HomeMy WebLinkAbout2019-11-19; City Council; Resolution 2019-232RESOLUTION NO. 2019-232
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
AUTHORIZING A MASTER LICENSE AGREEMENT WITH COMMON
NETWORKS, INC TO ALLOW THE USE OF CITY-OWNED PROPERTIES TO
INSTALL AND OPERATE AFFORDABLE HIGH-SPEED WIRELESS INTERNET
SERVICE FACILITIES, AND AUTHORIZING THE CITY MANAGER TO ACT ON
BEHALF OF THE CITY IN ALL FUTURE DECISIONS AND ACTIONS NECESSARY
TO IMPLEMENT THE MASTER LICENSE AGREEMENT
WHEREAS, Common Networks, Inc. (Common) operates as a provider of wireless high-speed
internet services; and
WHEREAS, Common desires to enter into a Master License Agreement (MLA) with the City of
Carlsbad for use of city owned facilities over the next five years; and
WHEREAS, the MLA is for a term of one-year with individual site license agreements up to five-
years, and Common may request extensions on the same terms and conditions of the MLA; and
WHEREAS, pursuant to the MLA, Common will be required to enter into individual Site License
Agreements (Site License) for use of each individual city facility throughout the city; and
WHEREAS, the fee for each Site License is between $7,800 and $12,600 per year based on
viewshed of the surrounding neighborhood; and
WHEREAS, as additional compensation, Common will provide a complimentary internet
subscription at desired city locations for the duration of the agreement to provide connectivity for
Smart City applications; and
WHEREAS, in order to fully implement the MLA and Site 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
Nov. 19, 2019 Item #3 Page 5 of 59
to authorize the city manager, or his designee, to act on behalf of the city in all future decisions and
actions necessary to implement the MLA.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
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 Common Networks, Inc. for use of city facilities 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 19th day of November 2019, by the following vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
ATTEST:
Nov. 19, 2019 Item #3 Page 6 of 59
MASTER LICENSE FOR
WIRELESS FACILITIES LOCATED ON CITY REAL
PROPERTY
between
THE CITY OF CARLSBAD, A CALIFORNIA MUNICIPAL CORPORATION
620\3271095.4
and
COMMON NETWORKS, INC., A DELWARE CORPORATION
EFFECTIVE DATE: [12/19/19]
Nov. 19, 2019 Item #3 Page 7 of 59
TABLE OF CONTENTS
BACKGROUND ................................................................................................................ 1
AGREEMENT ................................................................................................................... 1
1. DEFINITIONS ............................................................................................................ 1
2. LICENSE AREA ........................................................................................................ 4
2.1. Master License and Site Licenses. . .................................................................. 5
2.2 Grant and Scope ................................................................................................. 5
2.3. License Area Condition ....................................................................................... 5
2.4. Certified Access Specialist Disclosure ................................................................ 6
2.5. No Right to Record .............................................................................................. 6
3. USE ........................................................................................................................... 6
3.1. Permitted Use; Equipment .................................................................................. 6
3.2. Prohibited Uses ................................................................................................... 6
3.3. Access ................................................................................................................. 7
3.3.1. Licensee Access ........................................................................................... 7
3.3.2. Entry and Inspection ..................................................................................... 8
3.4. Utilities; Electricity ............................................................................................... 8
3.5. Tests and Surveys .............................................................................................. 9
3.6. Modifications; Alterations .................................................................................... 9
3.7. Equipment Removal; Replacements; Routine Maintenance ............................... 9
3.8. Construction and Installation Activities ................................................................ 9
3.8.1. Structural Review .......................................................................................... 9
3.8.2. Performance Standards .............................................................................. 10
3.8.3. Licensee's Contractors ............................................................................... 10
3.8.4. Labor and Material Costs ........................................................................... 10
3.8.5. Coordination; Supervision .......................................................................... 10
3.8.6. Intentionally Omitted ................................................................................... 10
3.8. 7. Intentionally Omitted ................................................................................... 11
3.9. Mineral and Water Rights .................................................................................. 11
3.9.1. General ....................................................................................................... 11
3.9.2. Mineral Rights ............................................................................................. 11
3.9.3. Notice .......................................................................................................... 12
4. TERM ...................................................................................................................... 12
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4.1. Master License .................................................................................................. 12
4.2. SiteLicense ....................................................................................................... 12
4.3. Holdover Term ................................................................................................... 12
5. LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT ...................................... 13
5.1. Base License Fee ............................................................................................. 13
5.2. Annual Adjustments .......................................................................................... 13
5.3. Renewal Term Adjustments .............................................................................. 13
5.4. Late Charges ..................................................................................................... 14
5.5. Interest .............................................................................................................. 14
5.6. Administrative Fees ........................................................................................... 14
5.7. Intentionally Omitted ......................................................................................... 15
5.8. Payment Procedures ......................................................................................... 15
6. GOVERNMENTAL APPROVALS ........................................................................... 15
6.1. Proprietary Capacity Acknowledgment ............................................................. 15
6.2. Permits and Other Governmental Approvals .................................................... 16
7. MAINTENANCE ...................................................................................................... 16
7 .1. Licensee's Maintenance Obligations ................................................................. 16
7.2. City's Maintenance Obligations ......................................................................... 17
8. INTERFERENCE .................................................................................................... 17
8.1. Licensee's Interference Obligations .................................................................. 17
8.2. City's Interference Obligations .......................................................................... 17
8.3. City's Governmental Communications .............................................................. 18
9. TAXES ..................................................................................................................... 18
9.1. Title to Licensee's Equipment and Improvements ............................................ 18
9.2. Possessory Interest Taxes ................................................................................ 18
9.3. Licensee's Tax and Assessment Obligations .................................................... 19
9.4. Licensee's Right to Contest Taxes or Assessments ......................................... 19
10. LIENS ................................................................................................................... 19
11. INDEMNIFICATION .............................................................................................. 19
11.1. Licensee's General Indemnification Obligations ............................................ 19
11.2. Licensee's Indemnification for Personnel lnjuries .......................................... 20
11.3. Licensee's Defense of the City ...................................................................... 20
12. ENVIRONMENTAL PROVISIONS ....................................................................... 21
12.1. Licensee's General Environmental Obligations ............................................. 21
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12 .2. Hazardous Substances .................................................................................. 21
12.3. Licensee's Response to Hazardous Substance Release .............................. 21
12.4. SelfHelp ........................................................................................................ 21
12.5. Licensee's Environmental Indemnification Obligations .................................. 22
12.6. Licensee's Liability for Hazardous Substance Release ................................. 22
13. INSURANCE ........................................................................................................ 23
13.1. Licensee's Insurance Obligations .................................................................. 23
13.1.1. Required Endorsements .......................................................................... 23
13.1.2. Claims-Made Policies .............................................................................. 23
13.1.3. General Aggregate Limit ......................................................................... 24
13.1.4. Insurer Qualifications ............................................................................... 24
13.1.5. Certificates; Effective Dates .................................................................... 24
13.1.6. Self-Insurance ......................................................................................... 24
13.2. Contractors' Bonds lnsurance ........................................................................ 24
13.3. No Limitation on Indemnification Obligations ................................................. 25
13.4. Intentionally Omitted ...................................................................................... 25
14. ASSIGNMENT; SUBLICENSE ............................................................................. 25
14.1. Assignment .................................................................................................... 25
14.2. Intentionally Omitted ...................................................................................... 25
14.3. Continuing Obligation ..................................................................................... 25
15. DEFAULT; REMEDIES ........................................................................................ 26
15.1. Defaults and Cure Periods ............................................................................. 26
15.2. Sums Paid During Default.. ............................................................................ 26
15.3. No Consequential Damages .......................................................................... 26
15.4. No Personal Liability for City Officials, Employees or Agents ........................ 26
15.5. Cumulative Remedies .................................................................................... 27
16. TERMINATION ..................................................................................................... 27
16.1. Grounds for Termination ................................................................................ 27
16.2. Early Termination Fee .................................................................................... 27
17. REMOVAL AND RESTORATION ........................................................................ 27
18. CONDEMNATION ................................................................................................ 27
18.1. Permanent Takings ........................................................................................ 27
18.1.1. Termination and Award ........................................................................... 28
18.1.2. No Statutory Right to Terminate .............................................................. 28
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18.2. Temporary Takings ........................................................................................ 28
19. DESTRUCTION .................................................................................................... 28
20. NOTICES .............................................................................................................. 29
21. BANKRUPTCY ..................................................................................................... 29
22. SECURITY DEPOSIT ........................................................................................... 30
22.1. Amount. .......................................................................................................... 30
22.2. Application or Use .......................................................................................... 30
23. MISCELLANEOUS ............................................................................................... 30
23.1. Interpretation; Construction ............................................................................ 31
23.2. Unenforceability; Severability ......................................................................... 31
23.3. Time for Performance; Force Majeure ........................................................... 32
23.4. Integration; Entire Agreement ........................................................................ 32
23.5. Successors and Assigns ................................................................................ 32
23.6. Amendments or Modifications ........................................................................ 32
23.7. Waivers .......................................................................................................... 32
23.8. Governing Law; Venue; Attorneys' Fees ....................................................... 33
23.9. Intentionally omitted ....................................................................................... 33
23.10. Public Records Act Disclosure .................................................................... 33
23.11. Estoppels .................................................................................................... 34
23.12. Brokers ....................................................................................................... 34
23.13. Survival ....................................................................................................... 34
23.14. Submission for Inspection; No Offer ........................................................... 35
23.15. Execution; Counterparts ............................................................................. 35
EXHIBIT A ...................................................................................................................... 37
EXHIBIT B ...................................................................................................................... 38
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MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES LOCATED ON CITY REAL PROPERTY
This Master License Agreement (this "Master License") dated 12/19/19 (the "Effective Date") is between the City of Carlsbad, a California municipal corporation (the "City") and Common Networks, Inc., a Delaware corporation ("Licensee").
BACKGROUND
A.WHEREAS, the City, in its proprietary capacity as a California municipal
corporation, owns or controls certain real properties in the City of Carlsbad, Countyof San Diego, State of California;
B.WHEREAS, Licensee constructs, installs, owns, operates and maintains wireless
data communication facilities as its primary business;
C.WHEREAS, Licensee desires to install, operate, maintain, replace, modify and
remove certain communications equipment, which may consists of, but is not
necessarily limited to, antennas, radios, cabling and mounts (the "Equipment" asdefined in Section 1) on city properties ("Permitted Use") as defined in Section 3.1
(Permitted Use; Equipment) below, and city is willing to make certain properties
available to Licensee for the Permitted Use, all as more particularly described and
depicted in Exhibit A attached hereto and incorporated herein;
D.WHEREAS, the City, in its proprietary capacity as a California municipalcorporation, desires to license to Licensee certain portions of certain Properties for
the Permitted Use on the terms and conditions in this Master License and eachindividual Site License;
NOW, THEREFORE, for good, valuable and sufficient consideration received and
acknowledged, the City and Licensee agree as follows:
1.DEFINITIONS
AGREEMENT
"Affiliate" means any person or entity that directly or indirectly Controls, is Controlled by
or is under Common Control with Licensee and has a net worth equal to or greater than at least ten million dollars ($10,000,000).
