Item 1.4 - Site Encroachment Agmt with New Cingular Wireless; Install of Tel Comm in Public ROW(F)
City of Poway
COUNCIL AGENDA REPORT
DATE: January 15, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Tina White, City Manager
CONTACT: Nicole Murphy, Senior Management AnalySt6
nmurphy@poway.org ll //
APPROVED
APPROVED AS AMENDED
❑
(SEE MINUTES)
DENIED
❑
REMOVED
❑
CONTINUED
RESOLUTION NO.
SUBJECT: Master Communications Site Encroachment Agreement with New
Cingular Wireless PCS, LLC for Installation of Wireless
Telecommunications Facilities within Public Right -of -Way
Summary:
In September 2018, the Federal Communications Commission (FCC) issued a declaratory ruling
and report and order (FCC 18-133) to limit the authority and standards that both states and local
governments can require for the installation and/or deployment of small wireless facilities in the
public right-of-way. FCC 18-133 purports to enact substantial new limits on local government
review and a loss of local control over a number of issues including underg rounding, negotiations
for public benefits and the like, including how municipalities must process small wireless facility
applications. During the 2017 Legislative Session, the League of California Cities opposed similar
legislation, Senate Bill 649 (Hueso), and urged cities to submit letters in opposition. The City of
Poway did submit a letter in opposition along with over two hundred other cities. Governor Jerry
Brown vetoed the legislation. There are over 20 U.S municipalities that have filed suit against the
FCC challenging the ruling.
Working with the City Attorney, staff has developed a model Master Communications Site
Agreement (MCSA) to be used for future small wireless telecommunications facilities within the
public right-of-way. Entities entering into MCSAs with the City would still be required to go through
the Minor Development Review Application (MDRA) permit process for approval of facilities, or
any future wireless communication facility permitting process the City Council may adopt in the
future. The City cannot impose an absolute numeric cap on the number of wireless
communications facilities a specific carrier can install in the public right-of-way. New Cingular
Wireless PCS, LLC (d/b/a AT&T) has approached the City about entering into this type of
agreement, which City staff and New Cingular Wireless, PCS LLC have negotiated over the past
several months
Recommended Action:
1. Approve the model Master Communications Site Agreement for installation of wireless
telecommunications facilities within the public right-of-way.
2. Ratify the City Manager's execution of the agreement with New Cingular Wireless PCS,
LLC, and authorize the City Manager to make future amendments to the same and enter
into similar agreements with other small cell providers, in a final form approved by the
City Attorney.
1 of 29 January 15, 2019, Item # 1.4
Master Communications Site Agreement
January 15, 2019
Page 2
Discussion:
In September 2018, the FCC issued a declaratory ruling and report and order (FCC 18-133)
addressing how municipalities must process small wireless facility applications which will support
the implementation of 5G technology. 5G will offer greater speed to move more data and the
ability to connect a lot more devices at once in a more responsive manner.
The FCC Order defines "Small Wireless Facilities" as facilities mounted on structures 50 feet or
less in height or on structures no more than 10 percent taller than adjacent structures with an
antenna no more than three cubic feet and total wireless equipment no more than 28 cubic feet.
The facilities must not be located on tribal lands and must not emit radiation in excess of
applicable FCC safety standards.
Small wireless facilities serve as a supplement to the larger cellular network and improve service
for wireless customers. Small cells provide additional wireless bandwidth, and do not replace
existing cell tower networks. They are low -powered antennas that provide cellular and data
coverage to smaller geographic areas and rarely require the extensive construction and
supporting infrastructure of cell towers. They target heavily trafficked locations that existing cell
towers may have trouble reaching. For example, small cells add enough bandwidth to keep a
strong signal going in heavily populated/trafficked areas or events (such as a sporting event or
music venue), parking garages, or large buildings.
The Order has three categories that directly impact City resources and staff: (1) processing time,
(2) aesthetic requirements, and (3) application fees. Local agencies have 60 days to review small
wireless facility applications for installation on preexisting facilities, and 90 days for installation on
new facilities. These time periods are known are typically referred to as "shot clock" requirements.
These review requirements include "all aspects of and steps in the siting process." They may only
be paused if the City notifies the applicant within 30 days of receipt that the application is
incomplete, or through mutual agreement between the locality and the applicant. The Order
adopts a new remedy for missed shot clocks by finding that a failure to act within the new small
wireless facility shot clock constitutes a presumptive prohibition on the provision of services, and
an applicant must file a lawsuit within 30 days of any action or failure to act on a wireless
application. These mandatory timelines will likely impact workflow and priorities for local agencies
including the City of Poway.
The Order appears to potentially limit application fees for all small wireless facilities to $500 for
up to five sites, and $100 per site for each site thereafter, and purports to limit what is a
"reasonable" recurring fee to the City's actual costs, mentioning $270 per site, per year, as
presumptively reasonable, although $270 is not necessarily the limit. It should be emphasized
that the shot clock timelines and limit on fees are presumptions, and the Order states that local
agencies will "have an opportunity to rebut the presumption of effective prohibition by
demonstrating that the failure to act was reasonable under the circumstances and, therefore, it
will not materially limit or inhibit the applicant from introducing new services or improving existing
services."
The MCSA provides a framework that will govern the installation of small wireless facilities and
outlines the terms and conditions for the non-exclusive use of the public right-of-way. It includes
provisions for payment to the City, maintenance standards, and other provisions standards
typically required when the City approves such facilities.
2 of 29 January 15, 2019, Item # 1.4
Master Communications Site Agreement
January 15, 2019
Page 3
Staff negotiated the terms of the MCSA with New Cingular PCS, LLC for an initial period of five
years, with five five-year options to renew. With the execution of the agreement, a one-time
aggregate payment of $8,000 is due from New Cingular Wireless PCS, LLC to cover
administrative costs and attorney fees to prepare the agreement. The annual fees will be paid
in advance of each year, on January 1. AT&T has agreed to the annual fee of $1,250 per pole
for the first two years of the initial term of the agreement subject to a 3% annual increase. Section
4.1.1.b of the agreement clarifies that AT&T can renegotiate the annual fee to be the greater of
the City's actual costs or $270 (the figure mentioned in the Order, as discussed above).
The locations of the small wireless facilities will be identified through the review and permitting
process. While the attached agreement includes an exhibit with a schedule of locations, this will
not be populated until New Cingular Wireless PCS, LLC has gone through the MDRA process
and received approval from the Development Services Department. The initial term of the
agreement contemplates the installation and maintenance of up to 50 small wireless facilities. All
work in the right-of-way will be scheduled in advance and in coordination with Public Works,
Engineering or other City staff.
Environmental Review:
This activity is not a "Project' as defined under Section 15378 of the California Environmental
Quality Act (CEQA) State Guidelines. Therefore, this action is not subject to CEQA review.
Fiscal Impact:
The MCSA with New Cingular Wireless PCS, LLC includes a one-time aggregate payment of
$8,000. The revenue generated from the small wireless facilities is unknown at this time as it is
dependent on the number of small wireless facilities approved under the agreement through the
MDRA process. While the FCC Order purports to impose presumptive limits on fees the City can
charge for applications and recurring fees, New Cingular Wireless PCS, LLC has agreed to an
annual fee of $1,250 per small wireless facility for the first two years of the initial term of the
agreement subject to a 3% annual increase.
Public Notification:
The City Council Agenda was posted. In addition, staff notified New Cingular Wireless, PCS
LLC via email of this meeting.
Attachments:
A. Master Communications Site Encroachment Agreement with New Cingular Wireless PCS,
LLC for Installation of Wireless Telecommunications Facilities within Public Right -of -Way. /'
Reviewed/Approved By: Reviewed By: Approved
v ' ` , U'`JY�-u-C�
Wendy Kaserman
Assistant City Manager
Alan Fenstermacher
City Attorney
Tina M. White
City Manager
3 of 29 January 15, 2019, Item # 1.4
MASTER COMMUNICATIONS SITE ENCROACHMENT AGREEMENT
THIS MASTER COMMUNICATIONS SITE ENCROACHMENT AGREEMENT
("Agreement") dated as of January 1, 2019 ("Effective Date"), is entered into between NEW
CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, having a
mailing address of 575 Morosgo Drive NE, Atlanta, GA 30324 (" Licensee"), and the CITY OF
POWAY, A MUNICIPAL CORPORATION ("City") with reference to the following facts.
