HomeMy WebLinkAbout2019-08-20; City Council; Resolution 2019-143RESOLUTION NO. 2019-143
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
AUTHORIZING A MASTER LICENSE AGREEMENT WITH VERIZON WIRELESS
(VAW), 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
Exhibit 1
WHEREAS, the city owns and operates approximately 7,350 street light and traffic signal poles
in the public right-of way; and
WHEREAS, Verizon Wireless (VAW), LLC (Verizon) operates as a telecommunication provider for
cellular communications; and
WHEREAS, Verizon desires to enter into a Master License Agreement (MLA) with the City of
Carlsbad for use of city street light and signal poles over the next five years; and
WHEREAS, the MLA is for a term of five-years, and Verizon may request up to five (5) automatic
five-year extensions on the same terms and conditions of the MLA; and
WHEREAS, pursuant to the MLA, Verizon will be required to enter into individual Pole License
Agreements (Pole License) for use of each individual pole throughout the city; and
WHEREAS, the fee for each Pole License is $272 per year; 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
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.
August 20, 2019 Item #7 Page 3 of 72
Exhibit 1
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows that:
1. That 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. That 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 Verizon Wireless (VAW), LLC 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 20th day of August 2019, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
Bhat-Patel, Blackburn, Schumacher, Hamilton.
None.
Hall.
ATTEST:
\)G&tu.af!Jl1'--1J1~
~RBARA ENGLESON, CITY CLERK
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MASTER LICENSE FOR
WIRELESS FACILITIES ON POLES IN THE RIGHT-OF-WAY
between
CITY OF CARLSBAD, a California municipal corporation
and
VERIZON WIRELESS (VAW) LLC,
d/b/a Verizon Wireless
EFFECTIVE DATE: l5 -=-2,,;;J.. , 2019
August 20, 2019 Item #7 Page 5 of 72
TABLE OF CONTENTS
1. General Definitions ................................................................................................................. 7
2. Scope of License .................................................................................................................... 12
2.1. Site License Issuance and Effect ..................................................................................... 12
2.2. License Area ................................................................................................................... 12
2.2.1. Limitations on License Areas .................................................................................. 12
2.2.2. License Area Condition ........................................................................................... 12
2.2.3. Licensee's Due Diligence ......................................................................................... 13
2.2.4. Certified Access Specialist Disclosure ..................................................................... 13
2.3. Limitations on Licensee's Interests ................................................................................ 13
2.3.1. Limited Interest Created ......................................................................................... 13
2.3.2. Limited Rights Created ............................................................................................ 13
2.3.3. No Impediment or Limitations on City's Municipal Functions ............................... 14
2.3.4. Diminutions in Light, Air or Signal Transmission or Reception ............................... 14
3. Term ...................................................................................................................................... 14
3.1. Master License Term ...................................................................................................... 14
3.2. Site License Term ........................................................................................................... 14
4. License Fee and Other Payments .......................................................................................... 15
4.1. License Fee ..................................................................................................................... 15
4.1.1. License Fee Amount ................................................................................................ 15
4.1.2. Intentionally Omitted ............................................................................................. 15
4.1.3. Intentionally Omitted ............................................................................................. 15
4.1.4. Non-Waiver of Rent ................................................................................................ 15
4.1.5. Renegotiated Rent .................................................................................................. 15
4.1.6. Most Favored Nations ............................................................................................ 16
4.2. Administrative Fees ........................................................................................................ 16
4.2.1. Master License Administrative Fee ......................................................................... 16
4.2.2. Site License Administrative Fee .............................................................................. 17
4.3. Late Charges ................................................................................................................... 17
4.4. Default Interest .............................................................................................................. 17
4.5. Liquidated Charges and Fees ......................................................................................... 18
4.6. Method of Fee Payments to City ................................................................................... 18
5. Use ........................................................................................................................................ 18
5.1. Permitted Use ................................................................................................................ 18
5.2. Prohibition on "Macro Cell" Uses .................................................................................. 18
5.3. Prohibition on Nuisances and Illegal Uses ..................................................................... 19
5.4. Signs or Advertisements ................................................................................................. 19
6. Site Licenses .......................................................................................................................... 19
6.1. City Approval Required .................................................................................................. 19
6.2. Site License Application .................................................................................................. 20
6.3. Site License Application Review Procedures .................................................................. 20
6.3.1. Site License Application Priority ............................................................................. 20
6.3.2. Timeframe for City's Review ................................................................................... 21
6.3.3. Consultation with Other City Departments ........................................................... 21
August 20, 2019 Item #7 Page 6 of 72
6.3.4. Amendments to Site License Applications .............................................................. 21
6.3.5. Site License Application Approvals ......................................................................... 21
6.3.6. Site License Application Denials ............................................................................. 22
6.4. Replacement Vertical Infrastructure .............................................................................. 22
6.5. Future Maintenance and Repairs, Replacements, Modifications, Additions and Upgrades
to Equipment Installed Pursuant to Valid Site License ............................................................. 22
6.6. Pre-Approved Equipment Installations ................................................................................ 23
7. Equipment Installation .......................................................................................................... 23
7.1. Prior Regulatory Approvals Required ............................................................................. 23
7.2. Acknowledgment Letter as Licensee's Notice to Proceed ............................................. 24
7.3. Installation Work ............................................................................................................ 24
7.3.1. Changes to Approved Plans Required by Regulatory Approvals ............................ 24
7.3.2. Corrections to Approved Plans ............................................................................... 24
7.3.3. Alterations to City Property .................................................................................... 25
7.3.4. Licensee's Contractors .......................................................... ~ ................................. 25
7.4. Labor and Material Costs ..................................................... : ......................................... 25
7.5. Project Managers ............................................................................. , ............................. 25
7.6. Coordination with the City ............................................................................................. 26
7.7. Title to Licensee's Equipment and Other Improvements .............................................. 26
7.8. Prevailing Wages ............................................................................................................ 27
7.8.1. Compliance with Prevailing Wage Policies ............................................................. 27
7.8.2. Senate Bill 854 Notice Requirements ..................................................................... 27
7.8.3. Job Site Notices ................................................... , ................................................... 28
8. Licensee's Maintenance Obligations .................................................................................... 28
8.1. Equipment Maintenance ................................................ _ ................................................ 28
8.2. Damage to Vertical Infrastructure .......................................................................... ~ ...... 28
8.2.1. Notice to City .......................................................................................................... 28
8.2.2. Damage Caused by Licensee ................................................................................... 29
8.2.3. No Right to Repair Vertical Infrastructure .............................................................. 29 .
8.3. Graffiti Abatement ............................................................................................ : ............ 29
8.4. Maintenance Work Performance Standards ................................................................. 30
9. Utilities .................................................................................................................................. 30
10. Taxes, Assessments and Other Impositions ...................................................................... 30
11. Licensee's Obligations to Maintain Compliance with Laws ............................................... 31
11.1. Compliance with CPUC General Orders ..................................................................... 31
11.2. Compliance with Building and Electric Codes ............................................................ 31
11.3. Compliance with RF Exposure Regulations ................................................................ 31
12. Public Works' Operations .................................................................................................. 31
12.1. City's Access to License Area ...................................................................................... 31
12.2. City's Maintenance, Repairs or Alterations to Vertical Infrastructure ....................... 32
12.3. City's Maintenance, Repairs or Alterations to Other City Property ........................... 32
12.4. Emergencies .................... · ............................................................................................ 32
13. Indemnification .................................................................................................................. 33
13.1. Licensee's Indemnification Obligations ...................................................................... 33
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August 20, 2019 Item #7 Page 7 of 72
13.2. Licensee's Defense of City .......................................................................................... 33
14. Insurance ............................................................................................................................ 34
15. Limitations on Liability ....................................................................................................... 34
15.1. General Limitation on City's Liability ............................................................ , ............. 34
15.2. Consequential, Indirect or Punitive Damages ............................................................ 34
15.3. No Relocation Assistance ........................................................................................... 35
15.4. Mutual Personal Liability Waiver ... : ............................................................................ 35
16. Hazardous Materials .......................................................................................................... 35
16.1. Hazardous Materials in the License Area ................................................................... 35
16.2. Hazardous Material Release Notice ........................................................................... 36
16.3. licensee's Hazardous Material Indemnification Obligations ..................................... 36
17. Interference ....................................................................................................................... 37
17.1. Licensee's Obligations Not to Cause Interference ..................................................... 37
17.2. Interference Caused by City ....................................................................................... 37
17.3. Interference Caused by City Access ............................................................................ 38
18. Default ................................................................................................................................ 38
18.1. Defaults and Cure Periods .......................................................................................... 38
18.2. licensee's Remedies ................................................................................................... 39
18.3. licensee's Uncured Default and City's Remedies ...................................................... 39
18.4. City's Uncured Default and Licensee's Remedies ...................................................... 39
18.5 Default Fees ........................................................................................•.................................... 39
18.6 Cumulative Remedies .............................................................................................................. 40
19. Termination ........................................................................................................................ 40
19.1 Master License Termination by Licensee ............................................................................ .40
19.2 Site License Termination by Licensee .................................................................................. .40
19.3. City's Termination Rights Due To Material Interference With City Municipal
Functions/Threat To Public Health/Safety/Welfare ......................................................................... .40
20. Assignment and Other Transfers ........................................................................................ 41
20.1. General Restriction on Assignment and Other Transfers ........................................... 41
20.2. General Assignment and Other Transfer Procedures ................................................ 41
20.2.1. Proposed Assignment Notice .............................................................................. 41
20.2.2. City's Response to Proposed Assignment Notice ............................................... 41
20.3. Permitted Assignments .............................................................................................. 41
20.3.1. General Authorization ......................................................................................... 41
20.3.2. Conditions on Permitted Assignments ................................................................ 42
20.4. Effect of Assignment or Other Transfer ..................................................................... 42
20.5. Assumption by Assignee or Transferee ...................................................................... 42
21. Licensee's Customers and Collocators ............................................................................... 43
22. Damage or Destruction of License Area ............................................................................ 43
22.1. City's Rights after Damage or Destruction ................................................................. 43
22.1.1. City's Election to Repair or Replace Vertical Infrastructure ............................... 43
22.1.2. City's Election to Remove Vertical Infrastructure ............................................... 43
22.1.3. City's Election to Remove Equipment.. ............................................................... 44
22.2. licensee's Rights after Termination ........................................................................... 44
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August 20, 2019 Item #7 Page 8 of 72
22.3. Licensee's Statutory Waiver ....................................................................................... 44
23. Condemnation ................................................................................................................... 44
23.1. Permanent Takings ...................................................................................................... 44
23.1.1. Termination Rights after Condemnation ............................................................ 45
23.1.2. Award .................................................................................................................. 45
23.1.3. No Statutory Right to Terminate ......................................................................... 45
23.2. Temporary Takings ..................................................................................................... 45
24. Records .............................................................................................................................. 45
24.1. City's Audit Rights of Licensee Accounting Records ................................................... 45
24.2. Equipment Inspections and Audits ............................................................................. 46
24.3. Estoppels ..................................................................................................................... 47
25. Rules and Regulations ........................................................................................................ 47
26. Surrender of License Area .................................................................................................. 47
26.1. Licensee's Removal and Restoration Obligations ...................................................... 47
26.2. Abandonment ............................................................................................................. 48
26.3. Hold Over .................................................................................................................... 48
27. Surety Bond ........................................................................................................................ 48
27.1. Surety Bond Amount .................................................................................................. 48
27.2. Bond Amount Replenishment .................................................................................... 48
27.3. Bond Application ........................................................................................................ 49
28. Miscellaneous Provisions ................................................................................................... 49
28.1. Notices ........................................................................................................................ 49
28.2. Waivers ....................................................................................................................... 50
28.3. Integration; Amendments .......................................................................................... 51
28.4. Interpretation ............................................................................................................. 51
28.4.1. General ................................................................................................................ 51
28.4.2.
28.4.3.
28.4.4.
28.4.5.
Joint and Several Liability ................................................................................... 51
Captions and Other Reference Material ............................................................. 51
Time ..................................................................................................................... 51
Inclusive Words and/or Phrases .......................................................................... 52
28.5. Successors and Assigns ............................................................................................... 52
28.6. Brokers ........................................................................................................................ 52
28. 7. Governing Law; Venue ................................................................................................ 52
28.8. Litigation Fees and Costs ............................................................................................ 53
28.9. Recording .................................................................................................................... 53
28.10. No Third-Party Beneficiaries ........................................................................................ 53
28.11. Survival .......................................................................................................................... 53
28.12. Severability .................................................................................................................... 53
28.13 Jointly Drafted .......................................................................................................................... 54
Exhibit A ........................................................................................................................................... .
Exhibit A-1 ......................................................................................................................................... .
Exhibit A-2 ........................................................................................................................................ .
Exhibit A-3 ........................................................................................................................................ .
Exhibit B ........................................................................................................................................... .
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August 20, 2019 Item #7 Page 9 of 72
1. General .................................................................................................................................... .
2. Scope and Limits of Insurance. .. ........................................................................................... .
3. Additional Policy Provisions Required ........ ; .......................................................................... .
4. Option to Self-Insure
Schedule 1 ........................................................................................................................................ .
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August 20, 2019 Item #7 Page 10 of 72
MASTER LICENSE AGREEMENT
FOR WIRELESS COMMUNICATIONS FACILITIES INSTALLATIONS
This MASTER LICENSE AGREEMENT FOR WIRELESS COMMUNICATIONS FACILITIES
INSTALLATIONS ("Master License") dated g -c-2.;J , 2019 (the "Effective Date") is
between the CITY OF CARLSBAD, a California municipal corporation (the "City") and VERIZON
WIRELESS (VAW) LLC, D/B/A VERIZON WIRELESS (the "Licensee").
RECITALS
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
B. 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, 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
D. WHEREAS, Licensee desires to install, maintain and operate Small Wireless Facilities on
the City's Vertical Infrastructure and Utility Infrastructure; and
E. WHEREAS, the parties desire to enter into this Master License to establish a process by
which Licensee may request to license from the City individual locations on or in the City's
existing polies together with utility Infrastructure, and also to establish the rates, terms
and conditions that will be generally applicable to all Vertical Infrastructure and Utility
Infrastructure licensed to Licensee by the City; and
F. WHEREAS, consistent with California law, the City intends, and Licensee acknowledges,
that this Master License will be applicable to only the City's Vertical Infrastructure and
Utility Infrastructure, and that the City does not intend this Master License or any Site
License to require or be construed to require any revenue-generating consideration to
the City as a precondition to access to the public rights-of-way for any telephone
corporation, as that term is defined in the California Public Utilities Code; and
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August 20, 2019 Item #7 Page 11 of 72
G. WHEREAS, consistent with federal and California law, the City does not intend this Master
License to grant the Licensee any exclusive right to use or occupy the public rights-of-way
within the City's territorial and/or jurisdictional boundaries, and Licensee expressly
acknowledges that the City may in its sole discretion enter into similar or identical
agreements with other entities, which include without limitation Licensee's competitors;
and
H. WHEREAS the City and Licensee desire to expedite the deployment of small cell
technology in the City while pending legal challenges to FCC Order, FCC 18-133 are
addressed; and
I. WHEREAS, on J½us J: c,,20 2019, the City Council of the City of Carlsbad
adopted Resolution No_:)019-lc/ 3 , which approved the form and material terms
for this Master License to be used in connection with the licensing of Vertical
Infrastructure and Utility Infrastructure for wireless facilities, and further delegated
authority to the City Manager to enter into such agreements.
NOW, THEREFORE, for good, valuable and sufficient consideration received and
acknowledged by the City and Licensee, the City and Licensee agree as follows:
AGREEMENT
1. GENERAL DEFINITIONS
"Acknowledgment Letter" means the letter that Licensee submits to the City that indicates the
Licensee has obtained all Regulatory Approvals and other requirements more particularly
described in Exhibit A-3 (Form of Acknowledgment Letter), and that serves as Licensee's notice
to proceed with the installation after the City countersigns the Acknowledgment Letter and
delivers it to Licensee.
