Loading...
HomeMy WebLinkAboutVerizon Wireless LLC; 2014-07-24;WIRELESS TELECOMMUNICATIONS FACILITY LICENSE AGREEMENT This License Agreement ("Agreement") made as of the latter signature date below (the "Effective Date") is made by and between the City of Carlsbad, a Municipal Corporation ("Licensor"), and Verizon Wireless (VAW) LLC, d/b/a Verizon Wireless ("Licensee"). RECITALS A. Licensor is the owner of real property located at the Calavera Community Park ("Property") located at 2997 Glasgow Dr., Carlsbad, Califomia 92010 and more particularly described in Exhibit "A." B. Licensee desires access to and limited use of a portion of the Property, as further described below to install, maintain and operate a wireless telecommunication facility with equipment as more particularly described in the corresponding Conditional Use Permit. Once approved, the Conditional Use Permit will be attached to this Agreement as Exhibit "B" and will be made a part of this Agreement. C. Licensor is willing to permit Licensee access to and limited use of a portion ofthe Property for this stated purpose and pursuant to the below terms and conditions. NOW, THEREFORE, the parties agree as follows: GRANT OF LICENSE 1 • Scope of License, (a) Licensor grants to Licensee a non-exclusive license (the "License") to use that portion of the Property described in Exhibit "C" (the "Premises") for the purposes of installing, maintaining, and operating the wireless telecommunication facility with equipment described in Exhibit "B" and Exhibit "D" ("Communication Equipment"). In addition to being subject to the terms and conditions in this Agreement, this License and Licensee are subject to the terms and conditions of Exhibit "B" and all other required govemment approvals. (b) The Premises may be used for (i) the transmission of and reception of communication signals provided that such frequency or frequencies are within those for which Licensee, or any entity which controls, is controlled by or is under common control with Licensee, is duly licensed by the Federal Communications Commission ("FCC"), and (ii) the constmction, alteration, maintenance, repair, replacement and relocation of related antennas, equipment, cables and facilities and improvements related thereto, and (iii) activities related to any ofthe foregoing, provided such activities do not require an expansion of the Premises or violate Licensee's duties of non-interference set forth herein (collectively, "Licensee's Permitted Use"). 2. Term of License, (a) This Agreement and the License granted hereunder is contingent upon Licensee obtaining a valid corresponding Conditional Use Permit, which Conditional Use Permit shall be attached hereto as Exhibit "B." The initial term ofthis Agreement and the License granted thereunder shall commence on the first day of the month after the date of issuance of a building permit by the govemmental agency charged with issuing such permits ("Commencement Date") and shall be for ten (10) years ("Initial Term"). 1 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills (b) If the Exhibit "B" Conditional Use Permit expires before the date that is ten (10) years from the Commencement Date, the Initial Term shall expire on the same date as the expiration of Exhibit "B" Conditional Use Permit. This Agreement shall automatically be extended for an additional period equal to the term for which the Licensee seeks to extend the corresponding Exhibit "B" Conditional Use Permit so long as Licensee applies for and obtains an extension to the corresponding Exhibit "B" Conditional Use Permit before Exhibit "B" Conditional Use Permit expires. (c) If Licensee fails to obtain a valid extension to the term of Exhibit "B" Conditional Use Permit before it expires, this Agreement and the License granted thereunder shall be automatically terminated, and Licensee shall immediately cease its operation and use of the Property and Premises; provided, however, this Agreement shall continue to be in full force and effect if Licensee has commenced the renewal of the Conditional Use Permit prior to its expiration and is diligently pursuing such renewal. Licensee shall have ninety (90) days following the expiration or earlier termination of this Agreement to retum the Premises to Licensor in the same or like conditions that existed before Licensee occupied the Property and Premises, reasonable wear and tear and casualty damage excepted. Notwithstanding Paragraph 14 below, Licensee shall pay the monthly License Fee in effect for the last month of the then current term during said ninety (90) day period. (d) In the event that this Agreement expires pursuant to Paragraph 2(b) above, and prior to its expiration Licensee is diligently pursuing renewal of the Conditional Use Permit, and Licensee desires to continue operating its wireless communication facilities on the Property, Licensee shall pay Licensor an armual License Fee an amount equal to two hundred percent (200%) of the License Fee ("Holdover Fee") identified in Paragraph 3(a) below, including any increase that may have occurred pursuant to Paragraph 3 below. Notwithstanding the foregoing, if Licensee applies for an extension of the Conditional Use Permit at least one (1) year before the Conditional Use Permit expires and is diligently pursuing renewal of the Conditional Use Permit but the Conditional Use Permit has not been extended at the time of its expiration. Licensee shall not be required to pay the Holdover Fee. (e) The Initial Term and any subsequent term of this Agreement and the corresponding Exhibit "B" Conditional Use Permit shall not each exceed ten (10) years in duration. 