A Licensee wishes to enter the public right-of-way ("ROW") to attach, install, erect,
operate, and maintain up to fifty (50) various unmanned wireless telecommunications facilities
("WCFs"), and, with fiber and equipment that is directly necessary to the operation of the WCF and
within 100 feet of each WCF, the "Network", are collectively referred in herein as (the "WCF
Improvements"), in the ROW within the City and, in some instances, on assets owned or controlled
by the City for purposes of providing wireless communications services. The Network
will be used to provide wireless telecommunications and data services to the residents and visitors
of the City ("Services").
B. The Network will include antenna nodes, fiber repeaters and related equipment in a
configuration in full compliance with all local, state (including orders and rulings of the PUC), and
federal laws, rulings, and agency determinations, and with construction drawings and
elevations to be submitted to and approved by the City.
C. City is willing to allow Licensee to attach, install, erect, operate, maintain and repair
the WCF Improvements subject to the terms and conditions set forth herein and in the site specific
Schedule of Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to the following covenants, terms, and
conditions:
1. DEFINITIONS:
1.1 Licensed Premises or Premises. The property or properties subject to this
Agreement shall be described in a Schedule (as defined below) approved by the City and attached
hereto. The property described in such Schedules shall constitute and be described and collectively
referred to herein as the "Licensed Premises" or "Premises." Licensed Premises shall include any
appurtenant property the City owns, or controls, including but not limited to light standards, mast
arms and poles, on which WCF Improvements are installed with City's prior approval pursuant to
Section 2.4 below.
1.2 Schedule. Attached hereto and incorporated herein by reference shall be various
Schedules of Licensed Premises (hereinafter "Schedule"). Each Schedule shall be substantially in
the form attached hereto as Exhibit B and shall include the location of the portion of the Premises
which is the subject of that Schedule and the description of the specific Licensee Improvements
(described below) or light standards allowed at that location, their configuration, and the site
specific conditions necessary for approval (hereinafter "Conditions of Approval"). Both parties
agree that Schedules may be added or deleted by administrative action by City from time to time
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subject to and in accordance with the provisions of this Agreement, including but not limited to
any City Council approvals that may be required in accordance with Section 5.2 regarding
Governmental Approvals. Both parties also agree that the City may add to, delete or modify the
Conditions of Approval at any time during the term of this Agreement to advance a legitimate,
lawful and reasonable governmental interest.
1.3 Pre-existing Communications. "Pre-existing Communications" shall be defined
as those communications configurations, equipment and frequencies which exist on City's
property or are in use by the City within or around the City as of the Effective Date of this
Agreement or as of a Commencement Date of an applicable Schedule.
1.4 WCF Improvements. WCF Improvements shall be defined to be those unmanned
wireless telecommunications facilities comprised of radio frequency transmitting and receiving
equipment, antennas, cables, conduits, wires, batteries, utility lines, transmission lines, equipment
cabinet, pads or vaults, radio frequency transmitting and receiving antennas and supporting
structures and improvements, which are approved by the City and which are located or proposed
to be located in accordance with this Agreement, on Licensed Premises. A typical example of the
facilities comprising the WCF Improvements is set forth in Exhibit A, attached hereto. WCF
Improvements shall exclude light standards or poles located in City rights-of-way, whether or not
said light standards or poles are installed by City or Licensee. All such excluded improvements
shall be owned by City.
1.5 Commencement Date. Upon execution hereof by all parties hereto the
Commencement Date of this Agreement shall be the Effective Date. The Commencement Date of
this Agreement with respect to each individual Licensed Premises shall be as specified in each
related Schedule.
2. PREMISES AND LICENSED USES
2.1 Encroachment. Subject to the following terms and conditions and each Schedule's
site specific Conditions of Approval, City hereby grants to Licensee a non-exclusive agreement to
encroach and utilize those portions of the Premises depicted in the Schedules attached hereto and
incorporated herein from time to time to the extent reasonably necessary to place, install, construct,
modify, maintain, repair, operate or otherwise utilize the communications equipment and/or
Improvements depicted in the attached Schedules. Each Schedule executed hereunder shall be
substantially in the form of Exhibit B.
22 Use. The Premises may be used by Licensee solely for the transmission and
reception of non -franchised wireless communications signals maintenance, operation and repair
of City -approved Licensee Improvements.
2.3 Pre -Construction; Testing. Licensee shall have the right (but not the obligation)
at any time following the full execution of this Agreement and prior to the Commencement Date
under each Schedule to enter the Premises for the purpose of making necessary inspections,
engineering surveys (and soil tests where applicable) and other reasonably necessary tests
(collectively "Tests") to determine the suitability of the Premises for Licensee Improvements and
for the purpose of preparing for the construction of Licensee Improvements at no expense to City.
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During any Tests or pre -construction work, Licensee shall have the insurance coverage set forth
in Section 4.4, Insurance. Licensee shall provide the City with twenty-four (24) hours prior
notice of any proposed Tests or pre -construction work and will coordinate the scheduling of
same with City. Licensee, at Licensee's sole cost and expense, will restore the Premises to the
same condition as existed prior to any such Tests or pre -construction work by Licensee.
2.4 Installation of WCF Improvements.
24.1 In General. This Agreement grants to Licensee the right to construct WCF
Improvements on those portions of the Licensed Premises depicted in the Schedules subject to the
terms and conditions set forth herein, all conditions of approval required by City permits, and those
Conditions of Approval found in each Schedule. All Licensee construction and installation work
shall be performed at Licensee's sole cost and expense and in a good and workmanlike manner.
Title to the WCF Improvements shall be held solely by Licensee, or shall remain the personal
property of Licensee, and shall not be treated as real property or become a part of any Premises
even though affixed thereto. All street light standards on property owned, controlled or managed
by the City, whether previously installed by the City or installed pursuant to this Agreement by
City or Licensee, shall be owned by the City. Prior to installation and operation of each set of
WCF Improvements, Licensee must obtain any and all required federal, state and local permits
required for such installation and operation. City permits required include, without limitation,
building permits, encroachment permits, right of way permits, minor development review
applications (MDRA) and an approved Schedule (the "Permits"). All work within the City's
ROW shall be performed in strict compliance with the applicable Permits and all applicable
regulatory requirements. In addition, all work shall be scheduled in advance and coordinated
with Public Works, Engineering or other City staff as appropriate, prior to commencement of the
work in order to minimize the potential for conflicts with City programs or activities occurring on
the site. Licensee agrees that current irrigation spray patterns will not be changed nor obstructed
and that irrigation systems must remain operational at all times, including during construction.
Licensee agrees that the Schedule location will not be activated until the City has signed off on
final construction, which sign off shall not be unreasonably withheld or delayed.
242 Location of WCF Improvements. The location of WCF Improvements
on Licensed Premises shall be subject to the prior approval of the Director of Development
Services, or designee. The City will approve or reject each application to install Licensee's
Improvements within the time period(s) required by applicable law. In deciding whether to
approve a location, the Director of Development Services will take into consideration City's goal
to assure that wireless telecommunication networks are completed with the fewest possible
facilities, in the least visible fashion, and with the least disruptive impact on neighborhoods and
communities within the City of Poway. For example, denying or conditionally approving a
location to preserve and enhance the aesthetic qualities of the City of Poway shall not be deemed
unreasonable. City approval shall be deemed given once the Director of Development Services
has approved the Schedule of Licensed Premises with associated Conditions of Approval. It is
understood that both parties will work together to find the optimum location for Licensee's
antennas on the Licensed Premises that have the least impact to City and private property.
2523/012782-0019
dao[ iq.12/20/'8 -3- January 15, 2019, Item # 1.4
Even though approval of WCF Improvements, including the required Permits, will
generally be handled administratively, the City Council shall have the authority, on appeal or on
its own motion and before construction of WCF Improvements begins, to approve, conditionally
approve, or deny the location of particular WCF Improvements on the Licensed Premises -
regardless of whether the WCF Improvements were previously approved by the Director of
Development Services.
Notwithstanding the provisions above, any City review or approval of Licensee's
applications for placement, construction or modification of wireless communications facilities
shall be conducted in a manner that is consistent with federal, state and local laws. Where terms
of this Agreement are inconsistent with federal, state or local laws, such terms in this Agreement
shall be void and shall be severable from this Agreement without affecting the validity of the
remainder of the Agreement. Nothing in this paragraph or this Agreement shall be construed as a
waiver by Licensee of any rights under federal, state or local law.