"Additional Fees" means any Late Fees, default interest, reasonable costs in connection with a
request for the City's consent to an assignment or other transfer under Section 20 (Assignment
and Other Transfers) and Default Fees.
"Administrative Fees" means, collectively, the Master License Administrative Fee (as defined in
Section 4.2.1) and any Site License Application Fees (as defined in Section 4.2.2).
"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under
Common Control with Licensee.
"Agent" means a party's agent, employee, director, officer, contractor, subcontractor or
representative in relation to this Master License, any Site License or the License Area.
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August 20, 2019 Item #7 Page 12 of 72
"Approved Plans" means the detailed plans and equipment specifications, which include without
limitation all equipment, mounts, hardware, utilities, cables, conduits, signage, concealment
elements and other improvements proposed by Licensee and approved by the City in connection
with the . License Area, as more particularly described in Exhibit A-2 (Licensee's Plans and
Specifications) to any approved Site License.
"Broker" means 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(s) or other real estate rights
contemplated or conveyed in this Master License.
"City Attorney" means the City Attorney of the City of Carlsbad.
"City Manager" means the City Manager of the City of Carlsbad.
"City Property" means any interest in real or personal property owned or controlled by the City,
which includes without limitation any and all (1) land, air and water areas; (2) license interests,
leasehold interests, possessory interests, easements, franchises and other appurtenant rights or
interests; (3) public rights-of-way or public utility easements; and (4) physical improvements such
as buildings, structures, infrastructure, utility and other facilities, and alterations, installations,
fixtures, furnishings and additions to existing real property, personal property and
improvements.
"Claim" means any and all liabilities, losses, costs, claims, judgments, settlements, damages,
liens, fines, penalties and expenses, whether direct or indirect.
"Commencement Date" means the date on which a Site License commences, which is the earlier
to occur of: (i) eighteen (18) months from the date that the City executes the City's
Acknowledgment Letter pursuant to Section 7.2 of this Master License, or (ii) the date that
Licensee commences the installation of Licensee's Equipment in and upon the Vertical
Infrastructure or Utility Infrastructure, as the case may be, pursuant to the applicable Site
License.
"Common Control" means two or more entities that are Controlled by a same third entity.
"Control" means (1) as to a corporation, stock ownership with the right to exercise more than
fifty percent (50%) of the total combined voting power of all classes of stock, issued and
outstanding, of the controlled corporation; or (2) as to partnerships and other business
association forms, more than fifty percent (50%) ownership of the beneficial interest and voting
control of such association.
"CPUC" means the California Public Utilities Commission established in the California
Constitution, Article XII, § 5, or the CPUC's duly appointed successor agency.
"Default Fee" means the same as that term is defined in Section 18.3.4 (Default Fees).
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August 20, 2019 Item #7 Page 13 of 72
"Environmental Laws" means any Law in relation or connection to industrial hygiene,
environmental conditions or Hazardous Materials (as defined in this Master License).
"Equipment" means antennas, radios and any associated utility or equipment box, and battery
backup, transmitters, receivers, amplifiers, ancillary fiber-optic cables and/or wiring, and
ancillary equipment used for radio or other wireless communication (voice, data or otherwise)
transmission and/or reception, which includes without limitation the means, devices and
apparatus used to attach any Equipment to any licensed Vertical Infrastructure, and any ancillary
equipment such as wiring, cabling, power feeds or an similar things, any ground based equipment
and/or power pedestals need for the operation of Equipment attached to a Vertical
Infrastructure, and any sign age attached to such Equipment that may be approved by the City or
required by Law.
"Expiration Date" means the date on which this Master License will automatically expire.
"FCC" means the Federal Communications Commission or its duly appointed successor agency.
"FCC Order, FCC 18-133" means the FCC's Declaratory Ruling and Third Report and Order, FCC
18-133, Released September 27, 2018.
"Hazardous Material" means any material that, due to its quantity, concentration or physical or
chemical characteristics, is at any time now or hereafter deemed by any local, regional, state or
federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance
with applicable Laws to pose a present or potential hazard to human health, welfare or safety, or
to the environment. The term "Hazardous Material" as used in this Master License or any Site
License will be broadly construed, and includes, without limitation, the following: (1) any material
or substance defined as a "hazardous substance", or "pollutant" or "contaminant" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified as 42
U.S.C. §§ 9601 et seq.) or section 25316 ofthe California Health & Safety Code; (2) any "hazardous
waste" listed California Health & Safety Code§ 25140; or (3) any petroleum, including crude oil
or any fraction thereof, natural gas or natural gas liquids.
"Indemnified City Parties" means the same as that term is defined in Section 13
(Indemnification).
"Investigate and Remediate" means the undertaking of any activities to determine the nature
and extent of Hazardous Material that may be located in, on, under or about the License Area or
that has been, is being, or is in danger of being Released into the environment, and to clean up,
remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material.
"Invitee" means the client, customer, invited guest, tenant, subtenant, licensee, assignee and/or
sublicensee of a party in relation to the License Area.
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August 20, 2019 Item #7 Page 14 of 72
"Late Fee" means a fee that will be charged by the City to Licensee for failure to make timely
payment pursuant to the terms set forth in Section 4.3
"Laws" means all present and future statutes, ordinances, codes, orders, policies, regulations and
implementing requirements and restrictions by federal, state, county and/or municipal
authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as
amended at the time in question.
"License Area" means those certain spaces on the City's Vertical Infrastructure, Utility
Infrastructure and other City Property, which includes without limitation any conduits, chases,
risers, trays, pipes, vaults, pull boxes, hand holes, identified on the Approved Plans as occupied
by the Equipment and licensed to Licensee. The parties may use the term "License Area" to refer
to those spaces licensed to Licensee under an individual Site License or to refer to all spaces
collectively licensed to Licensee under all Site Licenses in connection with this Master License.
"License Fee" means the annual fee for each licensed Vertical Infrastructure and Utility
Infrastructure authorized under any Site License, as specified in Section 4 (License Fee and Other
Payments).
"License Year" means any 12-month period that begins on the Commencement Date for the
applicable Site License.
"Licensee's On-Call Representative" mean the person(s) assigned by Licensee to be on-call and
available to the City regarding the operation of Licensee's Equipment. Such person(s) shall be
qualified and experienced in the operation of Equipment and shall be authorized to act on behalf
of Licensee in any emergency and in day-to-day operations of the Equipment.
"NESC" means the National Electrical Safety Code, as may be amended or superseded, published
by the Institute of Electrical and Electronics Engineers.
"New Laws" means any legislative, regulatory, judicial, or other action affecting the rights or
obligations of the City or Licensee, or establishing rates, terms or conditions for the construction,
operation, maintenance, repair or replacement of Licensee's Equipment on public infrastructure
(defined in this Agreement as "Vertical Infrastructure" and "Utility Infrastructure") or in the right-
of-way, that differ, in any material respect from the rates, terms or conditions of the Agreement.
"OSHA" means the Occupational Safety and Health Administration of the United States
. Department of Labor, or OSHA's duly appointed successor agency.
Pre-Approved Equipment Installation" means any Equipment installation design for Licensee's
use of a Vertical Infrastructure and/or Utility Infrastructure which has been approved in writing
by the City.
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"Regulatory Approvals" means all licenses, permits and other approvals necessary for Licensee
to install, operate and maintain Equipment on the License Area.
"Release" when used with respect to Hazardous Material includes any actual or
imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing on, under or about the License Area, other City Property
or the environment.
"RF" means radio frequency or electromagnetic waves.
"Site License" means the document in the form of Exhibit A (Form of Site License Agreement)
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 Vertical
Infrastructure and/or Utility Infrastructure, as the case may be, identified in the Site License.
"Site License Application" means the same as that term is defined in Section 6.2 (Site License
Application).
"Site License Effective Date" means the first day of the month after both the City and License
fully execute a Site License. As an illustration, and not a limitation, if the last party to execute
signs a Site License on February 2, 2019, the Site License Effective Date would be March 1, 2019.
"Small Wireless Facilities" means facilities that meet each of the following conditions: (1) the
facilities (i) are mounted on structures 50 feet or less in height including their antennas or (ii)
mounted on structures no more than ten percent (10%) taller than other adjacent structures or
(iii) do not extend existing structures on which they are located to a height of more than fifty (SO)
feet or by more than ten percent (10%), whichever is greater, (2) each antenna associated with
the deployment, excluding associated antenna equipment is no more than three (3) cubic feet in
volume or larger at the City's discretion, (3) all other wireless Equipment associated with the
structure, including wireless Equipment associated with the antenna and any pre-existing
associated Equipment on the structure, is cumulatively no more than twenty-eight (28) cubic feet
in volume or larger at the City's discretion.
"Term" means the term of this Master License, as defined in Section 3.1 (Master License Term).
"Utility Infrastructure" means any and all forms of existing power supply, conduit, or other form
of infrastructure fixtures or equipment for the delivery of power or communication services (i)
approved by the City for use by Licensee and (ii) reasonably related to the operation of a Vertical
Infrastructure or otherwise located in the public right of way or other location controlled or
owned by City and reasonably capable of being used in connection with a Vertical Infrastructure.
"Vertical Infrastructure" means all poles or similar facilities owned or controlled by the City and
located in the public rights-of-way or public utility easements and meant for, or used in whole or
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in part for, communications service, electric service, lighting, traffic control or similar functions,
except that "Vertical Infrastructure" shall not include traffic signals.
2. SCOPE OF LICENSE
2.1. Site License Issuance and Effect
Pursuant and subject to the terms and conditions in this Master License, the City, as the Vertical
Infrastructure owner, will issue one or more Site Licenses, which will grant Licensee a non-
exclusive license to access, use, replace, upgrade and occupy certain space on the Vertical
Infrastructure and Utility Infrastructure, as provided herein and the individual Site License(s)
signed by the parties pursuant to this Master License for the Permitted Use and to install,
maintain and operate the Equipment as shown in the Approved Plans attached to such Site
License(s). The license granted herein is revocable only in accordance with the terms and
conditions of this Master License. After the City issues a Site License to Licensee, the City shall
not grant any third parties any present possessory rights or privileges to use or occupy the same
space used or occupied by Licensee as shown in the Approved Plans; provided, however, the City
may grant rights or privileges to use other spaces on the same Vertical Infrastructure or Utility
Infrastructure for any other purpose except to the extent expressly provided otherwise in this
Master License.
2.2. License Area
2.2.1. Limitations on License Areas
This Master License applies to only Vertical Infrastructure and Utility Infrastructure identified in
final and fully executed Site 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 Site Licenses. Licensee expressly acknowledges and agrees that
the City will not be obligated to issue any Site License or other license to Licensee for any purpose
related to any traffic signal or decorative pole, which includes any Vertical Infrastructure or light
standard with ornate features or characteristics designed or intended to enhance the appearance
of the pole, light standard or other Vertical Infrastructure.
2.2.2. License Area 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 License Area's physical, structural or environmental condition, the
License Area's present or future suitability for the Permitted Use or any other matter related to
the License Area.
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2.2.3. Licensee's Due Diligence
Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably
diligent and independent investigation, either for itself or through an Agent selected by Licensee,
into the License Area's condition and suitability for Licensee's intended use, and that Licensee
relies solely on its due diligence for such determination. Licensee further expressly represents
and warrants to the City that Licensee's intended use is the Permitted Use as defined in Section
5 in this Master License.
2.2.4. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, as may be amended or superseded, and to the extent
applicable to this Master License, the City expressly advises Licensee, and Licensee expressly
acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has
not inspected any License Area in whole or in part to determine whether it meets all applicable
construction-related accessibility requirements.
2.3. Limitations on Licensee's Interests
2.3.1. Limited Interest Created
Licensee expressly acknowledges and agrees that: (1) Licensee does not have any rights to use or
interest in any Vertical Infrastructure, Utility Infrastructure or other City Property for any purpose
whatsoever until and unless the City issues a Site License that covers such Vertical Infrastructure,
Utility Infrastructure or other City Property; and (2) neither this Master License nor any Site
License issued pursuant to this Master License creates or will be deemed to create any leasehold,
easement, franchise or any other possessory interest (whether present, future, contingent or
otherwise) or real property interest whatsoever in the License Area.
2.3.2. Limited Rights Created
Any Site License the City approves pursuant to this Master License grants Licensee only a non-
possessory, non-exclusive and revocable license to enter on to and use the License Area for the
Permitted Use in accordance with the terms and conditions in this Master License and the
applicable Site License. Licensee expressly acknowledges and agrees that: (1) neither this Master
License nor any Site License will be coupled with an interest; (2) the City retains legal possession
and control over all Vertical Infrastructure and Utility Infrastructure for the City's municipal
functions, which will be superior to Licensee's rights and interest in the Vertical Infrastructure
and Utility Infrastructure, if any, at all times; (3) subject to the terms and conditions in this Master
License, the City may terminate a Site License in whole or in part at any time under the terms,
conditions, and restrictions set forth in Section 19.3; (4) except as specifically provided otherwise
in this Master License, the City may enter into any agreement with third parties to use and/or
occupy any Vertical Infrastructure, Utility Infrastructure and/or other City Property; and (5)
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neither this Master License nor any Site License creates or will be deemed to create any
partnership or joint venture between the City and Licensee.
2.3.3. No Impediment or Limitations on City's Municipal Functions
Except as specifically provided otherwise in this Master License, neither this Master License nor
any Site License will limit, alter or waive the City's absolute right to use any License Area, in whole
or in part, as infrastructure established and maintained for the City's and the public's benefit.
2.3.4. Diminutions in Light, Air or Signal Transmission or Reception
In the event that any existing or future structure diminishes any light, air or signal propagation,
transmission or reception, whether erected by the City or not, Licensee shall not be entitled to
any reduction in any License Fee, Additional Fees or any other sums payable to the City under
this Master License or any Site License, the City shall have no liability to Licensee whatsoever and
such diminution will not affect this Master License, any Site License or Licensee's obligations
except as may be expressly provided in this Master License.
3. TERM
3.1. Master License Term
This Master License will commence on the Effective Date and automatically expire in five (5) years
from the Effective Date (the "Expiration Date"), unless lawfully terminated sooner, in accordance
with this Master License ("Initial Agreement Term"). The term will automatically renew for five
(5) consecutive five (5) year extensions ("Renewal Terms") upon the same terms and conditions
stated herein, unless Licensee provides written notice to the City at least sixty (60) days prior to
the expiration of the Initial Agreement Term or any subsequent Renewal Term, of Licensee's
intent not to renew the Master License. Licensee shall not be entitled to any further automatic
extensions upon the expiration of the second and final five-year Renewal Term.
3.2. Site License Term
Each Site License will commence on its Site License Effective Date and will have an initial term of
five (5) years, unless earlier terminated in accordance with this Master License . The term of each
Site License will automatically renew for five (5) consecutive five-year periods (each a "Site
License Renewal Term") unless Licensee provides written notice to the City at least sixty (60) days
prior to the expiration of the initial term or the Site License Renewal Term, of Licensee's intent
not to renew the Site License term. In the event this Master License expires or is terminated, its
terms and conditions shall survive and govern with respect to any Site License(s) entered into
hereunder until such Site License(s) expire or terminate. As an illustration and not a limitation, a
Site License entered one year before the Master License expires would have four years left on its
initial term and five (5) Site License Renewal Terms, and otherwise remain subject to all the
applicable terms and conditions of this Master License. As the parties acknowledge that the Site
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License Effective Date and the Commencement Date for a Site License may not be the same date,
upon written request of either party, the parties shall confirm in good faith the Commencement
Date of the applicable Site License.
4. LICENSE FEE AND OTHER PAYMENTS
4.1. License Fee
4.1.1. License Fee Amount
During any period in which the FCC Ruling (FCC 18-133) is in effect, the Licensee shall pay rent as
described in this paragraph. Licensee shall pay to the Licensor the base amount of Two Hundred
and Seventy and 00/100 Dollars ($270.00) per calendar year for each Site License. The base
amount under all Site License's shall be subject to an annual adjustment of three percent {3%)
applied on each anniversary of the Commencement Date. Any new Site License entered into
during a given year shall commence at the then-current rate adjusted by this section (the "Rent").