"Agent" means any agent, employee, officer, official, contractor, subcontractor and/or
representative of a party to this Master License in relation to the applicable License Area.
"Assignment" means as follows: (a) a merger, acquisition, or other transfer of this Master
Lease together with all Site Licenses, voluntarily or by operation of Law; (b} Licensee's sale, assignment, encumbrance, pledge, or other transfer of any part of its interest in or
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rights with respect to the applicable License Area; and (c) any action by Licensee to permit
any portion of the applicable License Area to be occupied by anyone other than itself,
including a sublicense.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et
seq., as may be amended or superseded.
"Best Management Practices" means all those environmental or operational standards
or guidelines for common and accepted practices appropriate for the business that
Licensee and its Agents or Invitees engage in on the Property and/or such guidelines as
have been articulated by pertinent trade associations, professional associations or
regulatory agencies.
"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 contemplated herein.
"Claim" means any and all liabilities, losses, costs, claims, judgments, settlements,
damages, liens, fines, penalties and expenses, whether direct or indirect.
"Common Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment;
Sublicense), two entities that are both controlled by the same third entity.
"Control" or "Controlled" means, for purposes related to Affiliate(s) in Section 14
(Assignment; Sublicense), as follows: (a) as to a corporation, the ownership of stock
having the right to exercise more than 50% of the total combined voting power of all
classes of stock of the controlled corporation, issued and outstanding; or (b) as to
partnerships and other business associations forms, ownership of more than 50% of the
beneficial interest and voting control of such association.
"Court" means San Diego County Superior Court.
"Environmental Costs" means any and all damages, fines, costs and fees that arise
from: (i) any violation of or material noncompliance with any applicable Environmental
Laws; (ii) any violation of or material noncompliance with any environmental provision in
this Master License; (iii) immediate response, remediation and restoration actions; (iv)
governmental oversight and participation; (v) actual fees and costs for project managers,
attorneys, legal assistants, engineers, consultants, accountants and experts, whether
employed with the damaged party or not; (vi) any diminution in value, loss or restriction
on use of the Property; and (vii) any damages, fines, costs or fees whether taxable as
costs or not, incurred before, at or after any administrative or judicial proceeding, appeal
or any other judicial review.
"Environmental Laws" means any and all Laws which govern materials, substances,
regulated wastes, emissions, pollutants, water, storm water, ground water, wellfield and
wellhead protection, cultural resources protection, animals or plants, noise or products
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620\3271095.4 Nov. 19, 2019 Item #3 Page 13 of 59
and relate to protection for health, safety or the environment and natural resources,
including land, sediments, water, groundwater and stormwater.
"Equipment" means antennas, antenna support structures and any associated utility or
equipment boxes, radios, cabling and mounts, battery backup, transmitters, receivers,
amplifiers, ancillary fiber-optic cables, wiring and ancillary equipment for the transmission
and reception of radio communication signals for voice and other data transmission,
including the means and devices used to install Equipment at the applicable License
Area, peripherals, and ancillary equipment and installations, including wiring, cabling,
power feeds and any approved signage attached to Equipment.
"ETF" is an acronym for "early termination fee" and is defined in Section 16 (Termination).
"Governmental Approvals" means any governmental or regulatory licenses, permits
and other approvals necessary for Licensee to install, operate and maintain Equipment
on the applicable License Area.
"Government Claims Act" means California Government Code§§ 810 et seq., as may
be amended or superseded.
"Hazardous Substance" means any and all substances, materials, pollutants,
contaminants or products defined as or designated as hazardous, toxic, radioactive,
dangerous or regulated wastes or materials or any other similar term in or under any
applicable Environmental Laws. The term "Hazardous Substance" also includes, but is
not limited to, (1) fuels, petroleum or petroleum-based products; or (2) 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 California Health & Safety Code§ 25316, as
both may be amended or superseded.
"Holdover Term" means the month-to-month license on the same terms and conditions
that License automatically converts to in the event that Licensee continues to use or
occupy the License Area after the License expires or terminates, as more particularly
defined in Section 4.3 (Holdover Term).
"Impositions" means any and all taxes, assessments, charges, excises and exactions
whatsoever, and as more particularly defined in Section 9.3 (Licensee's Tax and
Assessment Obligations).
"Indemnified Parties" means the City, and its elected and appointed officers, officials,
employees, agents and representatives as more particularly defined in Section 11.1
(Licensee's General Indemnification Obligations).
"Interference" means the same as defined by 47 C.F.R. § 2.1, as may be amended,
which defines the term as the effect of unwanted energy due to one or a combination of
emissions, radiations, or inductions upon reception in a radio communication system,
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620\3271095.4 Nov. 19, 2019 Item #3 Page 14 of 59
manifested by any performance degradation, misinterpretation or loss of information
which could be extracted in the absence of such unwanted energy.
"Invitee" means any client, customer, invitee, guest, tenant, subtenant, licensee,
sublicensee, site manager or assignee and sublicensee of a party to this Master License
in relation to the applicable License Area.
"Laws" means all present and future statutes, ordinances, codes, orders, regulations and
implementing requirements and restrictions of federal, state, county and municipal
authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as
adopted or as amended at the time in question.
"License Area" means certain space on a Property more particularly described and
depicted in Exhibit B of the applicable Site License.
"Permitted Use" means construct, install, operate, maintain, remove and repair the
Equipment, to transmit and receive wireless communication signals operated in
compliance with all applicable Laws, and is more particularly defined in Section 3.1
(Permitted Use; Equipment).
"Properties" means those certain real properties in the City of Carlsbad, County of San
Diego, State of California, as listed in Exhibit A attached hereto and incorporated herein
each shall be legally described in Exhibit A of the applicable Site License.
"Release" means, with respect to any Hazardous Substance, any actual or imminent
discharging, disposing, dumping, emitting, emptying, escaping, injecting, jettisoning,
leaching, leaking, pouring, pumping, releasing, or spilling on, under or about the License
Area, Access Route, Utilities Route or Property.
"Site License" means the specific license agreement between City and Licensee for the
license of a specific License Area by Licensee in the form set forth in Exhibit B attached
hereto and incorporated herein.
"Staging Area" means certain space on the Property contiguous with the License Area
to the extent reasonably necessary to construct and/or install the Equipment that
Licensee may use on a temporary and non-exclusive basis, and as more particularly
defined in Section 3.8.6 (Staging Area).
"Site License Effective Date" means the date a specific Site License is fully executed by
both City and Licensee.
"Tests" is defined in Section 3.5 (Tests and Surveys).
2. LICENSE AREA
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2.1. Master License and Site Licenses. This Agreement sets forth the basic
terms and conditions upon which each Site License shall be executed by City and
Licensee Upon agreement between City and Licensee with respect to a license of a
specific License Area by City to Licensee, City and Licensee shall execute a completed
Site License. Each Site License shall act as a separate and independent agreement for
each License Area, the express intent of the parties being to use this Master License to
facilitate each of the independent transactions. The Site License shall identify the specifiq
Property together with the specific License Area and such other terms as set forth therein.
The Site License may have special clauses specific to each individual License Area. In
the event of a discrepancy or inconsistency between the terms and conditions of a
particular Site License and this Master License, the terms and conditions of the specific
Site License shall govern and control but only with respect to the subject License Area.
The City is not obligated to execute a Site License for any particular License Area and
the execution of any such Site License shall be in the City's sole discretion.
2.2 Grant and Scope
Subject to the terms and conditions in an applicable Site License, the City licenses to
Licensee the applicable License Area for Licensee's installation of the Equipment,
together with a non-exclusive right of access and utilities, for only the Permitted Use under
the applicable Site License and for no other purpose whatsoever without the City's prior
written consent, which the City may withhold in its sole and absolute discretion for any or
no reason. Licensee acknowledges that no Site License grants Licensee any interest in
the Property in whole or in part. Each Site License and all Licensee's rights and/or
privileges to use the applicable License Area will remain subject and subordinate to all
leases, subleases, licenses, sublicenses, easements, reservations, covenants,
conditions, restrictions and exceptions, whether recorded or unrecorded, that exist prior
to the Site License Effective Date. Each such license granted under a Site License shall
be irrevocable except as specifically set forth in this Master License or a specific Site
License.
2.3. License Area Condition
Except as may be specifically and explicitly provided otherwise in this Master License or
the applicable Site License, the City makes no warranties or representations whatsoever
about the Property's condition, fitness or suitability for Licensee's use. Licensee expressly
warrants and represents to the City that, prior to entering into the Site License, Licensee
or its Agents inspected the Property and the License Area, and any environmental or
other conditions on the Property and the License Area, and accepts the License Area in
its present "AS-IS" and "WITH ALL FAULTS" condition. Licensee expressly
acknowledges and agrees that neither the City nor its Agents made any warranties,
representations or promises to Licensee or its Agents about the Property, in whole or in
part, the License Area, in whole or in part, or any aspect about the Property or License
Area including without limitation any structures or improvements, utilities or Hazardous
Substances.
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2.4. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, and to the extent applicable to each Site
License, unless otherwise expressly set forth in each Site 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.
2.5. No Right to Record
Each Site License does not create or convey any real property right, title or interest in the
License Area, in whole or in part. Licensee may not record this Master License, any Site
License or any memorandum or other instrument in reference to this Master License or
Site License without the City's prior written consent, which the City may withhold or
condition in its sole and absolute discretion.
3. USE
3.1. Permitted Use; Equipment
After the Commencement Date (as defined below) specific to the License Area, Licensee
may use the License Area to construct, install, operate, maintain, remove and repair the
Equipment, to transmit and receive wireless communication signals operated in
compliance with all applicable Laws (the "Permitted Use"), for purposes reasonably
necessary to accomplish the Permitted Use, but for no other purpose whatsoever without
the City's prior written consent, which the City may withhold for any or no reason in the
City's sole discretion.
Licensee shall be responsible, at its sole cost, for the construction, installation, and
maintenance of the Equipment to be placed on each License Area. No property other
than the Equipment, and replacements thereof, shall be installed on the License Area.
Licensee will install and operate the Equipment in compliance with City's reasonable rules
and regulations and any other federal, state, or municipal agency having jurisdiction with
respect to the License Area. Licensee shall maintain the Equipment in good repair and
shall keep the License Area free from all trash, debris and waste resulting from use of the
License Area by Licensee or its Agents.
3.2. Prohibited Uses
Licensee shall not use any License Area in whole or in part in any unlawful manner or for
any illegal purpose. In addition, Licensee shall not use any License Area in whole or in
part in any manner that interferes with the maintenance, operation or future operation of
the City's underlying and primary purpose, or constitutes a nuisance under applicable
Laws. Licensee shall take all precautions to eliminate any nuisances or hazards in
connection with its uses and activities on or about the License Area. Licensee
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acknowledges and agrees that its rights under each 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 signs that
may be required under applicable Laws for site identification and/or public health and
safety reasons.