243 Utilities. Licensee shall have the right to install utilities which are
necessary for the operation of WCF Improvements, at Licensee's expense, and to improve the
present utilities on or near the Premises (including, but not limited to the installation of emergency
back-up power). Such utilities shall be subject to City approval and removal in the same manner
as other WCF Improvements as provided in Sections 2.4.2, and 2.8, respectively. Licensee shall
fully and promptly pay for all utilities fumished to the Premises for the use, operation and
maintenance of Licensee Improvements. Payment of all costs for said utilities' deactivation and
removal, including any costs which would survive the term of said Agreement or Schedule, shall
be the exclusive obligation of Licensee. WCF Improvements shall include separate utility meters,
and shall pay for the electricity it consumes, including the electricity consumed in connection with
its operations at the rate charged by the servicing utility company.
24.4 Street Light Standards. In the case of installations on street light standards
or mast arms, the light standards or masts must meet or exceed City (Lighting District) standards
and Licensee shall comply with all applicable City regulations for the installation of street lights.
Prior to installation, the Director of Development Services shall review and approve all
specifications and submittals for street light standards prior to issuance of a building permit. If the
installation is to be done via replacement of an existing standard and/or mast arm, said replacement
shall meet the same regulations as were applied to the existing standard and/or mast arm and be
completed to the satisfaction of the Director of Development Services. Said regulations shall
include, but not be limited to, the form, size, strength and construction materials specified for City
street lights. Consistent with the City's lawful exercise of police powers, such regulations may be
amended at the City's sole and absolute discretion including, but not limited to, allowing for
additional space for internal wiring of City and/or Licensee, or altered foundation requirements to
accommodate joint City and Licensee uses, or other technical reasons. Licensee shall pay all costs
to modify Licensee's WCF Improvements as required by such amended regulations. In making
any such amendments, City shall use reasonable efforts to accommodate and not materially
adversely impact the functioning of existing Improvements. In the event the amended regulations
make existing WCF Improvements unusable by Licensee, then City shall use reasonable efforts to
provide a suitable alternate location.
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Upon reasonable notice and written request by the Director of Development Services,
Licensee shall provide a replacement pole that is pre -approved by the Director of Development
Services and shall contact the City's Public Works Department for disposition of the existing pole,
which may include transporting the existing pole to a location designated by the Director of
Development Services. The costs of such disposition shall be the sole responsibility of Licensee.
Additionally, Licensee is required to maintain at least one (1) replacement light standard, at a
location designated by the Director of Development Services, to be used in the event a light
standard is damaged, knocked down or destroyed. The design of the pole, method of attachment
for Licensee's equipment and all other connections shall meet the specifications reasonably
required by the Director of Development Services. The existing street light standard shall remain
operational and active during installation of WCF Improvements except during the period when
the light standard is being replaced, if applicable. The Director of Development Services or
designee shall perform a final inspection of the street light standard, WCF Improvements, and
surrounding landscaping and irrigation system(s), prior to final release or sign off on final
construction.
245 Compliance with Laws. Licensee's Installation and operations of WCF
Improvements, as well as City's exercise of review, management or control functions, must
comply with all applicable federal, state and local laws. Installation of improvements in or near
the public right of way shall meet the requirements of the Americans with Disabilities Act with
regard to minimum clearance and public use of sidewalk areas.
24.6 Restoration. Licensee shall be responsible for any damage, ordinary wear
and tear excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks,
landscaping, and all other public or private facilities to the extent caused by Licensee's
construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of
the WCF Improvements in the City's ROW. Licensee shall promptly repair such damage and
return the City's ROW and any affected adjacent property to a safe and satisfactory condition to
the City in accordance with the City's applicable street restoration standards, or to the property
owner if not the City. In particular, if any City sidewalk is disturbed in the course of installation,
removal of facilities, or other construction activity, Licensee shall replace said sidewalk from cold
joint to cold joint in each direction from the disturbed area and to the satisfaction of the Director
of Development Services. If any existing landscaping, irrigation systems, utilities or other City
facilities are disturbed in the course of installation, removal of facilities, or other construction
activity Licensee shall replace and restore said property to its pre -installation condition, to the
satisfaction of the City's Director of Development Services. Licensee's obligations under this
Section 2.4.6 shall survive for one (1) year past the completion of such reparation and restoration
work and return of the affected part of the City's ROW by Licensee to the City.
24.7 Maintenance; Upgrades. Licensee shall, at Licensee's sole cost and
expense, perform all maintenance, repairs, and replacements reasonably needed to maintain the
WCF Improvements and the municipal facilities upon which any portion of the WCFs or Network
is located (including, without limitation, street light poles) in good condition and appearance, and
in compliance with all applicable laws; the parties acknowledging and agreeing that the
maintenance and repair obligation includes the obligation to replace poles in the event damage is
caused through an anomalous incident, including without limitation car strikes and earthquakes.
In the event any part of the WCF Improvements requires replacement because such part cannot be
2523/012782-0019
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January 15, 2019, Item # 1.4
repaired, Licensee shall, at Licensee's sole cost and expense, replace the irreparable part of the
WCFs and/or the Network and any associated municipal facility or other equipment that requires
replacement as a result of the WCFs and/or Network replacement/repair activity. If Licensee
becomes aware that any municipal facility become nonoperational during the term of this
Agreement and subsequent renewals Licensee will advise the City of the nonoperational status
within twelve hours of becoming aware of the same; further Licensee shall respond and commence
repair within twenty-four(24) hours upon Licensee being advised by the City of (or providing
notice to the City of) such nonoperational status. Notwithstanding the foregoing, subsequent to
the original installation of Licensee's WCF Improvements, Licensee may make modifications to
or replace Licensee's WCF Improvements, or may alter, enhance, and upgrade the same, so long
as such modification, replacement, substitution, alteration, enhancement, or upgrade does not
increase streetlight standard loading beyond the loading that was established in the approved
application, or involve placement of Licensee's WCF Improvements outside the area designated
in the approved application, without obtaining prior written consent of the City. Notwithstanding
the forgoing, Licensee shall notify the City, in writing, prior to commencing work on any such
modification, replacement, substitution, alternation, enhancement, or upgrade. Any modification
that would involve increasing the streetlight standard loading beyond what was established in the
approved application or involves the placement of Licensee's WCF Improvements outside of the
area designated in the approved application shall require Licensee to submit a new application to
the City for such Licensed Premises.
24.8 Coordination of Excavation with Other Permittees. At least fourteen
(14) days prior to commencing excavation work in the City's ROW pursuant to this Agreement,
Licensee shall notify in writing, on a form approved by the City, other existing or potential users
("User") of the City's ROW which are (a) shown on the list of users maintained by the City; and
(b) are likely to be affected by such excavation work. The notice shall describe the work to be
performed, the specific ROW of the City that will be used, and the time when such work will be
performed. Each User receiving such notice shall have thirty (30) days from the date thereof to
inform in writing Licensee and the City that such User desires to perform work jointly with
Licensee. To the extent reasonably feasible, and subject to Licensee and User entering into a
written agreement for such work and/or use, shall coordinate its work with any User who timely
informs Licensee that it desires to perform workjointly in the City's ROW, provided the User has
obtained any required ROW agreement and permits from the City as required by the Code,
including the installation of any facilities, or uses any facilities installed by Licensee on their
behalf.
2.5 Access.
25.1 Licensee and Licensee's employees, agents, contractors and subcontractors
shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week, at no
charge to Licensee, subject to the conditions set forth in each Schedule. City hereby licenses
Licensee to all rights of ingress and egress held by City to the extent required to construct,
maintain, install and operate Licensee's WCF Improvements on the Premises. Licensee's exercise
of such rights shall not cause undue inconvenience to City.
252 In connection with installations on light standards, mast arms or poles,
Licensee shall provide at least seven (7) days written notice to the Director of Development
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Services of installation date and time and obtain any necessary permit(s) for such installation.
Licensee shall pay any and all costs associated with City shut off and reconnect of power to
Premises, installation oversight and/or inspections if City reasonably deems necessary.