Rent for the first calendar year of a Site License for each location shall be pro-rated based on the
number of days covered from the Site License Effective Date to December 31st. The first payment
of Rent shall be paid on the Site License Effective Date. Every Payment of Rent, after the initial
• payment, shall be due and payable in advance on January 1 of each calendar year throughout the
term of each such Site License. There shall be no refunds of Rent paid due to the termination or
expiration of the Master License for any reason whatsoever.
4.1.2.
4.1.3.
4.1.4
Intentionally Omitted
Intentionally Omitted
Non-Waiver of Rent
Receipt of any Rent by Licensor, with or without knowledge of any breach of this Master License
by Licensee, or of any default on the part of Licensee in the observance or performance of any
conditions or covenants of this Master License, shall not be deemed a waiver of any provision of
this License.
4.1.5 Renegotiated Rent
In the event the portion of the FCC Declaratory Ruling (FCC 18-133) that regulates the Rent is
reversed in a final unappealable order of the FCCor by a court of competent jurisdiction, and for
so long as no legal or regulatory requirement exists that would constrain or otherwise limit the
Rent that the City may charge Licensee for the right to place Small Wireless Facilities on the City's
property in the public rights of way, the parties agree to determine a renegotiated Rent payment
for all Site Licenses, provided that the Licensee is not in default or breach of any term, condition,
covenant or provision of this Master License per section 18 below ("Renegotiated Rent").
Licensor and Licensee shall meet and confer to negotiate in good faith to determine the
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Renegotiated Rent. If within ninety (90) days after delivery of a request for renegotiation by
either party, the parties are unable to agree upon an amendment to this Master License, either
party may send a written notice of impasse ("Notice of Impasse") to the other. Within thirty (30)
days after the date of the Notice of Impasse either party may request binding mediation or
binding arbitration of the issues through Judicial Arbitration and Mediation Services ("JAMS") in
San Diego County, California, or any other entity offering dispute resolution procedures as may
be acceptable to the City and Licensee in writing. Arbitration shall be used if the parties cannot
mutually agree to mediation. The cost of the mediation or arbitration shall be shared equally by
the parties. If neither party has requested mediation or arbitration within thirty (30) days after
the Notice of Impasse, then thereafter, either party may pursue all available remedies at law or
in equity, including regulatory or judicial relief.
4.1.S(a) The City agrees that irrespective of whether the relevant provisions of
the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Renegotiated Rent shall be due
for any periods during which the relevant provisions of the FCC Declaratory Ruling (FCC 18-133)
were in effect during the Initial Agreement Term of this Master License. However, if Licensee has
paid the Rent pursuant to the provisions of the FCC Declaratory Ruling (FCC 18-133) per Section
4.1.1 above for a calendar year, and the portion of the FCC Declaratory Ruling (FCC 18-133) that
regulates the Rent is reversed in a final and unappealable order of the FCC or a court of
competent jurisdiction during the same calendar year, Licensee shall pay the difference between
the Rent and the Renegotiated Rent for the period from the date the relevant provisions of the
FCC Declaratory Ruling (FCC 18-133) cease to be effective, until December 31 ofthat year ("Rent
Adjustment"). Such Rent Adjustment shall be paid to the City on January 1 of the following year.
4.1.6. Most Favored Nations
The City hereby represents and warrants as of Effective Date of this Master License, and
covenants and agrees from and after the Effective Date of this Master License, that none of the
rates or fees offered to any other entity for a Master License for the deployment of small cell
technology in the City, or a similar agreement designed to advance the deployment or small cell
technology in the City while pending legal challenges to FCC Order, FCC 18-133 are addressed, is
or will be more favorable than the License Fee under this Master License. Additionally, if the City
agrees to a rate or fee that is more favorable than the License Fee under this Master License for
the deployment of small cell technology in the City, then Licensee shall be entitled under this
Master License to such rate or fee on and after the date such rate or fee becomes effective.
4.2. Administrative Fees
4.2.1. Master License Administrative Fee
At the time Licensee delivers to the City a partially executed counterpart to this Master License,
Licensee shall also deliver to the City a nonrefundable administrative fee equalto Eight Thousand
and 00/100 Dollars ($8,000.00) (the "Master License Administrative Fee"), which the City
represents as payment in full of Licensee's share of the City's costs to prepare, negotiate and
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execute this Master License. The City will not be obligated to execute this Master License until
the City receives the Master License Administrative Fee; however, the City will return the Master
License Administrative Fee to Licensee if for any reason or no reason, the City does not execute
this Master License.
4.2.2. Site License Application Fee
At the time Licensee delivers to the City a Site License Application, Licensee shall pay to the City
a non-refundable application fee of Two Hundred and Fifty Dollars ($250) per Site License
Application for proposed Vertical Infrastructure (including the Utility Infrastructure serving the
Vertical Infrastructure, as the case may be) (the "Site License Application Fee"), which the City
represents as payment in full of Licensee's share of the City's costs as it relates to the Site License
granted in this Agreement, and may be in addition to regulatory permit fees required by any
agency, including the City of Carlsbad.
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 thirty (30) days after Licensee's receipt of the City's
written notice that such amounts are due and unpaid, then thereafter a fee will be charged to
Licensee for failure to make timely payment ("Late Fee"). Late Fee amounts will be equal to five
percent (5%) of unpaid amounts.
4.4. Default Interest
Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City
other than Late Fees will bear interest at ten percent {10%) per annum (simple interest) from the
due date when not paid within 15 days after due and payable to the City; provided, Licensee is
only subject to this interest if the City notifies Licensee in writing of any unpaid amounts and
Licensee does not pay within 15 days after Licensee's receipt of such notice. Any sums received
shall be first applied towards any interest, then to the late charge and lastly to principle amount
owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee.
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4.5. 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:
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 THEIR 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 DETRIMENT.
Licensee@::::> City_~_// __
4.6. Method of Fee Payments to City
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 either: (1) local check payable
to the City of Carlsbad or (2) electronic wire transfer. Any payment made with a dishonored check
will be deemed unpaid.
5. USE
5.1. Permitted Use
Licensee may use a License Area, including approved Vertical Infrastructure and Utility
Infrastructure solely for the installation, construction, use, maintenance, operation, repair,
modification, replacement and upgrade of Equipment for the purpose of providing wireless,
voice, data, messaging, or similar type of wireless service now or in the future offered to the
public in general using spectrum radio frequencies licensed or authorized by the FCC (the
"Permitted Use") in compliance with this Agreement, the applicable Site License Agreement, all
applicable Laws, and any conditions in any Regulatory Approvals and for no other use whatsoever
without the City's prior written consent, which the City may withhold in its sole and absolute
discretion for any or no reason.
5.2. Prohibition on "Macro Cell" Uses
The City and Licensee intend this Master License and any Site License to cover only "Small
Wireless Facilities" and/or distributed antenna system installations, as those terms are defined
by the FCC. Licensee expressly acknowledges and agrees that the Permitted Use under this
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Master License does not include the right to use any Vertical Infrastructure as a support structure
for a {I macro cell" or a traditional wireless tower typically constructed on private property.
5.3. Prohibition on Nuisances and Illegal Uses
Licensee shall not use the License Area in whole or in part in any unlawful manner or for any
illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any
manner that constitutes a nuisance as determined by the City in its reasonable judgment;
however, the City acknowledges and agrees that the Permitted Use is not and shall not, in and of
itself, be considered a nuisance. Licensee shall take all precautions to eliminate any nuisances or
hazards in connection with its uses and activities on or about the License Area.
5.4. Signs or Advertisements
Licensee acknowledges and agrees that its rights under this Master License and any Site 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, except as may be
specifically authorized under this Master License, any Site License or as may be required for
compliance with any applicable Laws.
6. SITE 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 Site License that covers the License Area. Licensee may obtain a
Site License only during the term of this Master License and only after the City approves a Site
License Application as provided in this Section 6. Subject to any express limitations in this Master
License, the City will not be obligated to subordinate its municipal functions in any manner
whatsoever to Licensee's interest under any Site License. The City shall not be obligated to
consider or approve any Site License Applications after this Master License expires or is
terminated. When the City considers whether to approve or disapprove any Site License
Application, the City may consider any matter that affects its municipal functions, which include
without limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance
with any applicable Laws; (3) impacts on the City's street light, traffic control or other municipal
operations; (4) any potential hazards or unsafe conditions that could result from Licensee's
installation, operation or maintenance; (5) any potential visual or aesthetic impacts, provided the
proposed Equipment is not in conformance with objective design standards adopted by the City;
(6) the additional load on the Vertical Infrastructure the proposed Equipment would create; and
(7) any municipal plans for the Vertical Infrastructure, other City Property or the public right-of-
way in proximity to the subject Vertical Infrastructure. All Utility Infrastructure approved by the
City in Approved Plans for Licensee's use with a Vertical Infrastructure for a Site License under
this Master License shall be protected with fusing.
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6.2. Site License Application
A complete Site License Application must include the following:
(1) two partially executed duplicate counter parts of a Site License in the form
attached as Exhibit A to this Master License, together with the following:
(a) a fully completed Exhibit A-1, which shall contain a summarized list that
identifies all Vertical Infrastructure and Utility Infrastructure serving the
Vertical Infrastructure, as the case may be, covered under the Site License
Application;
(b) a fully completed Exhibit A-2, which shall contain detailed construction plans
for the proposed installation(s), including concealment elements consistent
with City standards and a detailed traffic control plan for all work on and
adjacent to City roadways, and an inventory for all proposed Equipment to be
installed on the Vertical Infrastructure covered under the Site License
Application; and
(c) the Site License Application Fee;
(2) 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
from time-to-time in accordance with applicable Laws; and
6.3. Site License Application Review Procedures
6.3.1. Site License Application Priority
Licensee expressly acknowledges that the City either already has or may in the future enter into
similar master license agreements for its Vertical Infrastructure with other persons or entities,
and that Licensee and such third parties may from time-to-time desire to license the same
Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as
the case may be) from the City. To promote a fair and competitively neutral, process, the City
shall implement a first-in-time prioritization process as provided in this Section 6.3.1. The City
shall review each Site License Application, which includes without limitation any Site License
Applications submitted by other licensees, in the order received. Each Site License Application
will be date and time stamped when received by the City, and such stamp shall control the Site
License Application's priority relative to other Site License Applications. In the event that the City
receives two Site License Applications for the same Vertical Infrastructure (including the Utility
Infrastructure serving the Vertical Infrastructure, as the case may be), the applications with lower
priority will be held in abeyance until the higher-priority application is withdrawn, denied or
timed-out as provided in this Master License, at which time the City will commence to review the
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next-highest priority Site License Application for that Vertical Infrastructure (including the Utility
Infrastructure serving the Vertical Infrastructure, as the case may be).
6.3.2. Obtaining Required Permits
The City will review complete Site License Application within applicable timeframes and pursuant
to applicable Law including the FCC Order, FCC 18-133, taking into account any tolling periods for
such timeframes. Licensee shall use best efforts not to submit successive Pole License
Applications if those Pole License Applications would collectively cover 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.
6.3.3. Consultation with Other City Departments
The City, as the licensor under this Master License, may consult with other departments within
the City with authority over a site that is the subject of a proposed Site License 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 with any
other City departments in accordance with this Section 6.3.4 and any actions or failures to act by
the City that may result from such consultations would be as the Vertical Infrastructure owner
and not an exercise of the City's regulatory authority.
6.3.4. Amendments to Site License Applications
In the event that the City determines for any reason that the Site License Application is
incomplete or the Permitted Use at any particular proposed License Area would impede its
municipal functions, the City will provide notice to Licensee within fourteen (14) business days of
submittal of such Site License Application.
6.3.5. Site License Application Approvals
In the event that the City approves a Site License Application, the City will return one fully
executed Site License to Licensee. Such approval may occur before or simultaneous with any
approvals or denials for any Regulatory Approvals issued by the City in its regulatory capacity.
Licensee acknowledges and agrees that the City's decision to approve or disapprove any Site
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 authority over its Vertical Infrastructure
as its personal property. In the event that Licensee fails to commence construction pursuant to
the Site License within eighteen (18) months from the date the City fully executes the
Acknowledgment Letter, then the Site License shall automatically expire. Licensee shall
commence construction pursuant to the Site License on the later to occur of (i) the time to
commence construction, if any, as may be contained in the applicable permit for the construction
of the Equipment, and (ii) twelve (12) months from the date the City fully executes the
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Acknowledgment Letter unless such time period is extended as mutually agreed by the City and
Licensee. Otherwise the Site License shall automatically expire. Licensee shall not be entitled to
any refund for any fees, which include without limitation the License Fee, paid in connection with
a Site License that expires under this Section 6.3.6. Nothing in this Section 6.3.6 is intended to
prohibit or prevent Licensee from submitting a new Site License Application for the same or
substantially the same Vertical Infrastructure (including the Utility lnfrc1structure serving the
Vertical Infrastructure, as the case may be) as those covered under a Site License that expired
pursuant to this Section 6.3.6.
6.3.6. Site License Application Denials
Subject to applicable state and federal laws, Licensee acknowledges that the City reserves the
absolute right to disapprove any Site License Application in whole or in part when the City
determines in its sole judgment that the proposed Equipment would unreasonably interfere with
the City's municipal functions or create a hazardous or unsafe condition. The City shall provide
Licensee with a written denial that states the basis for the denial.
6.4. Replacement Vertical Infrastructure
In the event that Licensee desires to replace any existing Vertical Infrastructure, or in the event
that the City requires Licensee to replace any existing Vertical Infrastructure as a condition on
the City's approval for a Site License, Licensee shall: (1) design and/or procure the replacement
Vertical Infrastructure to be (a) substantially the same as the existing Vertical Infrastructure to
be replaced, (b) consistent with the City's specifications for similar Vertical Infrastructure, and (c)
consistent with the City's objective design standards; and (2) install the replacement Vertical
Infrastructure at Licensee's sole cost and expense and in accordance with all applicable provisions
in this Master License, which includes without limitation Section 7 (Equipment Installation). After
Licensee installs any replacement Vertical Infrastructure, the City will have the right to inspect
the improvements and installation work and accept, reject and require corrections to such
improvements or installation work. Licensee shall make any and all necessary corrections to any
replacement Vertical Infrastructure within 60 days after a rejection by the City. Paying for the
cost of the replacement Vertical Infrastructure does not provide Licensee with any ownership
interest in the replacement Vertical Infrastructure. The City shall be deemed to own the
replacement Vertical Infrastructure. Licensee acknowledges and agrees that the City's approval
of the Site License will be the only consideration due to Licensee in exchange for transferring title
to any replacement Vertical Infrastructure to the City, and Licensee will not be entitled to any
additional pecuniary or non-pecuniary consideration.
6.5. Future Maintenance and Repairs, Replacements,. Modifications, Additions and
Upgrades to Equipment Installed Pursuant to Valid Site License
Without the requirement of obtaining the City's prior consent, Licensee shall have the right to (a)
perform routine maintenance and repair of any Equipment installed on a Vertical Infrastructure
and/or Utility Infrastructure pursuant to a valid Site License, and (b) perform "like-for-like"
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replacements of Equipment so long as (i) any such "like-for-like" replacement does not materially
alter the size, height, and weight of the installed Equipment, and (ii) the resulting installation
does not increase the load on the applicable Vertical Infrastructure or the utilization oft he Utility
Infrastructure beyond the loading or utilization, if any, that was established in the original Site
License Application. Any other modification, addition or upgrade to Licensee's Equipment
installed on a Vertical Infrastructure and/or Utility Infrastructure pursuant to a valid Site License
shall require the City's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding any modification, addition and/or upgrade rights
granted to License under this Master License, all work performed by or on behalf of Licensee
pursuant to this Master License and/or a Site License shall be subject to all applicable permits
and other City approvals required for the protection of public health and safety, including,
without limitation, encroachment permits, excavation permits, traffic control permits and
construction permits. In no event shall Licensee be required to submit a new Site License
Application for routine maintenance and repair, "like-for-like" replacements, modifications,
additions, or upgrades to Equipment installed pursuant to a valid Site License.