3. License Fee, (a) Licensee shall pay to Licensor an annual fee (the "License Fee") of Forty-Two Thousand Two Hundred Ninety-Five and 56/100 Dollars ($42,295.56) which shall be payable in equal monthly installments without abatement, deduction, or offset, on the first day of each month. Licensee shall also make a one-time lump sum payment to Licensor of Ten Thousand Dollars ($10,000.00) as a constmction enhancement fee required by the Parks department within forty-five (45) days following the issuance of the building permit. The License Fee will be adjusted annually on January 1 by the percentage increase in the most recently published Consumer Price Index - All Urban Consumers for the San Diego Metropolitan Statistical Area over the rate in effect on the Commencement Date of the prior year. This annual increase shall not be less than three percent (3%) or more than six percent (6%). (b) In addition to the License Fee noted in Paragraph 3(a) above, the Licensor shall also receive additional License Fees as other users attach to the support stmcture constructed on the 2 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills Premises ("Collocation"). The additional License Fees shall be an additional fifty percent (50%) of the effective Licensee Fee ("Collocation License Fee") for each additional collocation tenant allowed under Exhibit "B" Conditional Use Permit and co-locating at the Premises. Licensee shall pay a One Thousand Dollar ($1,000.00) administration fee to Licensor for each co-locator. Any co-locator at the Premises shall be instmcted to pay its Collocation License Fee directly to the Licensor. The Licensee shall not be responsible to the Licensor for the collection or payment of Collocation License Fees by any co-locator to the Licensor, and the Licensee shall have no liability to the Licensor in the event of failure of such payment by any co-locator. In this event: (i) the Licensee shall have no liability of any nature to the Licensor for failure to sublet all or any part of the Premises to any or all potential co-locator(s), and (ii) at Licensor's request. Licensee will provide Licensor with a tri-party agreement to be executed by the Licensee, its co-locator, and Licensor to confirm direct payment obligation from the co-locator to the Licensor and to indicate Licensor has been notified of the Collocation. (c) If any monthly License Fee payment is not received by Licensor by the fifth (5***) day of the month in which it is due, the fee payment shall be deemed delinquent and ten percent (10%) interest shall accme on the unpaid amount. Notwithstanding the foregoing. Licensee shall not be in default hereunder imless any License Fee or other payment due hereimder is not brought current within ten (10) days after Licensee's receipt of notice of such late payment. If Licensee is delinquent for two (2) or more months in any twelve (12) month period, Licensor may immediately terminate this Agreement and demand removal of Licensee's wireless telecommunication facility and equipment, including, without limitation any specially installed or ancillary equipment required by Licensee for its wireless telecommunication facility from the Premises and Property within ten (10) business days, or if such equipment is not removed within such ten (10) business day period. Licensor may remove the facility and all equipment associated with Licensee's wireless telecommunication facility itself and charge Licensee for the actual cost of removal and storage reasonably incurred by Licensor. 4. Relationship of License and Exhibit B Conditional Use Permit, (a) The granting of the License under the Agreement is contingent upon the (i) initial granting of the Exhibit "B" Conditional Use Permit or (ii) the subsequent granting of any extension of Exhibit B Conditional Use Permit and (iii) the continuing validity of Exhibit "B" Conditional Use Permit. This Agreement shall automatically terminate upon the expiration or revocation of Exhibit "B" Conditional Use Permit, except as provided in Paragraph 2(c) above. The modification or extension of Exhibit "B" Conditional Use Permit does not obligate the Licensor to modify or extend this Agreement nor does the continuing validity of Exhibit "B" Conditional Use Permit preclude the Licensor from exercising any rights under this Agreement, including the right to terminate this Agreement for convenience under Paragraph 13 below. (b) Licensee shall have the right, at its expense, to install, constmct and maintain on the Premises a light standard stmcture for Licensee's cellular transmission equipment (the "Light Standard") which shall in compliance with Exhibit "B" Conditional Use Permit for Licensee's Permitted Uses described in Section 1(b) above. The Light Standard and Licensee's equipment building ("Building") shall house and contain the equipment described in Exhibit "D" Communications Equipment. The Light Standard and Communications Equipment are sometimes hereinafter collectively referred to as "Antenna Facilities". Licensee makes no warranty that the fiiture users will not cause interference in or on the Property. A fiill sectored array shall mean (i) 3 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills panel antennas together with all associated cable, wire and other miscellaneous hardware or (ii) omnidirectional antennas together with all associated cable, wire and other miscellaneous hardware. All Antenna Facilities shall be constmcted, installed and operated within the Premises; provided however, that Licensor also grants to Licensee an aerial "easement" above those portions of the Property over which the antennas, related appurtenances, and branches of the Light Standard, may extend ("Aerial Easemenf). The Aerial Easement shall automatically terminate at the termination of the Conditional Use Permit or this Agreement, whichever occurs later. Throughout the term of this Agreement, Licensee shall own the Light Standard. Licensor shall be responsible to maintain and repair any lights and light support arms not installed by Licensee on the Light Standard in good condition, reasonable wear and tear excepted, and in compliance with all applicable laws, all at Licensor's sole cost and expense, and with the same level and standard of care it uses for the maintenance and repair of its other light fixtures on Licensor's property. Licensor shall use its best efforts to maintain and repair its lights and light support arms without disturbing or affecting Licensee's equipment. Licensor acknowledges and agrees that (1) Licensee's communications equipment is highly sensitive, (2) Licensee's communications equipment may only be handled by properly trained and qualified personnel, and (3) Licensee shall be solely responsible for the maintenance, repair and handling of all of Licensee's equipment, antennas, and any other of Licensee's improvements during the term of this Agreement. (c) No Collocation shall be permitted on or to Licensee's Light Standard unless collocation was first contemplated and authorized in the companion Exhibit "B" Conditional Use Permit and this Agreement. If collocation was not contemplated in the initial Agreement and this Agreement is being amended to permit collocation, the party seeking approval for collocation shall complete all Califomia Environmental