3.3. Access
3.3.1. Licensee Access
Except as may be specifically provided otherwise in this Master License or the applicable
Site License, Licensee's entry onto a License Area shall be limited to performing activities
reasonably related to the Permitted Use. Without limiting the foregoing, Licensee will
adhere to the following specific requirements:
1) Licensee shall have access to the License Area from the public right-of-way to the
License Area ("Access Route") and shall have the right to install utilities and
cabling from the License Area to the nearest connection facility which may be the
main electrical panel for the Property and/or the minimum point of entry (MPOE)
for the Property ("Utilities Route") as described in Exhibit B to the applicable Site
License.
2) Licensee covenants that it shall enter each License Area in such manner and at
such time as shall not interfere with any other existing use of the Property. City
covenants that it shall reasonably cooperate with Licensee so that the Licensee's
entry may be handled in an efficient manner and so as to avoid any unreasonable
delays with respect to the Permitted Uses. Licensee hereby waives and releases
City for any claim for damages against City in the event that Licensee's entry onto
a License Area or any of the Permitted Uses are delayed for any reason
whatsoever, except and to the extent caused by the gross negligence or willful
misconduct of any representatives of City.
3) Licensee shall be liable for any damage to a License Area or other property owned
by City ("City Property") that occurs as a result of the Permitted Use, except and
to the extent: (1) such damage is required as a condition to Licensee's completion
of the Permitted Use, in which case Licensee shall, to the extent necessary and
feasible, promptly restore City Property to its condition existing prior to the
commencement of such activities; or (2) the damage is caused by the gross
negligence or willful misconduct of City. Any damage to City Property caused by
the Licensee in violation of this Master License or the applicable Site License shall
be immediately repaired to the satisfaction of City at Licensee's sole cost and
expense.
4) Licensee shall not encroach on the public right-of-way adjacent to any License
Area unless Licensee has applied for and received any necessary approvals
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and/or permits or as may be permitted under applicable Law. All equipment and
material storage shall be secured by Licensee on the License Area.
5) Licensee shall at all times keep the License Area free and clear of all liens and
encumbrances affecting title to the License Area in connection with any work
performed by the Licensee under the applicable Site License. Upon notice of any
such lien or claim, Licensee may bond and contest in good faith the validity and
the amount of such lien, but Licensee shall immediately pay any judgment
rendered, shall pay all proper costs and charges, and shall have the lien or claim
released at its sole expense.
6) Licensee shall give City twenty-four (24) hour notice either verbally or via email of
the need for access the License Area subject to such rules as City may adopt,
including, but not limited to, the requirement that an agent of City accompany
persons during such access; provided however, in the event of an emergency or
equipment failure, no prior notice shall be required except that Licensee shall
provide such notice as soon as reasonably practical.
3.3.2. Entry and Inspection
The City and its Agents may, after reasonable advance written notice and at any time
without notice in case of emergency or for any purpose related to protecting the Property,
enter onto and inspect the License Area. During the six (6) months before the expiration
of the Term, the City may exhibit the License Area to prospective licensees at times
approved by Licensee and in the presence of Licensee or its Agent. In an emergency, as
reasonably determined by the City, the City may enter on or pass through the License
Area. If, under such emergency circumstances, Licensee is not present to open the
License Area, the City may enter by any means without liability to Licensee except for
failure to exercise reasonable care under the circumstances. The City's actions under this
Section 3.3.2 will not constitute an actual or constructive eviction or relieve Licensee of
any obligation with respect to making any repair, replacement, or improvement or
complying with any law, order, or requirement of any government or other authority. No
provision of this Section 3.3.2 shall be construed as obligating the City to perform any
maintenance, repairs, alterations or improvements.
3.4. Utilities; Electricity
It is understood and agreed that Licensee requires electricity to each License Area
twenty-four (24) hours per day for the maintenance and operation of the Equipment.
Subject to those conditions set forth herein and if required for operation of the Equipment,
said provision of electricity shall be provided to Licensee twenty-four (24) hours per day,
three hundred sixty-five (365) days per year. City shall provide Licensee with access to
electric service and ingress or egress; it being understood that City reserves the right to
temporarily discontinue electric service, or ingress or egress, at such times as may be
necessary when, by reason of accident, unavailability of employees, repairs, alterations
or improvements, or whenever by reason of strikes, walkouts, riots, acts of God, or any
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other happening beyond the control of City, City is unable to provide the same. City shall
provide Company with prior written notice of any such discontinuance that is within City's
control and not an emergency situation. If the cost of electricity solely attributed to the
Equipment at a specific License Area exceeds five percent (5%) of the License Fee
associated with that specific License Area on an annualized basis, Licensee shall be
responsible for payment of such excess amount which amount shall be included with the
invoice from City to Licensee for the subsequent License Fee payment.
3.5. Tests and Surveys
At any time throughout the Term (as defined below) of each Site License or any early
access period, Licensee will have the right, but not the obligation, to conduct necessary
tests, surveys and other reasonably necessary inspections (collectively "Tests") on the
applicable License Area, Access Route and/or Utilities Route to determine suitability for
the Permitted Use; provided that (1) Licensee has first furnished the City with all up-to-
date insurance documentation required in Section 13 (Insurance) under this Master
License; (2) Licensee has provided the City with at least 24 hours' prior verbal or written
notice; (3) Licensee complies with all the City's reasonable rules and regulations
necessary to avoid undue interference with other authorized activities or operations on
the Property; and (4) Licensee shall promptly return any areas on the Property affected
by any Tests to the condition that existed immediately prior to such Tests, reasonable
wear and tear excepted.
3.6. Modifications; Alterations
Except as expressly provided otherwise in this Master License or applicable Site License,
Licensee may not modify or alter the License Area in any manner other than as shown
on Exhibit B without the City's prior written consent, which the City will not unreasonably
withhold or condition. After Licensee completes any approved modification or alteration,
Licensee shall produce or cause to be produced as-built location and configuration
drawings.
3.7. Equipment Removal; Replacements; Routine Maintenance
At any time, Licensee will have the right to remove any Equipment, repair or replace any
damaged or inoperable Equipment, modify or add to the Equipment and perform routine
maintenance without the City's prior consent.
3.8. Construction and Installation Activities
3.8.1. Structural Review
Licensee may not commence any construction or installation activities on the Property
that involve new structures or increased loading on existing structures without prior written
approval from the City Engineer or the City Engineer's designee as required under its
Governmental Approvals. Licensee shall submit its written request for approval together
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with complete engineering plans, specifications and a structural analysis report, all in a
form reasonably acceptable to the City Engineer. The City Engineer may (but is not
obligated to) review all or part of such materials and may reasonably approve or reject
them for cause.
3.8.2. Performance Standards
Licensee, its Agents, employees, contractors and subcontractors shall perform all work
on the License Area in a good, safe and workmanlike manner, in strict compliance with
applicable Laws. All installed Equipment must be high quality, safe, fire resistant , all as
approved by the City, and which may be replaced, modified or upgraded throughout the
term of this Agreement.... ..
3.8.3. Licensee's Contractors
Licensee shall use only qualified and trained persons and appropriately licensed
contractors for all work performed on or about the License Area. At least 2 business days
before any work commences on or about the License Area that requires the City's prior
approval, Licensee shall provide the City with: (1) a schedule with all activities to be
performed in connection with the work; and (2) a list with all the names, contractor's
license numbers and business addresses for all contractors who will perform the work.
3.8.4. 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 applicable Laws. 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.
3.8.5. Coordination; Supervision
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, the City or the City's
municipal functions and/or operations. The City may, but will not be obligated to,
supervise any installation activities in connection with the applicable Site License that
require the City's prior review and approval. Within thirty (30) days from invoice from City,
Licensee shall reimburse the City for its reasonable cost to supervise such construction
activities.
3.8.6. Staging Area.
For no more than 90 continuous days after Licensee commences work, Licensee may
use, on a temporary and non-exclusive basis, certain space on the Property contiguous
with the License Area to the extent reasonably necessary to construct and/or install the
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Equipment and subject to the City's prior approval not to be unreasonably withheld
("Staging Area"). The City may withhold or revoke its consent to allow Licensee's to use
any Staging Area when Licensee's use unreasonably interferes with other persons or
entities authorized to use the Property.
3.8.7. Intentionally Omitted
3.9. Mineral and Water Rights
3.9.1. General
The City reserves the right to install, lay, construct, maintain, repair and operate such
sanitary sewers, drains, stormwater sewers, pipelines, manholes and connections; water,
oil, and gas pipelines; telephone and telegraph power lines; and the appliances and
appurtenances necessary or convenient in connection therewith, in, over, upon, through,
across and along the License Area, and any part thereof, and to enter the License Area
for any and all such purposes. The City also reserves the right to grant franchises,
easements, rights-of-way and permits in, over, upon, through, across and along any and
all portions of the License Area for all such purposes described in the preceding sentence.
The City shall not exercise any rights reserved under this Section 3.9.1 so as to interfere
(physically or electronically) materially with Licensee's operations or access under the
Site License or to impair the security of any secured creditor of Licensee. The City agrees
that rights granted to third parties by reason of this Section 3.9.1 must contain provisions
that the surface of the License Area will be restored as nearly as practicable to its original
condition upon the completion of any construction.
3.9.2. Mineral Rights
The City reserves to itself, its successors and assigns, and excepts from the License
Area, any and all oil, oil rights, petroleum, minerals, mineral rights, natural gas rights, and
other hydrocarbon substances by any name known whatsoever, geothermal resources
(as defined in California Public Resources Code § 6903), and all products derived from
any of the foregoing, that may be within or under the land, together with the perpetual
right of drilling, mining, exploring, prospecting and operating therefore and storing in and
removing the same from the License Area or any other land, including the right to
whipstock or directionally drill and mine from lands other than those conveyed hereby, oil
or gas wells, tunnels and shafts into, through or across the subsurface of the License
Area, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts
under and beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel, equip,
maintain, repair, deepen and operate any such wells or mines; without, however, the right
to enter, drill or re-drill, tunnel or re-tunnel, equip, maintain, repair, mine, store, explore,
prospect, remove, whipstock or directionally drill or to bottom and/or operate on, from or
through the surface or the upper 500 feet of the subsurface of the License Area. The City
further reserves to itself, its successors and assigns and exempts from the License Area,
any rights to subsurface storage of brine, carbon, water or other substances. The City
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further reserves to itself, its successors and assigns, the exclusive right to grant and
transfer all or a portion of the rights reserved in this Section 3.9.2.
3.9.3. Notice
At least six (6) months prior to exercising any of its mineral rights on the License Area,
the City shall give Licensee written notice of any drilling, exploration or production plans
to that Licensee may relocate any Equipment or operations on the License Area so as to
not interfere with such plans. Licensee's service will not be interrupted, and Licensee shall
have the right to place a temporary communication facility on the Property at a location
identified by Licensee and reasonably approved by City, during any such relocation. The
City shall pay all costs incurred by Licensee for relocating the Equipment from the License
Area as required by the City.
