for which they are imposed and that the City's right to impose the Additional Fees is in addition to, and not in lieu of, any other rights it may have under this Master License. Furthermore: 5. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CITY'S ACTUAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT ARISING FROM LICENSEE DEFAULTS AND OTHER ADMINISTRATIVE MATTERS UNDER THIS MASTER LICENSE WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. BY PLACING HIS OR HER INITIALS BELOW, EACH PARTY'S AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT THE PARTIES HAVE AGREED, AFTER A NEGOTIATION, ON THE AMOUNT OF THE ADDITIONAL FEES AS REASONABLE ESTIMATES OF THE CITY'S ADDITIONAL ADMINISTRATIVE COSTS AND OTHER DE~NT Licensee~ City USES ~ 5.1. Permitted Use Licensee may use the License Area solely for the installation, operation and maintenance of Equipment for transmission, reception, and backhaul of wireless communications signals (the "Permitted Use") in compliance with all applicable Laws and any conditions in any Regulatory Approvals and for no other use whatsoever without the City's prior {00011214;10} 10 September 25, 2018 Item #3 Page 22 of 67 written consent, which the City may withhold in its sole and absolute discretion for any or no reason. 5.2. Prohibition on "Macro Cell" Uses The City and Licensee intend this Master License and any Pole License to cover only "small cell" and/or distributed antenna system installations, as those terms are commonly understood to mean small, unobtrusive wireless facilities intended to cover relatively small geographic areas. Licensee expressly acknowledges and agrees that the Permitted Use under this Master License does not include the right to use any Pole as a support structure for a "macro cell" or a traditional wireless tower typically constructed on private property. 5.3. Prohibition on Illegal Uses or Nuisances Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any manner that constitutes a nuisance as determined by the City in its reasonable discretion. Licensee shall take all precautions to eliminate any nuisances or hazards in connection with its uses and activities on or about the License Area. 5.4. Signs or Advertisements Licensee acknowledges and agrees that its rights under this Master License and any Pole License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area other than the site identification notice required by Section 7.1.1 (Site Identification Required), below and/or signs, labels, or notices required by applicable Law. 6. POLE LICENSES 6.1. City Approval Required Licensee shall not have any right to use the License Area in whole or in part for any purpose until and unless the City approves a Pole License that covers the License Area, such approval not to be unreasonably withheld, conditioned, or delayed in accordance with the terms and conditions in this Master License. Subject to any express limitations in this Master License, the City will not be obligated to subordinate its municipal functions or proprietary interest in any manner whatsoever to Licensee's interest under any Pole License. When the City considers whether to approve or disapprove any Pole License Application, the City may make reasonable consideration of any matter that affects its municipal functions or proprietary interests, which include without limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance with any applicable Laws; (3) impacts on the City's street light operations; (4) any potential hazards or unsafe conditions that could result from Licensee's installation, operation or maintenance; (5) any potential visual or aesthetic impacts, provided the proposed Equipment is not in conformance with objective design standards adopted by the City; (6) {00011214;10} 11 September 25, 2018 Item #3 Page 23 of 67 the additional load on the Pole the proposed Equipment would create only if: (a) such additional load would exceed such Pole's permitted capacity; and (b) such Pole could not be replaced to support Licensee's proposed Equipment; and (7) any municipal plans for the Pole or right-of-way in proximity to the Pole. 6.2. Pole License Application Each Pole License Application must include: (1) two partially executed duplicate counterparts of a Pole License in the form attached as Exhibit A to this Master License, with fully completed Exhibit A-1 and Exhibit A-2 attached to such partially executed Pole License; (2) the Pole License Administrative Fee; (3) a complete RF Compliance Report; (4) all other information and materials required for a complete application for all Regulatory Approvals issued by the City's departments, which the City may update and amend from time to time in accordance with applicable Laws; and (5) if the City elects to augment its staff to meet the applicable timeframes for its review, a deposit for the estimated cost of staff augmentation, pursuant to Section 6.3.1 (City Staff Augmentation), below. 6.3. Pole License Application Review Procedures The City will review a complete Pole License Application within applicable timeframes and pursuant to applicable Law, taking into account any tolling periods for such timeframes. Licensee shall provide the City with at least sixty (60) days' prior notice before Licensee submits any Pole License Application that covers fifteen (15) or more Poles to allow the City sufficient time to augment its staff as provided in this Section; provided, however, that Licensee shall not submit a single Pole License Application that covers fifteen (15) or more Poles within one hundred twenty (120) days of the Effective Date of this Master License to give the City sufficient time to complete the procurement process for contract services. Licensee shall use best efforts not to submit successive Pole License Applications if those Pole License Applications would collectively cover fifteen (15) or more Poles, and will grant the City a reasonable extension of the applicable timeframe for the City's review if such successive Pole License Applications are submitted. 6.3.1. City Staff Augmentation To assist the City's review and processing of Pole License Applications in a timely manner, the City shall have the right to select and retain temporary staff members and/or consultants with qualifications and expertise acceptable to the City ("Staff Augmentation"). Licensee shall be responsible for the actual and reasonable cost incurred by the City in connection with Staff Augmentation. When the City elects to retain such temporary staff members and/or consultants for services in connection with any Pole License Applications, the City shall notify Licensee before the City incurs any costs, City shall provide Licensee with estimated costs of such independent contractor(s), including but not limited to hourly billing rates, and Licensee shall have five (5) business days to withdraw the Pole License Applications without any liability to reimburse the City for costs incurred by such temporary staff members and/or consultants in connection with the {00011214;10} 12 September 25, 2018 Item #3 Page 24 of 67 withdrawn Pole License Application. If Licensee does not withdraw the Pole License Applications within said five (5) business day period, Licensee will be deemed to have consented to the obligation to reimburse the City as provided in this Section 6.3.1. If Licensee does not withdraw the Pole License Applicants, Licensee shall furnish the City with a deposit in an amount reasonably estimated to cover the Staff Augmentation costs for any particular Pole License Applications within fifteen (15) days written notice. The City may withdraw funds from the deposit during the review process only: (1) as needed to pay invoices in connection with Staff Augmentation and (2) upon notice to Licensee that includes copies of such invoices or other documentation to evidence the Staff Augmentation costs incurred by the City. If the deposit is insufficient to cover the City's actual costs, Licensee shall reimburse the City for the difference between the deposited amount and the total Staff Augmentation costs within fifteen (15) days after Licensee receives the City's demand for reimbursement, together with copies of invoices or other evidence to document the costs incurred. The remaining balance of the deposit, if any, shall be refunded to Licensee within forty-five (45) days of the City's approval of the last Pole License Application subject to the deposit. Licensee must pay the actual cost incurred in event Licensee exceeds City's initial cost estimate. 6.3.2. Required Changes to the Pole License Application In the event that the City determines for any reason that the Permitted Use at any particular Pole Location would impede its municipal functions or otherwise negatively affects its proprietary interests, the City will provide notice to Licensee as soon as reasonably practicable. Licensee will have fourteen (14) days from such notice to change its Pole License Application without any impact on the Pole License Application's priority relative to any other applications then under review or later received by the City. Any changes received after the fourteen (14) day period or any other changes Licensee may make to the Pole License Application will cause the date and time on which the application was submitted or deemed submitted to be changed to the date and time on which Licensee submitted the proposed changes. 6.3.3. Consultation with Other City Departments The City, in its proprietary capacity as the licensor under this Master License, may consult with other departments within the City to assess whether Licensee's proposed Equipment poses any concerns, which includes without limitation any concerns about aesthetics, historic or environmental impacts, traffic control, pedestrian access and general right-of- way management. Licensee acknowledges that any consultation(s) with any other City departments in accordance with this Section 6.3.3 and any actions or failures to act by the City which may result from such consultation(s) would be in the City's proprietary capacity as the Pole owner and not an exercise of the City's regulatory authority. 6.3.4. Pole License Application Approval In the event that the City approves a Pole License Application, the City will return one fully executed Pole License to Licensee. Licensee acknowledges and agrees that the {00011214; 1 O} 13 September 25, 2018 Item #3 Page 25 of 67 City's decision to approve or disapprove any Pole License Application is not, and will not be deemed to be, a regulatory determination subject to any administrative appeal, but is an exercise of the City's proprietary authority over its Poles as its personal property. In the event that Licensee fails to commence construction pursuant to the Pole License within one year from the date the City fully executes the Acknowledgment Letter, the Pole License shall automatically expire unless the City Manager grants a written extension that may not exceed one additional year. Licensee shall not be entitled to any refund for any fees, which include without limitation the License Fee, paid in connection with a Pole License that expires pursuant to this Section 6.3.4. Nothing in this Section 6.3.4 is intended to prohibit or prevent Licensee from submitting a new Pole License Application for the same or substantially the same Poles as those covered under a Pole License that expired pursuant to this Section 6.3.4. 6.3.5. City's Right to Disapprove Licensee acknowledges that the City reserves the absolute right to disapprove any Pole License Application in whole or in part when the City determines in its sole discretion that the subject Pole Location or proposed Equipment would unreasonably interfere with the City's municipal functions or proprietary interests or create a hazardous or unsafe condition. 6.3.6. Waiver of Certain Federal and State Rights of Licensee Irrespective of any potential future change in Law during the initial ten (10)-year term of this Master License, Licensee expressly waives any rights it may have under State or Federal laws to challenge: (1) the fees paid to the City pursuant to this Master License and any Pole License; (2) the timeframes established in this Master License by which the City must review and process Pole License Applications, including any notices, tolling or extensions required under this Master License; and (3) the right to claim that facilities installed pursuant to this Master License are eligible for mandatory collocations or modifications under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. Preceding the commencement of an Extension Term of this Master License, Licensee may request from the City an amendment of this Master License to comply with such changed laws, if applicable. For the avoidance of doubt, any such amendment would be effective only after the initial ten (10)-year term of this Master License expires or as otherwise agreed to by the Parties. 