6.6 Pre-Approved Equipment Installations
From time to time during the Term, Licensee may propose Equipment installation designs to the
City to become a Pre-Approved Equipment Installation upon the City's prior written consent. Any
such Licensee proposed Equipment installation designs that become a Pre-Approved Equipment
Installation shall comply with then existing design guidelines in the City Council Policy No. 64,
which may be amended from time to time provided that such guidelines comply with applicable
Laws including the FCC Order, FCC 18-133, and shall not require an amendment to this Master
License. Design guidelines applicable to Small Wireless Facilities shall be: (i) reasonable, (ii) no
more burdensome than those applied to other types of infrastructure deployments, and (iii)
objective and published in advance. Licensee hereby acknowledges that the City considers
physical dimensions, coloring and shrouding as concealment elements, and that such
concealment elements are a material factor in the City's decision to provide its written consent
to any Pre-Approved Equipment Installation. Once an Equipment installation design has become
a Pre-Approved Equipment Installation for Licensee's use of a Vertical Infrastructure and/or
Utility Infrastructure, then Licensee shall be allowed to install an Equipment installation using any
such Pre-Approved Equipment Installation without further land use review or approval by the
City, subject to space and structural capacity and loading review by the City during the building
permit review process. All other municipal reviews and approvals, including the execution of a
Site License, building permits and right of way permits, shall apply to the installation of any Pre-
Approved Equipment Installation.
7. EQUIPMENT INSTALLATION
7.1. Prior Regulatory Approvals Required
Licensee shall not commence any installation, construction, repair, upgrade, maintenance or
modification or other work on or about the License Area until and unless Licensee first obtains
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all necessary prior Regulatory Approvals required by the City in its regulatory capacity, which
includes without limitation any encroachment permits, building permits, excavation permits,
water or sewer permits, electrical permits and any other permits or approvals issued by the City.
Any installation, construction and other work performed by Licensee or its Agents or Invitees
without such Regulatory Approvals will be a default under this Master License in addition to any
other liabilities or penalties the City, in its regulatory capacity, may impose on Licensee for the
same acts or omissions.
7.2. Acknowledgment Letter as Licensee's Notice to Proceed
After Licensee obtains all necessary prior Regulatory Approvals, Licensee shall tender a partially
executed Acknowledgment Letter to the City that includes (i) Licensee's insurance certificates,
(ii) insurance certificates of Licensee's contractor, (iii) the License Fee for the first License Year;
and (iv) evidence reasonable satisfactory to the City that the required Surety Bond under Section
27.1 of this Master License has been delivered to the City. The City shall use reasonable efforts
to review, countersign and deliver the fully executed Acknowledgment Letter to Licensee within
ten (10) business days from the date on which the City receives a partially executed
Acknowledgment Letter with all required attachments. Licensee shall not commence any work
on or about the License Area until and unless Licensee first obtains a fully executed
Acknowledgment Letter from the City. Such fully executed Acknowledgment Letter will serve as
Licensee's notice that Licensee has the right to proceed with its installation work.
7.3. Installation Work
Licensee shall perform all installation, construction and other work in connection with the License
Area in strict compliance with the Approved Plans and in a diligent, good and workmanlike
manner.
7.3.1. Changes to Approved Plans Required by Regulatory Approvals
Licensee may amend any Approved Plans when such changes are required to obtain or maintain
compliance with Regulatory Approvals necessary to install the Equipment, so long as Licensee
obtains the City's prior written consent, which the City shall not unreasonably withhold.
7.3.2. 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
7.3.2.
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7.3.3. Alterations to City Property
Licensee shall not remove, damage, or in any manner alter any City Property without prior
written consent from the City and any other public agencies with jurisdiction over the subject
City Property, unless otherwise allowed herein. The City may withhold its consent in its sole and
absolute discretion, and may reasonably condition its consent in each instance based on scope
and nature of the proposed alterations. Licensee shall immediately notify the City if any removal,
damage or other alteration occurs to City Property for any reason and through any cause.
7.3.4. Licensee's Contractors
Licensee shall use only qualified and trained persons and appropriately licensed contractors for
all installation, construction and other work performed on or about the License Area. At least five
(5) business days before to any installation, construction and other 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 installation, construction and other work: and (2) a
comprehensive list with all the names, contractors' license numbers, contact information, and
business addresses for all contractors and all subcontractors who will perform the installation,
construction and other work.
7.4. Labor and Material Costs
Licensee shall be responsible for all direct and indirect costs (labor, materials and overhead) in
connection with designing, purchasing and installing all Equipment in accordance with the
Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain
all Regulatory Approvals required in connection with the installation, which includes without
limitation all direct and indirect costs to comply with any approval conditions or mitigation
measures that arise from Licensee's proposed installation. Licensee shall timely pay for all labor,
materials, Equipment and all professional services related to the Permitted Use or furnished to
the License Area at Licensee's direction or for Licensee's benefit.
7.5. 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. If no person is designated by
either party prior to the Effective Date, then each party shall designate a person through a written
notice promptly following the written request of either party to do so.
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City's Project Manager: Curtis M. Jackson
Real Estate Manager
1200 Carlsbad Village Drive
Carlsbad, CA, 92008
Phone(760)434-2836
Email:Curtis.jackson@carlsbadca.gov
Licensee's Project Manager: Gina Del Giorgio
Real Estate Specialist-Network Real Estate/Regulatory
Southern California
15505 Sand Canyon Avenue
Irvine, CA 92618
Phone(949)677-5953
Email: regina.delgiorgio2@verizonwireless.com
Licensee acknowledges that the City's project manager is not exclusively assigned to this Master
License or any Site 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 Site License Applications and any approved Site Licenses. The parties' respective
project managers will have no obligation to personally perform any term or covenant to be
performed by the other party under this Master License. Notices to the parties' respective project
managers alone will not be deemed effective notice for any purpose under this Master License.
7 .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. Title to Licensee's Equipment and Other Improvements
Except as specifically provided otherwise in this Master License, all Equipment and other
improvements installed, constructed or placed on or about the License Area by Licensee or its
Agents will be and remain at all times Licensee's personal property. All structural improvements
to any Vertical Infrastructure, any replacement Vertical Infrastructure as approved by the City
and shown in the Approved Plans except for any fiber installed by or on behalf of Licensee, will
become City Property and remain should Licensee vacate or abandon such License Area, unless
the City elects in a written notice to Licensee that it does not wish to take title to such structural
improvements. Subject to Section 26 (Surrender of License Area), Licensee may remove its
Equipment from the License Area at any time after 30 days' written notice to the City.
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7.8. Prevailing Wages
7 .8.1. Compliance with Prevailing Wage Policies
The services to be provided under the Master License or Site License are subject to prevailing
wage rate payment as set forth in California Labor Code §1771. Accordingly, to the extent that
any such services are subject to the prevailing wage rate payment requirements, Licensee and its
Agents shall comply with all applicable California Labor Code requirements, including the
payment of prevailing wages in connection with the services to be provided to the City hereunder
(collectively, "Prevailing Wage Policies"). Licensee shall submit, upon request by the City,
certified copies of payroll records to the City and shall maintain and make such records available
to the City or the City's duly authorized representative for inspection and copying in a manner
consistent with Licensee's obligations under Section 24 (Records).
Licensee shall defend, indemnify and hold the City and its Indemnified City Parties harmless from
and against any and all present and future Claims, that arise from or in connection with Licensee's
obligation to comply with all Laws with respect to the installation, construction and other work,
and Prevailing Wage Policies, which includes without limitation any and all Claims that may be
made by Agents or other third parties pursuant to California Labor Code§§ 1726 and 1781, as
amended and added by California Senate Bill 966 (Alarcon), and as may be amended or
superseded in the future.
Licensee hereby waives, releases and discharges forever the City and Indemnified City Parties
from any and all present and future Claims that arise from or in connection with Licensee's
obligation to comply with all Laws with respect to the installation, construction and other work
and Prevailing Wage Policies. Licensee hereby acknowledges that Licensee is aware of and
familiar with the provisions in California Civil Code §1542 which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist
in his or her favor at the time of executing the release, which if known by him must have
materially affected his or her settlement with the debtor.
Licensee hereby waives and relinquishes all rights and benefits which it may have under California
Civil Code § 1542, as such relates to the Master License and any Site License. Licensee's
obligations under this Section 7.9 will survive the expiration or earlier termination of this Master
License and any Site License.
7.8.2. Senate Bill 854 Notice Requirements
As provided in SB 854 (Stats. 2014, Ch. 28): (a) no contractor or subcontractor may be qualified
to bid on, be listed in a bid proposal subject to the requirements of Section 4104 of the California
Public Contracts Code, or engage in the performance of any contract for public work, unless
currently registered with the Department of Industrial Relations ("DIR") and qualified to perform
public work pursuant to California Labor Code Section 1725.5 (Cal. Lab. Code§ 1771.l(a)); (b) no
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August 20, 2019 Item #7 Page 32 of 72
contractor or subcontractor may be awarded a public works contract unless registered with the
DIR to perform public work pursuant to California Labor Code Section 1725.5 (Cal. Lab. Code§
1771.l{b)); and (c) work performed on the project is subject to compliance monitoring and
enforcement by DIR {Cal. Lab. Code§ 1771.4).
7.8.3. Job Site Notices
Licensee shall post at the job site notices in compliance with Title I of the California Code of
Regulations Section 16451.
8. LICENSEE'S MAINTENANCE OBLIGATIONS
8.1. Equipment Maintenance
Licensee shall, at its sole cost and expense, maintain all Equipment installed on the License Area
in good condition, reasonable wear, tear and casualty damage excepted, at all times, and shall
promptly repair any damage to any Equipment installed on the License Area whenever repair or
maintenance may be required, subject to the City's prior approval if required under Section 7
(Equipment Installation). With the exception of administrative encroachment permits for access
to a Site, Licensee will not be required to seek the City's prior approval for any Equipment repair,
maintenance, replacement or other installation on the License Area when such Equipment
appears on the Approved Plans. Licensee must obtain the City's prior written approval for any
Equipment repair, maintenance, replacement or other installation that involves larger, different
or additional Equipment than as appears on the Approved Plans subject to the paramount
provisions in Section 6.5 above. 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), as may be
amended or superseded, does not apply to this Master License or any Site License. Licensee
expressly acknowledges and agrees that Licensee shall not perform any repair, maintenance,
replacement or other work authorized under this subsection until and unless Licensee obtains all
Regulatory Approvals required for such work.
8.2. Damage to Vertical Infrastructure
8.2.1. Notice to City
If Licensee discovers any damage to the License Area from any cause, Licensee shall promptly
give notice to the City that describes damage and the location(s) where the damage occurred.
Licensee will not be deemed to have assumed liability for any life-threatening or hazardous
conditions by giving such notice, unless such conditions were caused by or arose in connection
with Licensee's or its Agent's or lnvitee's acts, omissions or negligence.
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8.2.2. Damage Caused by Licensee
In the event that Licensee or its Agents or Invitees cause any damage to any Vertical
Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case
may be), Licensee must repair such damage within 30 days after Licensee receives notice from
City that describes such damage or, if the damage cannot reasonably be repaired in such time,
then Licensee will have additional time as is, in City's estimation, reasonably required to repair
such damage, as long as Licensee has commenced repair and diligently pursues it to completion.
In the event that Licensee fails to timely cure the damage, the City may repair the damage at
Licensee's expense. Licensee will reimburse the City for all costs incurred to repair such damage
within 30 days after Licensee receives the City's demand for payment, together with copies of
invoices or other evidence to document the costs .incurred. The City's right to repair any damage
and receive reimbursement from Licensee pursuant to this Section 8.2.2 shall be in addition to
(and not exclusive of) any legal and equitable remedies the City may have under applicable Laws.
8.2.3. No Right to Repair Vertical Infrastructure
Absent notice from the City with a demand to cure any damage to any Vertical Infrastructure
(including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be), or an
authorization to proceed with such work, Licensee is not authorized to make any repairs to any
Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as
the case may be) or License Area. Licensee expressly waives all rights it may have under any
applicable Laws to make repairs at the City's expense. However, Licensee shall have the right to
conduct testing and maintenance activities, and repair and replace damaged or malfunctioning
Equipment at any time during the Term.
8.3. Graffiti Abatement
In addition to Licensee's other maintenance obligations under this Master License and any Site
License, Licensee shall remove any graffiti or other similar markings from the License Area
promptly upon actual notice (but in no event later than five (S) days after Licensee's receipt of
written notice from the City of the presence of graffiti at a particular License Area identified in
the City's written notice). If the graffiti is not abated by Licensee within five (5) days after
Licensee's receipt ofthe City's written notice to Licensee, then the City may, at the City Manager's
sole discretion, abate the graffiti at Licensee's expense, under the provisions of the City's
Municipal Code Sections B7-260 through B7-265. The City shall keep an itemized account of all
the costs and expenses incurred by the City in abating nuisances under the provisions of this
section. If the costs are not paid within thirty (30) days of Licensee's receipt of the City's invoice
accompanied by reasonable substantiation, then thereafter, City shall have the right to suspend
the issuance of any further permits or Site Licenses under this Agreement until the abatement
costs are paid in full, or otherwise declare Licensee in default pursuant to of the applicable Site
License which is identified by the City to contain graffiti pursuant to Section 18.1 of this Master
License.
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8.4. Maintenance Work Performance Standards
All work performed by or for Licensee under this Section 8 shall be performed: {1} at Licensee's
sole cost and expense; (2) by only appropriately licensed contractors; (3) in a manner and with
equipment and materials that will not unreasonably interfere with or impair the City's municipal
operations on or about the License Area during any approved installations; and (c} in a manner
compliant with all applicable Laws.
9. UTILITIES
Licensee shall be responsible to secure its own electricity services for its Permitted Use and shall
not be permitted to "submeter" from any electrical service provided to the City on any License
Area without the City's prior written consent, which the City may withhold in its sole and absolute
discretion. Licensee shall timely pay when due all charges for all electricity service furnished to
its Equipment on the License Area. Licensee may install or cause to be installed a separate electric
meter on the Vertical Infrastructure, or on a ground mounted pedestal or on Licensee's pad
mounted equipment cabinet as required by the electric provider for the operation of its
Equipment.
While the City is not obligated to make its Utility Infrastructure available to Licensee,
nonetheless, the City shall make a good faith effort to make its Utility Infrastructure available in
connection with each Vertical Infrastructure location identified by Licensee in its Site License
Application, and Licensee and the City shall work cooperatively to allow Licensee to use the City's
Utility Infrastructure wherever possible. In the event that Licensee submits a Site License
Application to the City for a particular Vertical Infrastructure, but the City is unwilling to allow
Licensee to use the City's Utility Infrastructure at such location for Licensee's utilization in
connection with the Vertical Infrastructure, then the City and Licensee will work cooperatively to
identify an alternate Vertical Infrastructure location where the City would be willing to allow
Licensee to utilize, and which provides comparable wireless service coverage and performance
acceptable to Licensee.
In connection with Licensee's use of City's Utility Infrastructure on any Vertical Structure,
Licensee shall be responsible for, and shall timely pay for the cost of the electrical service
furnished to its Equipment on the License Area directly to PG&E or any successor utility which
provides electrical service to the City's Vertical Infrastructure.
10. TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
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 applicable Laws. 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
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assessment notices on or in connection with the License Area or Licensee's Equipment, the City
shall promptly (but in no event later than 30 calendar days after receipt) forward the same,
together with reasonably sufficient written documentation that details any increases in the
taxable or assessable amount directly attributable to Licensee's Equipment. Licensee
understands and acknowledges that this Master License and any Site 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 under this Master License and any options, extensions or renewals in connection
with this Master License or any Site 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.