4. TERM
4.1. Master License
The term of this Master License shall commence upon the full execution of this Master
License and shall continue until either (i) eighteen (18) months from commencement if no
Site Licenses have been entered into between City and Licensee, or (ii) one (1) year
following the expiration or earlier termination of all Site Licenses; provided however, if any
Site Licenses are entered into between the parties during such 1-year period, the term of
this Master License shall continue in the same manner.
4.2. Site License
The initial term under each Site License (the "Initial Term") will commence on the date
set forth in the Site License ("Commencement Date") and will automatically expire on
the date set forth in the Site License, unless earlier terminated in accordance with this
Master License or Site License. After the Initial Term expires, each Site License will
automatically renew for the number of additional extension options set forth in the Site
License, if any (each a "Renewal Term") unless Licensee is in default beyond the
applicable notice and cure period on the day immediately prior to the commencement of
such Renewal Term, if any, or Licensee irrevocably notifies the City that Licensee does
not intend to renew the Site License within 90 days before the commencement of such
Renewal Term. (The parties refer to the Initial Term and any applicable Renewal Term(s)
as the "Term".)
4.3. Holdover Term
Licensee will have no right or privilege whatsoever to use or occupy the License Area in
any manner or for any purpose after the applicable Site License expires or terminates. In
the event that Licensee continues to use or occupy the License Area after the applicable
Site License expires or terminates, the license granted therein will automatically convert
to a month-to-month license on the same terms and conditions (the "Holdover Term"),
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except that (1) the License Fee will be automatically increased to one hundred fifty
percent (150%) over the License Fee payable in the immediately previous year, and will
continue to increase in accordance with Section 5.2 (Annual Adjustments) and Section
5.3 (Renewal Term Adjustments); and (2) either the City or Licensee may terminate such
license on 30 days' written notice for any or no reason.
5. LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT
5.1. Base License Fee
On or before the first day of each month during the Term (as defined above) during which
each Site License is in effect, Licensee shall pay to City a monthly fee (the "License Fee")
in the amount set forth in each individual Site License per month for Licensee's right to
conduct the Permitted Use from the License Area described in the individual Site License.
For any partial month at the beginning or end of the Term (as defined above) of such Site
License, the License Fee shall be prorated based on the actual number of days in such
month to be prorated. Neither this Master License nor any Site License is intended to,
nor shall it be interpreted to, create or vest in Licensee any leasehold or any other property
rights or interests in any License Area or the improvements located thereon, or any part
thereof.
5.2. Annual Adjustments
For each Site License, on January 1 each year, the License Fee will be automatically
increased three percent (3%) over the License Fee payable in the immediately previous
year; provided, however, that no such automatic increase will occur in the first year of any
individual Site License, or Renewal Term when the parties adjust the License Fee as
provided in Section 5.3 (Renewal Term Adjustments).
5.3. Renewal Term Adjustments
Subject to the terms and conditions in this Section 5.3, in the event the Term of a Site
License extends for a Renewal Term, the parties shall adjust the License Fee for such
Site License, to reflect the current market price (the "Adjusted License Fee") for similarly
situated wireless communications agreements in the North San Diego County region.
The City shall send written notice to Licensee with the Adjusted License Fee together with
documentation to support City's determination (the "Adjustment Proposal") for the
Renewal Term no later than 90 days before the Initial Term (or the then-current Renewal
Term, if applicable) expires. Licensee shall delivery written notice to the City that it either
accepts or objects to the Adjustment Proposal together with documentation to support
Licensee's objection (the "Response Notice") within 30 days after the Adjustment
Proposal. Absent a timely Response Notice from Licensee, Licensee shall be deemed to
object. If Licensee sends a timely Response Notice objecting to the Adjustment Proposal
or is deemed to have objected to the Adjustment Proposal and the parties cannot agree
on the Adjusted License Fee on or before the date on which the Renewal Term
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commences, Licensee shall pay the same License Fee until the parties establish the new
Adjusted License Fee as provided in this Section 5.3.
In such case, within 10 days after the Renewal Term commences, the parties shall in
good faith mutually appoint an appraiser with at least two years' experience in wireless
facilities appraisal. If the parties cannot mutually appoint such an appraiser within the said
10-day period, then the City and Licensee shall each appoint their own appraiser within
10 days thereafter which shall each submit an Adjustment Proposal. The two appraisers
shall appoint a third appraiser within 10 days thereafter, and the third appraiser shall
select the Adjustment Proposal that is closest to its determination of the current market
price in a written report submitted to the parties within 15 days after the third appraiser's
appointment. In the event the determined Adjusted License Fee is more than the prior
License Fee then being paid by Licensee for the Renewal Term, Licensee shall pay the
difference between the License Fee paid during the Renewal Term and the determined
Adjusted License Fee, and if the Adjusted License Fee is more than the prior License Fee
then being paid by Licensee for the Renewal Term, Licensee shall receive a credit of the
difference between the License Fee paid during the Renewal Term and the determined
Adjusted License Fee. The City and Licensee will each pay their respective costs for any
unilaterally selected appraiser; the parties shall equally share the cost for any mutually
selected appraisers or any third appraiser selected by the unilaterally selected appraisers.
5.4. Late Charges
In the event that Licensee fails to pay any License Fee or any other amount payable to
the City within 10 business days after such amounts are due and unpaid, such amounts
will be subject to a late charge equal to six percent (6%) of unpaid amounts. Licensee
and the City agree that the late charge is a reasonable estimate of the amount that the
lateness of the License Fee will cost the City. Notwithstanding the foregoing, City will not
assess a late charge under any specific Site License until City has given written notice of
such late payment for the first late payment in any twelve (12) month period of such Site
License and after Licensee has not cured such late payment within three (3) days from
receipt of such notice. Under the applicable Site License, no other notices will be required
during the following twelve (12) months for a late charge to be incurred.
5.5. Interest
Any License Fee and all other amounts payable to the City other than late charges will
bear interest at ten percent (10%) per annum or the highest rate permitted by Law
(whichever is greater) from the due date when not paid within 10 days after due and
payable to the City. Any sums received shall be first applied towards any interest, then to
the late charge and lastly to principle amount owed. Any interest or late charge payments
will not alone excuse or cure any default by Licensee.
5.6. Administrative Fees
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Within 60 days after the parties fully execute this Master License, Licensee shall pay to
the City a nonrefundable administrative fee equal to Eight Thousand and 00/100 Dollars
($8,000.00) (the "Administrative Fee") to cover the City's costs to review and execute
this Master License. In addition, for any approval under this Master License or any Site
License for which the City's prior consent is required, Licensee shall reimburse the City
for its actual and reasonable costs directly related to the City's review and consideration
of the request.
5.7. Complimentary Internet Subscription
During the term of this agreement, Licensee also agrees to provide its standard internet
service (including up to two access points) without charge to City at one feasible location
in the site and as mutually agreed upon between City and Licensee in the Site License.
City's use of the Internet Services shall at all times be subject to Licensee's then-current
Terms of Service (that may be accessed at https://common.net/privacy#terms), which
may be amended and updated from time to time. If City continues to use Common's
internet services after termination of this Agreement or the specific Site License, City will
be subject to Licensee's then-current standard pricing for such internet services. It is
understood that Landlord will need to provide payment information to be saved on file for
this subscription.
5.8. Payment Procedures
Licensee shall deliver all payments due under this Master License or any Site License to
1635 Faraday Avenue, Carlsbad, California 92008. The designated place of payment
may be changed from time-to-time upon written notice. Payments must be made by check
payable to the City of Carlsbad. No payment by Licensee or receipt by the City of a lesser
amount than payment due will be deemed to be other than a payment made on account
for the total payment due, nor will any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and satisfaction. The
City's acceptance of such checks or payment will be without prejudice to the City's right
to recover the balance of the amount due or pursue any other remedy in this Master
License or any Site License.
6. GOVERNMENTAL APPROVALS
6.1. Proprietary Capacity Acknowledgment
The City and Licensee expressly acknowledge and agree the City enters this Master
License and any Site License solely in its proprietary capacity as the owner or controller
of the Property and not in its regulatory capacity as a local public agency. Licensee
acknowledges and agrees that any federal or state Laws applicable to the City in its
regulatory capacity will not be applicable to the City in its proprietary capacity and
Licensee will not seek to have such Laws applied to the City or any approval, disapproval,
act or failure to act in connection with this Master License or any Site License. Licensee
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further acknowledges and agrees that (1) only the terms and conditions in the Master
License and the applicable Site License will govern the criteria and timeframes for the
City's decisions or actions in its proprietary capacity in response to Licensee's requests
for approvals in connection with this Master License or a Site License; (2) any approval
or disapproval the City may issue in its proprietary capacity in connection with this Master
License or a Site License will not be deemed to be an approval or disapproval the City
may be required to issue in its regulatory capacity; and (3) any approval or disapproval
the City may issue in its proprietary capacity will not give preference to Licensee or
Licensee's applications over other persons or applications in any regulatory proceeding
solely based on this proprietary relationship.
6.2. Permits and Other Governmental Approvals
Licensee, at its expense, shall obtain all necessary Governmental Approvals required for
the construction, installation, authorization and use of the Equipment at each License
Area. Licensee shall not commence any work at the License Area until Licensee obtains
all necessary Governmental Approvals, which includes without limitation any permit
obtained through any governmental agency with jurisdiction over the License Area or the
Equipment, and tenders full and complete copies for each Governmental Approval to the
City. Subject to the provisions and limitations in Section 6.1 (Proprietary Capacity
Acknowledgment), and only to the extent permissible under applicable Laws, the City will
reasonably cooperate with Licensee's efforts to obtain and maintain all necessary
Governmental Approvals.
City shall permit Licensee to arrange for the installation of telephonic, data and electrical
connections, to be done at Licensee's expense (the "Connecting Equipment"). All such
Connecting Equipment shall be installed in accordance with the engineering and design
of the base building systems located at the applicable License Area. All construction,
installations, alterations, repair and maintenance work shall be performed in a manner
which will not unreasonably interfere with, delay or impose any additional expense upon
City in the maintenance or operation of the License Area.
7. MAINTENANCE
7.1. Licensee's Maintenance Obligations
At all times throughout the Term, Licensee shall maintain, repair and secure its Equipment
and all other personal property and improvements brought onto the License Area in good,
orderly and safe condition. Licensee shall keep the License Area free of debris and any
other dangerous, noxious or offensive condition which would create a hazard or undue
vibration, heat, noise or interference which are caused by Licensee or its Agents, and
shall correct any such conditions within 48 hours after notice. Licensee shall post, and at
all times maintain in good condition, a sign on the License Area, in a location reasonably
acceptable to both the City and Licensee, that contains (1) the site operator name; (2) the
site identification or reference number that corresponds with this facility; and (3) a working
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telephone number that connects to a live person that can exert power-down control over
the Equipment.
7.2. City's Maintenance Obligations
The City shall not be responsible for repairs to or maintenance of the Equipment, or for
any associated costs except to the extent caused by the City or its Agents; provided
however, City shall maintain the License Area and Property in satisfactory condition such
that it will not interfere (physically or radio) with the Equipment or Licensee's Permitted
Use of the License Area (including any access thereto or utilities provided).