6.4. Reserved 6.5. Modifications to Equipment in the Approved Plans At any time during the Term, Licensee may, upon written notice to the City, replace or upgrade the Equipment shown in the Approved Plans so long as such replacement or upgraded equipment is substantially similar to the Equipment in the Approved Plans. Any other changes to the Equipment shown in the Approved Plans shall require the City's prior written consent, which the City may withhold only in accordance with the provisions {00011214;10} 14 September 25, 2018 Item #3 Page 26 of 67 in Section 6.1 (City Approval Required). In any case, Licensee shall not be required to submit a new Pole License Application for modifications to Equipment installed pursuant to a valid Pole License. Licensee shall perform all modifications in accordance with the provisions in Section 7 (Equipment Installation). After Licensee completes any modification, Licensee shall, at its sole cost, tender to the City as-built plans and specifications, which will replace the portions of Exhibit A-2 that depicted the Equipment prior to the modification. 7. EQUIPMENT INSTALLATION 7.1. Approved Plans and Equipment Specifications Licensee must submit detailed plans and equipment specifications as Exhibit A-2 to any Pole License Application, which must include without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage, concealment elements and other improvements proposed in connection with the License Area. Licensee acknowledges that Exhibit A-2 to any approved Pole License will be deemed to be the "Approved Plans" and that Licensee will be permitted to install only the Equipment and other improvements shown on such Approved Plans. 7.1.1. Site Identification Required Subject to applicable Laws, on each licensed Pole, Licensee must install one identification plate in strict compliance with the size, material, form and substance as shown on the Approved Plans. The identification plate must include Licensee's corporate name and telephone number at which Licensee's On-Call Representative can be reached at all times (24 hours per day and 7 days per week). Licensee must replace the identification plate in the event that any information on such plate changes. 7.1.2. Changes Required for Regulatory Approvals Licensee may amend previously Approved Plans when such changes are required to obtain or maintain compliance with other Regulatory Approvals necessary to install the Equipment. Any such changes will require the City's prior written approval. The City will provide notice of its decision to Licensee in accordance with Section 28.1 (Notices). 7.1.3. Corrections to Approved Plans Licensee shall have the obligation to correct any errors or omissions in any Approved Plans and related Regulatory Approvals. Licensee shall immediately send written notice to the City in the event that Licensee discovers any such defects. Any Approved Plans and/or amendments to Approved Plans by the City will not release or excuse Licensee's obligations under this Section 7.1.3. 7.2. Prior Regulatory Approvals Required {00011214;10} 15 September 25, 2018 Item #3 Page 27 of 67 Licensee shall not commence any work at the License Area until Licensee obtains all necessary Regulatory Approvals, which includes without limitation a Right of Way Permit from the City's Land Development Engineering Department, a Conditional Use Permit from the Planning Division where applicable, and any other permit obtained through any other City department, and tenders full and complete copies of each Regulatory Approval to the City. The City's consent or refusal to consent to any Pole License issued by the City in its proprietary capacity as the Pole owner will not be deemed to be any approval or denial in connection with any Regulatory Approval issued by the City in its regulatory capacity as a municipal government. 7.3. Installation; Strict Compliance with Approved Plans Licensee shall not commence any work at the License Area until the City provides Licensee with the Acknowledgement Letter or an equivalent letter to confirm the Commencement Date. Licensee shall perform all work in connection with the License Area in strict compliance with the Approved Plans and in a diligent, skillful .and workmanlike manner. All installed Equipment must be high quality, safe, fire resistant, modern in design and attractive in appearance, all as approved by the City. After any work at the License Area concludes, and within a reasonably feasible time frame, Licensee shall restore the License Area and any other City Property to the condition that existed immediately prior to the work commenced. 7.3.1. Alterations to City's Property Licensee shall not remove, damage or in any manner alter any City Property without prior written consent from the City and any other City agencies with jurisdiction over the subject City Property. The City may withhold its consent in its sole and absolute discretion, and may reasonably condition its consent in each instance based on scope and nature of the proposed alterations. Licensee shall immediately notify the City if any removal, damage or other alteration occurs to City Property for any reason and through any cause. 7.3.2. Licensee's Contractors Licensee shall use only qualified and trained persons and appropriately licensed contractors for all work performed on or about the License Area. Licensee shall give the City at least fifteen (15) 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. Minor and routine repair is limited to work that would not alter the physical dimension of the existing equipment. At least five (5) business days before any work commences on or about the License Area, Licensee shall provide the City with: (1) a schedule with all activities to be performed in connection with the work; and (2) a list with all the names, contractor's license numbers and business addresses for all contractors who will perform the work. {00011214; 1 O} 16 September 25, 2018 Item #3 Page 28 of 67 7.4. Labor and Materials Costs Licensee shall be responsible for all direct and indirect costs (labor, materials, and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation, which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigation measures that arise from Licensee's proposed installation. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use or furnished to the License Area at Licensee's direction or for Licensee's benefit in accordance with state and federal law. 7 .5. Project Managers The City and Licensee each designate the person listed in this Section 7.5 as its project manager to coordinate Licensee's Equipment design and installation, and serve as each party's respective primary contact person for all design, engineering, construction and installation issues that may arise between the parties in connection with this Master License. City's Project Manager: Name: Title: Phone: Email: Address: Curtis M. Jackson Real Estate Manager (760) 432-2836 cu rtis .jackso n@ca rlsbadca. gov 1200 Carlsbad Village Drive Carlsbad, California 92008 Licensee's Project Manager: Name: Title: Phone: Email: Address: Justin Barry Permitting Manager, Network Real Estate (619) 635-6094 jbarry@mobilitie.com Mobilitie, LLC 2955 Red Hill Ave, Suite 200 Costa Mesa, CA 92626 Licensee acknowledges that the City's project manager is not exclusively assigned to this Master License, and that the City's project manager may not always be immediately available to Licensee or its project manager. Licensee further acknowledges that the authority delegated by the City to the City's project manager is limited to the administration of this Master License, any Pole License Applications and any approved Pole Licenses. The parties' respective project managers will have no obligation to perform any term or {00011214; 1 O} 17 September 25, 2018 Item #3 Page 29 of 67 covenant to be performed by the other party under this Master License. Notices to the parties' respective project managers alone will not be deemed effective notice for any purpose under this Master License. The parties may designate a new project manager from time-to-time by written notice to the other party. 7.6. Coordination with the City Licensee must coordinate all its installation, construction and other work on or about the License Area with the City so as to avoid any interference (physical, electronic or otherwise) with any existing utilities, substructures, facilities, City Property and the City's municipal operations. 7.7. Fiber-Optic Cables In the event that Licensee's Equipment on the License Area includes any fiber-optic cables for backhaul owned by Licensee, Licensee shall reserve either: (a) a minimum of four (4) strands of fiber, and up to six (6) strands if existing; or (b) six (6) strands where newly placed, throughout Licensee's entire network in the City's rights-of-way for the City's exclusive use as partial consideration paid to the City for this Master License. Licensee's fiber strands reserved to the City shall consist of a contiguous route or routes of dark fiber that create an infrastructure that can be used as a network and system to effectively transport broadband between points of connection throughout the City. Licensee shall grant the City the right to use all related infrastructure to access, manage and maintain the fiber strands, including conduit, pull boxes, vaults, splice cases and other such things and network elements. The City shall have the right to splice the fibers to new or other fibers as it deems necessary; provided, however, that the City shall not unreasonably interfere with Licensee's fiber other related equipment. Such license shall be automatically effective upon Licensee's installation of any fiber-optic cables for backhaul owned by Licensee on the License Area, and Licensee shall designate and mark the four or six fiber strands in any conduit that serves the License Area for the City's use at the time it installs such fiber-optic cables. Licensee further agrees that, at the time this Master License expires or terminates, Licensee shall transfer to the City title and ownership of any fiber stands that the City uses or desires to use by quitclaim or bill for sale at no cost to Licensee. For the avoidance of doubt, the obligations under this Section 7. 7 do not apply to Licensee when Licensee either does not use fiber optic cables or when Licensee does not own the fiber optic cables used (e.g., in circumstances where Licensee procures fiber-based telecommunications services from a local common carrier unrelated to Licensee). 7.8. Title to Licensee's Equipment and Other Improvements Except as specifically provided otherwise in this Master License, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents or Invitees will be and remain at all times Licensee's personal property. All structural improvements to any Pole, any replacement Pole and any underground fiber optic cables, all as approved by the City and shown in the Approved Plans, will become {00011214;10} 18 September 25, 2018 Item #3 Page 30 of 67 City Property and remain should Licensee vacate or abandon such License Area, unless the City elects in a written notice to Licensee that it does not wish to take title to such structural improvements. Subject to Section 24 (Surrender of License Area), Licensee may remove its Equipment from the License Area at any time after thirty (30) days' written notice to the City. 7.9. Prevailing Wages The services to be provided or may be provided under this Master License or any Pole License are or may be subject to prevailing wage rate payment as set forth in California Labor Code Section 1771. Accordingly, to the extent that such services are subject to the prevailing wage rate payment requirements, Licensee shall comply with all California Labor Code requirements pertaining to "public works," including the payment of prevailing wages in connection with the services to be provided hereunder (collectively, "Prevailing Wage Policies"). Licensee shall submit, upon request by the City, certified copies of payroll records to the City and shall maintain and make such records available to the City for inspection and copying during regular business hours at a location within the City of Carlsbad. Licensee shall defend, indemnify and hold the City harmless and its officers, officials, employees, volunteers, agents and representatives (collectively, the "lndemnitees") from and against any and all present and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs) (collectively, "Claims"), arising out of or in any way connected with Licensee's obligation to comply with all laws with respect to the work of improvements or Prevailing Wage Policies, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781, as amended and added by Senate Bill 966. Licensee hereby waives, releases and discharges forever the lndemnitees from any and all present and future Claims arising out of or in any way connected with Licensee's obligation to comply with all laws with respect to the work of improvements and Prevailing Wage Policies. Licensee is aware of and familiar with the provisions of California Civil Code Section 1542 which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him must have materially affected his or her settlement with the debtor." As such relates to the Master License and Pole License, Licensee hereby waives and relinquishes all rights and benefits which it may have under California Civil Code Section 1542. The obligations of Licensee under this Section 7.9 shall survive the termination of this Master License or Pole License. {00011214;10} 19 September 25, 2018 Item #3 Page 31 of 67 8. PUBLIC WORKS OPERATIONS 8.1. City's Access to License Areas Except as specifically provided otherwise in this Master License, the City and its Agents have the right to access any License Area in whole or in part at any time without notice for any purpose. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City's or its Agents' access to the License Area, which includes any Equipment removed in an emergency or other exigent circumstances pursuant to Section 8.4 (Emergencies), except to the extent that the damage arises directly and exclusively from the gross negligence or willful misconduct of the City or its Agents and not contributed to by the acts, omissions or negligence oflicensee, its Agents or Invitees. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other similar damages that may arise from the City's or its Agents' gross negligence or willful misconduct and not contributed to by Licensee's or its Agents' or Invitees' acts, omissions or negligence. 8.2. Repairs, Maintenance and Alterations to Poles The City and/or the City's Public Works Department will: (1) maintain and repair Poles as needed, in its sole discretion, for its street light operations and other municipal functions; and (2) correct any immediately hazardous condition. Except as provided in Section 26 (Termination), and excluding conditions that arise from the City's or its Agents' gross negligence or willful misconduct to the extent that the City or its Agents "directly cause" the damage, neither any City work on any Pole nor any condition on any Pole will: (1) entitle Licensee to any damages; (2) excuse or reduce any obligation by Licensee to pay any License Fees or Additional Fees or perform any covenant under this Master License; or (3) constitute or be construed as a constructive termination of this Master License or any Pole License. 8.3. Repairs, Maintenance and Alterations to License Areas The City may, at any time, alter, add to, repair, remove from and/or improve the License Area in whole or in part for any operational purpose, which includes without limitation maintenance and improvements in connection with street light services and compliance with Laws; provided, however, (1) the City makes a good-faith effort to provide advance notice to Licensee's On-Call Representative as soon as reasonably practicable; (2) the City allows Licensee's representative to observe the City's work; and (3) the City takes reasonable steps not to disrupt Licensee's ordinary operations on the License Area. The provisions in this Section 8.3 will not be construed to allow Licensee's ordinary operations to impede or delay the City's authority and ability to make changes to the License Areas necessary to maintain street light services. {00011214;10} 20 September 25, 2018 Item #3 Page 32 of 67 8.4. Emergencies In emergencies, the City's work will take precedence over Licensee's operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole determination and in accordance with this Section 8.4, whether the City has notified Licensee of such emergency or other exigent circumstances or not. When safe and practicable, the City will notify Licensee of any emergency or other exigent circumstances that requires the City to remove or replace any Pole and will allow Licensee to remove its Equipment before the City removes or replaces the Pole; provided, however, that the City will remove the Equipment from the Pole when in the City's sole determination it would (1) be unsafe or not practicable to wait for Licensee to perform the work; (2) cause significant delay; or (3) otherwise threaten or compromise public safety or public services. The City will remove any Equipment with reasonable care and store the Equipment for retrieval by Licensee and the City will provide notice as soon as reasonably practicable after such emergency, but in no event later than seventy-two (72) hours after the emergency. Licensee shall have the right to reinstall such removed Equipment or equivalent Equipment at Licensee's sole expense on the repaired or replaced Pole and in accordance with Section 7 (Equipment Installation). The City's removal of Licensee's Equipment in emergencies or other exigent circumstances will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee's contractual privilege to use the License Area. 9. LICENSEE'S MAINTENANCE OBLIGATIONS 9.1. Damage to Poles 9.1.1. Notice to the City Licensee agrees to give the City notice of the need for any repair to a Pole promptly after Licensee discovers any 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. 9.1.2. Damage Caused by Licensee In the event that any maintenance by Licensee or its Agents or Invitees cause any damage to any Pole, Licensee must repair such damage within thirty (30) days after the City provides a notice to Licensee that describes such damage. Such thirty (30)-day cure period may be extended to a date certain if the City agrees the cure reasonably requires more time. In the event that Licensee fails to timely cure the damage, the City may repair the damage at Licensee's expense. Licensee will reimburse the City for all costs incurred to repair such damage within ten (10) days after Licensee receives the City's demand for payment, together with copies of invoices or other evidence to document the costs incurred. {00011214;10} 21 September 25, 2018 Item #3 Page 33 of 67 9.1.3. No Right to Repair Absent notice from the City with a demand to cure any damage to a Pole, Licensee is not authorized to make any repairs to any Pole. Licensee expressly waives all rights it may have under any applicable Laws to make repairs at the City's expense. 9.2. Equipment Maintenance Licensee shall, at its sole cost and expense, install, maintain and promptly repair any damage to any Equipment installed on the License Area whenever repair or maintenance may be required, subject to the City's prior approval if required under Section 7 (Equipment Installation). Licensee is not required to seek the City's prior approval for any Equipment repair, maintenance, replacement or other installation on the License Area when such Equipment is shown on the Approved Plans. Licensee must obtain the City's prior written approval for any Equipment repair, maintenance, replacement or other installation that involves larger, different or additional Equipment than shown on the Approved Plans. Licensee expressly acknowledges that Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) does not apply to this Master License or any Pole License 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 Poles that is authorized or permitted under this Section 9.2 is subject to Licensee obtaining any required Regulatory Approvals. Once in each calendar year, Licensee shall inspect its Equipment installed pursuant to this Master License and any Pole Licenses and submit a written report to the City that (i) identifies each Pole licensed to Licensee; (ii) inventories the Equipment installed on each such Pole; (iii) identifies any third-parties who use each such Pole pursuant to this Master License; and (iv) certifies that all Poles are in compliance with this Master License, the applicable Pole License and the most current Approved Plans. 9.3. Graffiti Abatement Licensee's repair and maintenance obligation includes the removal of any graffiti from the Licensee's Equipment within forty-eight (48) hours after the City notified Licensee of said graffiti. 9.4. Standard of Work All work performed by or for Licensee under this Section 9 shall be: (1) at Licensee's sole cost and expense; (2) performed only by qualified and trained persons and appropriately licensed contractors; (3) performed in a manner and with equipment and materials that will not interfere with or impair the City's operations; and (4) compliant with all applicable Laws. 10. LIENS {00011214; 1 O} 22 September 25, 2018 Item #3 Page 34 of 67 Licensee shall keep the License Area free and clear from any liens in connection with any work performed, material furnished or obligations incurred by or for Licensee. Licensee shall inform each and every contractor and material supplier that provides any work, service, equipment or material to Licensee in any way connected with Licensee's use of the License Area that the License Area is public property and is not subject to mechanics' liens or stop notices for Equipment or other materials or services provided for Licensee's Equipment. If Licensee does not cause the release of lien of a mechanic's lien or stop notice by any contractor, service provider or equipment or material supplier purporting to attach to the License Area or other City Property within thirty (30) days after 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 ten (10) days following receipt of the City's demand together with copies of invoices or other evidence to document the costs incurred. Licensee shall not create, permit, or suffer any other encumbrances affecting any portion of the License Area. 11. UTILITIES Licensee shall be responsible to secure its own utility services for its Permitted Use and shall not be permitted to use or sub-meter from any electrical service provided to the City on any Pole. Licensee shall timely pay when due all charges for all utilities furnished to its Equipment. 12. TAXES AND ASSESSMENTS 12.1. Possessory Interest Taxes Licensee understands and acknowledges that this Master License may create a possessory interest subject to taxation and that Licensee will be required to pay any such possessory interest taxes. Licensee further understands and acknowledges that any sublicense or assignment permitted under this Master License and any exercised options to renew or extend this Master License may constitute a change in ownership for taxation purposes and therefore result in a revaluation for any possessory interest created under this Master License. 12.2. Licensee's Tax Obligations Licensee agrees to pay when due and prior to delinquency any and all taxes, assessments, charges, excises and exactions whatsoever, including without limitation any possessory interest taxes, that arise from or in connection with Licensee's use within the License Area or Licensee's Equipment that may be imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any taxes assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee's Equipment. In the event that the City receives any tax or assessment notices on or in connection with the License Area or Licensee's Equipment, the City shall promptly (but in no event later {00011214; 10} 23 September 25, 2018 Item #3 Page 35 of 67 than thirty (30) calendar days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Licensee's Equipment. 13. COMPLIANCE WITH LAWS 13. 1. Compliance with Current and Future Laws Licensee shall install, operate and maintain the Equipment, and shall perform all work in connection with such installation, operation and maintenance, in strict compliance with all applicable Laws and all conditions in any Regulatory Approvals issued in connection with the Equipment or its installation and operation on any Pole. 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 under any current or future Law, whether foreseen or unforeseen and however extraordinary, will relieve Licensee from its obligations under this Master License or give Licensee any right to terminate this Master License or any Pole License in whole or in part or to otherwise seek redress against the City. Licensee waives any rights under any current or future Laws to terminate this Master License or any Pole License, to receive any abatement, diminution, reduction or suspension of payment of License Fees, or to compel the City to make any repairs to comply with any such Laws, by reason of any such occurrence or situation. 13.2. Licensee's Personnel 13.2.1. Personnel Training and Certification Licensee shall ensure that all persons who install, operate or maintain the Equipment are appropriately trained and licensed by the California State Contractors Licensing Board as required under applicable CPUC rules and regulations. Licensee shall ensure that such persons are trained in and observe all safety requirements established by the City, the CPUC and the California Division of Occupational Safety and Health, Department of Industrial Relations or its duly appointed successor agency, which includes without limitation site orientation, tag-out and lock-out de-energization rules, ladder and lift restrictions and track and street right-of-way safety requirements. 13.2.2. Licensee's Indemnification for Personal Injuries and/or Property Damage Licensee acknowledges that (1) the City has delegated to Licensee control over the License Area at any time in which Licensee or its Agents are installing, operating or maintaining the Equipment; and (2) the City is not a co-employer of any employee of Licensee or any employee of Licensee's Agents, and the City shall not be liable for any {00011214; 1 O} 24 September 25, 2018 Item #3 Page 36 of 67 Claim by Licensee's or its Agent's employee(s). Licensee agrees to fully indemnify, defend and hold the City harmless in the same manner as provided in Section 18 (Licensee's Indemnification Obligations) against any Claim by any employee of Licensee or its Agents that arises in connection with Licensee's or its Agents' access, uses or other activities on or about the License Area except to the extent that such Claim(s) arise from the City's willful misconduct or gross negligence as provided in Section 18 (Licensee's Indemnification Obligations). 