253 In connection with Licensee's maintenance of WCF Improvements on street
light standards, mast arms or poles, Licensee shall obtain a right -of- way permit, when required,
and any other necessary permit(s), prior to performing said maintenance. Licensee shall also pay
City any and all costs associated with maintenance oversight and/or inspections if City deems
reasonably necessary. In case of need for emergency maintenance of WCF Improvements,
Licensee shall use its best efforts to give prior notice to Director of Development Services but, in
any event, shall notify City of such emergency work the first business day after the work is
commenced and obtain a right -of- way permit and any other necessary permit(s).
25.4 In connection with City's maintenance of street lights which share a
standard or mast arm with such installations, City shall use its best efforts to provide Licensee at
least twenty four (24) hours' notice of said maintenance. If City desires to have a technician of
Licensee on site during said maintenance, Licensee shall provide said technician upon at least
twenty four (24) hours' notice. In case of need for emergency maintenance of City's street lights
which share a standard or mast arm with such installations, City need not give prior notice to
Licensee but shall notify Licensee of such work as promptly as reasonably possible after the work
is commenced.
2.6 Interference with Communications.
26.1 WCF Improvements at any given Premises shall not interfere with Pre-
existing Communications (determined with respect to such Premises at the date the Schedule for
such Premises is executed). WCF Improvements shall also comply with all noninterference rules
of the Federal Communications Commission ("FCC").
262 Any radio equipment installed by Licensee on the Premises shall be
frequency compatible with all radio transmitting and receiving equipment existing and in use on
the Premises at the time initial installation of such equipment is made. In the event Licensee's
installation electronically or physically interferes with City's installation already existing on the
Premises, Licensee shall take all necessary steps, at its own cost and expense, to eliminate such
interference, whether so required by the FCC or not.
263 Except to the extent necessary to install, operate or maintain public
improvements, or in the event of an emergency, the City shall not knowingly interfere with the
location, configuration, frequency or operation of the WCF Improvements except in the legally or
contractually required repair or upgrade of Pre -Existing Communications where interference
cannot reasonably be avoided. In the event any equipment installation by City made subsequent
to Licensee's installation causes interference with the location, configuration, frequency or
operation of the WCF Improvements , City shall exercise reasonable best efforts to eliminate such
interference after learning of such interference, whether required by the FCC or not.
26.4 Notwithstanding any other provision in this Agreement to the contrary, in
the event of an emergency. City shall have the right, in its sole discretion, to take such action it
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determines in its sole discretion is necessary under the circumstances to address the emergency,
even though such actions may cause interference with the WCF Improvements or the operation
thereof. If City must take action which causes or may cause interference, City shall endeavor to
(a) give Licensee oral notice of such action as quickly as practicable and (b) to the extent
practicable under the circumstances, upon notice by Licensee of the existence of interference,
minimize the duration and extent of such interference.
265 City shall have the responsibility to cooperate with Licensee to identify and
remedy to the extent reasonably necessary, any interference with the communications operations
of Licensee described in Sections 2.6.3 and 2.6.4, above.
26.6 Subsequent to the installation of the WCF Improvements, unless legally or
contractually required to do so, City shall not permit its licensees or future licensees to install new
equipment on any portion of the Licensed Premises for which a Schedule has been approved or
property contiguous thereto owned or controlled by City, if such equipment is likely to cause
interference with Licensee's operations. Licensee shall cooperate in good faith with City to
determine whether such interference is likely to be caused by the prospective future licensee. For
purposes of this Section 2.6.6, the existence of electronic and physical interference shall be
reasonably determined by City and Licensee. In the event Licensee reasonably determines the
likelihood of interference by newly installed facilities, City shall direct the party installing such
facilities to meet and confer with Licensee in order to develop an approach or design that eliminates
or materially reduces the potential for interference. Notwithstanding the foregoing, Pre-existing
Communications operating on the Commencement Date that do not measurably change from the
power level, frequency or location on the Commencement Date shall not be deemed to be
interfering at any time.
26.7 Licensee agrees to notify immediately the Director of Development
Services of the City of any changes in Licensee frequencies to be used at the Premises.
2.7 Liens. This Agreement does not grant to Licensee a lienable interest in the City's
real property. Licensee shall keep the Premises free and clear of any and all liens or claims of
liens and charges on account of its personal property or of labor and materials used in or
contributing to any work performed by or related to this Agreement. If Licensee does not bond
over or cause the release of lien within 30 days after Licensee receives notice of the lien, City shall
have the right, but not the obligation, to discharge any or all such liens or claims which may
encumber or erroneously attach to City's real property, and Licensee shall, upon demand therefore,
reimburse City for all costs and expenses incurred by City.
2.8 Removal of Improvements; Damage or Destruction.
28.1 Upon expiration, cancellation or termination of this Agreement or any
Schedule hereunder, Licensee shall be responsible for: (a) removing from the Premises subject to
such expiration, cancellation, or termination, at its sole cost, all Improvements except those which
the parties agree shall not be removed or shall be transferred to City, (b) repairing, at its sole cost,
all damage caused by such removal, (c) removing the street light standard and installing a
replacement standard which meets then -current City standards, if required by City, and
(d) surrendering the Premises to City in the Premises' original condition existing at the
J
2532�3/012782-0019
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January 15, 2019, Item # 1.4
Commencement Date of Licensee's use of the Premises, ordinary wear and tear and damages
caused by third parties excepted. Said return of Premises in their original condition shall include
Licensee's remediation of any hazardous or toxic material discharge at the Licensed Premises
caused by Licensee or its agents and shall be to the reasonable satisfaction of the City. Licensee
agrees to execute an Encroachment Extinguishment and Removal Agreement, in the form
satisfactory to City attached as Exhibit C hereto, for Licensee Improvements installed within the
public street right-of-way.
282 Within 90 days after the date this Agreement or an applicable Schedule
expires or otherwise terminates, Licensee, at its sole expense, shall remove all Improvements from
the affected Premises; provided that if two or more Schedules expire or terminate concurrently,
then Licensee shall have a reasonable amount of additional time to remove the affected Licensee
Improvements so long as it is diligently proceeding with removal. In no event shall such
reasonable time for the removal of all Improvements exceed 120 days from the date of expiration
or termination of this Agreement or an applicable Schedule. Any Licensee Improvements
remaining on any portion of the Premises beyond the time period available for removal as set
forth above shall, at the sole discretion of the City, either (a) in whole or in part become City
property (b) in whole or in part be removed and disposed of by City, with the reasonable costs of
said removal and disposal, including reasonable administrative overhead, to be reimbursed to
City by Licensee within ten days after Licensee receives City's request for reimbursement
together with reasonable evidence of the cost.
283 If a portion of the Premises consists of a light standard, mast arm or pole
and the same is damaged, knocked down or destroyed from any cause, the following provisions
shall apply:
(a) If the damage or destruction renders Licensee unable to conduct
normal operations from that portion of the Premises and a temporary site is not made available per
subsection f. below, the fee for such portion of the Premises shall abate in full from the date such
damage or destruction occurs until Licensee is able to commence normal operations from that
portion of the Premises; provided that Licensee shall have no right to abatement if the damage or
destruction is caused by Licensee or its agents' negligence or willful misconduct.
(b) If Licensee chooses to terminate the use of any portion of the
Licensed Premises suffering such damage, Licensee shall notify the Director of Development
Services of such decision within ten (10) days after notice of such damage. Licensee shall comply
with all terms of this agreement concerning removal of Licensee Improvements. Licensee shall
be responsible for any removal or replacement of wiring, foundation or other associated facilities
that may be required to accommodate the replacement facilities. If this option is chosen by
Licensee, Licensee shall also be obligated to replace or pay to replace the damaged light standard,
mast arm or pole to then current City standards.
(c) Immediately following the damage or destruction, City shall
exercise its best efforts to notify Licensee in writing thereof. Licensee shall commence and
thereafter continue diligent efforts to repair or replace the light standard, mast arm or pole.
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(d) If, within seven days after written notice from City of damage,
Licensee has not commenced to repair or replace the pole or light standard, then City shall have
the right, but not the obligation, to repair or replace the pole or light standard to City's then -existing
standards and regulations; provided that City shall have no obligation to restore any Licensee
operations served by the light standard, mast arm or pole.
(e) If City repairs and replaces pursuant to subsection (d) above, then
Licensee shall reimburse City for all its reasonable costs of repair and replacement.
Reimbursement shall be due and payable within 30 days after receiving City's request for
reimbursement.