8. INTERFERENCE
8.1. Licensee's Interference Obligations
Licensee shall not operate the Equipment or use the License Area in a manner that
causes Interference with other communication transmission or reception equipment
lawfully used by the City, its Agents or any third parties authorized by the City to use the
Property, which such third parties operating communication equipment at the Property
prior to the installed of the Equipment, or public safety equipment installed after
Licensee's installation per Section 8.3 below. Any such Interference not timely corrected
or mitigated, per below, will be deemed a default under the applicable Site License and,
after Licensee receives notice that such Interference exists, Licensee will be responsible
to promptly eliminate any such Interference at no cost to the City. Licensee shall attempt
to remedy the interference within 5 business days from receiving notice from the city. The
City agrees to reasonably cooperate with Licensee's efforts to locate the Interference
source. In the event that Licensee does not promptly cure such Interference, the parties
acknowledge that continued Interference with communication transmission or reception
equipment lawfully used by the City, its Agents or any third parties authorized by the City
to use the License Area may result in irreparable harm and, therefore, the City will have
the right to bring an action against Licensee to enjoin such Interference or terminate the
applicable Site License.
8.2. City's Interference Obligations
The City shall not operate communications equipment on the Property, or cause or allow
any third parties authorized by the City to use the Property, in a manner that causes
interference (physical or radio) with other communication transmission or reception
equipment lawfully used by Licensee, its Agents or Invitees, other than necessary public
safety equipment per Section 8.3 below. Any such interference will be deemed a default
under the applicable Site License not timely corrected or mitigated and, after the City
receives notice that such interference exists, the City will be responsible to cause such
interference to cease. Licensee agrees to reasonably cooperate with the City's efforts to
locate the interference source. In the event that the City does not promptly cure such
interference, the parties acknowledge that continued interference with communication
transmission or reception equipment lawfully used by Licensee, its Agents or Invitees may
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result in irreparable harm and, therefore, Licensee will have the right to bring an action to
enjoin such interference or terminate the applicable Site License. Nothing in this Section
8.2 is intended to limit, prohibit or enjoin the City from entering into any agreements with
any third parties for uses on the Property similar to the Permitted Use; provided such
party agrees not to cause Interference with the Equipment.
8.3. City's Governmental Communications
Licensee acknowledges that the City uses communications equipment on the Property in
connection with its governmental, regulatory, public safety, and/or operational functions,
that such equipment and/or the frequencies on which such equipment operates may
change from time to time, and that communications in connection with the City's
governmental or regulatory functions are paramount over Licensee's operations.
Notwithstanding anything in this Master License or any Site License to the contrary, any
Interference with Licensee's operations or Equipment caused by any communications
equipment used by the City in its capacity as a local public agency in connection with its
governmental or regulatory functions (1) will not be a default under the applicable Site
License; (2) will not entitle Licensee to demand a cure to such Interference; and (3) will
not entitle Licensee to bring any action for any injunction.
9. TAXES
9.1. Title to Licensee's Equipment and Improvements
All Equipment and other improvements constructed, installed or placed on the License
Area by Licensee or at Licensee's request or direction will be and at all times remain
Licensee's personal property and will not be deemed fixtures or real property for any
purpose, whether such objects would be deemed fixtures or real property under
applicable Laws or not.
9.2. Possessory Interest Taxes
Licensee understands and acknowledges that (1) each Site License and/or any
improvements placed on the License Area may create a possessory interest, as defined
in California Revenue and Taxation Code § 107, subject to taxation; (2) Licensee will be
required to timely pay any and all such possessory interest taxes; and (3) any transfer,
assignment or sublicense in connection with this Master License, and any options to
extend or renew a Site License, may constitute a change in ownership for taxation
purposes and therefore result in a revaluation for any possessory interest created under
each Site License. Licensee further acknowledges that Licensee will have no claim for
damages against the City for any possessory interest taxes levied against the License
Area or the Equipment because it received actual notice that this Master License may
create a possessory interest and that Licensee would be solely liable for any and all taxes
levied on such possessory interest.
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9.3. Licensee's Tax and Assessment Obligations
Licensee agrees to pay when due and prior to delinquency any and all taxes,
assessments, charges, excises and exactions whatsoever (collectively, "Impositions"),
which includes without limitation any possessory interest taxes, that arise from or in
connection with Licensee's uses on the License Area or the Equipment that may be
imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any
Impositions to be imposed on the License Area or Equipment. In the event that the City
receives any Imposition notices on or in connection with the License Area or 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 attributable to Equipment.
9.4. Licensee's Right to Contest Taxes or Assessments
Licensee will have the right to contest any Impositions that Licensee disputes in good
faith, so long as no lien attaches to the Property and Licensee complies with any bond,
deposit, collateral or other requirements under applicable Law.
10. LIENS
Licensee shall keep the License Area free and clear from any and all liens or other
impositions in connection with any work performed, material furnished or obligations
incurred by or for Licensee. Licensee will inform all contractors and material suppliers that
provide any work, service, equipment or material to Licensee in connection with the
License Area that the License Area is public property not subject to any mechanics' liens
or stop notices. In the event that any Licensee contractor or material supplier files any
lien or imposition that attaches to the License Area, Licensee shall promptly (but in no
case later than 30 days after discovery) cause such lien or imposition to be released. In
the event that Licensee does not cause such lien or imposition to be released within the
30-day period, the City will have the right, but not the obligation, to cause such lien or
imposition to be released in any manner the City deems proper, which includes without
limitation payment to the lienholder, with or without notice to Licensee. Licensee shall
reimburse the City for all costs and expenses incurred to cause such lien or imposition to
be released (which includes without limitation reasonable attorneys' fees) within 10 days
after Licensee receives a written demand from the City together with reasonable
documentation to support such costs and expenses.
11. INDEMNIFICATION
11.1. Licensee's General Indemnification Obligations
Licensee, for itself and its successors and assigns, shall indemnify, defend and hold City
and its elected and appointed officers, officials, employees, agents and representatives
(all of the foregoing collectively "Indemnified Parties") harmless from and against any
and all Claims incurred in connection with or arising in whole or in part from: (1) death or
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personal injury to any person or property damage or other loss that occurred on or about
the License Area or arises in connection with Licensee's, its Agents' or Invitees'
authorized or unauthorized uses on or about the License Area; (2) any failure or refusal
by Licensee to observe or perform any term, covenant or condition in this Master License
or any Site License to be observed or performed on Licensee's part; (3) Licensee's, its
Agents' or Invitees' uses or occupancy, or manner of use or occupancy, of the License
Area; (4) any exposure to RF emissions or EMFs from Licensee's Equipment or uses on
or about the License Area; (5) the License Area condition or any occurrence on or about
the License Area attributable to the events described in clauses (1 ), (2), (3) or (4) in this
Section 11; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in,
on or about the License Area; all whether any negligence may be attributed to the
Indemnified Parties or not, and all whether liability without fault is imposed or sought to
be imposed on the Indemnified Parties, but except to the extent that such Claim(s) arise
from the Indemnified Parties' willful misconduct or negligence. Licensee's obligations
under this Section 11 include, without limitation, reasonable fees, costs and expenses for
attorneys, consultants and experts, and the City's costs to investigate any Claim.
Licensee specifically acknowledges and agrees that it has an immediate and independent
obligation to defend the Indemnified Parties from any Claim that actually or potentially
falls within this Section 11, even when the allegations in such Claim are groundless,
fraudulent or false, and which obligation arises at the time the Indemnified Parties tender
such Claim to Licensee and continues at all times until such Claim's final resolution.
Licensee's obligations under this Section 11 will survive the expiration or termination of
this Master License.
11.2. Licensee's Indemnification for Personnel Injuries
Licensee acknowledges that ( 1) the City has delegated to Licensee control over the
License Area; and (2) the City is not a co-employer of any employee of Licensee or any
employee of Licensee's Agents, and the City shall not be liable for any Claim by
Licensee's or its Agent's employee(s), as a result of any allegation that City is a co-
employer of any employee of Licensee. Licensee agrees to fully indemnify, defend and
hold the City harmless in the same manner as provided in Section 11.1 (Licensee's
General Indemnification Obligations) against any Claim by any employee of Licensee or
its Agents that arises in connection with Licensee's or its Agents' access, uses or other
activities on or about the License Area.
11.3. Licensee's Defense of the City
In the event that any action or proceeding is brought against any Indemnified Party in
connection with any Claim, the City will use good faith efforts to send prompt written notice
to Licensee. At the time Licensee receives such written notice, Licensee shall, at
Licensee's sole cost and expense, resist and defend such action or proceeding with legal
counsel acceptable to the City, to the extent Licensee is obligated to do so. Licensee may
not admit any liability or enter into any compromise or settlement agreement on any
Indemnified Party's behalf without the City's prior written consent, which consent shall not
be unreasonably withheld. The City's legal counsel will be permitted to cooperate with
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Licensee and its legal counsel and to participate in any action or proceeding brought
against any Indemnified Party in connection with any Claim.
12. ENVIRONMENTAL PROVISIONS
12.1. Licensee's General Environmental Obligations
Licensee shall manage and conduct its, its Agents' and Invitees' activities on or in
connection with the Property: (1) in compliance with all applicable Environmental Laws
and applicable provisions in each Site License; (2) in cooperation with the City and the
City's efforts to maintain compliance with all applicable Environmental Laws; and (3) in
accordance with all Best Management Practices applicable to the Equipment and the
Permitted Use. Licensee shall manage its, its Agents' and Invitees' activities on or about
the Property, and as may be appropriate, secure the License Area, so as to prevent any
noncompliance with any applicable Environmental Law or any applicable environmental
provision in each Site License.
12.2. Hazardous Substances
Licensee, its Agents and Invitees may use only those Hazardous Substances on or about
the Property that are normally associated with the Permitted Use, and only in strict
compliance with all applicable Environmental Laws. Licensee shall use best efforts to
minimize Hazardous Substance use on the Property and, to the extent commercially
reasonable, use non-hazardous alternatives in Licensee's operations.
12.3. Licensee's Response to Hazardous Substance Release
In the event any actual, threatened or reasonably suspected Release occurs for which
Licensee is responsible under this Master License, Licensee shall immediately undertake
and diligently pursue, at Licensee's sole cost and expense, all action or actions necessary
or appropriate to investigate, contain, stop, accomplish source control, remove and
perform interim remediation in connection with such Release. Licensee shall promptly
send the City written notice after Licensee discovers facts about (1) an actual or
reasonably suspected violation in connection with any Environmental Law related to the
Property or each Site License; or (2) an actual or reasonably suspected Release on,
under, from or adjacent to the Property.
12.4. Self Help
Except in an emergency or pursuant to a governmental order that requires immediate
action, the City shall have the right (but not the obligation) to perform Licensee's
environmental obligations under this Section 12 or any applicable Environmental Laws
after the City provides Licensee with seven days' written notice and a demand to perform
the obligations in issue. The City shall charge Licensee, and Licensee shall promptly
reimburse the City upon demand, for any Environmental Costs, which shall bear interest
at the statutory rate then in effect from the date the City expends any such funds.