Quality Act required environmental review prior to the amending of this Agreement. (d) If required by Licensor, Licensee shall install landscaping and irrigation (collectively, "Landscaping") on the Premises in conformance with the site plans approved by the City. The installation of irrigation shall include connection to Licensor's existing irrigation system at the Property. Licensee shall maintain the Landscaping installed on the Premises to the reasonable satisfaction of the Licensor for a period of two (2) years from the date the Landscaping is installed on the Premises in conformance with the approved site plans (i.e., the date the installation of the Landscaping passes final inspection by the City), except that Licensor will be responsible for watering the Landscaping during this two-year period. After the two-year period. Licensor will maintain the Landscaping installed on the Premises for the remainder of the term of this Agreement. In the event the Landscaping damages Licensee's Communications Equipment, Licensee shall release Licensor from liability for such damage, except to the extent such damage arises from the negligence or willful misconduct of Licensor, its employees, agents or representatives. 5. Limitations on License. Nothing in this Agreement is intended to create an interest or estate of any kind or extent in the Property, Premises, or Aerial Easement. Licensee further acknowledges and agrees that this Agreement does not create a landlord-tenant relationship and Licensee is not entitled to avail itself of any rights afforded to tenants under the laws of the State of Califomia. 4 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills (a) Except as permitted pursuant to Paragraph 5(b) below, Licensee may not assign, sublicense or ttansfer the License, in whole or in part, to any other persons or entity, nor may Licensee allow any other person or entity to co-locate its wireless facilities on Licensee's Antenna Facilities without the prior written consent of Licensor, which Licensor may withhold in its sole discretion. Licensee may not transfer the License to any collocating tenant, nor may additional collocations occur without the prior written consent of Licensor. Any attempt by Licensee to do so without first obtaining Licensor's prior written consent is grounds for immediate revocation or termination of the License by Licensor. For approval of any sublicense of Licensee's Antenna Facility or communication equipment to another person or entity. Licensor will require additional compensation as set forth in Paragraph 3(b) above. (b) Notwithstanding the foregoing. Licensor's approval shall not be required for the transfer of rights and obligations under this Agreement to Licensee's parent, a subsidiary of Licensee's parent or an affiliate of Licensee that is wholly owned and controlled by Licensee or Licensee's parent, provided Licensee gives Licensor written notice of such action at least thirty (30) days prior to any such transfer. "Control" means the right and power to direct substantially all of the management and policies of the affiliate. Failure to provide written notice prior to transfer is grounds for immediate revocation or termination of the License by Licensor. 6. No Warranty. Except as otherwise expressly set forth herein. Licensor makes no warranty or representation that the Premises are suitable for Licensee's use. Except as otherwise expressly set forth herein. Licensee has inspected the Premises and accepts the same "AS-IS." Licensor is under no obligation to perform any work or provide any materials to prepare the Premises for Licensee. LICENSEE'S OBLIGATIONS Licensee shall: 7. Use the Premises solely for the purposes allowed within the scope of the License. If required by Licensor or as a condition of granting a Conditional Use Permit, a security fence, consisting of chain link constmction or similar but comparable constmction, shall be placed around the perimeter of Licensee's Anterma Facilities. All improvements shall be at Licensee's expense. Licensor will maintain the Premises in a reasonable condition. 8. (a) Licensee shall operate its Antenna Facilities in a manner that will not cause unmitigated interference with the use or enjoyment of the Property by Licensor and other lessees or licensees in and/or on the Property as of the Commencement Date of this Agreement including, if applicable, but not limited to, the HVAC systems, roof, electronically controlled elevator system, computers, telephone systems, or any other system serving the Property and/or its occupants. Licensor hereby acknowledges that Licensee's use of the Premises for Licensee's Permitted Use shall not constitute an impermissible interference. (b) All operations of Licensee shall be lawful and in compliance with all applicable Govemmental Requirements (as hereafter defined), mles and regulations including, but not limited to those of the FCC and the Federal Aviation Administration ("FAA"). "Govemmental Requirements" shall mean all requirements under any federal, state or local statutes, mles, 5 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills regulations, ordinances, or other requirements of any duly constituted public authority having jurisdiction over the Property (including, without limitation, the Premises). (c) Licensee shall indemnify Licensor and hold it harmless from all expenses, costs, damages, loss, claims or other expenses and liabilities arising from any unmitigated interference caused by Licensee's failure to comply with FCC or FAA mles and regulations that is not curtailed within thirty (30) days after Licensee receives written notice of such interference from Licensor. Licensee shall be responsible for all costs associated with any tests deemed necessary to resolve any and all interference as set forth in this License. If such interference caused by Licensee's failure to comply with FCC or FAA mles and regulations has not been corrected within thirty (30) days after Licensee receives notice thereof from Licensor, Licensor may require Licensee to remove the specific items from the Antenna Facilities causing such interference until such interference ceases. (d) Licensor shall not materially alter its existing or contemplated use of the Property, nor shall Licensor permit third party lessees, licensees, or agents to obtain rights to the Property, after the Effective Date hereof, to use any portion of the Property in any way which interferes with the