11. LICENSEE'S OBLIGATIONS TO MAINTAIN COMPLIANCE WITH LAWS
11.1. Compliance with CPUC General Orders
In addition to all other Laws, Licensee shall conduct all activities on the License Area in
accordance with all applicable CPUC general orders, which includes without limitation CPUC
General Order 95 and CPUC General Order 128 as those orders may be amended or superseded
in the future, and the rules, regulations and other requirements adopted or enacted by the CPUC
under such general orders.
11.2. Compliance with Building and Electric Codes
In addition to Licensee's compliance with all other Laws and to the extent not in contravention
. of any applicable Law, Licensee shall conduct all activities on the License Area in accordance with
the applicable requirements in the California Building Code, the California Electric Code, and any
applicable local building and electrical code, as those codes exist now or may be amended in the
future. To the extent that CPUC General Order 95 does not address small cell wireless
installations on Vertical Infrastructure or Utility Infrastructure, Licensee shall comply with City
requirements.
11.3. Compliance with RF Exposure Regulations
In addition to Licensee's compliance with all other Laws, Licensee shall maintain compliance with
all Laws related to human exposure to RF emissions by the FCC which are based on the
recommendations of various federal health and safety agencies including OSHA.
12. PUBLIC WORKS' OPERATIONS
12.1. City's Access to License Area
Except as specifically provided otherwise in this Master License, the City and its Agents have the
absolute right to access any License Area in whole or in part at any time without notice for any
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purpose; however, the City and its Agents shall not touch or interfere in any way with any
Equipment. 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, without limitation,
any Equipment removed in an emergency or other exigent circumstances pursuant to Section
12.4 (Emergencies), except to the extent that the damage is caused by the City's or its Agent's
negligence or willful misconduct.
12.2. City's Maintenance, Repairs or Alterations to Vertical Infrastructure
The City will: (1) maintain and repair Vertical Infrastructure (including the Utility Infrastructure
serving the Vertical Infrastructure, as the case may be) as needed, in the City's sole judgment, for
its street light operations and other municipal functions; and (2) correct any immediately
hazardous condition. Except as provided in Section 19 (Termination), neither any City work on
any Vertical Infrastructure nor any condition on any Vertical Infrastructure will: (a) entitle
Licensee to any damages, unless such damages are caused by the City's active negligence or
willful misconduct; (b) excuse or reduce any obligation by licensee to pay any license Fees or
Additional Fees or perform any covenant under this Master license or any Site License; or (c)
constitute or be construed as a constructive termination of this Master license or any Site
License.
12.3. City's Maintenance, Repairs or Alterations to Other City Property
The City may, at any time, alter, add to, repair, remove from and/or improve the license Area in
whole or in part for any municipal function, which includes without limitation maintenance and
improvements in connection with street light services and compliance with all applicable Laws;
provided, however, that the City: (1) makes a good-faith effort to provide prior notice to
Licensee's On-Call Representative; (2) allows Licensee's On-Call Representative to observe the
City's work; and (3) the City takes reasonable steps not to disrupt Licensee's ordinary operations
on the License Area, taking into account any exigencies that may threaten persons or property.
The provisions in this Section 12.3 will not be construed to allow licensee's ordinary operations
to impede or delay the City's authority and ability to make changes to the License Areas necessary
to maintain street light services, traffic control services, any municipal utility services (to the
extent permissible under applicable Laws) or any other municipal functions carried out for the
public's health, safety, welfare or benefit.
12.4. Emergencies
In emergencies, and unless expressly provided in applicable Laws, the City's work and operations
will take precedence over Licensee's operations, which includes without limitation any
Equipment operated on the License Area, and the City may access the License Area in whole or
in part as the City deems necessary in its sole and absolute determination and in accordance with
this Section 12.4, with or without notice to licensee. When safe and practicable, as determined
by the City, the City will notify licensee of any emergency or other exigent circumstances that
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requires the City to remove or replace any Vertical Infrastructure or the Utility Infrastructure
serving the Vertical Infrastructure, as the case may be, or other City Property and will allow
Licensee to remove its Equipment before the City removes or replaces such Vertical
Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as the case
may be) or other City Property; provided, however, that the City will remove the Equipment from
the License Area when in the City's sole determination it would: (1) be unsafe or not practicable
to wait for Licensee to perform (or cause to be performed) the work; (2) result in significant delay;
or (3) otherwise threaten or compromise public health, safety, welfare or public services. The
City will remove any Equipment with reasonable care and store such Equipment for retrieval by
Licensee. Licensee shall have the right to reinstall such removed Equipment (or equivalent
replacement Equipment) at Licensee's sole expense on the repaired or replaced Vertical
Infrastructure including the Utility Infrastructure serving the Vertical Infrastructure, as the case
may be, and/or License Area and in accordance with Section 7 (Equipment Installation). Licensee
expressly acknowledges that any act(s) taken by the City pursuant to this Section 12.4, which
includes without limitation any Equipment removal or storage, will not be deemed to be a
forcible or unlawful entry onto the License Area or any interference with Licensee's contractual
privilege to use the License Area.
13. INDEMNIFICATION
13.1. Licensee's Indemnification Obligations
Licensee, for itself and its successors and assigns shall indemnify, defend and hold the City and
its Agents, elected and appointed officials and volunteers (collectively, the "Indemnified City
Parties") harmless from and against any and all Claims incurred in connection with or arising in
whole or in part from the installation, use, maintenance, repair or removal of the Equipment or
Licensee's breach of any provision of this Agreement. Licensee's indemnity obligation provided
for in this Section shall not apply to any Claim resulting from the negligence or willful misconduct ·
ofthe City or other Indemnified City Parties. Licensee's obligations under this Section 13 includes,
without limitation, all reasonable fees, costs and expenses for attorneys, consultants and experts,
and the City's actual costs to investigate any Claim. Licensee expressly acknowledges and agrees
that (a) it has an immediate and independent obligation to defend any Indemnified City Parties
from any Claim that falls within this Section 13, even when the allegations in the Claim are or
appear to be groundless, fraudulent or false; and (b) Licensee's obligations under this Section 13
arise at the time any Indemnified City Parties tender such Claim to Licensee and continue until
such Claim's final resolution. Licensee's obligations under this Section 13 shall survive this Master
License's and any applicable Site License's expiration or termination.
13.2. Licensee's Defense of City
In the event that any Claim is brought against any Indemnified City Parties in connection with any
subject matter for which any Indemnified City Parties are indemnified by Licensee under this
Master License or any Site License, City shall give Licensee prompt written notice and Licensee
shall, at Licensee's sole cost and expense, resist and defend against such Claim with legal counsel
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that Licensee shall have the right to select provided that the legal counsel must have (1) not less
than 10 years' direct experience in similar actions or proceedings as that brought against the
Indemnified City Parties; (2) no past disciplinary actions by any United States tribunal or state bar
association; and (3) no actual or potential conflicts of interest with any Indemnified City Parties.
Otherwise any other legal counsel which Licensee desires to select shall be subject to the City's
prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
Licensee shall not, without the City's written consent, enter into any compromise or settlement
agreement on any Indemnified City Parties' behalf that (a) admits any liability, culpability or fault
whatsoever on any Indemnified City Party's part; or (b) requires any Indemnified City Party to
take any action, which includes without limitation any change in the City's policies, or pay any
money.' Nothing in this Master License shall be construed to limit or preclude any Indemnified
City Parties or their respective legal counsel from cooperating with Licensee and participating in
any judicial, administrative or other litigation or proceeding.
14. INSURANCE
Prior to any activities by Licensee on the License Area or other City Property, Licensee shall
comply with all insurance requirements and other obligations contained in Exhibit B. The City
shall have the right to amend or replace the insurance requirements and other obligations
contained in Exhibit Bone time during any consecutive sixty (60) month period during the Term
of this Master License on 60 days' prior written notice to Licensee.
15. LIMITATIONS ON LIABILITY
15.1. Genera.I Limitation on City's Liability
Licensee expressly acknowledges that the City is not responsible or liable to Licensee for any and
all Claims that arise in connection with (1) acts or omissions by persons or entities using the
sidewalk, street or other areas adjoining, adjacent to or connected with any License Area; (2) any
utility service interruption; (3) theft; (4) burst, stopped or leaking water, gas, sewer, steam or
other pressurized pipes; (5) fires, floods, earthquakes or other force majeure; or (6) any vehicular
collision on or about the License Area or other City Property; all except to the extent such events
are caused directly and exclusively by the City's gross negligence or willful misconduct. Licensee
expressly waives and releases all Claims it may have against the City or its Agents that arise in
connection with the events described in this Section 15.1 as may be related to this Master
License, any Site License or any acts or omissions on or about the License Area.
15.2. Consequential, Indirect or Punitive Damages
Neither party will be liable under this Master License for consequential, indirect, or punitive
damages (including lost revenues, loss of equipment, interruption, loss of service, or loss of data)
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. Licensee expressly acknowledges and agrees
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that the License Fees and Additional Fees payable under this Master License do not take into
account any potential liability on the City's part or any Indemnified City Parties' part for
consequential or incidental damages. The City would not be willing to enter into this Master
License or issue any Site Licenses unless Licensee completely waived any Claims against the City
or any Indemnified City Parties, to the fullest extent permitted by applicable Laws, for
consequential or incidental damages due to the acts or omissions by the City or its Agents, and .
Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting any
indemnification obligation placed on Licensee or other waivers contained in this Master License,
and as material consideration for this Master License and all Site Licenses (if any), Licensee fully
releases, waives and discharges forever any and all Claims against the City for consequential and
incidental damages that may arise from or in connection with this Master License or any Site
License, which includes without limitation any lost profits related to any disruption to Equipment,
any interference with uses or operations conducted by Licensee under this Master License and/or
any Site Licenses, from any cause whatsoever, and whether or not due to the active or passive
negligence or willful misconduct by the City or any Indemnified City Parties, and covenants not
to sue for such damages the City, the City's departments and all City agencies, officers, directors
and employees, and all persons acting by, through or under them. In no event will Licensee be
liable to the City for any special, consequential or indirect damages.
15.3. No Relocation Assistance
Neither this Master License nor any Site License creates any right in Licensee to receive any
relocation assistance or payment for any reason under the California Relocation Assistance Law
(California Government Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real
Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.), as either may be amended or
superseded, or any similar laws upon or after any termination. To the extent that any such Laws
may apply, Licensee waives, releases and relinquishes forever any and all Claims that it may have
against the City for any compensation from the City except as provided in Section 23
(Condemnation).
15.4. Mutual Personal Liability Waiver
In no event will any City board, agency, member, officer, employee or other Agent be personally
liable to licensee, it successors or assigns, for any default, breach, other nonperformance or sum
unpaid sum by the City. In no event will any licensee board, agency, member, officer, employee
or other Agent be personally liable to the City for any for any default, breach, other
nonperformance or sum unpaid sum by licensee.
16. HAZARDOUS MATERIALS
16.1. Hazardous Materials in the License Area
Licensee covenants and agrees that neither licensee nor its Agents or Invitees will cause or
permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed of
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or Released in, on, under or about the License Area or any other City Property, in whole or part,
or transported to or from any City Property in violation of any Environmental Laws, except that
Licensee may use small quantities of Hazardous Materials as needed for routine operation,
cleaning and maintenance of Licensee's Equipment that are customarily used for routine
operation, cleaning and maintenance of such equipment and so long as all such Hazardous
Materials are contained, handled and used in compliance with all Environmental Laws.
16.2. Hazardous Material Release Notice
Licensee shall promptly notify the City if and when Licensee learns or has reason to believe any
Hazardous Material Release has occurred in, on, under or about the License Area or other City
Property caused by Licensee, its Agents or its Invitees, however, no default may be declared by
the City pursuant to this Section 16.2 unless Licensee has actively concealed the Hazardous
Material Release after Licensee learns or has reason to believe that the Hazardous Material
Release has occurred. Licensee will not be deemed to have assumed liability for any such Release
by giving such notice, unless such Release was caused by or arose in connection with Licensee's
or its Agent's or lnvitee's acts, omissions or negligence.
16.3. Licensee's Hazardous Material Indemnification Obligations
If Licensee breaches any obligations contained in this Section 16 (Hazardous Material), or if any
act, omission or negligence by Licensee or its Agents or Invitees results in any contamination on
or about the License Area or other City Property, or in a Hazardous Material Release from, on,
about, in or beneath the License Areas or any other City Property, in whole or in part, or any
Environmental Law violation, then Licensee, for itself and its successors and assigns, shall
indemnify, defend and hold the City and any Indemnified City Parties harmless, from and against
any and all Claims (including damages for decrease in value of the License Area or other City
Property, the loss or restriction of the use of usable space in the License Area or other City
Property and sums paid in settlement of Claims, attorneys' fees, consultants' fees, and experts'
fees and related costs) that arises during or after the Term related to or in connection with such
Release or violation; provided, however, Licensee shall not be liable for any Claims to the extent
such Release or violation was caused directly and exclusively by the City's negligence or willful
misconduct. Licensee's indemnification obligation includes all costs incurred in connection with
any activities required to Investigate and Remediate any Hazardous Material brought or Released
onto the License Area or other City Property by Licensee or its Agents or Invitees and to restore
the License Area or other City Property to its condition prior to such introduction or Release, or
to correct any Environmental Law violation. Licensee specifically acknowledges and agrees that
it has an immediate and independent obligation to defend the City and the other Indemnified
City Parties from any Claim that actually or potentially falls within this indemnity provision even
if the allegations supporting the Claim are or may be groundless, fraudulent or false, and that
said obligation arises at the time such Claim is tendered to Licensee by the Indemnified City Party
and continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any
of its Agents or Invitees causes any Hazardous Material Release on, about, in or beneath the
License Area or other City Property, then in any such event Licensee shall, promptly, at no
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expense to any Indemnified City Party, take any and all necessary actions to return the License
Area and/or other City Property, as applicable, to substantially the same condition existing prior
to such Hazardous Materials Release on the License Area or other City Property or otherwise
abate the Release in accordance with all Environmental Laws, except to the extent such Release
was caused directly by the City's negligence or willful misconduct. Licensee shall afford the City
a full opportunity to participate in any discussions with Regulatory Agencies regarding any
settlement agreement, cleanup or abatement agreement, consent decree or other compromise
or proceeding that involves Hazardous Material Release on or about the License Area.
Notwithstanding the foregoing or any other provision in this Agreement, Licensee shall not be
liable or responsible for environmental or industrial hygiene conditions that existed before the
execution of this Agreement, or that otherwise did not result from the activities of Licensee.
17. INTERFERENCE
17.1. Licensee's Obligations Not to Cause Interference
Licensee will not install, maintain or operate any Equipment in a manner that interferes with or
impairs other communication (radio, telephone, data and/or other transmission or reception) or
computer equipment lawfully used by any persons or entities, which includes the City and its
Agents and Invitees, consistent with applicable FCC rules in place at such time. Such interference
will entitle the City to declare a default under this Master License and any applicable Site License
by Licensee. Upon notice from the City by calling Licensee's Network Operations Center at {800)
264-6620 Licensee shall promptly work to eliminate such interference at no cost to the City.
Licensee will be required to use its best efforts to remedy and cure such interference without any
impairment to any City operations. If Licensee does not promptly cure such default, the parties
acknowledge that continued interference may cause irreparable injury to the City and, therefore,
the City will have the right to bring an action against Licensee to, at the City's election,
immediately enjoin such interference. If the City does enjoin such interference, the City shall
provide Licensee a reasonably equivalent alternate location and/or Licensee may terminate the
affected Site License upon thirty {30) days' notice to the City.
17.2. Interference Caused by City
City reserves the right, but not the obligation, to maintain and operate its facilities in such
reasonable manner as will best enable City to fulfill its own service requirements or obligations.