(I) If Licensee is unable to conduct normal operations from a portion of
the Premises due to damage or destruction, City shall use reasonable efforts to identify and make
available to Licensee, within ten days following the damage or destruction, a temporary site owned
or controlled by City which in Licensee's judgment is equally suitable for Licensee's intended
uses (subject to public safety issues). Licensee may construct and operate Licensee's
Improvements at the temporary site on an emergency basis with City staff approval only until the
Premises are fully repaired and available to Licensee.
2.9 Termination.
29.1 Neither this Agreement nor any Schedule shall be revoked or terminated
during the Term or any Renewal Term except as expressly stated herein.
292 This Agreement may be terminated by either party for any or no reason by
delivering to the other party, at any time after the initial five (5) year term of this Agreement,
written notice of exercise of this right to terminate (the "Exercise Notice"). If this right to terminate
is exercised, termination of this Agreement shall be effective 12 months after the Exercise Notice
is delivered to the other party. From and after the date the Exercise Notice is delivered to the other
party until the effective date of termination, Licensee shall have no right to receive any further
Schedule attachments to add Licensed Premises that were not executed prior to delivery of the
Exercise Notice. Notwithstanding the foregoing, City retains the right to disapprove extensions of
this Agreement beyond the first five-year term as provided in Section 3.1 hereof.
293 Licensee shall have the right to terminate a Schedule on 30 days prior
written notice to City (or any shorter notice expressly set forth below), if:
(a) Licensee delivers to City such 30 -day written notice at any time
prior to the Commencement Date under such Schedule for any reason or no reason;
(b) Licensee determines at any time after the Commencement Date
under such Schedule that any governmental or non-governmental license, permit, consent,
approval, easement or restriction waiver that is necessary to enable Licensee to install and operate
Licensee Improvements cannot be obtained at acceptable expense or in an acceptable time period;
(c) Licensee determines at any time after the Commencement Date
under such Schedule that the Premises are not appropriate or suitable for Licensee operations for
economic, environmental or technological reasons, including without limitation, any ruling or
2523/012782-0019
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directive of the FCC or other governmental or regulatory agency, or problems with signal strength
or interference not encompassed by Section 2.9.3.d. below; provided that if Licensee exercises the
right to terminate under this subsection, Licensee shall pay City (or City may deduct from any
rebate due Licensee) as a termination fee 25% of the then Annual Fee for the subject Premises;
(d) Any Pre-existing Communications, or any communications
facilities or other structures of any kind now or hereafter located on or in the vicinity of the subject
Premises, interfere with the location, configuration, frequency or operation of Licensee
Improvements and Licensee is unable to correct such interference through reasonably feasible
means;
(e) City commits a default under this Agreement with respect to such
Schedule and fails to cure such default within the 30 -day notice period, provided that if the period
to diligently cure takes longer than 30 days and City commences to cure the default within the 30 -
day notice period, then City shall have such additional time as shall be reasonably necessary to
diligently effect a complete cure.
(t} The Premises under such Schedule are totally or partially damaged,
knocked down or destroyed from any cause (other than due to Licensee or its agent's negligence
or willful misconduct) so as, in Licensee's judgment, to hinder Licensee's normal operations and
City does not provide to Licensee within 10 days after written request from Licensee a suitable
temporary site for Improvements pending repair and restoration of the subject Premises.
29.4 City shall have the right to terminate a Schedule if:
(a) Licensee commits a default under this Agreement with respect to
such Schedule and fails to cure such default within (i) thirty (30) days after Licensee receives
written notice of the default where the default is a failure to pay the annual fee for the subject
Premises when due, or (ii) 30 days after Licensee receives written notice of any other default and
fails to cure such default, provided that if the period to cure takes longer than 30 days and Licensee
commences to cure the default within the 30 -day notice period, then Licensee shall have such
additional time as shall be reasonably necessary to diligently effect a complete cure. A violation
of the Schedule's Conditions of Approval shall be deemed a default forpurposes of this subsection;
(b) The Premises are wholly or partially damaged or destroyed so as to
interfere with Licensee's normal operations, provided Licensee has not elected to repair, replace,
or restore the Premises (and the improvements located thereon) in accordance with the provisions
of Section 2.4.7 and Section 2.8.3 above. City has no obligation to repair under 2.8.3 above and
neither party elects to repair pursuant to Section 2.8.3 above; or
(c) The City Manager determines, in good faith and consistent with
federal and state law, that there exists an immediate and substantial threat to public health and
safety due to particular circumstances affecting the Premises which cannot be rectified through
means less onerous than termination (such as temporary emergency cessation of use by Licensee
pending corrective work), in which case termination shall take effect 48 hours after Licensee
receives written notice of termination setting forth the City Manager's determination and the
reasons therefore.
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295 A Schedule shall automatically terminate as of the date when possession is
delivered to any governmental authority pursuant to the exercise of its power of eminent domain
over the subject Premises or such portion thereof as is sufficient, in Licensee's good faith opinion,
to render the Premises unsuitable for Licensee's normal operations, or pursuant to a transfer of the
subject Premises or such portion thereof under threat or in lieu of exercise of such power.
29.6 Upon termination of this Agreement, neither party shall have any further
rights, obligations or liabilities to the other except: (a) with respect to provisions of the Agreement
which by their sense and context survive termination including but not limited to Sections 2.8, 4.3,
5.3, 5.10, 5.11, 5.12 and 5.13; and (b) with respect to the rights and remedies of the parties relating
to the period prior to termination. Upon termination of any Schedule, neither party shall have any
further rights, obligations or liabilities to the other respecting such Schedule or the Premises
thereunder except: (i) with respect to provisions of this Agreement applicable to such Schedule
which by their sense and context survive termination; (ii) where termination is by reason of breach
or default of the other party; and (iii) with respect to the rights and remedies of the parties relating
to the period prior to termination.
2.10 Preference for Municipal Facilities. In any situation where License has a choice
of attaching its equipment to either municipal facilities or third -party -owned property in the ROW,
Licensee agrees to attach to the municipal facilities, provided that (i) such municipal facilities are
at least equally suitable functionally for the operation of the Network and (ii) the fee and costs
associated with such attachment over the length of the term are equal to or less than the fee or cost
to Licensee of attaching to the alternative third -party -owned property.
3.1 Term.
3.1.1 The initial term ("Term") of this Agreement shall begin on the Effective
Date and shall expire on the date which completes five (5) years after the Effective Date, unless it
is earlier terminated by either party in accordance with the provisions herein. The Term of this
Agreement may be extended for up to five (5) additional successive terms of five (5) years (each
a "Renewal Term") on the same terms and conditions as set forth herein, except as the Annual Fee
may be adjusted as provided in Section 4.1, below. Subject to the termination rights set forth in
Section 2.9, above, this Agreement shall automatically be extended for each successive Renewal
Term unless Licensee notifies City of its intention not to renew prior to commencement of the
succeeding Renewal Term.
3.12 Subject to the maximum overall term of 30 years set forth above, the term
of any Schedule shall be as follows: A Schedule shall continue in effect for five years from said
Schedule's Commencement Date; provided that Licensee shall have the right to extend the Term
of such Schedule for five (5) additional periods of five (5) years (the "Renewal Term"). The
Renewal Terms shall be on the same terms and conditions as the first Term except that the Annual
Fee may be adjusted as provided in Section 4.1, below. Each Schedule shall be automatically
extended for each successive Renewal Term unless Licensee notifies the City in writing of
Licensee's intention not to extend such Schedule at least 90 days prior to expiration of such
Schedule's Term.
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1y2999JL f/20/18 12 January 15, 2019, Item # 1.4
4. COMPENSATION AND LIABILITY
4.1 Payment.
4.1.1 In consideration for the use of each Licensed Premises, during the initial
term Licensee agrees to pay City as follows:
(a) Administration Fee. Licensee shall make a one-time initial payment
to the City of EIGHT THOUSAND Dollars ($8,000) for administration activities related to this
Agreement, concurrent with the execution of this Agreement by the parties hereto. If, at the time
of execution of this Agreement, Licensee has already paid this fee to the City concurrent with
execution of this Agreement for another Right -of -Way facility in the City, no additional
administration fee shall be required.