operations of Licensee. Without limiting the generality of the foregoing. Licensor hereby acknowledges that in the event of any interference with Licensee's Permitted Use as a result of the transmission or reception (or both) of radio, microwave or other telecommunications signals by a future lessee, licensee or occupant of the Property, Licensee's rights hereunder to conduct Licensee's Permitted Use shall be and remain superior to the rights of any such future lessee, licensee or occupant, subject, however, to the provisions of Paragraph 8(f) below. Licensor fiirther acknowledges that interference with Licensee's operations shall cause Licensee to suffer irreparable injury and entitle Licensee, in addition to exercising any other rights hereunder or under applicable law, to seek the immediate enjoinment of such interference against the interfering party. (e) Subject to the provisions of Paragraph 8(d) above. Licensor reserves the right to license other portions of the Property to other parties during the term of this Agreement and License. Accordingly, Licensor agrees that any other person or entity who may install equipment subsequent to the Effective Date in and/or on the Property will be permitted to install only such commimications equipment that is of the type and frequency that will not cause any interference to Licensee or persons or entities claiming through or under Licensee. In the event any such person or entity's equipment causes such interference. Licensor will cause the interfering party to take all steps necessary to correct and eliminate the interference or such interfering party will be required to cease operations until such interference is removed. To the extent that Licensee's operations are not within the parameters of its FCC license, this protection from co-located interference will not be applicable, but it shall be applicable with respect to those operations, or portions thereof, falling within the FCC license parameters. Notwithstanding the foregoing. Licensee's right to be free from interference and Licensor's duties conceming the prevention and/or correction of interference shall be subject to Paragraph 8(f) below. (f) In the event that Licensee commences using the Premises in a manner as to which Licensee is not presently licensed by the FCC but with respect to which Licensee hereafter obtains necessary FCC licensure, Licensee's right to conduct such particular use shall be subordinate to the use of the Property by Licensor and other licensees or occupants thereof existing on or before 6 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills the date on which Licensee commences such use. Licensor shall be under no obligation to exercise the duties conceming interference described above in Paragraph 8(e) above with respect to a future use of the Premises by Licensee as described in this Paragraph 8(f). 9. Licensee is fully responsible for Licensee's Antenna Facility installed on the Premises by Licensee, including providing fire, theft, and extended coverage insurance. 10. Comply with all applicable federal, state, and local laws, including FCC regulations. City of Carlsbad City Council Policy No. 64, and related City of Carlsbad Municipal and Zoning Code provisions, as amended from time to time. 11. (a) Secure all necessary permits or conditional use permits from any govemmental agency to install Licensee's Anterma Facility on the Premises. Licensee may substitute, modify and/or add to its Antenna Facility located on the Premises from time to time, provided that Licensee first obtains any and all required govemmental approvals for such substitution, modification and/or addition and the written approval of Licensor, which approval shall not be unreasonably denied, delayed or conditioned. Notwithstanding the foregoing. Licensee shall be entitled to perform without Licensor's consent, equipment repairs or replacements with equipment of a "like kind" or substantially similar in nature. Licensor reserves the right to increase the License Fee if the Licensor determines that the substitutions, modifications, or additions materially alter the scope of the License. In addition, any change to Licensee's approved antennae type, number of antennas, antenna location and/or changes in transmitter type and power output shall, at the sole expense of Licensee, be made in accordance with applicable regulations issued by the FCC. If Licensee's plans and specifications are approved by Licensor, Licensee shall notify all other telecommimications and information services providers located on the Property per Paragraph 29 below (hereinafter "Carrier"), in writing, as to the scheduled date and time of commencement of construction or installation of Licensee's modified equipment not less than five (5) business days prior to such date. Any unauthorized modification to Licensee's Antenna Facilities shall be deemed a breach of this Agreement and Licensor shall give Licensee written notice of such breach. After receipt of such written notice. Licensee shall have fourteen (14) days in which to cure the breach, provided Licensor may extend such cure period if, in Licensor's sole discretion, it determines that the nature of the cure is such that it reasonably requires more than fourteen (14) days. Licensor may not maintain any action or effect any remedies for default against Licensee unless and until Licensee has failed to cure the breach within the time periods provided in this Paragraph. (b) Maintain Exhibit "B" Conditional Use Permit and all of the certificates, permits and other approvals, which may be required from other federal, state or local authorities, and any temporary easements or other rights of entry, which are required from any third parties. Licensor shall cooperate with Licensee in its efforts to obtain such approvals and/or temporary easements or rights of entry, as may be required for Licensee's Antenna Facility as approved in Exhibit "B" Conditional Use Permit. If (i) any application and/or negotiations by Licensee for any required certificate, permit, license, temporary easement, right of entry, approval, policy of titie insurance, or agreement is finally denied, rejected and/or terminated, (ii) any such certificate, permit, license, temporary easement, right of entry, approval or agreement is canceled, or expires, or lapses or is otherwise withdrawn or terminated, (iii) any Hazardous Materials (as defined in Paragraph 18 below) are discovered or otherwise become