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However, the City may not perform Licensee's obligations under this Section 12 when,
within the 7-day notice period, Licensee promptly notifies the City, begins and continues
thereafter to diligently pursue full performance to completion for all obligations stated in
the City's notice.
12.5. Licensee's Environmental Indemnification Obligations
In the event that Licensee breaches or fails to perform any of its environmental obligations
contained in this Section 12, or if any act, omission or negligence by Licensee or its
Agents or Invitees results in any contamination on or about the Property or the License
Area, in whole or in part, or in a Release from, on, about, in or beneath the Property or
the License Area, in whole or in part, or any Environmental Law violation, then Licensee,
on for itself and its successors and assigns, shall indemnify, defend and hold harmless
the City, including its Agents, and their respective successors and assigns from and
against any and all Claims (including damages for decrease in value of the Property or
License Area, any loss or restriction on the use of usable space on the Property or the
License Area and sums paid to settle any Claims, which include without limitation
attorneys' fees, consultants' fees, experts' fees and related costs) that arise during or
after the Term and in relation to such Release or violation; provided, however, Licensee
shall not be liable for any Claims to the extent such Release or violation was caused by
the City's or its Agents' gross negligence or willful misconduct. Licensee's Indemnification
obligation includes costs incurred in connection with any activities required to investigate
and remediate any Hazardous Substance brought onto the Property or the License Area
by Licensee, its Agents or Invitees and to restore the Property or the License Area to its
condition that existed immediately before Licensee introduced such Hazardous
Substance or to correct any Environmental Law violation(s). Licensee specifically
acknowledges and agrees that it has an immediate and independent obligation to defend
the City and the other Indemnified Parties from any Claim that actually or potentially falls
within this Indemnification provision even if the allegations that support the Claim are or
may be groundless, fraudulent or false, and which obligation arises at the time such Claim
is tendered to Licensee by the Indemnified Party and continues until the Claim is finally
resolved. Licensee shall afford the City a full opportunity to participate in any discussions
with regulatory agencies regarding any settlement agreement, cleanup or abatement
agreement, consent decree or other compromise or proceeding involving Hazardous
Substances.
12.6. Licensee's Liability for Hazardous Substance Release
Without limiting the Indemnification obligations in Section 12.5 (Licensee's Environmental
Indemnification Obligations), Licensee will be responsible for all response, remediation
and restoration obligations in connection with any Release and associated Environmental
Costs that results from or occurs in connection with Licensee's occupation, possession
or use of the Property and/or License Area from the Commencement Date, throughout
the Term and after the applicable Site License expires or terminates. Notwithstanding the
preceding sentence, as between the City and Licensee, Licensee will not be responsible
for any Releases or associated Environmental Costs caused by the City, its Agents,
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contractors, invitees, licensees or other lessees after the Commencement Date so long
as Licensee has complied with all applicable conditions for non-liability established in 42
U.S.C. §§ 9607(b) or (q) as may be amended.
13. INSURANCE
13.1. Licensee's Insurance Obligations
Licensee shall procure and keep in effect at all times during the Term, at Licensee's cost,
insurance in the following amounts and coverages: (1) Commercial General Liability
insurance (including premises operations; explosion, collapse and underground hazard;
broad form property damage; products/completed operations; contractual liability;
independent contractors; personal injury) with limits of at least $2 million combined single
limit for each occurrence; (2) Worker's Compensation Insurance per California statutory
limits with Employer's Liability Limits not less than $1 million each accident or disease;
(3) Commercial Automobile Liability Insurance with limit not less than $2 million each
occurrence combined single limit for bodily injury and property damage, including owned
and non-owned and hired vehicles.
13.1.1. Required Endorsements
Commercial General Liability Insurance and Commercial Automotive Liability Insurance
policies must contain the following endorsements: (1) name the City, its officers, agents,
employees and volunteers as additional insureds; (2) that such policies are primary
insurance to any other insurance available to the additional insureds with respect to any
Claims that arise in connection with this Master License or each Site License; (3) that
such insurance applied separately to each insured against whom a Claim is made or
brought; (4) that such policies provide for the severability of interests and that an act or
omission of one of the named insureds that would void or otherwise reduce coverage
shall not void or otherwise reduce coverage as to any other named insured; and (5) that
such policies shall afford coverage for all Claims based on acts, omissions, injury or
damage that occurred or arose (or the onset occurred or arose) in whole or in part during
the policy period.
All insurance policies required to be maintained by Licensee under this Master License
shall be endorsed to provide written notice of cancellation for any reason, including
without limitation intent not to renew or reduce coverage to both Licensee and the City.
In the event that Licensee receives a notice of intent to cancel or notice of cancellation
for any coverage required under this Master License, Licensee shall forward such notice
to the City within one business day and promptly take action to prevent cancellation,
reinstate cancelled coverage or obtain coverage from a different insurer qualified under
Section 13.1.4 (Insurer Qualifications).
13.1.2. Claims-Made Policies
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In the event that any required insurance under this Master License is provided under a
claims-made form, Licensee shall continuously maintain such coverage throughout the
Term and, without lapse, for three years after the applicable Site License expires or
terminates, to the effect that such Claims will be covered under Licensee's claims-made
policies should any event during the Term give rise to a Claim brought after the applicable
Site License expires or terminates.
13.1.3. General Aggregate Limit
The general aggregate limit for any required insurance under this Master License must
be double the per-occurrence or Claims limits specified in Section 13.1 (Licensee's
Insurance Obligations) when coverage includes a general annual aggregate limit or
provides that Claims investigation or legal defense costs will be included in such general
annual aggregate limit.
13.1.4. Insurer Qualifications
Licensee's insurance providers must be licensed to do business in California and must
meet or exceed an A.M. Best's Key Rating A-VIII or its equivalent.
13.1.5. Certificates; Effective Dates
Within 20 business days after the Effective Date, Licensee shall deliver to the City all
insurance certificates and additional insured endorsements from Licensee's insurance
providers in a form satisfactory to the City that evidences all the required coverages under
this Master License. In addition, Licensee shall promptly deliver to the City all certificates
after Licensee receives a request from the City. The City shall not authorize Licensee to
access or perform any work on the License Area until and unless all insurance coverages
required to be carried by Licensee under this Master License have been obtained.
Licensee shall ensure that all insurance coverages required to be carried by Licensee
under this Master License remain in effect at all time until all Equipment has been
removed from the License Area. The requirements in this Section 13.1.5 shall survive the
expiration or termination of this Master License.
13.1.6. Self-Insurance
Licensee shall not be permitted to meet its insurance obligations under this Master
License through self-insurance without prior written consent from the City, which the City
may withhold in its sole discretion for any or no reason. In the event that the City consents
to allow Licensee to self-insure as an alternative insurance program, such consent will
not be deemed an amendment or implied waiver to any other requirement in this Master
License. Any amendment to any insurance requirement must be in a written agreement.
13.2. Contractors' Bonds Insurance
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Licensee shall require its contractors that install, maintain, repair, replace or otherwise
perform any work on or about the License Area: (1) to provide bonds to guarantee the
performance of the work and the payment of subcontractors and suppliers for any
installation of Equipment, and (2) to have and maintain insurance of the same coverage
and amounts as required of Licensee.
13.3. No Limitation on Indemnification Obligations
Licensee's insurance obligations under this Section 13 in no way relieves or decreases
Licensee's liability under Section 11 (Indemnification) or any other provision in this Master
License.
13.4. Intentionally Omitted
14. ASSIGNMENT; SUBLICENSE
14.1. Assignment
Licensee may assign this Master License or any Site License at any time without the
City's consent (i) to an Affiliate; (ii) to Licensee's successors-in-interest; (iii) in connection
with the sale, exchange, or other transfer of Licensee's FCC authorization for the
geographic market area in which the License Area is located or substantially all of
Licensee's assets in the geographic market area where the License Area is located; or
(iv) in connection with any financing, loan, security interest, pledge, or mortgage of
Licensee's property. Any other assignment or any sublicense shall require the City's prior
written approval, which approval the City shall not unreasonably withhold, delay or
condition. Any assignment that violates this Section 14.1 shall be deemed void and
without any legal effect whatsoever, and the City shall have the right (but not the
obligation) to terminate, as applicable, the Master License and/or each Site License upon
written notice to Licensee. This Section 14.1 shall not preclude Licensee's right to enter
into a standard roaming agreement allowing subscribers of other wireless carriers to use
the Equipment specifically constructed for Licensee's use. The assignment of this Master
License shall be deemed an assignment of all Site Licenses.
14.2. Intentionally Omitted
14.3. Continuing Obligation
No assignment or sublicense, even with the City's consent, will relieve Licensee of its
obligation to pay the License Fee and to perform all other obligations to be performed by
Licensee under this Master License or Site License, as applicable. The acceptance of
any payment due under any Site License by the City from any other person or entity will
not be deemed to be a waiver by the City of any provision of this Master License or the
applicable Site License or be construed to be consent to any assignment or sublicense.
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15. DEFAULT; REMEDIES
15.1. Defaults and Cure Periods
The parties agree that it will be a default under a specific Site License when either the
City or Licensee: (1) fails to tender any sums payable pursuant to the Site License when
due, and such failure continues for 10 days after notice from the non-defaulting party; (2)
fails to perform any non-monetary term, provision, covenant or obligation under the Site
License, and such failure continues for 30 days after notice from the non-defaulting party;
provided, however, that said 30-day cure period will be reasonably extended when the
default cannot be cured within 30 days and the defaulting party commences to cure within
said 30-day cure period and diligently pursues the cure to completion.
15.2. Sums Paid During Default
Any sums paid from Licensee to the City after Licensee's default, and failure to cure with
the applicable cure period, will not constitute a cure by Licensee or waiver by the City
unless the City acknowledges such cure or waiver in a signed writing.
15.3. No Consequential Damages
Licensee expressly acknowledges and agrees that the License Fee or any other sums
payable to the City under each Site License do not take into account any potential
liabilities for consequential or incidental damages. The City would not willingly enter any
Site License without a complete waiver of liability, to the fullest extent permitted by Law,
for consequential or incidental damages due to the City's or its Agents' acts or omissions,
and Licensee expressly assumes the risk with respect thereto. Accordingly, without
limiting Licensee's Indemnification obligations or other waivers contained in this Master
License and as a material consideration for this Master License and any Site License,
Licensee fully releases, waives and discharges forever any and all Claims against the
City for consequential and/or incidental damages that arise from or in connection with this
Master License or any Site License, which includes without limitation any lost profits from
disruption to Equipment, any interference with uses or activities conducted by Licensee
under each Site License, from any cause whatsoever, and whether due to the City's or
its Agents' active or passive negligence or willful misconduct or not, and covenants not to
sue for such damages the City, and the City's other departments, and all City agencies,
officers, directors and employees, and all persons acting by, through or under them.