However, City agrees that City and/or any other tenants, licensees, or users of the Rights-of-Way
who currently have or in the future take possession of space within the Rights-of-Way will be
permitted to install only such equipment that is of the type and frequency that will not cause
interference to the then existing Equipment of Licensee, consistent with the applicable FCC rules
in place at such time, and will not interfere with Licensee's use. If any change in any use on or
about the License Area by the City during the Term results in measurable, material and adverse
impairment to Licensee's normal and lawful operations, which makes. it necessary for Licensee
to alter the Equipment to mitigate the adverse effect, Licensee shall notify the City and provide
evidence to substantiate the claimed impairment. After the City receives such notice, the City will
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have the right to make its own reasonable determination and, if it agrees with Licensee, the City
will investigate whether it can reasonably and economically mitigate that interference. The City
will provide notice to Licensee of the City's determination. If the City determines, in its sole and
absolute discretion, that mitigation is reasonably and economically feasible, the City's notice will
specify when the City will mitigate the adverse effect. The City's mitigation will effect a cure, and
the City will not be liable to Licensee in any other way or be required to take any other measures
with respect to the Equipment. If the City determines, in its sole and absolute discretion, that
mitigation is not reasonably or economically feasible, Licensee may elect either to: (1) terminate
the affected Site License and receive a ratable refund in the License Fee for those Site Licenses
terminated after the first License Year; or (2) take steps itself at its own cost to mitigate the
adverse effect and continue to operate the Equipment on the License Area, and receive from the
City a written waiver from the obligation to pay the License Fee for the first twelve (12) months
in the next License Year under the affected Site License to offset the mitigation costs. Licensee
agrees that the City's temporary and partial License Fee abatement or waiver under this Section
17.2 will be the only compensation due to Licensee for costs incurred or otherwise arising from
the adverse effect as liquidated damages fully compensating Licensee for all Claims that may
arise from or be related to the adverse effects. Under no circumstances will the City be required
to alter its operations at the identified License Area or provide a replacement License Area to
Licensee
The Parties acknowledge that there will not be an adequate remedy at law for noncompliance
with the provisions of this Section and therefore the Parties shall have the right to equitable
remedies such as, without limitation, injunctive relief and specific performance.
17.3. Interference Caused by City Access
Licensee acknowledges and agrees that it will not be entitled to any License Fee abatement if the
City exercises its rights to access, remove and/or store Equipment under Section 12 (Public
Works' Operations) unless the City's acts or omissions cause Licensee to be unable to operate
Equipment on the License Area for its permitted use for a period of more than 5 days, in which
case, subject to proof, License Fees will be abated ratably for the entire period that Licensee is
unable to operate any Equipment on any affected License Area calculated from the first day of
such City acts or omissions
18. DEFAULT
18.1. Defaults and Cure Periods
The parties agree that any failure to perform or observe any term, condition, obligation or other
provision in this Master License or any Site License, beyond the applicable cure period, shall be a
default. For any monetary default, the defaulting party shall have 30 days after written notice
from the non-defaulting party to perfect a cure. The defaulting party shall not be entitled to any
additional time to cure a monetary default. For any non-monetary default, the defaulting party
shall have 30 days after written notice from the non-defaulting party to perfect a cure; provided,
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however, that for any non-monetary default that cannot reasonably be cured within 30 days, the
. defaulting party shall have additional time as is reasonably necessary to perfect the cure if the
defaulting party commences to cure the default within the first 30 days after notice and diligently
pursues the cure to completion.
18.2. Licensee's Remedies
Except as may be otherwise provided elsewhere in this Master License, Licensee's sole remedies
for the City's uncured default will be (1) to terminate the Site License(s) affected by the uncured
default on 30 days' prior written notice; and (2) an action for damages subject to the provisions
in Section 15 (Limitations on Liability).
18.3 Licensee's Uncured Default and City's Remedies.
If Licensee does not cure its default within the applicable cure period in Section 18.1, then
thereafter City may elect any of the following remedies:
(a) suspend Licensee's access to the Vertical Infrastructure or Utility
Infrastructure to which the default pertains;
(b) terminate the specific Site License Agreement(s) or affected portion
thereof covering the Vertical lnfrastructure(s) or Utility Infrastructure to which the default
pertains;
(c) require Licensee's obligation to which the default has been declared to be
specifically performed; and/or
(d) continue in effect any applicable Site Licenses to which the default
pertains, with the right of the City to enforce all its rights and remedies, which includes without
limitation the right to receive all License Fees, Additional Fees, Default Fees and other sums as
they may become due and to maintain an action at law against Licensee for damages directly
incurred by the City arising directly from Licensee's uncured default.
18.4 City's Uncured Default and Licensee's Remedies.
If the City does not cure its default, then thereafter, Licensee may elect to pursue any rights or
remedies available to Licensee at law or in equity.
18.5 Default Fees
In addition to all other rights and remedies available to the City, the City may require Licensee to
pay an additional fee to offset the City's administrative cost to enforce compliance with the non-
monetary terms of this Master License or any Site License as more particularly described on
Schedule 1 (each a "Default Fee"). Licensee shall pay the Default Fee within 15 days after
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Licensee's receipt of a written demand from the City. If Licensee fails to timely pay the Default
Fee or cure the underlying default within the applicable cure period, the City shall have the right
(but not the obligation) to send Licensee a follow-up notice and demand for an additional Default
Fee that will be due and payable within 30 days. Licensee's obligation to pay Default Fees is
separate and distinct from the underlying default. Default Fee payments shall not be deemed to
cure the underlying default.
18.6. Cumulative Remedies
Except as otherwise provided in this Master License, all rights and remedies available to the City
or Licensee are cumulative, and not a substitute for, any rights or remedies otherwise available
to the City or Licensee.
19. TERMINATION
19.1. Master License Termination by Licensee
Licensee may, in Licensee's sole discretion, terminate this Master License on one (1) year's prior
written notice to the City.
19.2. Site License Termination by Licensee
A Site License may be terminated by Licensee for any reason or no reason, and without further
liability to Licensee, at any time effective upon 90 days prior written notice to the City.
19.3. City's Termination Rights Due To Material Interference With City Municipal
Functions/Threat To Public Health/Safety/Welfare
The City has the right to terminate any or all Site Licenses on 90 days' prior written notice to
Licensee if the City determines, in the City's sole reasonable judgment, that Licensee's operations
on or about the License Area adversely affect or threaten public health and safety, materially
interfere with the City's municipal functions or require the City to maintain Vertical Infrastructure
or Utilities Infrastructure for an applicable Site License that the City no longer needs for its own
purposes. In the event that the City terminates any Site 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. In addition, the City shall prioritize Licensee's Site
License Application for any Site License to replace the terminated Site License; provided,
however, that (1) the City shall prioritize only as many Site License Applications as Site Licenses
terminated by the City and (2) the City's prioritization will not affect Licensee's obligations under
this Master License.
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20. ASSIGNMENT AND OTHER TRANSFERS
20.1. General Restriction on Assignment and Other Transfers
Except as specifically provided in Section 20.3 (Permitted Assignments), Licensee shall not
directly or indirectly assign or transfer its interests or rights, whether in whole or in part, in
connection with this Master License, any Site License or the License Area without the City's prior
written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.
20.2. General Assignment and Other Transfer Procedures
20.2.1. Proposed Assignment Notice
In the event that Licensee desires to assign or otherwise transfer any right, title or interest in this
Master License or any Site License, whether in whole or in part, and such assignment or other
transfer is not a Permitted Assignment, Licensee shall first send written notice to the City (the
"Proposed Assignment Notice"), which states in detail the proposed terms and conditions for
the proposed assignment or other transfer and complete information that the City reasonably
requires to fully evaluate Licensee's request and render an informed decision, which includes
without limitation, non-confidential financial statements, business track records, references and
other information about the proposed assignee or transferee (the "Proposed Assignee"). In the
event that Licensee does not provide all the such information simultaneously with the Proposed
Assignment Notice, the Proposed Assignment Notice shall not be deemed effective until Licensee
delivers all such information as the City may reasonably require.
20.2.2. City's Response to Proposed Assignment Notice
The City shall approve or disapprove any request for consent to an assignment or other transfer
within 30 days after the City receives a complete Proposed Assignment Notice (the "Assignment
Response Period"). 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 or other transfer, then Licensee shall have 100 days from such
written consent to complete the assignment or other transfer. The City's consent will be deemed
to be automatically revoked if Licensee fails to complete the proposed assignment or other
transfer within said 100-day period; provided, however, that the 100-day period may be
extended to a date certain in a written agreement, which the City shall not unreasonably refuse
if the extension is necessitated by circumstances outside Licensee's control.
20.3. Permitted Assignments
20.3.1. General Authorization
The City agrees that Licensee will be permitted to assign or otherwise transfer this Master License
and any Site License(s) issued under it without the City's prior consent but with notice to the City
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as provided below, to: (1) an Affiliate; (2) an entity that acquires all or substantially all Licensee's
assets in the market in which the License Area is located (as the "market area" is or may be
defined by the FCC); (3) an entity that acquires a Controlling interest of Licensee by a change in
stock ownership or partnership interest; (4) an entity Controlled by Licensee; or (5) an entity that
is a successor to Licensee either by merger or other consolidation of Licensee (each such
assignment or transfer, a "Permitted Assignment").
20.3.2. Conditions on Permitted Assignments
All Permitted Assignments will be subject to all the following conditions: (1) the Proposed
Assignee may use the License Area only for the Permitted Use and holds all Regulatory Approvals
necessary to lawfully install, operate and maintain Equipment on the License Area; (2) Licensee
or its assignee provides the City notice of the Permitted Assignment no later than thirty (30) days
follow the date of the assignment and assumption of the Master License or the applicable Site
Licenses, as the case may be; and (3) Licensee is not in default of its obligations under this Master
License beyond any applicable notice and cure period.
20.4. Effect of Assignment or Other Transfer
No assignment or other transfer by Licensee, consent to assignment by the City, or Permitted
Assignment under Section 20.3 (Permitted Assignments) will relieve Licensee from any obligation
on its part under this Master License or any Site License unless the Proposed Assignee agrees in
writing to assume all of Licensee's obligations under the Master License and Site Licenses. Any
assignment or other transfer that is not in compliance with this Master License will be void and
be a material default by Licensee without a requirement for notice and a right to cure. The City's
acceptance of any License Fee, Additional Fee, or other payments from a Proposed Assignee will
not be deemed to be the City's consent to such assignment or other transfer, recognition of any
assignee or transferee or waiver of any failure of Licensee or other transferor to comply with this
Section 20 (Assignments and Other Transfers).
20.5. Assumption by Assignee or Transferee
Each Proposed Assignee shall assume all Licensee's obligations under this Master License and
each assigned Site License. Except for a Permitted Assignment, no assignment or other transfer
will be binding on the City unless Licensee or the Proposed Assignee delivers to the City evidence
satisfactory to the City that the Proposed Assignee has obtained all Regulatory Approvals
required to operate as a wireless communications service provider on the assigned License Area,
a copy of the assignment or other transfer agreement and an instrument in recordable form that
contains a covenant of assumption by such Proposed Assignee satisfactory in substance and form
to the City, consistent with the requirements in this Section 20 (Assignment and Other Transfers).
However, the failure or refusal by a Proposed Assignee to execute such instrument will not
release such Proposed Assignee from its liability as set forth in this Section. Except for a
Permitted Assignment as provided in Section 20.3 (Permitted Assignments), Licensee shall
reimburse the City on demand for any reasonable costs that the City incurs in connection with
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any proposed assignment, which includes the costs to investigate the acceptability of the
Proposed Assignee and legal costs incurred in connection with considering any requested
consent. The City agrees that its right to reimbursement under this Section will be limited to Two
Thousand Dollars and 00/100 Dollars ($2,000.00) for each request.
21. LICENSEE'S CUSTOMERS AND COLLOCATORS
Licensee may provide capacity to Licensee's customers using, or permit such customers to use,
the Equipment installed by Licensee without the City's consent required in this Section; provided,
however, that: (1) Licensee remains solely responsible for such Equipment and (2) such use by
Licensee or Licensee's customers does not involve any physical changes to the Equipment other
than changes permitted under Section 6.5 (Future Modifications to Equipment Shown on the
Approved Plans). In any other case, Licensee may provide capacity to Licensee's customers using,
or permit such customers to use, the Equipment installed by Licensee upon prior written notice
to the City that: (a) identifies the customer who will be using the Equipment and the location(s)
where such use will occur; and (b) includes the appropriate annual fee for the additional carrier
as specified in Section 4, prorated to account for any partial year.Thereafter, Licensee shall pay
the additional carrier 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 wireline Equipment for data transport, backhaul or similar services.
22. DAMAGE OR DESTRUCTION OF LICENSE AREA
22.1. City's Rights after Damage or Destruction
22.1.1. City's Election to Repair or Replace Vertical Infrastructure
Within 30 days after the date on which the City discovers damage or destruction on or about any
Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as
the case may be), the City will give Licensee notice of the City's decision as to whether to repair
or replace the damaged Vertical Infrastructure (including the Utility Infrastructure serving the
Vertical Infrastructure, as the case may be) and its good faith estimate as to the time the City will
need to complete the work. To clarify, Licensee is not responsible for any damage or destruction
not caused by Licensee or outside of Licensee's control. If the City's time estimate exceeds 30
days, or if the City cannot complete the work within 30 days after the date that the City specifies
in its notice, or if the City elects not to do the work, then Licensee will have the right to terminate
the affected Site License(s) immediately upon written notice to the City.
22.1.2. City's Election to Remove Vertical Infrastructure
If the City elects to remove, rather than repair or replace, any damaged Vertical Infrastructure
(including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be)
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licensed to Licensee, then the applicable Site License will automatically terminate on the last day
of the month in which the removal occurs.
22.1.3. City's Election to Remove Equipment
If the acts by third parties or other force majeure circumstance outside the Licensee's or its
Agent's or lnvitee's control destroys or damages any Vertical Infrastructure (including the Utility
Infrastructure serving the Vertical Infrastructure, as the case may be), License Area or other City
Property to such an extent that, in the City's reasonable determination, the Equipment on the
Vertical Infrastructure (including the Utility Infrastructure serving the Vertical Infrastructure, as
the case may be), License Area or other City Property cannot be operated, the City or Licensee
may decide to terminate the affected Site License on 30 days' notice to the other party. Upon
such termination, Licensee shall remove the Equipment from the damaged Vertical Infrastructure
(including the Utility Infrastructure serving the Vertical Infrastructure, as the ~ase may be) within
90 days of such notice.
22.2. Licensee's Rights after Termination
After any termination of a Site License pursuant to Section 22.1 (City's Rights After Damage or
Destruction), the City will: (1) refund any pre-paid License Fee in connection with the terminated
Site License on a pro-rata basis determined by the number of months left in the current License
Year at the time such termination occurs, unless the termination occurs in the first 12 months
after the Commencement Date; and (2) prioritize Licensee's Site License Application for one
replacement Site License for each such license terminated by the City.
22.3. Licensee's Statutory Waiver
The parties understand, acknowledge and agree that this Master License fully governs their rights
and obligations in the event that any licensed Vertical Infrastructure (including the Utility
Infrastructure serving the Vertical Infrastructure, as the case may be) becomes damaged or
destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases
the provisions in California Civil Code §§1932(2) and 1933(4), as either may be amended or
superseded, or any similar Laws.
23. CONDEMNATION
23.1. Permanent Takings
In the event that any person or entity with the power to condemn permanently takes any License
Area, in whole or in part, or in the event that the City transfers any License Area in whole or in
part to such entity in lieu of eminent domain, the City must make a good-faith effort to provide
60 days prior written notice to Licensee of any proposed taking and the following provisions will
apply:
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23.1.1. Termination Rights after Condemnation
Any affected Site License will automatically terminate as to the part taken or transferred on the
date the permanent taking or transfer occurs. At the same time, the License Fee under the
affected Site License will be ratably reduced to account for the reduction in License Area.