located on the Property or the Premises, other than as 7 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills direct result of Licensee's activities, or (iv) due to technological changes or business changes. Licensee determines that it is no longer practical to use the Premises for Licensee's intended purposes, then Licensee shall have the right to terminate this Agreement, which termination shall be effective no sooner than one hundred eighty (180) days from delivery of written notice from Licensee to Licensor, provided Licensee has removed all of its personal property, fixtures, electrical meters, and equipment from the Premises and Property by that time. 12. Licensee is responsible for all utilities and any property taxes imposed as a result of the use of the Property by Licensee. Licensee specifically acknowledges that the grant of the License may subject Licensee to certain taxes under Califomia Revenue and Taxation Code section 107.6 and agrees it is solely responsible for the payment of these taxes. 13. (a) One time during the term of this Agreement, at Licensee's sole expense and within one hundred eighty (180) days after Licensee's receipt of written notice ("Notice Period") from Licensor, protect, temporarily disconnect, relocate, modify or remove (collectively, "Relocate") its Light Standard, Communication Equipment, Building, and/or other property if Licensor determines, in its sole discretion, which may be exercised once during the term of this Agreement, that Licensee's Light Standard, Communication Equipment, Building, and/or other property are inconsistent with or interfere with Licensor's current or plarmed use of the Property or Premises; provided, however that if Licensor requests Licensee to Relocate prior to the expiration of the seventh (7*) year of the term of this License, Licensor shall pay seventy-five percent (75%) of Licensee's reasonable costs and expenses related to such relocation. Notwithstanding the foregoing. Licensee shall not be required to Relocate until such time that Licensee obtains all requisite govemmental approvals and permits (collectively, "Approvals") related to such relocation; provided however that if the timeframe to obtain such Approvals exceeds the Notice Period, Licensee shall be entitled to install a cell site on wheels ("COW") on the Property for up to six (6) months, while it continues to seek the Approvals. In the event the Approvals are not obtained within such six (6) month period despite Licensee's diligent efforts. Licensor, in its reasonable discretion, shall extend the period of time during which the COW may remain on the Property. Further, in consideration for Licensor's consent to enter into this Agreement, Licensee waives any and all rights it may have under federal or state law for relocation assistance benefits if Licensor requires Licensee to relocate or make use of the Property or Premises in such a way as to displace Licensee from the Property or Premises. Licensee shall execute any further commercially reasonable documentation of this release and waiver mutually acceptable to Licensor and Licensee as Licensor may reasonably require in the future. (b) If Licensee does not protect, temporarily disconnect, relocate, or remove itsLight Standard, Communication Equipment, Building, and/or other property within the time period specified above. Licensor may remove the Light Standard, Communication Equipment, Building, and property and charge Licensee for the actual cost of removal and storage. Altematively, upon Licensee's request. Licensor may approve the abandonment of Licensee's Light Standard, Communication Equipment, Building, or personal property in place. Upon approval. Licensee shall execute, acknowledge and deliver to Licensor any necessary documents to transfer ownership of its Light Standard, Communication Equipment, Building, and personal property to Licensor in "as is, where is" condition, and without warranty of any kind. 14. Intentionally Omitted. MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills 15. Exercise due diligence in utilizing the Premises of Licensor so as to not interfere with utilization of the Property or Premises by Licensor or other authorized persons, and Licensee agrees to comply with any mles and regulations Licensor may promulgate at any time in reference to utilization ofthe Property or Premises by any party other than Licensor provided the same does not conflict with the terms and conditions of this Agreement and notice of same is given to Licensee. 16. (a) Waive all claims against Licensor for any damages to the personal property and Antenna Facility of Licensee in, upon or about the Property and Premises and for injuries to any employees of Licensee or their agents in, upon, or about the Property or Premises from any cause arising at any time, except any damages arising from the gross negligence or willful misconduct of Licensor or its agents, employees or contractors. In addition, except to the extent of the gross negligence or willful misconduct of Licensor or its agents, employees or contractors. Licensee will indemnify, defend, and hold Licensor, including all of its elected and appointed officials, officers, employees, contractors and agents ("Indemnified Parties"), exempt and harmless from any damage or injury to any person, or any property, to the extent arising from the use ofthe Property or Premises by Licensee or Licensee's officers, employees, contractors, or agents, or from the failure of Licensee to keep the Antenna Facility in good condition and repair, reasonable wear and tear excepted, as provided for in this Agreement. (b) Neither party shall be liable to the other, or any of their respective agents, representatives or employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or intermption or loss of use of service, even if advised of the possibility of such damages, whether imder theory of contract, tort (including negligence), strict liability or otherwise. (c) Licensee's indemnification shall include any and all costs, expenses, reasonable attomeys' fees and liability incurred by the Indemnified Parties in defending against such claims, whether the same proceed to judgment or not. 17. (a) Obtain and maintain for the duration of the Agreement and any and all amendments, insvirance against claims for injuries to persons or damage to property which may arise out of or in connection with use of the Property or Premises by Licensee or Licensee's agents, representatives, employees or contractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of Califomia. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:Vn". (b) Maintain the types of insurance coverage and minimum limits indicated below, unless the Risk Manager for the City of Carlsbad approves a lower amovmt. These minimum amounts of coverage will not constitute any limitations or cap on Licensee's indemnification obligations under this Agreement. Licensor, its elected officials or Board of Directors, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Licensee pursuant to this Agreement are adequate to protect Licensee. If Licensee believes that any required insurance coverage is inadequate. Licensee will obtain such additional insurance coverage, as Licensee deems adequate, at Licensee's sole expense. 9 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills 1) Commercial General Liability. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, the general aggregate will be twice the required per occurrence limit. 2) Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage. 3) Workers Compensation and Employer's Liability. Worker's Compensation limits as required by the Califomia Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. (c) Licensee will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1) Licensor and the City of Carlsbad will be named as additional insured on the Commercial General Liability Policy. 2) Licensee will obtain occurrence coverage that must be maintained for the duration of the Agreement. 3) This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) day's prior written notice to Licensor and the City of Carlsbad in accordance with Paragraph 32 below. (d) Prior to Licensor's execution of this Agreement and annually thereafter. Licensee will fumish certificates of insurance to Licensor and City of Carlsbad. (e) If Licensee fails to maintain any or all of the required insurance and in the amount specified. Licensor may immediately terminate this Agreement. (f) Licensee shall provide Licensor copies of any endorsements and certificates of insurance required by the Agreement. 18. Licensor and Licensee shall each refrain from using, generating, storing or disposing of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the State of Califomia to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste which is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. In the event of a breach of this provision by either party, the other may terminate this Agreement upon thirty (30) days written notice to the other (unless such breach is cured within such thirty (30) day period) and pursue any remedies to which it is entitled by law. 19. If necessary. Licensee will install at its own cost: (a) a separate electrical panel and meter for its Antenna Facility and equipment and be responsible for all electrical costs attributable thereto. 10 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills (b) a separate water meter for any landscaping required by Exhibit "B" Conditional Use Permit or other federal, state, or local approval and be responsible for all water and maintenance costs attributable to the this requirement. 20. Provide Licensor with "as-built" drawings for the Antenna Facility within sixty (60) days after the Antenna Facility is installed. 21. Perform the installation in a neat, responsible, workmanlike manner, using generally accepted constmction standards, consistent with such reasonable requirements as shall be in imposed by Licensor. 22. Repair or refinish, at Licensee's sole cost and expense, any surface or other portion ofthe Property or Premises that is damaged by or during the installation, maintenance, or operation of the Antenna Facility. Without limiting any other available remedies, if Licensee fails to commence repairing or refinishing such damage within thirty (30) days after receipt of Licensor's notice. Licensor may, in its sole discretion, but without any obligation to do so, repair or refinish the damage and Licensee shall reimburse Licensor all actual costs and expenses reasonably incurred in the repair or refinishing. 23. Ensure that the Premises are maintained in a clean, safe condition and that Licensee's Antenna Facility is in good repair and free of any defects. LICENSOR'S OBLIGATIONS Licensor will: 24. Allow the constmction, installation, operation, and maintenance of Licensee's Antenna Facility on the Property and Premises for use by Licensee, as approved in Exhibit "B" Conditional Use Permit. 25. Allow reasonable ingress and egress for Licensee to the Property twenty-four (24) hours per day, seven (7) days per week (a) for maintenance purposes, and Licensee shall provide Licensor with at least four (4) hours prior notice before access for such maintenance purposes; and (b) in the event of an emergency, where "emergency" shall be defined as an imminent threat of bodily injury, bodily harm or property damage where immediate access is required, or cases of equipment or antenna failure. 26. Be responsible for its own equipment. 27. Grant any necessary temporary easement or right of entry for as long as this License is in effect, as required for extension of electric and telephone service to the Premises as specified in Exhibit "B" Conditional Use Permit. 28. Licensor and its agents shall have the right to enter the Premises upon twenty-four (24) hour's advance notice to Licensee, during reasonable business hours, for any purpose consistent with Licensor's status as the owner of the Property and Licensor imder this Agreement. Such right is in addition to and in lieu of any right Licensor may have as the local regulatory authority. In the event of an emergency, the notice requirement will be waived for such entry 11 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills requirements, "emergency" shall be defined as an imminent threat of bodily harm, bodily injury or property damage where immediate entry is required. Licensor shall provide written notice to Licensee of such entry immediately after making entry in such circumstances. Under emergency circumstances. Licensor may access Licensee's equipment cabinets located on the Premises; provided however that Licensor shall first complete and submit to Licensee the "Cell Site Hard/Soft Key Access Request Form" attached hereto as Exhibit "E." Licensor shall use its best efforts to first contact Licensee and give Licensee a reasonable amount of time under the circumstances to be present while Licensor accesses such equipment cabinets. 