15.4. No Personal Liability for City Officials, Employees or Agents
No elected or appointive board, agency, member, officer, employee or other Agent
of the City will be personally liable to Licensee, its successors and
assigns, in the event of any default or breach by the City or for any amount which may
become due to Licensee, its successors and assigns, or for any obligation of the City
under this Master License.
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15.5. Cumulative Remedies
Except as may be specifically provided otherwise in this Master License, any and all
rights, benefits and/or remedies provided or afforded to either the City or Licensee under
this Master License or any other instrument or document executed pursuant to this Master
License, including any Site License, are and will be cumulative and not exclusive of any
legal or equitable rights, benefits or remedies available to either the City or Licensee
under applicable Laws.
16. TERMINATION
16.1. Grounds for Termination
In addition to any other provision in this Master License that authorizes the City or
Licensee to terminate this Master License or a Site License, either party may terminate
this Master License or any Site License without cause upon one hundred eighty (180)
days' prior written notice to the other party. Licensee's indemnity obligations set forth in
this Master License survive termination of this Master License or any Site License for any
reason. Licensee may terminate any Site License at any time upon thirty (30) days' notice
to City subject to Section 16.2 below.
16.2. Early Termination Fee
In the event that Licensee elects to terminate a Site License pursuant to Section 16.1
(Grounds for Termination), Licensee shall include a one-time early termination fee
equivalent to three (3) months' of License Fee of such Site License with its termination
notice (the "ETF").
17. REMOVAL AND RESTORATION
Licensee shall remove all applicable Equipment at its sole expense upon the expiration
or termination of each Site License, including but not limited to facilities installed by
Licensee used to house Equipment that the City does not elect to retain. Licensee shall
repair any damage to the License Area caused by such removal, and shall return the
License Area to the condition which existed on the Effective Date, reasonable wear and
tear and damage beyond the control or without the fault or neglect of Licensee excepted.
Without limiting the generality of the foregoing, Licensee shall remove all footings,
foundations, utilities, modifications to electrical panels, wiring and conduits. Licensee
shall be deemed in actual possession of the License Area until and unless it completely
removes its personal property and restores the License Area consistent with this Section
17.
18. CONDEMNATION
18.1. Permanent Takings
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In the event that any entity with the power to condemn permanently takes any License
Area in whole or in part, or in the event that the City transfers any License Area in whole
or in part to such entity in lieu of eminent domain, the following provisions will apply:
18.1.1. Termination and Award
The applicable Site License will automatically terminate on the date the permanent taking
or transfer occurs. 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 hereby expressly waives any
right or claim to any portion thereof, including any claim for loss of business or goodwill.
All damages, whether awarded as compensation for diminution in value of the license or
to the fee of the License Area, shall belong to the City. Licensee will have no Claim against
the City for the value of any unexpired Term of the applicable 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.
18.1.2. No Statutory Right to Terminate
The parties understand, acknowledge and agree that this Section 18.1 is intended to fully
govern the parties' rights and obligations in the event of a permanent taking. Licensee
and the City each hereby waives and releases any right to terminate the applicable Site
License in whole or in part under California Code of Civil Procedure §§ 1265.120 and
1265.130 and under any similar Laws to the extent applicable to the Site License.
18.2. Temporary Takings
Any taking that affects any License Area in whole or in part for less than 90 days will have
no effect on the Site License, except that Licensee will be entitled to a pro-rata abatement
in the License Fee to the extent that such temporary taking materially impairs Licensee's
use of the License Area. Furthermore, in the event that the City receives an award, if any,
in connection with such temporary taking, Licensee will receive the portion from the award
that represents compensation for the use or occupancy of the License Area during the
Term but not to exceed the License Fees payable by Licensee for the period of the taking,
and the City will retain the balance of the award.
19. DESTRUCTION
In the event that the License Area, in whole or in part, becomes damaged or destroyed
due to any cause, the City will have no obligation to repair, rebuild or replace the damaged
or destroyed License Area.
In the event that the License Area, in whole or in part, becomes so damaged or destroyed
that it materially impairs Licensee's Permitted Use, and such damage or destruction not
resulted from Licensee or any other person or entity affiliated with Licensee or under
Licensee's direction or control, Licensee, Licensee may elect to terminate the applicable
Site License within 60 days after such damage or destruction occurs. During any period
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of time that the License Area is not usable by Licensee, regardless of cause, Licensee
shall receive an abatement of the applicable License Fee.
20. NOTICES
Except as may be specifically provided otherwise in this Master License or a specific Site
License, all notices, demands or other correspondence required to be given under this
License must written and delivered through (1) an established national courier service
that maintains delivery records and confirmations; (2) hand delivery; or (3) certified or
registered U.S. Mail with prepaid postage and return receipt requested, and addressed
as follows:
TO CITY:
TO LICENSEE:
City of Carlsbad
Real Estate Manager: Curtis M. Jackson
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone: 760-434-2836
Curtis.jackson@carlsbadca.gov
Attn: Heba Gamal
Common Networks, Inc.
1390 Market Street, Suite #1202
San Francisco, CA 94102
Telephone: 855-255-4590
coverage@common.net
All notices will be deemed effective on receipt or on attempted delivery when delivery is
refused. Telephone 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 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.
21. BANKRUPTCY
In the event that Licensee becomes a debtor in any voluntary or involuntary bankruptcy
proceeding under the Bankruptcy Code, the City and Licensee expressly intend,
acknowledge and agree that this Master License and all Site Licenses will be treated as
either an unexpired commercial lease or an executory contract for all purposes in
connection with Bankruptcy Code§ 365 and subject to the provisions Bankruptcy Code
§§ 365(d)(3) and 365(d)(4) as those provisions may be amended or superseded in the
future. Any person or entity to which this Master License and all Site Licenses are
assigned pursuant to the Bankruptcy Code will be deemed without any further act to have
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assumed all Licensee's obligations under this Master License and all Site Licenses which
arose before or may arise after such assignment, and any such assignee shall execute
and deliver to the City a written instrument that confirms such assumption promptly upon
a written demand from the City. Any monies or other consideration payable or otherwise
to be delivered in connection with such assignment will be promptly paid to the City, will
be the City's exclusive property and will not constitute Licensee's or its estate's property
for the purposes under the Bankruptcy Code. Any such monies or other consideration not
paid to the City will be held in trust for the City's benefit as paid to the City as soon as
possible.
22. SECURITY DEPOSIT
22.1. Amount
At the time Licensee tenders to the City the first License Fee due under each Site License,
Licensee must also tender to the City for deposit a sum equal to One Thousand and
00/100 Dollars ($1,000.00) (the "Security Deposit") per Site License to secure
Licensee's faithful performance of all terms, covenants and conditions in the Site License.
In the event that the City applies or uses the Security Deposit in whole or in part to cure
any default by Licensee under the applicable Site License, Licensee shall replenish the
Security Deposit in the amount and on the date specified in a written notice to Licensee.
Upon the installation of Licensee's Equipment at each subsequent License Area,
Licensee shall increase the amount of the Security Deposit by One Thousand and
00/100 Dollars ($1,000.00) for each subsequent installation.
22.2. Application or Use
Licensee agrees that the City may use the applicable Security Deposit in whole or in part
to remedy any damage to the License Area caused by Licensee, its Agents or Invitees or
any failure by Licensee to perform any term, covenant or condition in the Site License
(including without limitation any failure to pay any License Fee or other sums due under
the Site License either before or after any default). In the event that the City uses the
Security Deposit in whole or in part, the City will not be deemed to have waived any rights
under the Site License, or legal or equitable rights whatsoever. Licensee expressly waives
any rights it may have under California Civil Code § 1950. 7 or any similar Law and agrees
that the City may retain from the Security Deposit 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.
The City's obligations with respect to the Security Deposit shall be in the nature of a
debtor, and the City shall not be deemed to hold the Security Deposit in trust for any
reason. The City may (but shall not be obligated to) keep the Security Deposit separate
from general funds. Licensee shall not be entitled to any interest on the Security Deposit.
23. MISCELLANEOUS
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23.1. Interpretation; Construction
The City and Licensee acknowledge and agree that:
(1) both parties have been represented by counsel and that both parties have
participated in the negotiation and drafting process;
(2) the language in this Master License or any Site License will always be
construed simply and in accordance with its fair and ordinary meaning, without
any reference to any common practices, interpretations, customs or definitions
that may exist in any industry or trade to which either the City or Licensee may
belong;
(3) this Master License or any Site License will never be construed either for or
against either the City or Licensee for any reason;
(4) any defined term in this Master License or any Site License will be construed
to have the same definition when used in both the singular and plural form;
(5) the word "or" will not be interpreted as a limitation and will be construed to mean
"and/or" unless expressly provided otherwise in this Master License or any Site
License;
(6) the word "including" or phrase "which includes" will not be interpreted as a
limitation and will be construed to be followed by the phrase "without limitation"
whenever such phrase does not appear in the text;
(7) all references to any "Section" will be construed to mean a section attached to
this Master License and all references to any or "Exhibit" will be construed to
mean an exhibit under either the Master License or Site License as referenced,
and if no reference is made, then this Master License unless expressly provided
otherwise in this Master License;
(8) the captions contained in this Master License (a) are only for convenience, (b)
will not be used to interpret or construe any term or provision in this Master
License and (c) will not carry any legal effect whatsoever; and
(9) this Master License or any Site Licenses are not intended to create, does not
create and will not be construed to create any third-party benefit or
beneficiaries, or any joint venture, partnership, employment or agency
relationship between the City and Licensee.
23.2. Unenforceability; Severability
In the event that a court with competent jurisdiction over this Master License or any Site
License holds any provision in this Master License or any Site License invalid or
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unenforceable with respect to either the City or Licensee, or any third parties to whom
this Master License or any Site License may become applicable or enforceable, (1) the
valid or enforceable provisions will not be affected whatsoever; (2) the application of such
invalid or unenforceable provision to persons or entities other than those as to whom it is
held invalid or unenforceable shall not be affected; and (3) each provision in this Master
License or any Site License shall be valid and enforceable to the fullest extent permitted
under Law.
23.3. Time for Performance; Force Majeure
Time is of the essence of this Master License and any Site Licenses. Notwithstanding the
provisions in this Section 23.3, the time for performance for any term, provision, covenant
or obligation under this Master License or any Site License will be deemed extended to
account for any time lost due to delays that arise from strikes, civil riots, floods, labor or
material shortages or restrictions, governmental intervention or any other cause not within
the control of the party whose performance is due.
23.4. Integration; Entire Agreement
This Master License contains the entire agreement and understanding between the
parties as to the subject matter concerned in this Master License and each Site License
together with this Master License contain the entire agreement an understanding between
the parties as to each applicable License Area, and this Master License and each
applicable Site License supersedes all prior or contemporaneous agreements,
commitments, conditions, discussions, instruments, offers, promises and/or proposals
between or among the City and Licensee in connection with the License Area, whether
oral or written.
23.5. Successors and Assigns
The parties intend and agree that this Master License and each Site License will extend
to and bind the parties' respective heirs, personal representatives, successors and
assigns.