13.3. Compliance with CPUC GO 95 Licensee shall conduct all activities on the License Area in accordance with CPUC General Order 95 and the rules and other requirements enacted by the CPUC under that General Order, as applicable and as amended. 13.4. 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 (the "NESC") and any applicable local electrical code, as those codes exist now or may be amended in the future. To the extent that CPUC General Order 95 does not address cellular telephone antenna installations on Poles carrying electrical lines, Licensee shall apply applicable provisions of the NESC, with particular attention to paragraphs 224, 235C, 235F, 238, 239 and 239H and sections 22, 41 and 44. Where any conflict exists between the 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. Compliance with RF Exposure Regulations Licensee's obligation to comply with all Laws includes all Laws related to maximum permissible exposure to RF or EMF emissions on or about the License Area, which includes all applicable FCC standards, whether such RF or EMF emissions or exposure results from Licensee's Equipment alone or from the cumulative effect of Licensee's Equipment added to all other existing sources as of the date of the RF Compliance Report on or near the License Area. Licensee must provide to the City an RF Compliance Report for each proposed Pole on which the Licensee desires to install or operate its Equipment. If not provided earlier, Licensee must submit the RF Compliance Report to the City with the applicable Pole License Application. 14. DAMAGE OR DESTRUCTION 14.1. City's Rights After Damage or Destruction In the event the License Area becomes damaged in whole or in part due to any cause, the City (1) will have no obligation whatsoever to repair or replace the damaged License Area; and (2) may, in the City's sole and absolute discretion, elect to take any of the following actions: {00011214; 1 O} 25 September 25, 2018 Item #3 Page 37 of 67 14.1.1. Election to Repair or Replace Damaged Pole Within thirty (30) days after the date on which the City discovers damage or destruction of a Pole licensed to Licensee, the City will give Licensee written notice of the City's decision whether to repair or replace the damaged Pole and its good faith estimate of the amount of time the will need to complete the work. If the City cannot complete the work within thirty (30) days after the date that the City specifies in its notice, or if the City elects not to do the work, then Licensee will have the right to terminate the affected Pole License on thirty (30) days' notice to the City. 14.1.2. Election to Remove Damaged Pole If the City elects to remove, rather than repair or replace, a damaged Pole licensed to Licensee, then the applicable Pole License will automatically terminate on the last day of the month in which the removal occurs. 14.1.3. Election to Remove Equipment from Damaged Pole If the acts of third parties or an act of nature or other force majeure circumstance outside the control of Licensee or its Agents or Invitees destroys or damages any Pole to such an extent that, in the City's reasonable determination after good faith attempt to consult with Licensee, the Equipment on the Pole cannot be operated, the City may decide to terminate the affected Pole License on thirty (30) days' written notice to Licensee and require Licensee to remove the Equipment from the damaged Pole before the termination date specified in the City's notice. 14.2. Licensee's Rights upon Termination After the City terminates a Pole License pursuant to Section 14.1 (City's Rights After Damage or Destruction), the City will: (1) refund any pre-paid License Fee in connection with the terminated Pole License on a pro-rata basis determined by the number of months left in the current License Year at the time such termination occurs, subject to the Minimum Term as defined in Section 3.2 (Pole License Term) in this Master License; and (2) prioritize Licensee's Pole License Application for one replacement Pole. 14.3. Waiver of Statutory Rights The parties understand, acknowledge and agree that this Master License fully governs their rights and obligations in the event that any licensed Poles become damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases the provisions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws. {00011214;10} 26 September 25, 2018 Item #3 Page 38 of 67 15. CONDEMNATION 15.1. Permanent Takings In the event that any entity with the power to condemn permanently takes any License Area in whole or in part, or in the event that the City transfers any License Area in whole or in part to such entity in lieu of eminent domain, the following provisions will apply: 15.1.1. Termination Any affected Pole License will automatically terminate as to the part taken or transferred on the date the permanent taking or transfer occurs, and the License Fee under the affected Pole License will be ratably reduced to account for the reduction in License Area. 15.1.2. Award The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against the City for the value of any unexpired Term of any Pole License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee's loss or damage to Licensee's Equipment. 15.1.3. No Statutory Right to Terminate The parties understand, acknowledge and agree that this Section 15.1 (Permanent Takings) is intended to fully govern the parties' rights and obligations in the event of a permanent taking. Licensee and the City each hereby waives and releases any right to terminate this Master License in whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and under any similar Laws to the extent applicable to this Master License. 15.2. Temporary Takings Any taking that affects any License Area in whole or in part for less than ninety (90) days will have no effect on the affected Pole License, except that Licensee will be entitled to a pro-rata abatement in the applicable License Fee to the extent that such temporary taking materially impairs Licensee's use of the License Area. Furthermore, in the event that the City receives an award, if any, in connection with such temporary taking, Licensee will receive the portion from the award that represents compensation for the use or occupancy of the License Area during the Term but not to exceed the License Fees and Additional Fees payable by Licensee for the period of the taking, and the City will retain the balance of the award. {00011214; 1 O} 27 September 25, 2018 Item #3 Page 39 of 67 16. ASSIGNMENT AND OTHER TRANSFERS 16.1. General Restriction Except as specifically provided in Section 16.3 (Permitted Assignments), Licensee shall not directly or indirectly assign its interests or rights, whether in whole or in part, in connection with this Master License, any Pole License or the License Area without the City's prior written consent. The City shall not unreasonably withhold its consent to any proposed Assignment; provided, however, that the parties acknowledge that the City may reasonably withhold its consent to any proposed Assignment at any time in which any monetary or other material default by Licensee under this Master Licensee remains uncured. 16.2. Proposed Assignment Procedures 16.2.1. Proposed Assignment Notice Except as specifically provided in Section 16.3 (Permitted Assignments), in the event that Licensee desires to Assign this its interests or rights, whether in whole or in part, in connection with this Master License, any Pole License or the License Area, Licensee shall first send written notice (the "Proposed Assignment Notice") to the City, which states in detail the proposed terms and conditions for the Assignment and complete information, which includes without limitation financial statements, business track records, references and other information about the proposed assignee (the "Proposed Assignee") that the City reasonably requires to fully evaluate Licensee's request and render an informed decision. In the event that Licensee does not provide all the such information simultaneously with the Proposed Assignment Notice, the Proposed Assignment Notice shall not be deemed effective until Licensee delivers all such information as the City may reasonably require. 16.2.2. City Response The City shall approve or disapprove any request for consent to an Assignment within thirty (30) days after the City receives a complete Proposed Assignment Notice, or thirty (30) days after the deemed-effective date if Licensee delivers an incomplete Proposed Assignment Notice as described in Section 16.2.1 (Proposed Assignment Notice) (in either case, the "Assignment Response Period"). If the City fails to respond within the Assignment Response Period, the request for consent will be deemed disapproved. If the City delivers to Licensee written consent to the proposed Assignment, then Licensee shall have one hundred (100) days from such written consent to complete the Assignment. The City's consent will be deemed revoked if Licensee fails to complete the proposed Assignment within the one hundred (100)-day period; provided, however, that the one hundred (100)-day period may be extended to a date certain in a written agreement, which the City shall not unreasonably refuse. As a condition on the City's consent, Licensee shall pay to the City the amount by which any consideration paid to Licensee by the Assignee exceeds the aggregate sum of all Licensee Fees and Additional Fees that {00011214;10} 28 September 25, 2018 Item #3 Page 40 of 67 remain payable under the assigned Pole Licenses within ten (10) days after Licensee receives payment from the Assignee. 16.3. Permitted Assignments 16.3.1. Definition The City agrees that Licensee will be permitted to enter into an Assignment of this Master License and Pole Licenses issued under it (a "Permitted Assignment"), without the City's prior consent but with notice to the City as provided below, to: (i) 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; (ii) an entity that acquires Licensee by a change of stock ownership or partnership interest; or (iii) an entity that Controls Licensee, is Controlled by Licensee or that, with Licensee, is under the Common Control of a third party. 16.3.2. Conditions A Permitted Assignment is subject to all the following conditions: (a) the Assignee uses the License Area only for the Permitted Use and holds all Regulatory Approvals necessary to lawfully install, operate, and maintain Equipment on the License Area; (b) Licensee provides the City with written notice thirty (30) days before the effective date of Permitted Assignment, stating the contact information for the proposed Assignee and providing financial information establishing that the proposed Assignee meets the capital and fiscal qualifications greater than or equal to Licensee's; and (c) Licensee is in good standing under this Master License. 16.4. Effect of Assignment No Assignment by Licensee, consent to Assignment by the City, or Permitted Assignment under Section 16.3 (Permitted Assignments) to any Assignee or other third party will relieve Licensee of any obligation on its part under this Master License, until and unless the Assignee signs a written agreement in a form reasonably acceptable to the City to unconditionally assume all Licensee's obligations under this Master License and any Pole License issued hereunder. Any Assignment that is not in compliance with this Section 16 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 Section 16. 16.5. Assumption by Transferee Each Assignee shall assume all obligations of Licensee under this Master License and each assigned Pole License and will be and remain liable jointly and severally with Licensee for all obligations to be performed by Licensee until and unless the Assignee {00011214; 1 O} 29 September 25, 2018 Item #3 Page 41 of 67 signs a novation, to unconditionally assume all the Licensee's obligations under this Master License and any Pole License issued hereunder. No Assignment will be binding on the City unless Licensee or the Assignee delivers to the City evidence reasonably satisfactory to the City that the Assignee has obtained all required Regulatory Approvals necessary to install, maintain, and operate the Equipment and any other associated improvements or personal property, a copy of the Assignment agreement (or other document reasonably satisfactory to the City in the event of a Permitted Assignment under Section 16.3 (Permitted Assignments)), and an instrument in recordable form that contains a covenant of assumption by such Assignee satisfactory in substance and form to the City, consistent with the requirements of this Article. However, the failure or refusal of an Assignee to execute such instrument of assumption will not release such Assignee from its liability as set forth in this Section. Except for a Permitted Assignment as provided in Section 16.3 (Permitted Assignments), Licensee shall reimburse the City on demand for any reasonable costs that the City incurs in connection with any proposed Assignment, including the costs of investigating the acceptability of the proposed Assignee and legal costs incurred in connection with considering any requested consent. The City agrees that its right to reimbursement under this Section during the Term will be limited to Two Thousand and 00/100 Dollars ($2,000.00) for each request. 