(b) Annual Fee. Subject to Section 4.1.1(c) below, upon
commencement of this Agreement, and continuing until the second anniversary of the Effective
Date, Licensee shall pay to the City an Annual Fee of TWELVE HUNDRED FIFTY Dollars
($1,250.00), for each Licensed Premises, to reimburse the City's costs incurred as a result of
Licensee's occupation of the Rights of Way. Thereafter, the Annual Fee payable for each of
Licensee's then -existing and future WCF Improvements located in the City's Right of Way shall
be the greater of: (i) $270.00, or (ii) City's cost, set in accordance with the requirements of the
Federal Communications Commission's Declaratory Ruling and Third Report and Order, FCC 18-
133, Released September 27, 2018 ("Order"), calculated pursuant to a cost study which has been
reviewed, adopted and approved by City's Council and is not subject to further appeals or subject
to a complaint before a competent regulatory agency or court. The City shall deliver to Licensee
a copy of City's cost study no less than ninety (90) days before that cost study is presented to the
City Council for adoption or approval. Notwithstanding the foregoing, if at any time from the
second anniversary of the Effective Date to the termination of this Agreement, the Order is
rescinded, modified, overruled, or otherwise is not in effect in the same form as the Order existed
on September 27, 2018, the Parties shall renegotiate this Section in conformance with applicable
law, in the manner set forth in Section 5.16 herein.
(c) If the City enters into any agreement with or accepts an application
from another entity for the lease or license of a City -owned pole or light standard for the
construction, operation, maintenance, repair or replacement of a WCF Improvement, and that
agreement places Licensee, in its discretion, at a competitive disadvantage in light of the rates and
terms and conditions established in this Agreement, the City agrees to promptly negotiate with
Licensee in good faith to revise the rates and/or terms and conditions in this Agreement to eliminate
such disadvantage.
4.12 The Annual Fee for each Licensed Premises shall be set at the rate in effect
for the calendar year in which the Commencement Date for such Schedule occurs, and shall be
adjusted on January 1 of each year thereafter during the term of the Schedule, beginning January 1,
2019, according to the adjustment provisions of Sections 4. 1.1 above.
4.13 The Annual Fee shall be payable in advance on each January 1, except that
any partial Annual Fee for the first partial calendar year during the Term of any Schedule shall be
2523/01p227,J82-0019
gd%99f Lf/20/18 13 January 15, 2019, Item # 1.4
payable within sixty (60) days following the Commencement Date of the subject Schedule. If the
Commencement Date occurs other than January 1, and/or if the Term or final Renewal Term ends
on a date other than December 31, the Annual Fee shall be prorated for the first and last partial
calendar years during the Term or final Renewal Term, based on a 360 day year and 12 months of
30 days each.
4.1.4 If payment is not received by January 1, or the respective Commencement
Date, a late fee of 5% of the balance due will be assessed. In addition, interest will accrue at a rate
of 6% per annum until paid.
4.15 If a Schedule is terminated prior to December 31 of any year for any reason
other than Licensee's default, City shall rebate to Licensee the unearned portion of the Annual Fee
for the calendar year in which termination occurs, provided that City may reduce any such rebate
by (a) any termination fee owing to City under Section 2.9.3.c above and (b) those sums, if any,
due from Licensee under Section 2.8 above. City shall pay such rebate within 60 days after the
effective date of termination. Whenever Licensee is entitled to abatement of an Annual Fee under
this Agreement or any Schedule, City shall credit the amount of such abatement against the next
Annual Fees due from Licensee; provided that if the amount of the abatement exceeds the total
next Annual Fee (if any) due for the Premises respecting which the abatement has arisen, City
instead shall rebate to the full abatement amount within 30 days after delivers to City written
request for such rebate.
4.1.6 Payments shall be made to The City of Poway, care of Senior Management
Analyst with the City Manager's Office, 13325 Civic Center Drive, Poway CA 92064, or to such
other place as City may from time to time designate by written notice to Licensee. Payments shall
be accompanied by a description of payment, which identifies the sites for which payment is being
made.
42 Surety Bond. Licensee shall furnish a surety bond, or alternative acceptable to
City, to cover the faithful performance by Licensee of its obligations under this Agreement. Such
bond shall be issued by a commercial bonding company which is authorized to transact surety
insurance business in the State of California and has a Best's rating of AN or better; shall not be
subject to termination or cancellation except upon ninety (90) days' prior written notice by
certified mail to City; shall be in such form and in an amount not less than $25,000 as determined
by the City based on the estimated cost of obligations under this Agreement, including but not
limited to Licensee's maintenance and repair obligations under Section 2 of this Agreement, which
the City may require Licensee to increase from time to time (but no more frequently than every
five years during the Term); and, subject to termination or cancellation as foresaid, shall be
maintained in full force and effect throughout the life of this Agreement and until City, in its sole
discretion, determines that Licensee has fulfilled all of its obligations under this Agreement.
4.3 Hold Harmless.
43.1 Licensee shall indemnify, defend, and hold harmless the City, its
councilmembers, officers, employees, agents, and contractors, from and against liability, claims,
demands, losses, damages, fines, charges, penalties, administrative and judicial proceedings and
orders, judgments, and the costs and expenses incurred in connection therewith, including
2523/012982-0019
JY20t2�g12/20na -14- January 15, 2019, Item # 1.4
reasonable attorneys' fees and costs of defense, to the extent directly or proximately resulting from
Licensee activities undertaken pursuant to this Agreement, including but not limited to the
installation, operation and removal of the ACF Improvements or conduct of , or any agent or
employee, subcontractors or others acting under the direction or control of Licensee, except to the
extent arising from or caused by the negligence or willful misconduct of the City, its
councilmembers, officers, employees, agents, or contractors. The City shall promptly notify
Licensee of any claim, action or proceeding covered by this Section 6.1. Licensee's
indemnification shall include any and all costs, expenses, reasonable attorneys' fees and liability
incurred by the City, its officers, agents, or employees in defending against such claims, whether
the same proceed to judgment or not, in judicial, administrative and alternative dispute resolution
proceedings. Further, at its own expense shall, upon written request by the City, defend any such
claims arising from Licensee's operations or conduct that are brought against the City, its officers,
agents, or employees. Licensee also shall and does hereby agree to indemnify, protect, defend and
hold harmless the City, its elected and appointed officers and employees (each a `City Party'),
from and against all claims for damages, liability, cost and expense (including without limitation
attorneys' fees) incurred by the City arising, directly or indirectly, from (a) City's approval and
issuance of Schedule and (b) City's approval or issuance of any other permit or action, whether
discretionary or non -discretionary, in connection with the use contemplated herein.
432 It is agreed between the parties that the City assumes no responsibility or
liability for loss, damage, expenses or claims, direct or consequential, from (a) the Licensee's
inability to use the Licensed Premises for its intended purpose, contributed to or caused by the
failure of existing facilities on which WCF Improvements may be placed, inability to use the site,
or otherwise, (b) Licensee's use of any related access roads, (c) Licensee's operation of the WCF
Improvements, or (d) the termination of the Agreement by either party.
433 Notwithstanding any contrary provision of this Agreement, each party
hereby waives any right to recover from the other party or other party's partners, affiliates, agents
and employees any loss or damage resulting from any cause or hazard to the extent the loss or
damage is covered by property insurance carried by the party suffering loss or damage, including
any loss or damage resulting from loss of the use of any property and provided that at the time of
loss the property insurers for both parties have waived rights of subrogation. These waivers shall
apply between the parties and to any property insurer claiming under or through either party as a
result of any asserted right of subrogation, unless any property insurer has not waived its right of
subrogation (in which case these waivers shall have no effect).
4.4 Insurance. Licensee, at its sole cost and expense, shall maintain in full force and
effect at all times during the term of this Agreement (including the period between the expiration
hereof and Licensee's removal of the WCF Improvements or other equipment from the Premises
or appurtenant property). Commercial General Liability insurance covering bodily injury
(including death), personal injury and property damage. Limits shall be in an amount of two
million dollars ($2,000,000) per occurrence, and four million dollars ($4,000,000) aggregate. Such
insurance shall include the City, its officers, agents and employees, individually and collectively,
as additional insureds with respect to any covered liability arising out of Licensee's performance
of work under this Agreement. The City's additional insured status shall (i) be limited to bodily
injury, property damage or personal and advertising injury caused, in whole or in part, by Licensee,
its employees, agents or independent contractors; (ii) not extend to claims for punitive or
2523/012782-0019
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exemplary damages arising out of the acts or omissions of the City, its employees, agents or
independent contractors or where such coverage is prohibited by law or to claims arising out of
the gross negligence of the City, its employees, agents or independent contractors; and, (iii) not
exceed Licensee's indemnification obligation under this Agreement. Throughout the term of this
Agreement, Licensee, at its sole cost and expense, shall also maintain in full force and effect, auto
liability insurance coverage for bodily injury (including death), and property damage which
provides total limits of two million dollars ($2,000,000) combined single limit per occurrence
applicable to all owned, non- owned and hired vehicles. Additionally, Licensee shall maintain
fifty thousand dollars ($50,000) Fire Legal Liability on all real property being licensed, including
improvements and betterments owned by City. Licensee shall also provide insurance (or self-
insurance) on all personal property contained within or on the Licensed Premises, including
coverage for fire damage. The policy shall be written on a standard "all risk" contract, excluding
earthquake and flood. The contract shall insure (or self -insure) for not less than (90) percent of
the actual cash value of the personal property, and shall name the City as additional insured.