23.6. Amendments or Modifications
All amendments or modifications to this Master License and any Site License, if any, must
be in a written and fully executed agreement signed by both parties.
23.7. Waivers
No provision in this Master License or any Site License may be waived or deemed waived,
except in a written waiver signed by the party against whom enforcement of such waiver
is attempted. No custom or practice which may develop between the parties in the
implementation or administration of the terms of this Master License or any Site License
will be construed to waive or lessen any right to insist upon strict and/or timely
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620\3271095.4 Nov. 19, 2019 Item #3 Page 43 of 59
performance of the terms of this Master License or any Site License. Any waiver by either
party of any provision of this Master License or any Site License will not be deemed to
constitute a waiver of any other provision, nor will such waiver constitute a continuing
waiver.
23.8. Governing Law; Venue; Attorneys' Fees
This Master License and all Site Licenses shall be governed and construed in accordance
with the laws of the State of California without regard to conflicts of laws principles. Sole
and exclusive venue for any action or claim between the parties that arises from or in
connection with this Master License or any Site License will reside exclusively in the
Superior Court of the County of San Diego (the "Court") . All parties to this Master License
agree to be subject to the Court's jurisdiction and waive all claims whatsoever that would
defeat the Court's jurisdiction to hear and adjudicate any action or claim between the
parties that arises from or in connection with this Master License or any Site License. The
prevailing party in any final or non-appealable decision on the merits that arises from or
in connection with this Master License or any Site License may be entitled to its
reasonable attorneys' fees and costs, which includes without limitation reasonable
witness, expert and consultant fees, at the Court's sole discretion. With respect to any
provision in this Master License or any Site License that provides for payment of
attorneys' fees, such fees will be deemed to include reasonable fees incurred through
any applicable appeal process and will include, but not be limited to, fees attributable to
legal services provided by any in-house counsel and staff to the prevailing or indemnified
party. For purposes in this Master License and any Site License, all services rendered by
all attorneys and their staff will be valued at the average rates for independent counsel
prevailing in the County of San Diego, California.
23.9. Government Claims Act
Any claim for money damages by Licensee against the City hereunder will be
subject to California Government Code §§ 810 et seq. (the "Government Claims
Act"). The claims presentation provisions in the Government Claims Act are hereby
modified such that all claims to be presented to the City will be irrevocably waived
if not made within six (6) months after Licensee discovers the facts that either give
rise to the claim or would prompt an investigation that, with reasonable diligence,
would lead Licensee to facts that would give rise to the claim. Neither the City nor
its council members, commissioners, elected or appointed officers or officials,
administrators, directors, managers, employees, attorneys, agents or volunteers
will be personally liable to Licensee in the event of any default or breach of the City,
or for any amount which may become due to Licensee or any successor in interest,
or for any obligations directly or indirectly incurred under this License.
23.10. Public Records Act Disclosure
Licensee acknowledges that the City is a public entity under the laws of the State of
California. Furthermore, the parties acknowledge that this Master License and any Site
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620\3271095.4 Nov. 19, 2019 Item #3 Page 44 of 59
License constitutes a public record that the City must publically disclose under (i) the
California Public Records Act, California Government Code§§ 6250 et seq.; (ii) Title 17,
California Code of Regulations§§ 91000 et seq.; (iii) Article I,§ 3, of the California State
Constitution; and (iv) any other applicable Law that may require the City to disclose public
records.
23.11. Estoppels
Licensee, at any time and from time-to-time on not less than 30 days' notice from the City,
shall execute, acknowledge and deliver to the City or its designee, an estoppel certificate
which states: (a) that Licensee has accepted the License Area (or, if Licensee has not
done so, that Licensee has not accepted all or any part of the License Area and specifying
the applicable portions of the License Area and reasons for non-acceptance); (b) the
Commencement Date, Effective Date and expiration date for the applicable Site License;
(c) that the Site License is unmodified and in full force and effect or, if modified, the
manner in which the Site License is modified; (d) whether any defenses then exist against
the enforcement of any of Licensee's obligations under the Site License (and if so,
specifying the same); (e) whether any of the City's obligations under the Site License are
outstanding (and if so, identifying any City obligations that Licensee believes that the City
has failed to meet); (f) the dates, if any, to which the License Fees have been paid; and
(g) any other information that may be reasonably required by any such persons.
23.12. Brokers
Neither the City nor Licensee has had any contact or dealings in connection with the
license of any License Areas, or any communication in connection therewith, through a
Broker, whose commission, if any is due, is to be paid pursuant to a separate written
agreement between such Broker and the party through which such Broker contracted. In
the event that any Broker perfects a claim for a commission or finder's fee based upon
any such contact, dealings or communication, Licensee shall indemnify the City from all
Claims brought by the Broker. The representations and indemnification obligations in this
Section 23.12 will survive expiration or earlier termination of this Master License.
23.13. Survival
The parties to this Master License intend that all terms and conditions within this Master
License or any Site License that by their sense or context should survive each Site
License's expiration, termination or cancellation, which includes without limitation Section
4.3 (Holdover Term), Section 11 (Indemnification), Section 12.1.5 (Certificates; Effective
Dates), Section 17 (Removal and Restoration), Section 12 (Environmental Provisions),
Section 23.8 (Governing Law; Venue; Attorneys' Fees) and Section 23.12 (Brokers), or
any provision in this Master License which necessarily requires performance after this
Master License expires or terminates, will survive this Master License's expiration,
termination or cancellation.
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62013271095.4 Nov. 19, 2019 Item #3 Page 45 of 59
23.14. Submission for Inspection; No Offer
Prior to the Effective Date, the parties may submit this Master License or any Site License
to each other for inspection and examination purposes and such submission will not
constitute an offer to license the License Area. This Master License and any Site License
will become effective only upon full execution by both the City and Licensee.
23.15. Execution; Counterparts.
This Master License or any Site License may be executed simultaneously or in one or
more counterparts. In the event that the parties elect to execute this Master License or
any Site License in one or more counterparts, Licensee shall execute first, the City shall
execute second, each executed counterpart will be deemed to be an original but all
counterparts taken together will constitute one and the same agreement.
[END OF MASTER LICENSE -SIGNATURES BEGIN ON NEXT PAGE]
page 35 / 34
620\3271095.4 Nov. 19, 2019 Item #3 Page 46 of 59
IN WITNESS WHEREOF, the parties have executed this Master License on the
Effective Date first written above:
THE CITY: LICENSEE:
Common Networks, Inc.,
a Delaware corporation
By:
Its:
Date: JJ /Jq /Jq---,~--'--4-,---'--L..-----Date: Nov 26, lOl°t__,__, ............ __,,,'-=+, ------"c..=....:..----L-__ _
APPROVED AS TO FORM:
By:��Celia Brewer
City Attorney
Date:/d /JB //9 --'-"=--+---1 --""'-i,f--L---+-----
APPROVED BY CITY COUNCIL
RESOLUTION NO. dOJq -J 3�
ATTEST:�
sy:_f'�'Lk,,,,,,J, llec-kir Gomez I txput:}76( Barbara Engelson 1
City Clerk
Date: J;J/Jq /Jq---7--+7 ------
C i:J Cler K""
[END OF SIGNATURES-EXHIBITS BEGIN ON NEXT PAGE]
page 36 / 34
620\3271095.4 Nov. 19, 2019 Item #3 Page 47 of 59
EXHIBIT A
LICENSE AREA PROPERTIES
Proposed Proposed Street Address Judication Model ?
Site Site Number
Number ID
1 Carlsbad, CA
2
3
4
5
6
7
8
9
10
Cont. ..
37
62013271095.4 Nov. 19, 2019 Item #3 Page 48 of 59
EXHIBIT B
FORM OF SITE LICENSE AGREEMENT
(appears behind this coversheet -4 pages)
38
620\3271095.4 Nov. 19, 2019 Item #3 Page 49 of 59
SITE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER PER EXHIBIT A]
Pursuant to that certain Master License between the City of Carl sbad, a California municipal
corporation (the "City") and Common Networks, Inc., a Delaware corporation ("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 _
under the Master License:
1. Permit Property Address:
(See Exhibit A for legal description)
2. Equipment: (See Exhibit B)
3. Commencement Date: ________ _, 20
4. Termination Date: ______ _, 20
5. Monthly Permit Fee: $ ___ _
6. Special Access Requirements: ________ ......,.. ___ (if none, write "none")
7. City's Contact for Access for Emergency: ________________ _
8. Licensee's Contact for Emergency: ----------,--------=--------
9. Other Provisions:
Licensee acknowledges that: (1) Licensee will not have the right to access or install Equipment on
the License Area until after Licensee has: (a) submitted insurance information to the City as
required under the Master License; and (b) Licensee has received a fully executed copy of this
Site License; and (2) the City has provided notice to proceed by returning to Licensee a executed
copy of the Site License.
This Site License is executed and effective on the last date written below.
[END OF SITE LICENSE -SIGNATURES APPEAR ON NEXT PAGE]
39
620\3271095.4 Nov. 19, 2019 Item #3 Page 50 of 59
THE CITY:
City of Carlsbad,
a California municipal corporation
By:------------
Name: ____________ _
Its: ____________ _
Date: ___________ _
62013271095.4
LICENSEE:
Common Networks, Inc.
a Delaware corporation
By:
Its:
By:-------------
Name: ____________ _
Its: _____________ _
Date: ____________ _
40
Nov. 19, 2019 Item #3 Page 51 of 59
620\3271095.4
EXHIBIT A to Site License
LEGAL DESCRIPTION OF PROPERTY
41
Nov. 19, 2019 Item #3 Page 52 of 59
620\3271095 .4
EXHIBIT B to Site License
LOCATION OF LICENSE AREA
42
Nov. 19, 2019 Item #3 Page 53 of 59
EXHIBIT C
CITY'S TECHNICAL STANDARDS
43
620\3271095.4 Nov. 19, 2019 Item #3 Page 54 of 59
OFFICER'S CERTIFICATE
OF
COMMON NETWORKS, INC.
The undersigned, Zachary P. Brock, does hereby certify as follows:
1. He is a duly elected, qualified and acting Secretary of Common Networks,
Inc., a Delaware corporation (the "'Company").
2. The Company's Board of Directors has approved, among other things, the
valid authorization of the Company's Chief Executive Officer, Grace Chen, to enter into
agreements binding the Company, including the Master License for Wireless Facilities Located
on City Real Property between The City of Carlsbad, A Cal(fornia Municipal Corporation and
Common Networks. Inc .. a Delaware Corporation, as approved by The City of Carlsbad's City
Council on November 19111, 2019 and effective as of the date of all parties executing the
agreement.
[Signature Page to Follow]
(iDSVF&H\4712136.1 Nov. 19, 2019 Item #3 Page 55 of 59
IN WITNESS WHEREOF, the undersigned has executed this certificate this
December 10111, 2019.
By:~k~.
Secretary
CiDSVF&l 114712136.1 Nov. 19, 2019 Item #3 Page 56 of 59