16.6. Licensee's Customers The parties agree and acknowledge that, notwithstanding anything in this Master License to the contrary, certain Equipment deployed by Licensee pursuant to this Master License may be owned and/or operated by Licensee's customers and installed and maintained by Licensee pursuant to license agreements between Licensee and such customers. Such Equipment shall be treated as Licensee's Equipment for all purposes under this Master License, which includes the right to remove and relocate the Equipment subject to the terms and conditions of this Master License, under the following conditions: (i) Licensee remains solely responsible and liable for all performance obligations under the Master License with respect to such Equipment; (ii) City's sole point of contact regarding such Equipment shall be Licensee; and (iii) such use by customers does not involve any physical changes to the Equipment other than changes permitted or otherwise approved under Section 6.5 (Modifications). In that the event that Licensee has more than one customer at a Pole Location, Licensee shall (a) provide written notice to the City that identifies the customers who will be using the Equipment and the location(s) where such use will occur; and (b) pay the appropriate annual fee for any additional Service Provider customers as specified in Schedule A-4, prorated to account for any partial year. Thereafter, Licensee shall pay the additional customer fee each year in the same manner as the License Fee so long as the additional carrier continues to use the Equipment. Notwithstanding anything in this Master License to the contrary, Licensee shall not be required to pay any additional fee to allow Licensee's customers to use the wireline portions of the Equipment for data transport, backhaul or similar services. 17. DEFAULT {00011214;10} 30 September 25, 2018 Item #3 Page 42 of 67 17.1. Events of Default by Licensee Any of the following will constitute an event of default by Licensee under this Master License and any Pole Licenses issued under it: (1) subject to Section 17.1.2 (Habitual Late Payer), Licensee fails to pay any License Fee or Additional Fees as and when due, if the failure continues for ten (10) days after the due date; (2) for the third time after the Commencement Date, Licensee fails to pay any License Fee or Additional Fees within the ten (10)-day grace period under Section 17.1.1 (Nonpayment of Fees); (3) Licensee fails to maintain all Regulatory Approvals required for the Permitted Use; (4) Licensee enters into an Assignment in violation of Section 16 (Assignment and Other Transfers); (5) Licensee interferes with the City's operations in violation of Section 27.1 (Licensee's Obligation Not to Cause Interference); (6) Licensee fails to maintain insurance as required by Section 19 (Insurance); (7) Licensee fails to cure noncompliance with the specified requirements of this Master License after initial and follow-up notices or to pay the Default Fees as set forth in Section 17.2.4 (Default Fees); (8) 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 thirty (30)-day period, Licensee fails to promptly undertake action to cure such default within such thirty (30)-day period and thereafter fails to use its best efforts to complete such cure within sixty (60) days after the City's notice; (9) Licensee, except where otherwise permitted under this Master License, removes its Equipment or abandons the License Area for a continuous period of more than one hundred eighty (180) days, such that the License Area is no longer being used for the Permitted Use; or (10) any of the following occurs: (i) the appointment of a receiver due to Licensee's insolvency to take possession of all or substantially all of the assets of Licensee; (ii) an assignment by Licensee for the benefit of creditors; or (iii) any action taken by or against Licensee under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief Laws, if any such receiver, assignment, or action is not released, discharged, dismissed, or vacated within sixty (60) days. 17 .2. City's Remedies In addition to all other rights and remedies available to the City at law or in equity, the City will have the following remedies following the occurrence of an event of default by Licensee. 17.2.1. License Continuation Without prejudice to its right to other remedies, the City may continue this Master License and applicable Pole Licenses in effect, with the right to enforce all of its rights and remedies, including the right to payment of License Fees, Additional Fees, and other charges as they become due. 17.2.2. Pole License Termination {00011214; 1 O} 31 September 25, 2018 Item #3 Page 43 of 67 If a default specific to one or more Pole Licenses is not cured by Licensee within the applicable cure period, if any, specified in Section 17.1 (Events of Default by Licensee), the City may terminate each Pole License in default. 17.2.3. Master License Termination If Licensee's default is of such a serious nature in the City's sole discretion that the default materially affects the purposes of this Master License, the City may terminate this Master License in whole or in part. Termination of this Master License in whole will terminate all Pole Licenses issued under it automatically and without the need for any further action by the City. In either case, the City will deliver notice to Licensee providing thirty (30)- days' notice of termination and specify whether the termination affects the entire Master License or only certain Pole Licenses in the notice. The City will specify the amount of time Licensee will have to remove its Equipment from any affected City Pole, which will be at least thirty (30) days after the date of the City's notice if Licensee will be required to remove its Equipment from up to fifty percent (50%) of licensed City Poles and an additional thirty (30) days if Licensee will be required to remove Equipment from more than fifty percent (50%) of licensed City Poles. If Licensee does not remove its Equipment within the specified period, the City will be entitled to remove Licensee's Equipment from the City Pole. The City will have the right to make any terminated portion of the License Area available for license to other parties as of the effective date of the termination, even if Licensee's Equipment is still on the Pole. 17.2.4. Default Fees Without limiting the City's other rights and remedies under this Master License, the City may require Licensee to pay Additional Fees for the City's administrative cost in providing notice or performing inspections for the events described below and on Schedule A-4 (each, a "Default Fee") if the City provides notice to Licensee of the City's demand that Licensee cure the default and specifies the cure period. The Default Fee for the initial notice from the City will be due and payable to the City ten (10) days after delivery of notice to Licensee. In addition, if Licensee fails to cure the condition within the cure period set forth in the initial notice, and the City then delivers to Licensee a follow-up notice requesting compliance, then the Default Fee for the follow-up notice will be due and payable to the City ten (10) days after delivery of the follow-up notice to Licensee. Default Fees will apply to any of the following events: (1) Licensee constructs or installs any alteration or improvement without the City's prior approval as required by Section 6 (Pole Licenses), Section 7 (Equipment Installation), or Section 7.3.1 (Alterations to City's Property) of this Master License; (2) Licensee fails to cure damage required by Section 9 (licensee's Maintenance Obligations) on a timely basis; (3) Licensee fails to notify the City, through its project manager, before accessing the License Area or following the plan approval procedures as set forth in Section 7 (Equipment Installation); or (4) Licensee fails to provide evidence of the required bonds and insurance coverage described in Section 19 (Insurance) on a timely basis. {00011214; 1 O} 32 September 25, 2018 Item #3 Page 44 of 67 17.3. Licensee's Remedies Licensee's sole remedy for the City's breach or threatened breach of this Master License or any Pole License issued under it will be an action for damages, subject to Section 20 (Limitations on City's Liability). 17.4. Cumulative Rights and Remedies All rights and remedies under this Master License are cumulative, except as otherwise provided. 18. LICENSEE'S INDEMNIFICATION OBLIGATIONS Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the City, its Agents, Invitees and their respective heirs, legal representatives, successors and assigns (the "Indemnified Parties"), harmless from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect (each a "Claim"), incurred in connection with or arising in whole or in part from: (1) death or personal injury to any person or property damage or other loss that occurred on or about the License Area or arises in connection with Licensee's or its Agents' or Invitees' authorized or unauthorized uses on or about the License Area; (2) any failure or refusal by Licensee to observe or perform any term, covenant or condition in this Master License to be observed or performed on Licensee's part; (3) Licensee's or its Agents' or Invitees' uses or occupancy, or manner of use or occupancy, of the License Area; (4) any exposure to RF emissions or EMFs from Licensee's Equipment or uses on or about the License Area; (5) the License Area condition or any occurrence on or about the License Area attributable to the events described in clauses (1 ), (2), (3) or (4) in this Section 18; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether any negligence may be attributed to the Indemnified Parties or not, and all whether liability without fault is imposed or sought to be imposed on the Indemnified Parties, but except to the extent that such Claim(s) arise from the Indemnified Parties' willful misconduct or negligence. Licensee's obligations under this Section 18 includes, without limitation, reasonable fees, costs and expenses for attorneys, consultants and experts, and the City's costs to investigate any Claim. Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the Indemnified Parties from any Claim that actually or potentially falls within this Section 18, even when the allegations in such Claim are groundless, fraudulent or false, and which obligation arises at the time the Indemnified Parties tender such Claim to Licensee and continues at all times until such Claim's final resolution. Licensee's obligations under this Section 18 will survive the expiration or termination of this Master License. {00011214;10} 33 September 25, 2018 Item #3 Page 45 of 67 19. INSURANCE 19.1. Licensee's Insurance As a condition to issuance of any Pole License, Licensee must provide proof of compliance with the insurance requirements in this Section except to the extent the City's Risk Manager agrees otherwise. 19.1.1. Required Coverages Licensee shall procure and keep in effect at all times during the Term, at Licensee's cost, insurance in the following amounts and coverages: (1) Commercial General Liability insurance (including premises operations; explosion, collapse and underground hazard; broad form property damage; products/completed operations; contractual; independent contractors; personal injury) with limits of at least $2 million combined single limit for each occurrence; (2) Worker's Compensation Insurance per California statutory limits with Employer's Liability Limits not less than $1 million each accident or disease; (3) Commercial Automobile Liability Insurance with limit not less than $2 million each occurrence combined single limit for bodily injury and property damage, including owned and non-owned and hired vehicles. The insurance coverage amounts and coverages required herein may be satisfied by a combination of primary, umbrella, and/or excess liability insurance policies. 19.1.2. Required Endorsements Commercial General Liability Insurance and Commercial Automotive Liability Insurance policies must contain the following endorsements: (1) name the City, its officers, agents, employees and volunteers as additional insureds; (2) that such policies are primary insurance to any other insurance available to the additional insureds with respect to any Claims that arise in connection with this Master License; (3) that such insurance applied separately to each insured against whom a Claim is made or brought; (4) that such policies provide for the severability of interests and that an act or omission of one of the named insureds that would void or otherwise reduce coverage shall not void or otherwise reduce coverage as to any other named insured; and (5) that such policies shall afford coverage for all Claims based on acts, omissions, injury or damage that occurred or arose (or the onset occurred or arose) in whole or in part during the policy period. 