Notwithstanding the forgoing, Licensee shall have the right to terminate any Site License upon
30-days written notice to the City if Licensee determines in its sole discretion that any such
condemnation (or other transfer in lieu of condemnation) will interfere with Licensee's
operations.
23.1.2. Award
The City will be entitled to any award paid or made in connection with the taking or any sums
paid in lieu of such taking. Licensee will have no Claim against the City for the value of any
unexpired Term under either this Master License, any Site 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.
23.1.3. No Statutory Right to Terminate
The parties understand, acknowledge and agree that this Section 23.1 (Permanent Takings) is
intended to fully govern the parties' rights and obligations with respect to a permanent taking
for which just compensation is due. Licensee and the City each hereby waives and releases any
right to terminate this Master License in whole or in part under California Code of Civil Procedure
§§ 1265.120 and 1265.130, as both may be amended or superseded, and under any similar Laws
to the extent applicable to this Master License and any Site License(s).
23.2. Temporary Takings
The City must provide at least 60 days prior written notice to Licensee of any City-initiated taking
that affects any License Area, in whole or in part, for less than 90 days and such temporary taking
will have no effect on the affected Site License, except that Licensee will be entitled to terminate
any Site License or a pro-rata abatement in the applicable License Fee to the extent that such
temporary taking materially impairs Licensee's ability to use the License Area for more than 10
days or interferes with Licensee's operations.
24. RECORDS
24.1. City Audit Rights of Licensee's Accounting Records
Licensee shall maintain in accordance with Licensee's standard record retention policies, the
following records at one of Licensee's physical office within the State of California: (i) accounting
records that contains the amount and payment date for all License Fees paid to the City pursuant
to this Master License and any Site Licenses. To determine whether Licensee has fully and
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accurately paid all License Fees and other sums payable to the City under this Master License and
any Site License, the City, or its designee, will have the right one time in any consecutive five (5)
year period during the Term of the Master License and so long as litigation is not pending
between the City and Licensee arising from or related to this Master Agreement, to inspect and
audit Licensee's accounting records at one of Licensee's offices in the State of California during
regular business hours on thirty {30) business days' advance written notice to Licensee. Such
written notice from the City must identify with specificity the period for which the City wishes to
conduct its audit. Licensee shall have the right to have employee and its Agents physically present
at all times that the City, its employees or Agents are conducting any such audit and
representatives of the City shall comply with Licensee's standard accounting policies and
procedures pertaining the City's auditing of Licensee's accounting records which are considered
by Licensee to be proprietary and confidential. In the event that any City audit concludes that
Licensee failed to pay License Fees and other sums by more than ten percent {10%) of the
aggregate amount of License Fees and other sums due under this Master License for the period
identified by the City in is written notice to Licensee then, Licensee shall, within 15 business days
after Licensee's receipt of a written invoice from the City, pay (i) all outstanding sums and (ii)
reimburse the City for the City's reasonable, actual and documented costs and expenses to
conduct the audit. Notwithstanding the foregoing, if the audit reveals that Licensee failed to pay
License Fees and other sums by less than ten percent {10%) of the aggregate amount of License
Fees and other sums due under this Master License for the period for which the City notified
Licensee, then Licensee shall remit any underpayment within 15 days after Licensee's receipt of
a written demand from the City, and the City shall reimburse Licensee within 15 business days of
the City's receipt of Licensee's invoice for Licensee's reasonable, actual and documented costs
and expenses to supervise and otherwise participate in the City's conduct of the audit. If the
City's audit reveals that Licensee has overpaid its License Fees and other sums due to the City
under the Master License, then the City shall reimburse Licensee for any such overpayment
within 15 days of the City's receipt of Licensee's invoice together with Licensee's supervisory and
participation costs identified in the preceding sentence.
24.2. Equipment Inspections and Audits
The City has the right (but not the obligation) to inspect the License Area and the Equipment to
evaluate Licensee's compliance with this Master License, any Site License and all applicable Laws;
however, the City shall not touch or interfere in any way with any Equipment, except as otherwise
allowabie herein. In the event that any such inspection or evaluation concludes that Licensee
installed Equipment without proper authorization or that ten percent {10%) or more sites were
not installed in substantial compliance with the Approved Plans or all applicable Laws, the City
shall send written notice of such to Licensee along with documentation of substantial non-
compliance {"Non-Compliance"). After receipt of the Non-Compliance, Licensee shall have 30
business days to review and request additional documentation that may be reasonably required
to confirm the validity of the City's Non-Compliance claim. If the Non-Compliance is undisputed,
Licensee shall reimburse the City for the reasonable, actual and documented costs and expenses
to conduct the investigation or evaluation of Non-Compliance, which shall not exceed $5,000 and
shall only be reimbursed once every 5 years.
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24.3. Estoppels
Licensee, at any time throughout the Term and on not less than 30 business days' following
Licensee's receipt of written notice from the City, shall execute, acknowledge and deliver to the
City or its designee, an estoppel certificate for the requested Site License with the following
statements: (i) that Licensee has accepted the License Area (or, if Licensee has not done so, that
Licensee has not accepted the License Area in whole or in part and specifying the applicable
License Areas and reasons for non-acceptance); (ii) the Effective Date and Expiration Date of this
Master License; (iii) that the Master License is in full force and effect and whether or not the
Master License and the Site License has been modified and, if so, the manner in which they were
modified; (iv) whether any defenses currently exist against any action to enforce Licensee's
obligations under this Master License (and, if so, specifying the same); (v) whether Licensee
believes that the City failed to perform any obligations under this Master License or the Site
License (and, if so, specifying any obligations that Licensee believes that the City has failed to
meet); (vi) the dates, if any, on which the License Fees and Additional Fees have been paid; and
(vii) any other information that may be reasonably required by the City pertaining to the status
of the requested Site Licenses.
25. RULES AND REGULATIONS
At all times throughout the Term, Licensee shall fully and faithfully comply with any and all non-
discriminatory and reasonable rules, regulations and instructions that the City may from time-to-
time establish and/or amend with respect to the License Area as long as they are provided in
advance to Licensee and not inconsistent with the terms of this Master License, any Site License
or applicable Law.
26. SURRENDER OF LICENSE AREA
26.1. Licensee's Removal and Restoration Obligations
No later than sixty (60) days after this Master License or any Site License expires or terminates,
as the case may be, Licensee shall (1) peaceably remove its Equipment from the License Areas
affected by the expiration or termination; (2) restore any such License Areas and other City
Property affected by the removal to the condition that existed immediately before Licensee
installed its Equipment, reasonable wear and tear and loss by casualty or other causes beyond
Licensee's control excepted; and (3) surrender such License Areas to the City free and clear from
any debris, hazards, liens and encumbrances caused by Licensee. Subject to the approval of the
City Manager, the City may grant an additional thirty (30) days for Licensee to fulfill its obligations
as set forth in this Section 26.1. The obligations under this Section 26.1 will survive this Master
License's or any Site License's expiration or termination.
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August 20, 2019 Item #7 Page 52 of 72
26.2. Abandonment
At its option, the City may deem any Equipment to be abandoned that remains on any Vertical
Infrastructure, Utility Infrastructure, License Area or other City Property for more than 60 days
after this Master License or any applicable Site License expires or terminates. In any case, the City
may dispose of abandoned Equipment in any lawful manner, at Licensee's sole cost. Licensee
agrees that California Civil Code sections 1980 et seq., as may be amended or superseded, and
similar Laws addressing abandoned property by residential or commercial tenants do not apply
to any abandoned Equipment.
26.3. Hold Over
If Licensee fails to surrender the License Area under a particular Site License as required in this
Master License, and the City consents to Licensee's holdover, the Term will be automatically
extended for such Site License on a month-to-month basis for up to one (1) year on the same
terms and conditions except that the License Fee shall automatically increase by one hundred
twenty-five percent (125%) over the then-current License Fee. Any further month to month
holdover after one (1) year will be subject to a License Fee increase of 150% over the License Fee
in effect at the start of the holdover. Any holdover without the City's consent will be a default by
Licensee and will entitle the City to exercise any or all rights and remedies.
27. Surety Bond
27.1. Surety Bond Amount
Prior to any installation, construction or other work performed by Licensee pursuant to this
Master License or any Site License, Licensee shall furnish the City with a surety bond in the
amount equal to Two Thousand and 00/100 Dollars ($2,000.00) per site (the "Surety Bond") as
security to provide recourse for the City (at its option) in the event that Licensee defaults on its
obligations to remove its Equipment from any License Area for a terminated or expired Site
License or to perform its restoration obligations as set forth in Section 26.1 under this Master
License. Upon the attachment of Licensee's Equipment at each subsequent site, thereafter, City
may request Licensee increase the amount of the bond by Two Thousand and 00/100 Dollars
($2,000.00) for each subsequent installation. Alternatively, Licensee, may, in its sole discretion,
increase the amount of the performance bond by the number of likely additional installations
multiplied by $2,000.00. Such bond shall be with a company and in a form reasonably satisfactory
to the City Manager and City Attorney.
27.2. Bond Amount Replenishment
In the event that the City applies or uses the Surety Bond, in whole or in part, to cure any default
by Licensee under Section 26.1, then Licensee shall replenish the Surety Bond to $2,000 within
thirty (30) business days following Licensee's receipt of written notice from the City that the City
has applied or used the Surety Bond and the City requires the replenishment of the Surety Bond
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August 20, 2019 Item #7 Page 53 of 72
in accordance with this Section 27.2. The City's replenishment notice shall include a complete ·
copy of Section 27.1 and Section 27.2 of this Master License to be considered an effective
replenishment notice to Licensee. The City may, in the City's reasonable judgment, require
Licensee to increase the Surety Bond amount from time-to-time if the City determines that
Licensee has been habitually placed in default of Site Licenses by the City in connection with
Licensee's performance of its removal and restoration obligations under Section 26.1 of this
Master License and therefore the City warrants additional security to ensure Licensee's
performance of its Section 26.1 obligations.
27.3. Bond Application
Licensee agrees that the City may use the Surety Bond, in whole or in part, to remedy any failure
by Licensee to perform any term, covenant or condition in Section 26.1 of this Master License. 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§ 1950.7, as may be
amended or superse_ded, or any similar Laws 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.
28. Miscellaneous Provisions
28.1. Notices
Except as may be specifically provided otherwise in this Master License, all notices, demarids or
other correspondence required to be given in connection with or pursuant to this Master License
must be written and delivered through (i) an established national courier service that maintains
delivery records and confirmations; (ii) hand delivery; or (iii) certified or registered U.S. Mail with
prepaid postage and return receipt requested, and addressed as follows:
TO CITY:
With a required copy to:
City of Carlsbad
Attention: Real Estate Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone: (760) 434-2836
City of Carlsbad
Attention: City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone: (760) 434-2891
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August 20, 2019 Item #7 Page 54 of 72
TO LICENSEE:
With a required copy to:
Verizon Wireless (VAW),
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Telephone:
Verizon Wireless (VAW) LLC,
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Legal Department
Telephone:
All notices, demands or other correspondence in connection with this Master License shall be
deemed effective upon delivery or refusal of delivery. Telephone, facsimile and email information
are provided for convenience and for couriers who may require such information, and any notice
given solely through electronic means will not be deemed to be effective notice. Any copies
required to be given constitute an administrative step for the parties' convenience and not actual
notice. The parties may change the notice addresses above from time-to-time through written
notice to the addresses above or the then-current notice address.
28.2. Waivers
No failure by either the City or Licensee to insist that the other strictly perform any obligation,
term, covenant or condition under this Master License or to exercise any rights, powers or
remedies in connection with the other party's failure to strictly perform such obligation, term,
covenant or condition no matter how long the failure to insist on such performance or exercise
such rights, powers or remedies, will be deemed to waive any default for non-performance. No
behaviors, patterns or customs that may arise between the parties with respect to their
performance required under this-Master License will be deemed to waive any rights, powers or
remedies the parties' may have to insist on strict performance. Neither Licensee's payment nor
the City's or its Agents' acceptance of any License Fees, Additional Fees or any other sums due to
the City or its Agents under this Master License during any such default will be deemed to cure
any such default, waive the City's right to demand material compliance with such obligation,
term, covenant or condition or be deemed to be an accord and satisfaction for any Claim the City
may have for further or additional sums. Any express waiver by either the City or Licensee in
connection with any default or obligation to perform any provision, term, covenant or condition
under this Master License will: (i) be limited to the specific default or performance for which the
express waiver is granted; (ii) not be deemed to be a continuing waiver; and (iii) not affect any
other default or performance no matter how similar or contemporaneous such other default or
performance may be. The City's or Licensee's consent given in any specific instance in connection
50
August 20, 2019 Item #7 Page 55 of 72
with or pursuant to this Master License will not relieve the City or Licensee from the obligation
to secure the other's consent in any other or future specific instances, no matter how similar or
contemporaneous the request for consent may be.
28.3. Integration; Amendments
This Master License constitutes the entire agreement and understanding between the parties,
and supersedes any and all prior agreements and understandings, whether written or oral, with
respect to the subject matter covered in this Master License. This Master License and any Site
Licenses (and any default in connection with this Master License or any Site Licenses) may not be
orally changed, waived, discharged, altered, modified, amended or terminated. This Master
License and any Site Licenses (and any default in connection with this Master License or any Site
Licenses) may not be changed, waived, discharged, altered, modified, amended or terminated,
except by a written instrument signed by both parties.
28.4. Interpretation
The parties acknowledge and agree that the following interpretive rules will be applicable to this
Master License and any Site 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
their correlated forms (e.g., the definition for "indemnify" applies to "indemnity,"
"indemnification," etc.).
28.4.2. Joint and Several Liability
In the event that the City consents to enter into this Master License with more than one Licensee,
which consent the City may withhold or condition in the City's sole and absolute discretion, the
obligations and liabilities imposed on Licensee under this Master License will be joint and several
among the multiple Licensees to this Master License.
28.4.3. Captions and Other Reference Material
The section captions in this Master License and the table of contents have been included for the
parties' convenience and reference and neither the captions nor the table of contents in no way
define or limit the scope or intent of any provision in this Master License.
28.4.4. Time
References in this Master License to "days" mean calendar days, unless specifically provided
otherwise. A "business day" means a day other than a Saturday, Sunday or a bank or City holiday.
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August 20, 2019 Item #7 Page 56 of 72
If the last day in any period to give notice, reply to a notice or to undertake any other action
occurs on a day that is not a business day, then the last day for giving notice, replying to the
notice or undertaking any other action will be the next business day. Except as modified in this
Section, time is of the essence with respect to all provisions in this Master License for which a
definite time for performance is specified.
28.4.5. Inclusive Words and/or Phrases
Inclusive terms and/or phrases, which includes without limitation the terms and/or phrases
"including," "such as" or similar words or phrases that follow any general or specific term, phrase,
statement or matter may not be construed to limit the term, phrase, statement or matter to the
stated terms, statements or matters, or the listed items that follow the inclusive term or phrase,
whether any non-limitation language or disclaimers, such as "including, but not limited to"
and/or "including without limitation" are used or not. Rather, the stated term, phrase, statement
or matter will be interpreted to refer to all other items or matters that could reasonably fall
within such term, phrase, statement or matter given its broadest interpretation.
28.5. Successors and Assigns
Except as may be expressly provided in this Master License, the conditions, covenants, promises
and terms contained in this Master License will bind and inure to the benefit of the City and
Licensee and their respective successors and assigns.
28.6. Brokers
The parties represent to each other that neither has had any contact, dealings or communications
with any Broker in connection with this Master License, whose commission, if any, would be paid
pursuant to a separate written agreement between such Broker and such party with which such
Broker contracted. In the event that any Broker perfects any claim or finder's fee based upon any
such contact, dealings or communications, the party to such written contract with such Broker
shall indemnify the other party from all Claims brought by such Broker. This Section 28.6 will
survive this Master License's expiration or earlier termination.
28.7. Governing Law; Venue
This Master License must be construed and enforced in accordance with the laws of the
State of California and the Carlsbad Municipal Code, 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 the California Superior Court for the County of San Diego or the United States District
Court, Southern District of California if federal law applies.