29. Licensor reserves the right to enter into agreements with other parties, including, but not limited to additional Carriers for use of the Property. In the event that an additional Carrier is licensed to use the Property, it shall be such Carrier's responsibility, at its expense to ensure that such installation is constmcted and operated in accordance with applicable FCC regulations. If Licensor approves such Carrier's plans and specifications. Licensor shall notify Licensee in writing as to the scheduled date and time of commencement of constmction and installation ofthe Carrier's facilities and equipment not less than five (5) business days prior to such date. The Carrier's facility, equipment and location, and any change to the additional Carrier's approved facilities, equipment and location shall be made compatible with Licensee's facilities and equipment at Carrier's sole expense. Except as otherwise required or permitted by applicable law, disputes between the Licensee and the other Carriers over the use of the Property shall be submitted to Licensor's City Manager or an authorized designee for final resolution. GENERAL PROVISIONS 30. Any breach of Licensee's obligations under this Agreement, other than the failure to pay applicable fees when due hereunder, which breach is not cured within thirty (30) days of notice to Licensee of such breach, is grounds for revocation or termination of this License by Licensor. 31. Any action at law or in equity brought by either of the parties for the purposes of enforcing a right provided by this Agreement will be tried in a court of competent jurisdiction in the Covinty of San Diego, State of Califomia, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 32. All notices under this Agreement shall be in writing and, unless otherwise provided in this Agreement, shall be deemed validly given if sent by certified mail, retum receipt requested, or via recognized ovemight courier service, addressed as follows (or to any other mailing address which the party to be notified may designate to the other party by such notice). All notices properly given as provided for in this section shall be deemed to be given on the date received or refused when delivered as provided herein when sent. Should Licensor or Licensee have a change of address, the other party shall immediately be notified as provided in this section of such change. 12 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills LICENSEE: Verizon Wireless (VAW) LLC, d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate (Site: Calavera Hills) LICENSOR: City of Carlsbad 405 Oak Avenue Carlsbad, CA 92008 Attn: Joe Gamba Title: Municipal Property Manager 33. The waiver by Licensor of any breach of any term, covenant, or condition in this Agreement shall not be deemed to be a waiver of such term, covenant, or condition for any subsequent breach of the same or any other term, covenant, or condition ofthis Agreement. 34. If any part of any provision ofthis Agreement or any other agreement, document, or writing given pursuant to or in cormection with this Agreement is finally determined to be invalid or unenforceable under applicable law, that part or provision shall be ineffective to the extent of such invalidity only, and the remaining terms and condition shall be interpreted so as to give the greatest effect to them. 35. The terms and conditions of this Agreement shall bind and inure to the benefit of Licensor and Licensee and, except as otherwise provided in this Agreement, their respective heirs, distributees, executors, administrators, successors, and assigns. 36. The terms and conditions contained in this Agreement supersede all prior oral or written understandings between the parties conceming the subject matter of this Agreement. Notwithstanding this, nothing in this Agreement is intended to alter or abrogate actions taken or conditions imposed by Licensor in its capacity as regulatory authority. 37. This Agreement shall not be modified or amended except by a writing signed by authorized representatives of the parties. 38. The above recitals are incorporated into this Agreement 39. All identified or referred to Exhibits are incorporated into this Agreement by this reference. [Signatures appear on next page] 13 MASTER LICENSE AGREEMENT Licensee Site Name: Calavera Hills -REVISED MARCH 2014 ESf WITNESS WHEREOF, Licensee and Licensor have executed this Agreement effective the day and year first written below LICENSEE Verizon Wireless (VAW) LLC, d/b/a Verizon Wireless Brian Mecum Area Vice President Network Date: LICENSOR City of Carlsbad, a Municipal Corporation Its:Manager Steven R. Sarkozy Date: Ou4^ -2ol*f- ATTEST: City Clerk Date: 7 - P ^ - / CL If required by Licensor, proper notarial acknowledgment of execution by Licensee must be attached. Ifa Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President ** Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA 3Re^^^tety Attomey [t/Dep^»City Attomey 14 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California Gounty of f~)] U(N\OIMA before me, XSm^hdV^V^^i NbtzW I Date I I Here Insert Name and Title of the OfficSr personally appeared Name(s) of Signer(s) DIANA AGUIRRE V Commission # 2015275 ft Notary Public - California i ^ Riverside County 5 My Comm. Expires Mar 26.20171 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/herAheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature:' OPTIONAL - Signature rff Notary Public Though the intormation below is not required by law, it may prove valuable to persons relying on the document and could prevent Iraudulent removal and reattachment of this form to another document Description of Attached Document r-, rt A L_ Title or Type of Document: my^<^<=^fC(XW^\mcf^^ f^tl^ h/^iTcmiy^ Document Da\e U^'(<^^ IHfi^^H ; sa^Qikw2» UlU Number of Pages: l'^ Signer{s) Other Than Named Above: CtK^ OP'OM'^IP/M Capacity(ies) Claimed by Signer(s) Signer's Name: '^Y\(^Ut^C^ gf'Corporate Officer - T\i\e{sy.