19.1.3. Cancellation Notices All insurance policies required to be maintained by Licensee under this Master License shall be endorsed to provide written notice of cancellation for any reason, including without limitation, intent not to renew or reduce coverage to both Licensee and the City. In the event that Licensee receives a notice of intent to cancel or notice of cancellation for any coverage required under this Master License, Licensee shall forward such notice to the City within two (2) business days and promptly take action to prevent cancellation, {00011214; 1 O} 34 September 25, 2018 Item #3 Page 46 of 67 reinstate cancelled coverage or obtain coverage from a different insurer qualified under Section 19.1. 7. 19.1.4. Claims-Made Policies In the event that any required insurance under this Master License is provided under a claims-made form, Licensee shall continuously maintain such coverage throughout the Term and, without lapse, for three years after this Master License expires or terminates, to the effect that, should any event during the Term give rise to a Claim brought after this Master License expires or terminates, such Claims will be covered under Licensee's claims-made policies. 19.1.5. General Aggregate Limit The general aggregate limit for any required insurance under this Master License must be double the per-occurrence or Claims limits specified in Section 19.1 when coverage includes a general annual aggregate limit or provides that Claims investigation or legal defense costs will be included in such general annual aggregate limit. 19.1.6. Certificates On or before the Effective Date, Licensee shall deliver to the City all insurance certificates and additional insured endorsements from Licensee's insurance providers in a form reasonably satisfactory to the City that evidences all the required coverages under this Master License. In addition, Licensee shall promptly deliver to the City all certificates after Licensee receives a request from the City. Upon request, Licensee shall make copies of complete policies available for review at the Licensee's place of business. 19.1.7. Insurer Qualifications Licensee's insurance providers must be licensed to do business in California and must meet or exceed an AM. Best's Key Rating A-X or its equivalent. 19.1.8. Effective Dates The City shall not authorize Licensee to install any Equipment on any Pole until and unless all insurance coverages required to be carried by Licensee under this Master License have been obtained. Licensee shall ensure that all insurance coverages required to be carried by Licensee under this Master License remain in effect at all time until all Equipment has been removed from the License Area. The requirements in this Section 19.1.8 (Effective Dates) shall survive the expiration or termination of this Master License. 19.1.9. Licensee's Self-Insurance Alternative Licensee shall not be permitted to meet its insurance obligations under this Master License through self-insurance without prior written consent from the City, which the City {00011214;10} 35 September 25, 2018 Item #3 Page 47 of 67 may withhold in its sole discretion for any or no reason. In the event that the City consents to allow Licensee to self-insure as an alternative insurance program, such consent will not be deemed an amendment or implied waiver to any other requirement in this Master License. Any amendment to any insurance requirement must be made in writing and signed by both Parties. 19.1.10. No Limitation on Indemnification Obligations Licensee's insurance obligations under this Section 19 in no way relieves or decreases Licensee's liability under Section 18 (Licensee's Indemnification Obligations) or any other provision in this Master License. 19.1.11. Right to Terminate The City may elect, in its sole and absolute discretion, to terminate this Master License on written notice to Licensee if Licensee allows any required insurance coverage to lapse and does not reinstate the lapsed insurance coverage within three (3) days after Licensee receives such written notice. 19.2. City's Insurance Licensee acknowledges that the City self-insures against casualty, property damage and public liability risks. The City agrees to maintain an adequate program of self-insurance for public liability risks during the Term and will not be required to carry any third party insurance with respect to the License Area or otherwise. 19.3. Subrogation Waiver The City and Licensee each hereby waives any right of recovery against the other party for any loss or damage sustained by such other party with respect to the License Area or any portion thereof or the contents of the same or any operation therein, whether or not such loss is caused by the fault or negligence of such other party, to the extent such loss or damage is covered by insurance obtained by the waiving party under this Master License or is actually covered by insurance obtained by the waiving party. Each waiving party agrees to cause its insurers to issue appropriate waiver of subrogation rights endorsements to all policies relating to the License Area, but the failure to obtain any such endorsement will not affect the waivers in this Section. 19.4 Contractors' Insurance Licensee shall provide of evidence of insurance for all contractors that install, maintain, repair, replace or otherwise perform any work on or about the License Area as determined by Licensee in accordance with its qualified vendor insurance requirement. {00011214; 1 O} 36 September 25, 2018 Item #3 Page 48 of 67 20. LIMITATIONS ON THE CITY'S LIABILITY 20.1. General Limitations on the City's Liability Except where otherwise 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), 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, or vehicle collision on or about the License Area or other City Property. 20.2. 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, the Parties mutually agree to waive consequential and incidental damages, such that neither Party will be liable to the other in connection with this Master License or any Pole License for any consequential, special, indirect or incidental or punitive damages (including lost revenues, loss of equipment, interference, interruption or loss of service, or loss of data, inconvenience, disturbance, lost business, nuisance or other damages) for any cause of action, whether in contract, tort or otherwise, even if the Party was or should have been aware of the possibility of these damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. 20.3. No Relocation Assistance This Master License creates no right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assistance Law (Cal. Gov. Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.) or similar Law upon any termination of occupancy except as provided in Section 15 (Condemnation). 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. {00011214; 1 O} 37 September 25, 2018 Item #3 Page 49 of 67 20.4. Non-Liability for City Officials, Employees and Agents No elective or appointive board, agency, member, officer, employee or other Agent of the City will be personally liable to Licensee, its successors and assigns, in the event of any default or breach by the City or for any amount which may become due to Licensee, its successors and assigns, or for any obligation of the City under this Master License. 20.5. Licensee's Waiver Licensee acknowledges the City's rights under this Section and waives any Claims arising from the City's exercise of such rights. In connection with the preceding sentence and releases and waivers under Section 9.1.3 (No Right to Repair), Section 13.1 (Compliance with Current and Future Laws), Section 14.1.1 (Election to Repair or Replace Damaged Pole), Section 15.1.3 (No Statutory Right to Terminate), Section 19.3 (Subrogation Waiver), Section 20.1 (General Limitations on City's Liability), Section 20.2 (Consequential Damages), Section 20.3 (No Relocation Assistance), Section 8.1 (City's Access to License Areas), Section 23.3 (Application) and any other waiver by Licensee under this Master License, Licensee acknowledges that it is familiar with section 1542 of the California Civil Code, which reads: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Licensee realizes and acknowledges that the waivers and releases contained in this Master License include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated Claims. Licensee affirms that it has agreed to enter into this Master License in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of California Civil Code section 1542 and any similar Law. The releases and waivers contained in this Master License will survive its expiration or earlier termination. 21. RECORDS 21.1. Accounting Records Licensee shall maintain throughout the Term and for at least three (3) years after this Master License expires or terminates the following records in physical format at Licensee's place of business within the State of California and in an electronic format: (1) site identification and location for all Poles under active Pole Licenses; (2) the amount and payment date for all License Fees paid to the City pursuant to this Master License; (3) all Regulatory Approvals issued in connection with the Equipment on Poles; and (4) {00011214; 1 O} 38 September 25, 2018 Item #3 Page 50 of 67 all correspondence with the City in connection with any matter covered under this Master License. The City, or its designee, will have the right to inspect and audit Licensee's records at Licensee's place of business during regular business hours on ten (10) days' notice to Licensee. 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 its designee, 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) 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) whether any of the City's obligations under this Master License are outstanding (and if so, identifying any City obligations that Licensee believes that the City has failed to meet); (g) the dates, if any, to which the License Fees and Additional Fees have been paid; and (h) any other information that may be reasonably required by any such persons. 22. RULES AND REGULATIONS At all times throughout the Term, Licensee shall faithfully comply with any and all reasonable rules, regulations and instructions that the City may from time-to-time establish and/or amend with respect to the License Area. 23. SURETY BOND 23.1. Provision of Surety Bond Prior to any work performed by Licensee pursuant to this Master License, Licensee shall furnish the City with a surety bond in the amount of Seventy-Five Thousand and 00/100 Dollars ($75,000.00) (the "Surety Bond") as security to provide recourse for the City (at its option) in the event of a default in the performance of any of Licensee's obligations under this Master License. The Surety Bond shall be with a company and in a form reasonably satisfactory to the City Manager and the City Attorney. 23.2. Replenishment of Surety Bond In the event that the City applies or uses the Surety Bond in whole or in part to cure any default by Licensee under this Master License or any Pole License, Licensee shall replenish the Surety Bond in the amount and on the date specified in a written notice to Licensee. The City may, in the City's reasonable discretion, require Licensee to increase {00011214;10} 39 September 25, 2018 Item #3 Page 51 of 67 the Surety Bond amount from time-to-time when the City determines that Licensee's past acts or omissions in connection with the License Area warrants additional security. 23.3. Application Licensee agrees that the City may use the Surety Bond in whole or in part to remedy any damage to the License Area caused by Licensee, its Agents or Invitees or any failure by Licensee to perform any term, covenant or condition in this Master License or any Pole License (including without limitation any failure to pay any License Fee or other sums due under this Master License or any Pole License either before or after any default). In the event that the City uses the Surety Bond in whole or in part, the City will not be deemed to have waived any rights under this Master License, or legal or equitable rights whatsoever. Licensee expressly waives any rights it may have under California Civil Code section 1950. 7 or any similar Law and agrees that the City may retain from the Surety Bond any portion reasonably necessary to compensate the City for any foreseeable or unforeseeable loss or damage caused by Licensee's, its Agents' or lnvitee's acts or omissions. 24. SURRENDER OF LICENSE AREA 24.1. Surrender No later than thirty (30) days after the Expiration Date or other termination of this Master License or any Pole License, Licensee shall peaceably remove its Equipment from applicable portion of the License Area and surrender the applicable portion of the License Area 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. Immediately before the Expiration Date or other termination of this Master License, Licensee shall remove all of Licensee's Equipment except for any fiber optic cable to which the City will obtain title under Section 7.8 (Title to Licensee's Equipment and Other Improvements) and repair any damage caused by the removal work. Licensee's obligations under this Section 24.1 will survive the Expiration Date or other termination of this Master License. 