Coverage shall be provided in accordance with the limits specified and the Provisions indicated
herein. Claims -made policies are not acceptable. When an umbrella or excess coverage is in effect
and needed to meet required total limits, coverage shall be provided in following form. Licensee
shall give the City at least thirty (30) days' advance written notice of such cancellation or
nonrenewal. Licensee shall be responsible for notifying the City of such cancellation or
nonrenewal of any required insurance that is not replaced.
4.4.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this License, Licensee shall file with the City the required original certificate(s)
of insurance with endorsements, subject to the City's prior approval, which shall clearly state all
of the following:
(a) Provide on an ACORD form, or other similar form acceptable to
City, an original Certificate of Insurance certifying that coverage as required has been obtained
and remains in force.
(b) That Licensee's required auto and commercial general liability
insurance is primary as respects any other valid or collectible insurance that the City may possess,
including any self-insured retentions the City may have; and any other insurance the City does
possess shall be considered excess insurance only and shall not be required to contribute with this
insurance.
(c) City is an additional insured. The certificate(s) of insurance with
endorsements and notices shall be mailed to the City at the following address: City of Poway,
Attn: City Manager, 13325 Civic Center Drive, Poway, CA 92064.
4.42 Workers' Compensation Insurance. Throughout the term of this
Agreement, Licensee, at its sole cost and expense, shall maintain in full force and effect, insurance
coverage for:
(a) Statutory California Workers' Compensation coverage including a
broad form all -states endorsement.
2523/012782-0019
1Y29O9No12/20/18 16 January 15, 2019, Item # 1.4
(b) Employer's Liability coverage for one million dollars ($1,000,000)
per occurrence/per disease, per employee/per disease policy limits for all employees engaged in
services or operations under this License. Policy is to include a waiver of subrogation, to the extent
allowed by law.
4.43 Insurer Criteria. Any bond or insurance company providing the required
insurance for Licensee shall be authorized to do business in California and shall be rated at least
A minus VII in A.M. Best & Company's Insurance Guide.
4.4.4 Severability of Interest. Prior to the execution of this License, "Additional
insured", "Cross liability," "severability of interest," or "separation of insured" clauses shall be
made a part of the commercial general liability and commercial automobile liability policies.
4.45 Contractors' and Subcontractors' Insurance. Licensee shall require that all
contractors and subcontractors obtain insurance meeting the criteria set forth herein and shall
furnish to the City copies of all certificates evidencing such policies of insurance.
4.4.6 Insurance and Indemnification Obligation. Licensee's compliance with the
insurance requirements herein shall not excuse, replace, or otherwise affect Licensee's duty to
indemnify and defend the City pursuant to 4.3 of this License. Requirements of specific
insurance coverage features or limits contained in this Agreement are not intended as a
limitation on coverage, limits or other requirements, or a waiver of any coverage normally
provided by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or insured to be
all inclusive, or to the exclusion of other coverage, or a waiver of any type.
4.4.7 Except as may be specifically provided for elsewhere in this License, City
and Licensee hereby each mutually waive any and all rights of recovery from the other in event of
damage to the premises or property of either caused by acts of God, perils of fire, lightning, and
extended coverage perils as defined in insurance policies and forms approved for use in the State
of California. Each party shall obtain any special endorsements, if required by their insurer, to
evidence compliance with the aforementioned wavier.
4.4.8 Notwithstanding the foregoing, Licensee may, in its sole discretion, self -
insure any of the required insurance under the same terms as required by this Agreement. In the
event Licensee elects to self -insure its obligation under this Agreement to include City as an
additional insured, the following conditions apply: (i) City shall promptly and no later thanthirty
(30) days after notice thereof provide Licensee with written notice of any claim, demand, lawsuit,
or the like for which it seeks coverage pursuant to this Section and provide Licensee with copies
of any demands, notices, summonses, or legal papers received in connection with such claim,
demand, lawsuit, or the like; (ii) City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Licensee; and (iii) City shall cooperate with Licensee in the
defense of the claim, demand, lawsuit, or the like.
4.5 Nuisance. Licensee shall not use the Licensed Premises in any manner, which, in
the reasonable opinion of the City, creates a legal nuisance or unreasonably disturbs the quiet
enjoyment of the surrounding area by persons in said area. City reserves its rights to exercise its
2523/01278M019
&011122f/20n8 -17 January 15, 2019, Item # 1.4
police powers and authority as they may apply to legal nuisance response and abatement, as
provided by City ordinance exclusive of any contract provisions.
5. MISCELLANEOUS
5.1 Possessory Interest. Licensee shall pay personal property taxes and possessory
interest taxes, if any, assessed against the WCF Improvements or the Premises arising from the
installation of the WCF Improvements. Licensee recognizes and understands that this license may
create a possessory interest subject to property taxation and that Licensee may be subject to the
payment of property taxes levied on such interest. Licensee further agrees that such tax payment
shall not reduce any fee paid to City hereunder and that such tax shall be paid by Licensee before
becoming delinquent. City has no responsibility or liability for any such tax.
52 Governmental Approvals. This Agreement is being executed by Licensor's City
Manager subject to the condition subsequent that such action receives approval by Licensor's City
Council. Accordingly, Licensee acknowledges and agrees that this Agreement shall be subject to
approval by Licensor's City Council for ratification. In addition, each Schedule under this
Agreement is conditioned upon Licensee, or Licensee's assigns, obtaining all governmental
permits and approvals enabling Licensee, or its assigns, to construct and operate mobile/wireless
communications facilities on the WCF Improvements for that Schedule, including but not limited
to, as required by City staff, building permits, encroachment permits, right of way permits, and a
Minor Development Review Application (an "MDRA") for each Schedule. Licensee
acknowledges that each MDRA currently requires formal review by City staff and may require
approval by City Council. Licensee also acknowledges and agrees that City review and permit
procedures may change in the future, and Licensee agrees to comply with any such revised
procedures. Licensee shall at its sole cost and expense comply with all the requirements of all
municipal, state, and federal authorities now in effect or which may hereafter be in effect, which
pertain to Licensee's Improvements and use thereof. City shall have no responsibility or liability
for any such requirements. Licensee shall be responsible for obtaining any permits and approvals
from any agency having jurisdiction over Licensee's activities.
5.3 Governing Law/Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action arising under or relating to this
Agreement shall be brought only in the federal or state courts located in San Diego County, State
of California. Venue for this Agreement, and performance hereunder, shall be the City of Poway,
and waives any right under the California Code of Civil Procedure to transfer any action arising
under this agreement to an alternative venue.
5.4 Signs. No signs shall be displayed on the Premises without the prior written
consent of the City in its sole discretion, except for signage required to be installed by Licensee
under applicable federal, state or municipal law or regulations.
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JJ29O9p2.Jg12/20/18 18 January 15, 2019, Item # 1.4
5.5 License Administrators. For administrative purposes, any activity covered by this
Agreement, which requires permission or consent of City shall be referred to the City Manager or
Manager's duly designated representative at the following address:
City Manager, City of Poway
P.O. Box 789
Poway, California 92074-0789
Phone: (858) 668-4409; Fax: (858) 668-1200
The designated person, address, and phone number for serving official notice on Licensee
shall be:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Site No. City of Poway Wireless Master License Agreement (CA)
575 Morosgo Drive NE
Atlanta, GA 30324
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept — Network Operations
Site No. City of Poway Wireless Master License Agreement (CA)
208 S. Akard Street
Dallas, TX 75202-4206c/o
Phone: (800) 832-6662
5.6 Successors and Assigns.
5b.1 Except as provided in subsection 2 below, Licensee shall not assign any
rights granted by this Agreement nor any interest therein without the prior written approval of the
City. Approval of any such proposed assignment may be withheld in the sole and absolute
discretion of the City. Any assignment by operation of law shall automatically terminate this
License. The terms and provisions of this Agreement shall extend to and be binding upon and
inure to the benefit of any successors and assigns of the respective parties hereto.