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August 20, 2019 Item #7 Page 57 of 72
28.8. Litigation Fees and Costs
In the event the City or Licensee prevails in an action to enforce its rights under this Master
License or individual Site License, the prevailing party shall be entitled to recover its costs and
expenses, including reasonable attorneys' fees, incurred in connection with such action.
28.9. Recording
Licensee acknowledges and agrees that: (1) this Master License and any Site License affects the
City's personal property and therefore cannot be recorded in any official records; (2) Licensee
shall not have the right to record this Master License, any Site License, any memorandum or any
short-form agreement in relation to this Master License or-any Site License; and (3) Licensee shall,
at Licensee's sole cost and expense, remove any document or other instrument recorded against
the City's title to any City Property promptly upon the City's request or demand. In the event that
this Master License or any Site License affects or is deemed to affect any real property owned by
the City, Licensee may not record any document or instrument in connection with this Master
License or any Site License without the City's prior written consent, which the City may withhold
in the City's sole and absolute discretion.
28.10. No Third-Party Beneficiaries
Neither this Master License nor any Site License is intended to (and shall not be construed to)
give any third party, which includes without limitation Licensee's customers or any other third-
party beneficiaries, any right, title or interest in this Master License, any Site License or the real
or personal property(ies) that may be affected by the same.
28.11. Survival
All terms, provisions, covenants, conditions and obligations in this Master License and any Site
License will survive this Master License's or the subject Site License's expiration or termination
when, by their sense or context, such provisions, covenants, conditions or obligations: (1) cannot
be observed or performed until this Master License's or any Site License's expiration or earlier
termination; (2) expressly so survive; or (3) reasonably should survive this Master License's or
any Site License's expiration or earlier termination. Notwithstanding any other provision in this
Master License or any Site License, the parties rights to enforce any and all indemnities,
representations and warranties given or made to the other party under this Master License, any
Site License or any provision in this Master License or any Site License will not be affected by this
Master License or any Site License expiration or termination.
28.12. Severability
If any provision in this Master License, any Site License or such provision's application to any
person, entity or circumstances is or held by any court with competent jurisdiction to be invalid
or unenforceable: (1) such provision or its application to such person, entity or circumstance will
53
August 20, 2019 Item #7 Page 58 of 72
be deemed severed from this Master License or any Site License; (2) all other provisions in this
Master License, any Site License or their application to any person, entity or circumstance will
not be affected; and (3) all other provisions in this Master License, any Site License or their
application to any person, entity or circumstance will be valid and enforceable to the fullest
extent permitted by Law, except to the extent that such enforcement would (a) be manifestly
unreasonable or manifestly inequitable under all the circumstances or (b) undermine one or both
parties' fundamental purpose in entering this Master License.
28.13 Jointly Drafted
This Master License has been jointly negotiated and, although formulated at the outset by
counsel for the City, the Master License has been reviewed by counsel for Licensee, and each
such counsel has participated in the preparation of the final Master License. The language of this
Master License shall be construed as a whole according to its fair meaning and not strictly for or
against any party, and it is agreed that no provision hereof shall be construed against any party
hereto by virtue of the activities of that party or such party's attorneys.
[END OF MASTER LICENSE -SIGNATURE PAGE APPEARS ON NEXT PAGE]
54
August 20, 2019 Item #7 Page 59 of 72
IN WITNESS WHEREOF, the City and Licensee executed this Master License on the
Effective Date:
THE CITY:
City of Carlsbad,
a California municipal corporation
Date:
::PROVED M~
Date:
Celia A. Brewer
City Attorney
APPROVED BY CITY COUNCIL
RESOLUTION NO.o.20/q, li/3
ATTEST:
By: -r
Date: %' ~ dd -l 9
LICENSEE:
Verizon Wireless (VAW), LLC
d/b/a Verizon Wireless
By:
Its: #£/
By:-~-✓ --
Name: 5}4:J LA-vvffe
Title: bt2i~-~YL)ltJG~R-1.Jh
Date: <;/ 1 2/ I(!
[END OF SIGNATURE PAGE -EXHIBITS & SCHEDULES BEGIN ON NEXT PAGE]
55
August 20, 2019 Item #7 Page 60 of 72
EXHIBIT A
FORM OF SITE LICENSE AGREEMENT
(appears behind this coversheet -4 pages)
August 20, 2019 Item #7 Page 61 of 72
SITE 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 Verizon Wireless (VAW), LLC, d/b/a Verizon Wireless ("Licensee"),
Licensee submits to the City two partially executed counterparts of this Site License, together
with all the materials listed below, as its Site License Application in accordance with Section 6
under the Master License:
1. Exhibit A-1, which contains a summarized list that identifies all Vertical Infrastructure and
Utility Infrastructure covered under this Site License Application;
2. Exhibit A-2, which contains detailed construction plans for the proposed installation(s)
and an inventory for all proposed Equipment to be installed on the Vertical Infrastructure
(including the Utility Infrastructure serving the Vertical Infrastructure, as the case may be)
covered under the Site License Application;
3. a License Fee equal to [$ 270.00 * per Site License multiplied (x) by the number of Site
Licenses];
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 from time-to-time
in accordance with applicable Laws; and
Licensee acknowledges that: (1) this Site License will not be effective until the City returns a fully
executed copy to Licensee; and (2) 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 B to the Master License; and (c) the City has provided notice to proceed by
returning to Licensee a countersigned copy of the Acknowledgment Letter.
This Site 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 locations and plans and
specifications proposed in this Site License Application.
[END OF SITE LICENSE -SIGNATURES APPEAR ON NEXT PAGE]
August 20, 2019 Item #7 Page 62 of 72
THE CITY:
City of Carlsbad,
a California municipal corporation
By: ___________ _
Name: ------------
Its: ____________ _
Date: -------------
LICENSEE:
Verizon Wireless (VAW) LLC,
d/b/a Verizon Wireless
By:
Its:
By: ____________ _
Name: ___________ _
Its: --------------
Date: -------------
August 20, 2019 Item #7 Page 63 of 72
EXHIBITA-1
VERTICAL INFRASTRUCTURE & UTILITY INFRASTRUCTURE LOCATIONS
/ LICENSE AREA
Site License No.
[Licensee to list all proposed Vertical Infrastructure (including the Utility Infrastructure serving
the Vertical Infrastructure, as the case may be) requested in this Site License Application]
August 20, 2019 Item #7 Page 64 of 72
EXHIBIT A-2
LICENSEE'S PLANS AND SPECIFICATIONS
Site License No.
[Licensee to attach all plans and specifications, including a traffic control plan for each site, for
all Equipment proposed to be installed at all proposed Vertical Infrastructure (including the Utility
Infrastructure serving the Vertical Infrastructure, as the case may be)]
August 20, 2019 Item #7 Page 65 of 72
EXHIBIT A-3
FORM OF ACKNOWLEDGMENT LETTER
[Licensee to complete and submit after Regulatory Approvals obtained]
[insert date]
[insert addressee information]
RE: Site 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 Site License, and (2) the Site License Effective Date is
20_, which is the first day of the month after the City has signed this
Acknowledgment Letter. The Initial Term of ten (10) years, expires on ____ _, 20_,
unless earlier terminated in accordance with the Master License. The Initial Term will
automatically renew for four (4) consecutive 5-year periods (each a Site License Renewal Term)
(unless Licensee provides written notice to the City at least sixty (60) days prior to the expiration
of the Initial Term or the first Site License Renewal Term, of Licensee's intent not to renew the
Site License term.
This letter also confirms that Licensee has submitted all required insurance information to the
City and the Surety Bond required under Section 27.1 of the Master License. A check for the full
License Fee for the first License Year of this Site License shall be provided to the City prior to the
Site License Effective Date.
Please acknowledge the City's receipt of this letter and the items listed below, and issue the City's
approval for Licensee to begin installation of Equipment on the License Area by signing and
returning a copy of this letter.
Sincerely,
By:
Its:
By: __________ _
Name: --------
1 ts: ------------
Enc.
August 20, 2019 Item #7 Page 66 of 72
[ ] copies of all permits issued by the City's departments
[ ] Licensee's Insurance certificates
[ ] Contractor's insurance certificates
[ ] First License Year's License Fee
[ ] Surety Bond As Required By Section 27.1 of Master License
SITE LICENSE NO. APPROVED:
By:
Date:
Scott Chadwick
City Manager
August 20, 2019 Item #7 Page 67 of 72
EXHIBIT B
LICENSEE'S INSURANCE OBLIGATIONS
1. General.
A. Prior to performing work under this Agreement, Licensee shall furnish City a
certificate of insurance on a standard insurance industry ACORD form. The insurance coverage
required must be issued by an insurance company licensed, authorized or permitted to transact
business in the State of California, possessing a current A.M. Best, Inc. rating of A-VII or better,
and evidenced coverage shall be reasonably satisfactory to City.
B. Licensee shall, and shall require any of its contractors while working hereunder to
obtain and maintain substantially the same coverage as required of Licensee with reasonable and
prudent limits, procure and maintain, until all of their obligations have been discharged the
insurances set forth below.
C. The insurance requirements set forth in no way limit the indemnity covenants
contained in this Agreement.
D. City in no way warrants that the insurance limits contained in this Agreement are
sufficient to protect Licensee from liabilities that might arise out of the performance of this
Agreement by Licensee and its contractors, and Licensee is free to purchase any additional
insurance as may be determined necessary.
E. Failure to demand evidence offull compliance with the insurance requirements in
this Agreement or failure to identify any insurance deficiency will not relieve Licensee from, nor
will it. be considered a waiver of, its obligation to maintain the required insurance at all times
during the performance of this Agreement.
2. Scope and Limits of Insurance. Licensee shall provide coverage with limits of liability
stated below.
A. Commercial General Liability-Occurrence Form. Licensee must maintain
Commercial General Liability insurance with a limit of $2,000,000 per occurrence for bodily injury
and property damage and $4,000,000 general aggregate including premises-operations, products
and completed operations, independent contractor, contractual liability, personal injury and
advertising injury.
August 20, 2019 Item #7 Page 68 of 72
B. Commercial Automobile Liability. Licensee must maintain Commercial
Automobile Liability insurance in the amount of $1,000,000 combined single limit each accident
for bodily injury and property damage covering all of Licensee owned, hired, and/or non-owned
vehicles assigned to or used in the performance of Licensee's work or activities under this
Agreement.
C. Workers Compensation and Employers Liability Insurance. Licensee must
maintain Workers Compensation insurance in compliance with the statutory requirements of the
state of operation and Employer's Liability with a limit of $1,000,000 for each accident;
$1,000,000 disease for each employee; $1,000,000 disease-policy limit.
D. Builders' Risk/Installation Floater Insurance. Builders' Risk/Installation Floater
Insurance or self-insurance must be maintained until whichever of the following first occurs: (i)
final payment has been made; or, (ii) until no person or entity, other than City, has an insurable
interest in the property required to be covered.
(a) The Builders' Risk/Installation Floater insurance must be endorsed
so that the insurance will not be canceled or lapse because of any partial use or occupancy by
City.
(b) The Builders Risk/Installation Floater insurance must include as
named insureds, City, Licensee, and all tiers of contractors and others with an insurable interest
in the Work
(c) The Licensee is responsible for payment of all deductibles under
the Builders' Risk/Installation Floater insurance policy.
3. Additional Policy Provisions Required.
A. Miscellaneous Provisions.
(1) Licensee's required commercial general and auto liability insurance
coverage must be primary insurance with respect to City, its officers, officials, and employees.
Any insurance or self-insurance maintained by City, its officers, officials, and employees shall be
in excess of the coverage provided by Licensee and must not contribute to it.
(2) Licensee's insurance must apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(3) The policies must contain a severability of interest clause and waiver of
subrogation against City, its officers, officials, and employees, for losses arising from work
performed by Licensee for City.
(4) Licensee is required to maintain Commercial General Liability insurance as
specified in this Agreement for a minimum period of one (1) year following completion and
acceptance of the work. Licensee must submit a Certificate of Insurance evidencing Commercial
August 20, 2019 Item #7 Page 69 of 72
General Liability insurance during this period evidencing the insurance requirement and,
including the required Additional Insureds set forth herein.
(5) If a Certificate of Insurance is submitted as verification of coverage, City
will reasonably rely upon the Certificate of Insurance as evidence of coverage but this acceptance
and reliance will not waive or alter in any way the insurance requirements or obligations of this
Agreement.
(6) Upon receipt of notice from its insurer, Licensee shall use its best effort to
provide the City with thirty (30) days prior written notice of cancellation of any required coverage
that is not replace. Such notice shall be sent directly to
City of Carlsbad
Attention: Finance Manager
Ed Garbo
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2471
Email: ed .garbo@carlsbadca.gov
B. City as Additional Insured. The above-referenced policies shall, excluding workers
compensation and employer's liability include the City, its officers, officials, and employees as an
additional insured as their interest may appear under this Agreement with respect to liability
arising out of activities performed by Licensee. Licensor's additional insured status shall (i) be
limited to bodily injury, property damage or personal and advertising injury caused, in whole or
in part, by Licensee, its employees, agents or independent contractors; (ii) not extend to claims
for punitive or exemplary damages arising out of the acts or omissions of Licensor, its employees,
agents or independent contractors or where such coverage is prohibited by law or to claims
arising out of the gross negligence of Licensor, its employees, agents or independent contractors;
and, (iii) not exceed Licensee's indemnification obligation under this Agreement, if any.
4. Option to Self Insure
Notwithstanding the forgoing, and provided Licensee maintains an equity balance of at least One
Hundred Fifty Million Dollars ($150,000,000) ("Minimum Equity Balance"), Licensee may, in its
sole discretion, self insure any of the required insurance under the same terms as required by
this Agreement. In the event Licensee elects to self-insure its obligation under this Agreement to
include Licensor as an additional insured, the following conditions apply: (i) Licensor shall
promptly and no later than thirty (30) days after notice thereof provide Licensee with written
notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this
Section and provide Licensee with copies of any demands, notices, summonses, or legal papers
received in connection with such claim, demand, lawsuit, or the like; (ii) Licensor shall not settle
any such claim, demand, lawsuit, or the like without the prior written consent of Licensee; and
(iii) Licensor shall fully cooperate with Licensee in the defense of the claim, demand, lawsuit, or
August 20, 2019 Item #7 Page 70 of 72
the like. Within thirty (30) days of receipt of City's written request for same, which request must
be accompanied by this Section 4, Option to Self-Insure, and not be made by the City to Licensee
more than one {1) time in any consecutive twelve {12) month period during the Term of this
Master License, Licensee shall cause an authorized representative of Licensee or Licensee's
ultimate parent company, _____ to certify to the City that as ofthe most recent unaudited
financial statement of Licensee, Licensee maintains the Minimum Equity Balance required
hereunder for the right to self-insure any of the required insurance hereunder.
The right to self-insure hereunder is limited to Licensee and any Affiliate of Licensee which is
under the ultimate control of-----~ provided that any such Affiliate of Licensee must
maintain the Minimum Equity Balance. Otherwise the right to self-insure required coverages
under this Master License is prohibited unless the City in its sole discretion otherwise approves
of the party seeking to self-insure required coverages.
August 20, 2019 Item #7 Page 71 of 72
SCHEDULE 1
VIOLATION INITIAL NOTICE EACH FOLLOW-UP NOTICE*
unauthorized installations $750 $500
failure to make required $500 $500
repairs within the prescribed
time period under the Master
Licensee following Licensee's
receipt of written notice from
the City of the need to make
required repairs
access violations $500 $500
insurance violations $500 $500
*By mutual agreement, the City shall not issue a follow-up Default Fee Notice to Licensee more
than one (1) time in any consecutive thirty (30) day period, or until the expiration of the
applicable cure period under the Master License to which the alleged violation applies, whichever
date is later to occur
August 20, 2019 Item #7 Page 72 of 72