24.2. Abandonment At its option, the City may deem any items of Licensee's Equipment that remain on a City Pole or otherwise on the License Area or other City Property more than thirty (30) days after the Expiration Date of this Master License to be abandoned and in such case the City may dispose of the abandoned Equipment in any lawful manner after expiration of a sixty (60)-day period initiated by the City's notice to Licensee to remove the Equipment. Licensee agrees that California Civil Code sections 1980 et seq. and similar provisions of the Civil Code addressing abandoned property by residential or commercial tenants do not apply to any abandoned Equipment. {00011214;10} 40 September 25, 2018 Item #3 Page 52 of 67 24.3. Holding Over Any holding over after the Expiration Date with the express written consent of the City Manager 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 an amount up to one hundred fifty percent (150%) of the License Fee in effect immediately before the Expiration Date, and the Master License otherwise will be on its express terms and conditions. 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 Section, or if any act, omission, or negligence of Licensee or any of its Agents or Invitees results in any contamination of the License Area or other City Property, or in a Release of Hazardous Material from, on, about, in or beneath any part of the License Area or other City Property, or the violation of any Environmental Law, then Licensee, on behalf of itself and its successors and assigns, shall indemnify, defend and hold harmless the City, including the 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 {00011214; 1 O} 41 September 25, 2018 Item #3 Page 53 of 67 and Remediate any Hazardous Material brought onto the License Area or other City Property by Licensee or any of its Agents or Invitees and to restore the License Area or other City Property to its condition prior to Licensee's introduction of such Hazardous Material or to correct any violation of Environmental Laws. Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City and the other Indemnified Parties from any Claim that actually or potentially falls within this Indemnity provision even if the allegations supporting the Claim are or may be groundless, fraudulent, or false, which obligation arises at the time such Claim is tendered to Licensee by the Indemnified Party and continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any of its Agents or Invitees causes the Release of any Hazardous Material on, about, in, or beneath the License Area or other City Property, then in any such event Licensee shall, immediately, at no expense to any Indemnified Party, take any and all necessary actions to return the License Area or other City Property, as applicable, to the condition existing prior to the 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. TERMINATION 26.1. Termination for Failure to Obtain Regulatory Approvals In the event that Licensee cannot obtain all Regulatory Approvals required for any Pole License after one year from the subject Pole License effective date, then either the City or Licensee may terminate that Pole License on sixty (60) days' notice to the other party delivered within ten (10) days after the first anniversary of that Pole License's effective date. The parties agree that the Commencement Date will be deemed to have not occurred for any Pole License terminated under this section, and Licensee will have no obligation to pay the applicable License Fee for that Pole License. 26.2. Licensee's Termination Rights 26.2.1. Master License Termination Rights Licensee may not terminate during the Initial Term of (10) years except as provided in this Master License. 26.2.2. Pole License Termination Rights Licensee may, in Licensee's sole discretion, terminate any Pole License on ninety (90) days' written notice to the City at any time after twelve (12) months from the subject Pole {00011214; 1 O} 42 September 25, 2018 Item #3 Page 54 of 67 License Commencement Date so long as Licensee is not in default with respect to the subject Pole License. 26.2.3. Termination Rights after Pole Replacement In the event that the City exercises its absolute right to replace any Pole, the City shall make a reasonable effort to provide Licensee with at least sixty (60) days' notice. The City's failure to provide at least sixty (60) days' notice prior to any Pole replacement shall not affect the City's rights under this Master License. Within ninety (90) days after Licensee receives notice from the City, Licensee may elect to either (1) install Licensee's Equipment on the replacement Pole at Licensee's sole cost and expense or (2) terminate the applicable Pole License as to the replacement Pole. 26.3. City's Absolute Right to Terminate Pole Licenses The City has the absolute right to terminate any or all Pole Licenses on thirty (30) days' written notice to Licensee when the City determines, in the City's sole discretion, that Licensee's continued use of the License Area adversely affects or threatens public health and safety, constitutes a nuisance, interferes with the City's municipal functions or requires the City to maintain a Pole no longer necessary for the City's purposes. 26.4. Licensee's Rights after Termination In the event that the City terminates any Pole License for reasons unrelated to Licensee's failure to perform its obligations under this Master License, the City shall refund any pre- paid Licensee Fee on a pro-rata basis, and Licensee shall not have any further liability for the License Fee. In addition, the City shall prioritize Licensee's Pole License Application for any Pole License to replace the terminated Pole License; provided, however, that (1) the City shall prioritize only as many Pole License Applications as Pole Licenses terminated by the City and (2) the City's prioritization will not affect Licensee's obligations under this Master License. 27. INTERFERENCE 27.1. Obligation Not to Cause Interference Licensee will not operate or maintain its Equipment in a manner that interferes with or impairs other communication (radio, telephone and other transmission or reception) or computer equipment lawfully used by any person, including the City or any of its Agents. Such interference will be an event of default under this Master License by Licensee, and upon notice from the City, Licensee shall be responsible for eliminating such interference promptly and at no cost to the City. Licensee will be required to use its best efforts to remedy and cure such interference with or impairment of City operations. If Licensee does not cure the default promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the City will have the right to bring an action against Licensee to enjoin such interference or to terminate all Pole Licenses where the {00011214;10} 43 September 25, 2018 Item #3 Page 55 of 67 Equipment is causing interference or impairment, at the City's election. Notwithstanding any other provision of this Master License, City agrees that City will use reasonable efforts to allow City Invitees to install only such equipment that is of the type and frequency which will not cause interference to the Equipment actually installed by Licensee. This limitation does not apply to equipment installed by the City for the City's use in carrying out its municipal functions. In the event that Licensee discovers any such interference caused by a City Invitee, the City shall reasonably cooperate with Licensee to identify the source and mitigate the interference; provided, however, that the City's cooperation shall not obligate the City to change, alter or power off any City-owned or controlled equipment used for public health and safety or other municipal functions. The parties acknowledge that the Licensee possesses technical expertise that puts Licensee in the best position to identify and mitigate interference sources, and Licensee shall be primarily responsible for identification and mitigation work. 27.2. Impairment Caused by Change in City Use Subject to City's obligations under Section 27.1 of this Master License, 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 receiving Licensee's notice hereunder. 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 discretion, the City's notice will specify when the City will mitigate the adverse effect. The City's mitigation will effect a cure, and the City will not be liable to Licensee in any other way or be required to take any other measures with respect to the Equipment. If the City determines in its sole discretion that mitigation is not feasible or cannot be achieved for a reasonable cost in the City's reasonable discretion, Licensee may elect either to: (1) terminate the Pole License as to the affected City Pole and receive a ratable reduction in the License Fee; or (2) take steps itself at its own cost to mitigate the adverse effect and continue to operate the Equipment on the City Pole, and receive from the City a waiver of the License Fee for the first six months of the following License Year under the affected Pole License to offset the cost of mitigation. Licensee agrees that the City's temporary and partial abatement or waiver of the License Fee under this Section 27.2 will be the only compensation due to Licensee for costs incurred or otherwise arising from the adverse effect as liquidated damages fully compensating Licensee for all Claims that may arise or be related to the adverse effects. Under no circumstances may the City be required to alter its operations at the identified City Pole or provide a replacement City Pole to Licensee. {00011214; 1 O} 44 September 25, 2018 Item #3 Page 56 of 67 27.3. Impairment Caused by City Access Licensee agrees that it will not be entitled to any abatement of License Fees if the City exercises its rights of access under Section 8.1 (City Access to License Area) unless the City's activities cause Licensee to be unable to operate Equipment on the License Area for its permitted use for a period of more than ten (10) days, in which case, subject to proof, License Fees will be abated ratably for the entire period that Licensee is unable to operate any Equipment on any affected City Pole. 28. MISCELLANEOUS PROVISIONS 28.1. Notices 28.1.1. Writings Required Except as may be specifically provided otherwise in this Master License, all notices required to be given under this Master License must be written and delivered in accordance with this Section. 28.1.2. Delivery Method Except as provided in Subsection 28.1.4 (Special Requirements), notices may be delivered by: (i) personal delivery; (ii) first class, postage prepaid; (iii) certified mail, postage prepaid, return receipt requested; or (iv) 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. 28.1.3. Notice Effective Date All notices under this Master License will be deemed to have been delivered: (i) five days after deposit if delivered by first class mail; (ii) two days after deposit if delivered by certified mail; (iii) the date delivery is made by personal delivery or overnight delivery; or (iv) the date an attempt to make delivery fails because a party has failed to provide notice of a change of address or refuses to accept delivery. 28.1.4. Special Requirements Any notice of default, demand to cure or notice of termination must be sent by certified mail or personally delivered. {00011214; 1 O} 45 September 25, 2018 Item #3 Page 57 of 67 28.2. Waiver; No Implied Waivers No failure by either party to insist upon the strict performance of any obligation of the other under this Master License or to exercise any right, power or remedy arising out of a breach thereof, irrespective of the length of time for which such failure continues, will constitute a waiver of such breach. No acceptance by the City or any its Agent of full or partial payment of License Fees or Additional Fees during the continuance of any such breach will constitute a waiver of such breach or of the City's right to demand strict compliance with such term, covenant or condition, or operate as a waiver of any requirement of this Master License. No express waiver by either party of any default or the performance of any provision hereof will affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more waivers of a default or the performance of any provision hereof by either party will not be deemed to be a waiver of a subsequent default or performance. The City's consent given in any instance under the terms of this Master License will not relieve Licensee of any obligation to secure the City's consent in any other or future instance under the terms of this Master License. 28.3. Amendments No part of this Master License (including all Pole Licenses) may be changed, waived, discharged or terminated orally, nor may any breach thereof be waived, altered or modified, except by a written instrument signed by both parties. 28.4. Interpretation The following rules of interpretation apply to this Master License. 28.4.1. General Whenever required by the context, the singular includes the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice versa; and defined terms encompass all correlating forms of the terms (e.g., the definition of "indemnify" applies to "indemnity," "indemnification," etc.). 28.4.2. Multi-party License If there is more than one Licensee, the obligations and liabilities under this Master License imposed on Licensee will be joint and several among them. 28.4.3. Captions The captions preceding the 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. {00011214; 1 O} 46 September 25, 2018 Item #3 Page 58 of 67 28.4.4. 