^^<f^'^'^t<AdiC^ • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: VeVI^ "^^^i^ (Vl^w\ l^LCy,db^\iei^]/mcss. Signer Is Representing:. © 2012 National Notary Association • NationalNotaryorg • 1-800-US NOTARY (1-800-876-6827) Item #5907 VERIZON WIRELESS (VAW) LLC d/b/a VERIZON WIRELESS ASSISTANT SECRETARY'S CERTIFICATE I, Karen M. Shipman, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of Verizon Wireless (VAW) LLC, a Delaware limited liability company (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: As stated in the Operating Agreement ofthe Company, the business and affairs ofthe Company shall be managed by its Manager. The Manager duly appointed officers with the authority to execute documents on behalf of the Company. Brian Mecum is duly appointed, qualified and acting under delegated authority, to sign on behalf of the Company, as Area Vice President Network. Dated: July 11,2014 r (^_^,icare|i M. Shipman- Assistant Secretary Witness my hand and official seal, this the // ^ day of July, 2014. (Official Seal) Official Signafure of Notary Arlsne C. Bell Commission # 2047583 Notary Public, State of New Jersey My Commlsston Expires August 3,2018 EXHIBIT A DESCRIPTION OF "PROPERTY" All that certain real property situated in the County of San Diego, State of Califomia, described as follows: That portion of Lot "J" of Ranch Agua Hedionda, in the City of Carlsbad, County of San Diego, State of Califomia, according to map thereof no. 823, filed in the office of the County Recorder of San Diego County, November 16, 1896, being more particularly described as follows: Beginning at the most northeasterly comer of Carlsbad Tract No. 81-47 in said City of and State, according to map thereof no. 10565, filed in the office of the Coimty Recorder of San Diego County on January 17,1983; thence south 69°28'42" West 754.99 feet (record 754.89 feet per map no. 10565), along the northerly boundary of said ttact no. 81-47, to the most northwesterly comer of said tract 81-47, said point being on the centerline of Glasgow Drive as dedicated to the public per map no. 10565; thence continuing South 69°28'42" west, 30.02 feet to the westerly line of Glasgow Drive and the tme point of begiiming; thence continuing south 69°28'42" west, 623.26 feet to a point on the easterly line of an easement for public purposes for document no. 85-263533, recorded July 24, 1985, said point being on a curve concave westerly and having a radius of 1042.00 feet, a radial line to said point bears south 85°33'46" east; thence northwesterly, along said easterly line of Tamarack Avenue, along the arc of said curve, through a central angle of 23°03'26" 419.33 feet; thence north 18°37'13" west, 197.62 feet to the beginning of a tangent curve concave southeasterly and having a radius of 25.00 feet; thence northwesterly, northerly and northeasterly, along the arc of said curve, through a central angle of 90°00'00" 39.27 feet; thence along the southerly line of an easement for public roadway purposes per document no. 86-075424, recorded Febmary 26, 1986, north 71°22'48" east, 384.68 feet; thence leaving said southerly line south, 18°37'12" east, 150.00 feet; thence north 7r22'48" east, 130.00 feet to the westerly line of an easement for public roadway purposes per document no. 86-075424, recorded Febmary 26, 1986; thence along said northerly line, south 18°37'12" east, 460.04 feet to the tme point of beginning. Assessor's Parcel Number: 167-101-35 MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills EXHIBIT B CONDITIONAL USE PERMIT MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills EXHIBIT C DESCRIPTION OF "PREMISES' (See attached Site Plan) MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills 5 ! 5 I CD Si m X Ol I •3 r 90 1 5 m ii > si 0) si H m ss i— s3 m < > H 0 S3 Z H 55 CD o 5 RS SS s 5« « a 6 1 ss s 5s a i S ! s ? i IS h !i 5i i is i I i 35 i ; i| i i is i hi'd S I! 5 SS I*. 1 iJ • H 03 Z o > O I 1 z D z a > u a m i— m % m X n H O a 1 < § CO a eg © ii ® ® 5 P ro rop OF CAISSON |||5 I m : =1 W - i 90 n s Sip 5 oppi Si*-: • <ts iiiig'iliiL, „ i Hi 3S3 S|ssl5PsS|iS5li9°:a.i I.? |5 sS - LS sss p ss i H II ' ' ill ^1 II i il il Si i 3? In- Hi lit i f I a lis m III if •is • sl si w lh all m IP Sit i si it ^1 il 1=: ill ^ -"se S3S 1^ S 9 Is 3 5 i 3 li ' E is Si si la is II DO i8 90 X| 3 EXHIBIT D DESCRIPTION OF "COMMUNICATION EQUIPMENT" (See Plan Pages A-1, A4 and A-5 attached) MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills s S £ Z I FT E i s go " m 5 X r-r-CO SB ' ii; il Hi!i!!i|i|| if! !? r ii ^ i 1 I Si I 11 ill n 3 fo s i 3 i i Is i III a! ! i ^ "!< i! 3 - ^ 1 i- i 5 s s ass si o i 3 iii I '3 z a > o m i— m > Pc !3 a |3 i| 5 qgggqjgssjtgg m 5 ® @ @ li 6S A- ^ J , W.I- TO TOP Of CMSSON fOOtmc Ml > cn a* LIQI DETA COAX = i : SHEET htr ST ILS & CABL 1 TITLE AND ANI E S( m 5SSgS5SS5SSSi3"'s . 5-3-ag -SSSSSSSSSSLSiS.. : R z 51 s 0 OJECT ERA GUSGC BAD, C DIEGO < , HI IW Dl A 92 ILL RIVE 008 ITY fit fi S s s s CO EXHIBIT E CELL SITE HARD/SOFT KEY ACCESS REQUEST FORM MASTER LICENSE AGREEMENT - REVISED MARCH 2014 Licensee Site Name: Calavera Hills CELL SITE ACCESS HARD/SOFT KEY REQUEST FORM wireless • Contractor Company Name D Vendor/Supplier Company Phone # D Vendor/Supplier Sub-Contractor for PLEASE PRINT CLEARLY LAST NAME: FIRST NAME: DRIVER LICENSE #: EMPLOYEE ID# WORK PHONE: STATE: PAGER: MOBILE PHONE: ALTERNATE NUMBER: REASON FOR ACCESS: **PLEASE READ AND SIGN BELOW** I understand the Cell Site Hard/Soft Access Key and IVR pass code I receive are for my personal use only to supply services for Verizon Wireless, and are NOT transferable. I further understand activity ofthis key and pass code is monitored at all times and I am responsible for this activity. Should any incident, including but not limited to damage, theft or vandalism affecting Verizon Wireless, occur where this key and/or pass code is utilized for access, I will accept full responsibility and both my employer and I shall be jointly and severally liable for any associated losses and will compensate Verizon Wireless accordingly. I UNDERSTAND AND ACCEPT THAT ANY UNAUTHORIZED OR IMPROPER USE OF THIS KEY OR PASS CODE MAY LEAD TO MY TERMINATION AS A SERVICE PROVIDER TO VERIZON WIRELESS. Upon termination of my services with my contracting company or earlier if my assignment in providing services to Verizon Wireless is terminated, I will surrender this key to Verizon Wireless and notif/ Verizon Wireless of my termination so that the pass code can be deactivated. If this key is lost or stolen or if my pass code is compromised, I will report such fact to my contracting company and to Verizon Wireless immediately. I understand that I will be charged a replacement fee to cover the cost of the key (to be determined at time of loss). User Signature Date User's Manager Signature Date PLEASE PRINT User's Manager Name VZW Manager/Director Signature PLEASE PRINT VZW Manager/Director DATE