5.62 Notwithstanding subsection 1 above, Licensee may, without City's
approval and in Licensee 's sole discretion, from time to time, do any of the following:
(a) Grant to any person or entity a security interest in some or all of
Licensee 's Improvements and/or other property used or to be used in connection with this License;
(b) Assign or pledge Licensee's interest in this Agreement or any
Schedule to any person or entity to finance Licensee's equipment or operate Licensee's business;
and
(c) Assign (i) to any entity which has, directly or indirectly, a 30% or
greater interest in (a "parent") or in which Licensee or a Parent has a 30% or greater interest (an
2523/012792-0019
&0t1 gI2n0/Is -19- January 15, 2019, Item # 1.4
"Affiliate"); (ii) to any entity with which and/or any Affiliate may merge or consolidate; (iii) to a
buyer of substantially all of the outstanding ownership units or assets of Licensee or any Affiliate;
or (iv) to the holder or transferee of the FCC license under which Licensee's Improvements are
operated, upon FCC approval of any such transfer. Any such assignment shall not be effective
until the assignee signs and delivers to City a document in which the assignee assumes
responsibility for all Licensee's obligations under this Agreement arising from and after the
effective date of assignment.
5.7 Non -Waiver of Breaches. The City's or Licensee's failure to insist, respectively,
in any one or more instances, upon strict performance of any of the covenants or conditions of this
Agreement shall not be considered as a waiver or relinquishment for the future of said covenants,
terms or conditions, but the same shall continue and remain in full force and effect.
5.8 Entire Agreement. This instrument contains the entire agreement between the
parties relating to the rights herein granted and the obligations herein assumed. No alteration or
variation of this Agreement shall be valid or binding unless made in writing and signed by the
parties hereto.
5.9 Time is of the Essence. Time is of the essence in performing each and all of the
terms and provisions of this License.
5.10 Waiver of Property, Relocation and Condemnation Rights. Licensee
acknowledges and agrees that this Agreement does not confer any of the following: a property
right or interest or a right to relocation or relocation assistance.
5.11 Hazardous Materials. Licensee shall not bring any Hazardous Materials onto the
Licensed Premises except for those contained in Licensee 's back-up power batteries (e.g. lead -
acid batteries) and properly stored, reasonable quantities of common materials used in
telecommunications operation (e.g. cleaning solvents). Licensee shall handle, store and dispose
of all Hazardous Materials it brings onto the Licensed Premises in accordance with all federal,
state and local laws and regulations. "Hazardous Materials" means any substance, chemical,
pollutant or waste that is presently identified as hazardous, toxic or dangerous under any applicable
federal, state or local law or regulation and specifically includes but is not limited to asbestos and
asbestos containing materials, polychlorinated biphenyl's (PCBs) and petroleum or other fuels
(including crude oil or any fraction or derivative thereoi). City makes no representation or
warranty regarding the existence of hazardous materials on some or all of the Licensed Premises,
which are being licensed to Licensee in an AS IS condition, Licensee is solely responsible for
investigation of any and all Licensed Premises as it sees fit to determine the suitability of the
Premises for its intended use.
5.12 City Police Powers. Notwithstanding any provision in this Agreement to the
contrary, Licensee acknowledges and agrees that City retains any and all police powers authority
available at Law or in equity to regulate the conduct of Licensee within the City or to otherwise
act in accordance with the public health, safety and welfare of the City and that nothing in this
Agreement is intended to or shall have the effect of condemning or limiting such authority in any
way.
2523/012782-0019
:82099f2lo ivzon-20-
January 15, 2019, Item # 1.4
5.13 Limitation on City Liability. Notwithstanding any provision in this Agreement
to the contrary Licensee's sole remedies for the City's breach of the Agreement shall be (1)
termination of the Agreement or one or more Schedules, as appropriate; (2) specific performance
or injunction; or (3) the right to withhold amounts otherwise due and payable to City hereunder
with respect to one or more Licensed Premises; provided that; the foregoing limitation on liability
does not apply to City's rebate obligation under Section 4.1.5 above. Except as expressly provided
in the preceding sentence, in no event shall Licensee be entitled to monetary damages against the
City for breach of contract hereunder.
5.14 Condemnation. If a condemning authority takes all of City's Property, or a
portion, which in both parties' opinion is sufficient to render a Premise unsuitable for Licensee's
use, then the applicable Schedule shall terminate as of the date when possession is delivered to the
condemning authority. In any condemnation proceeding each party shall be entitled to make a
claim against the condemning authority for just compensation. Sale of all or part of the Premises
to a purchaser with the power of eminent domain shall be treated as a taking by a condemning
authority.
5.15 Relation to Other Laws and Severability. Notwithstanding the provisions above,
any City review or approval of Licensee's applications for placement, construction or modification
of wireless communications facilities, and all City exercises of powers contemplated or
necessitated by this Agreement, shall be conducted in a manner that is consistent with federal, state
and local laws. Where terms of this Agreement are inconsistent with federal, state or local laws,
such terms in this Agreement shall be void and shall be severable from this Agreement without
affecting the validity of the remainder of the Agreement. Nothing in this paragraph or this
Agreement shall be construed as a waiver by Licensee of any rights under federal, state or local
law.
5.16 Change of Law. In the event that any legislative, regulatory, judicial, or other
action affects the rights or obligations of the parties, or establishes rates, terms or conditions for
the construction, operation, maintenance, repair or replacement of small cells on city infrastructure
or in the right of way, that differ, in any material respect from the terms of this Agreement ("New
Law") , then either party may, upon thirty (30) days written notice, require that the terms of this
Agreement be renegotiated to conform to the New Law, except for and subject to the terms and
conditions set forth in Section 4.1.1. Such conformed terms shall then apply on a going forward
basis only, for all existing and new small cell installations, unless the Parties agree that the New
Law expressly requires retroactive application, in which case such new terms shall apply
retroactively, only as required by the New Law. In the event that the parties are unable to agree
upon new terms within 180 days after notice is provided pursuant to this Section 5.16, then the
rates contained in the New Law shall apply from the 180th day forward until the negotiations are
completed, or a party obtains a ruling regarding the appropriate conforming terms from a
commission or court of competent jurisdiction. Except as provided in the preceding sentence, all
terms in the existing Agreement shall remain in effect while the parties are negotiating. As used
herein, "New Law" shall be deemed to include the Federal Communications Commission's
Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018.
25iJ23/01227,,8�q2-0019
A2orpA127toi1s-21-January 15, 2019, Item # 1.4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
"CITY"
CITY OF POWAY
Title:
Approved as to form:
Title:
2523/012782-0019
fl%lf2Jg1220/18
"LICENSEE"
NEW CINGULAR WIRELESS PCS, LLC
By: AT&T Mobility Corporation
Its: Manager
Approved as to form:
Name:
January 15, 2019, Item # 1.4
EXHIBIT A
Sample WCF Improvements
2523/012782-0019
02099H§12/20/18 January 15, 2019, Item # 1.4
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EXHIBIT B
Attachment I Schedule of Premises
Each Licensed Premises shall be described in a Schedule in the format outlined below and
made part of this Attachment I.
Schedule:
Site N
Commencement Date:
UW4
Description of Installation (Attach Site
Building Permit
Conditions of Approval:
Note: Violations of these conditions may result in the termination of the right to use this site for
wireless communications (see Section 2.9.4a of the Master Communications Site Encroachment
Agreement). Also, pursuant to Section 1.2 of the Agreement the City may add to, delete or
modify this Schedule's Conditions of Approval at any time during the term of the Agreement to
advance a legitimate governmental interest.
Other:
In addition, all work shall be scheduled in advance and coordinated with City staff as appropriate
prior to commencement of the work to minimize the potential for conflicts with City programs
occurring on the site. The applicant agrees that the site will not be activated until the City has
signed off on final construction.
City of Poway
2523/012782-0019
JY20p2�g12120/18
Applicant's Authorized Representative
January 15, 2019, Item # 1.4