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 Public Works Director/City Engineer or his or her designee, unless otherwise provided in this Master License or by the City Charter or any City ordinance. 28.4.5. Words of Inclusion The use of the term "including," "such as," or words of similar import when following any general or specific term, statement or matter may not be construed to limit the term, statement or matter to the stated terms, statements or matters, whether or not language of non-limitation, such as "including, but not limited to" and "including without limitation" are used. Rather, the stated term, statement or matter will be interpreted to refer to all other items or matters that could reasonably fall within the broadest scope of the term, statement or matter. 28.4.6. Laws References to all "Laws," including specific statutes, relating to the rights and obligations of either party mean the Laws in effect on the Effective Date and as they are amended, replaced, supplemented, clarified, corrected or superseded at any time while any obligations under this Master License or any Pole License are outstanding, whether or not foreseen or contemplated by the parties. 28.5. Successors and Assigns The terms, covenants and conditions contained in this Master License bind and inure to the benefit of the City and Licensee and, except as otherwise provided herein, their successors and assigns. 28.6. Brokers Neither party has had any contact or dealings regarding the license of the License Area, or any communication in connection therewith, through any licensed real estate broker or other person who could claim a right to a commission or finder's fee in connection with the license contemplated herein ("Broker"), whose commission, if any is due, is to be paid pursuant to a separate written agreement between such Broker and the party through which such Broker contracted. In the event that any Broker perfects a claim for a commission or finder's fee based upon any such contact, dealings or communication, Licensee shall indemnify the City from all Claims brought by the Broker. This Section will survive expiration or earlier termination of this Master License. 28.7. Severability {00011214;10} 47 September 25, 2018 Item #3 Page 59 of 67 If any provision of this Master License or the application thereof to any person, entity or circumstance is invalid or unenforceable, the remainder of this Master License, or the application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each provision of this Master License will be valid and be enforced to the full extent permitted by Law, except to the extent that enforcement of this Master License without the invalidated provision would be unreasonable or inequitable under all the circumstances or would frustrate a fundamental purpose of this Master License. 28.8. Governing Law; Venue This Master License must be construed and enforced in accordance with the laws of the State of California and the City Charter, without regard to the principles of conflicts of law. This Master License is made, entered and will be performed in the City of Carlsbad, County of San Diego, State of California. Any action concerning this Master License must be brought and heard in Superior Court for the County of San Diego or in the United States District Court for the Southern District of California as applicable. 28.9. Attorneys' Fees In the event either party brings an action to enforce its rights under this Master License or individual Pole License, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorneys' fees, incurred in connection with such action. 28.10. Time for Performance Provisions in this Master License relating to number of days mean calendar days, unless otherwise specified. "Business day" means a day other than a Saturday, Sunday or a bank or City holiday. If the last day of any period to give notice, reply to a notice, or to undertake any other action occurs on a day that is not a business day, then the last day for undertaking the action or giving or replying to the notice will be the next succeeding business day. Time is of the essence with respect to all provisions of this Master License in which a definite time for performance is specified. 28.11. 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. 28.12. 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 City. {00011214; 1 O} 48 September 25, 2018 Item #3 Page 60 of 67 28.13. 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. 28.14. Approval Authority Each person signing this Master License and any Pole License on behalf of the City and Licensee, respectively, warrants and represents that: (i) he or she has the full right, power and capacity to act on behalf of the City and Licensee, respectively, and has the authority to bind the City and Licensee, respectively, to the performance of its obligations under those agreements without the subsequent approval or consent of any other person or entity; (ii) each of the City and Licensee, respectively, is a duly authorized and existing entity; (iii) Licensee is qualified to do business in California; and (iv) each of the City and Licensee, respectively, has full right and authority to enter into this Master License and Pole Licenses. Upon the City's request, Licensee shall provide the City with evidence reasonably satisfactory to the City confirming the representations and warranties above. [END OF MASTER LICENSE -SIGNATURES APPEAR ON NEXT PAGE] {00011214;10} 49 September 25, 2018 Item #3 Page 61 of 67 The City and Licensee executed this Master License as of the date last written below: THE CITY: LICENSEE: Mobilitie, LLC, a Nevada limited liability company By: By: \,, /J.flJ~ Its: Its: Sv!? C,t~rq/ Ccu1,~I I Date: Date: O<Z, -~ 0 l_(j ltJ APPROVED AS TO FORM: By ~e~ City Attorney Date ?i / /") M [END OF SIGNATURE -EXHIBITS AND SCHEDULES APPEAR ON NEXT PAGE] {00011214; 1 0} 50 September 25, 2018 Item #3 Page 62 of 67 EXHIBIT A FORM OF POLE LICENSE AGREEMENT POLE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER] Pursuant to that certain Master License between the City of Carlsbad, a California municipal corporation (the "City") and Mobilitie, LLC, a Nevada limited liability company ("Licensee"), Licensee submits to the City two partially executed counterparts of this Pole License, together with all the materials listed below, as its Pole License Application in accordance with Section 6 under the Master License: 1. Exhibit A-1, which designates all Pole Locations that Licensee seeks to be included in the License Area under this Pole License; 2. Exhibit A-2, which includes complete, detailed and final plans and specifications for all Licensee's Equipment to be installed in the License Area, subject to Regulatory Approvals; 3. an Administrative Fee equal to [$1,000 multiplied by number of pole locations]; 4. an RF Compliance Report, if not previously provided; Licensee acknowledges that: (1) this Pole License will not be effective until the City returns a fully executed copy to Licensee; (2) the City may require Licensee to supplement the Administrative Fee on conditions specified in Section 4.3 under the Master License; (3) Licensee will not have the right to access or install Equipment on the License Area until after Licensee has: (a) submitted a complete Acknowledgment Letter to the City with all information and funds required; (b) submitted insurance information to the City as specified in Exhibit A-3; and (c) the City has provided notice to proceed by returning to Licensee a countersigned copy of the Acknowledgment Letter. This Pole License is executed and effective on the last date written below and, upon full execution will be the City's authorization for the City to begin its review of the Pole Locations and plans and specifications proposed in this Pole License application. THE CITY: LICENSEE: City of Carlsbad, Mobilitie, LLC a California municipal corporation a Nevada limited liability company By: By: Its: Its: Date: Date: {00011214; 1 O} September 25, 2018 Item #3 Page 63 of 67 EXHIBIT A-1 POLE LOCATIONS I LICENSE AREA Pole License No. [Licensee to list all proposed Pole Locations requested in this Pole License Application] {00011214;10} September 25, 2018 Item #3 Page 64 of 67 EXHIBIT A-2 LICENSEE'S PLANS AND SPECIFICATIONS Pole License No. [Licensee to attach all plans and specifications for all Equipment proposed to be installed at all proposed Pole Locations] {00011214;10} September 25, 2018 Item #3 Page 65 of 67 EXHIBIT A-3 FORM OF ACKNOWLEDGEMENT LETTER [Licensee to complete and submit with Pole License Application] [insert date] [insert addressee information] RE: Pole License No. Dear City Manager: This letter will confirm the following: (1) that Licensee has obtained all the Regulatory Approvals required for the Permitted Use under this Pole License, and (2) the Commencement Date of this Pole License is [insert date], which is the first day of the month after Licensee obtained all Regulatory Approvals. This letter also confirms that Licensee has submitted all required insurance information to the City. A check for the full Security Deposit (if not already provided) and the License Fee for the first License Year of this Pole License is attached. Please acknowledge the City's receipt of this letter and the items listed below, and issue the City's approval for Licensee to begin installation of Equipment on the License Area by signing and returning a copy of this letter. Sincerely, [insert name] [insert title] Enc. [] copies of all permits issued by the City's departments [] Insurance certificates [] Contractor's bonds and insurance certificates [] First License Year's License Fee {00011214; 1 O} September 25, 2018 Item #3 Page 66 of 67 SCHEDULE A-4 LICENSE FEE AND DEFAULT FEE SCHEDULE Pole License No. LICENSE FEE SCHEDULE annual License Fee per City 1 Carrier 2 Carriers 3 Carriers Pole 2018 $1,872.00 $2,372.00 $2,872.00 2019 $1,946.88 $2,466.88 $2,986.88 2020 $2,024.76 $2,565.56 $3,106.36 2021 $2,105.75 $2,668.18 $3,230.61 2022 $2,189.98 $2,774.91 $3,359.83 2023 $2,277.58 $2,885.91 $3,494.22 2024 $2,368.68 $3,001.35 $3,633.99 2025 $2,463.43 $3,121.40 $3,779.35 2026 $2,561.97 $3,246.26 $3,930.52 2027 $2,664.45 $3,376.11 $4,087.74 2028 $2,771.03 $3,511.15 $4,251.25 DEFAULT FEE SCHEDULE VIOLATION INITIAL NOTICE EACH FOLLOW-UP NOTICE unauthorized installations $1,000 $1,500 failure to make required $300 $350 repairs access violations $300 $350 insurance violations $300 $350 {00011214; 1 O} September 25, 2018 Item #3 Page 67 of 67 ,: l<cccive -Agenda Item # ~ lor the Information of the: CITYC0UNOL ' AC~_i_CA~CC J , •iatc~CM~COO J Council Memorandum September 25, 2018 To: From: Via: Re: Honorable Mayor Hall and Members of the City Council Gary Barberio, Assistant City Manager c;.~ Scott Chadwick, City Manager Response to Question from Sept. 24, 2018 Council Briefings Agenda Item No. 3 -Master License Agreement with Mobilitie, LLC {city of Carlsbad Question: Can the city co-locate more than one telecommunication vendor's facility on a city pole? Answer: Per Section 2.1.1 of the proposed Mobilitie Master License Agreement (MLA), the city as the pole owner may issue to the vendor {in this case, Mobilitie) a "Pole license" for each individual pole that another vendor is not already located on. The Pole License grants the vendor a contractual privilege to use the space on each individual pole approved for the wireless communication facilities {WCF). Once the City approves a Pole License, "the City will not license any space on the Pole to any third party who desires to use the Pole for the Permitted Use, except as otherwise permitted pursuant to Section 16.6." Per Section 16.6, and Schedule A-4, a vendor may place up to three separate carriers on a pole under one Pole license. For example, companies such as Crown Castle or Mobilitie, who do not directly provide telecommunication services, could on one pole have three telecommunication carriers, such as AT&T, Sprint, or T-Mobile (among others). However, should the city enter into an MLA with an actual telecommunication carrier such as AT&T, Sprint or T-Mobile, it is unlikely that they would place more than one WCF on any pole. Currently the city has an MLA with Crown Castle (currently leasing approximately 130 city-owned poles) and is proposing an agreement with Mobilitie (CC Agenda Item No. 3), both of which are not actual telecommunication carriers but, instead, license a city pole and then sub-license the pole to an actual telecommunication carrier. In general, actual telecommunication carriers have four methods of placing their WCF within the city's ROW: 1) entering into a MLA with the City to utilize city-owned poles and placing a WCF on said poles; 2) placing their WCF on SDG&E-owned poles, 3) obtaining a ROW Permit and placing a WCF on their own installed poles within the city's ROW, or 4) become a customer of Crown Castle or Mobilitie (if they "control" the pole and still have capacity). All options are subject to the provisions of City Council Policy No. 64. cc: City Attorney City Manager Chief Operations Officer City Clerk City Manager's Office City Hall 1200 Carlsbad Village Drive I Carlsbad, CA 92008 I 760-434-2820 t