18-214 ExteNet Systems, Small Cell License Agreement SMALL CELL LICENSE
AGREEMENT
BETWEEN
THE CITY OF CUPERTINO, CALIFORNIA
AND
EXTENET
SYSTEMS
(CALIFORNIA)
LLC
Table of Contents
RECITALS .......................................................................................................................................................1
ARTICLE1......................................................................................................................................................1
CityPoles and Improvements...................................................................................................................1
1.1 License of City Poles..............................................................................................................1
1.2 Improvements ...........................................................................................................................1
ARTICLE2 ......................................................................................................................................................2
Term..........................................................................................................................................................2
2.1 Term...........................................................................................................................................2
2.2 Commencement Date................................................................................................................2
ARTICLE3 ......................................................................................................................................................2
Rental........................................................................................................................................................2
3.1 Base Rent...................................................................................................................................2
3.2 Annual Increase.........................................................................................................................2
3.3 Market Rate Adjustment...........................................................................................................2
3.4 Transactional Costs...................................................................................................................2
3.5 Late Charge ...........................................................................................................................3
ARTICLE4......................................................................................................................................................3
Use ............................................................................................................................................................3
4.1 Permitted Uses..........................................................................................................................3
4.2 Access........................................................................................................................................3
4.3 Prohibited Uses.........................................................................................................................3
4.4 Approval by the City and Other Agencies..................................................................................3
4.5 Compliance with Laws...........................................................................................................4
4.5.2 Labor Laws ...................................................................................................................................4
4.6 Condition, Use of City Poles......................................................................................................5
4.7 Hazardous Materials.................................................................................................................5
4.7.1 Hazardous Materials on City Poles.........................................................................................5
4.7.2. Hazardous Materials Defined................................................................................................6
4.7.3 Hazardous Materials Indemnity............................................................................................6
4.7.4 City's Right to Perform Tests.............................................................................................7
4.7.5 Survival..............................................................................................................................7
4.7.6 Termination of License......................................................................................................7
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4.7.7 Covenant of Non-Interference..........................................................................................7
4.7.8 Co-location........................................................................................................................8
4.7.9 Electromagnetic Emissions .....................................................................................................8
4.8 Telecommunications Services...................................................................................................8
4.9 Scope of Agreement..................................................................................................................8
ARTICLE5 ......................................................................................................................................................8
Maintenance, Repairs and Alterations.....................................................................................................8
5.1 General......................................................................................................................................8
5.2 Surrender..................................................................................................................................8
5.3 City's Rights...............................................................................................................................9
5.4 City Repair Obligations..........................................................................................................9
5.5 Improvements ...........................................................................................................................9
5.5.1 Licensee Payment for Labor or Materials.........................................................................9
5.5.2 Conditions Precedent............................................................................................................9
5.5.2.1 ...........................................................................................................................................9
5.5.2.9 Protection of Adjacent Property, Indemnity of the City................................................11
5.5.2.10 Worker's Compensation Insurance............................................................................11
5.5.2.11 Final Inspection..........................................................................................................11
5.5.2.12 Notice of Changes in Plans...........................................................................................11
5.7 City Access...........................................................................................................................12
5.8 Licensee Access.......................................................................................................................12
5.9 Licensee Access During Security Alert ................................................................................12
5.10 Attachment to City Poles........................................................................................................12
5.11 Encroachment Permit.............................................................................................................13
5.12 Replacement Pole...................................................................................................................13
5.13 Preference for Municipal Facilities .........................................................................................13
5.14 No Interference.......................................................................................................................13
5.15 No Authorization to Provide Other Services...........................................................................13
5.16 Payment to PG&E of Power Costs...........................................................................................14
5.17 Commencement of Installation and Operation......................................................................14
5.18 Relocation and Displacement of Equipment..........................................................................14
5.19 Damages Caused by Licensee.................................................................................................14
5.20 Bond Requirement..................................................................................................................15
5.21 As Built Plans...........................................................................................................................15
ARTICLE6 ....................................................................................................................................................15
Indemnityand Insurance........................................................................................................................15
6.1 Indemnification.......................................................................................................................15
6.1.1 To the fullest extent allowed by law, and except for losses caused by the sole and active
negligence or willful misconduct of City personnel,...........................................................................15
6.1.1.1 Breach of contract, obligations, representations or warranties;.......................................15
6.1.1.2 Negligent or willful acts or omissions committed during performance of the Services;....15
6.1.1.3 Personal injury, property damage, or economic loss resulting from the work or
performanceof...................................................................................................................................15
6.1.1.4 Unauthorized use or disclosure of City's confidential and proprietary Information;.........16
6.1.1.5 Claim of infringement or violation of a U.S. patent or copyright,trade secret,trademark,
or service mark or other proprietary or intellectual property rights of any third party. ...................16
6.1.2 ....................................................................................................................................................16
6.1.3 ....................................................................................................................................................16
6.2 Insurance.................................................................................................................................16
ARTICLE7 ....................................................................................................................................................16
Damage, Destruction and Termination ..................................................................................................16
7.1 Nontermination and Nonabatement..................................................................................16
7.2 Force Majeu re.....................................................................................................................16
7.3 Waiver of Statutory Termination........................................................................................16
ARTICLE8....................................................................................................................................................17
Taxes.......................................................................................................................................................17
8.1 Personal Property...............................................................................................................17
8.2 Real Property..........................................................................................................................17
8.3 Definition ............................................................................................................................17
8.3.1 ................................................................................................................................................17
8.3.2 ................................................................................................................................................17
8.3.3 ................................................................................................................................................17
8.3.4 ................................................................................................................................................17
ARTICLE9....................................................................................................................................................18
Utilities....................................................................................................................................................18
ARTICLE10..................................................................................................................................................18
Signs........................................................................................................................................................18
ARTICLE11..................................................................................................................................................18
Assignmentand Subletting.....................................................................................................................18
11.1 City's Consent Required..........................................................................................................18
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11.2 Net Worth Requirements........................................................................................................18
11.3 No Release of Licensee............................................................................................................18
ARTICLE12 ..................................................................................................................................................18
Defaults; Remedies.................................................................................................................................18
12.1 Defaults ...................................................................................................................................18
12.1.1 ..............................................................................................................................................19
12.1.2 ..............................................................................................................................................19
12.1.3 ..............................................................................................................................................19
12.1.4 ..............................................................................................................................................19
12.2 Remedies.................................................................................................................................19
12.2.1..............................................................................................................................................19
12.2.2 ..............................................................................................................................................19
12.2.3 ..............................................................................................................................................20
12.3 No Relief from Forfeiture After Default..................................................................................20
ARTICLE13 ..................................................................................................................................................20
Termination of License............................................................................................................................20
13.1 Termination by Licensee .........................................................................................................20
13.1.1..............................................................................................................................................20
13.1.2 ..............................................................................................................................................20
13.1.3 ..............................................................................................................................................20
13.2 Termination by City.............................................................................................................20
13.2.1 ..............................................................................................................................................20
13.2.2 ..............................................................................................................................................20
13.3 Condemnation of Licensed City Poles.................................................................................20
13.3.1..............................................................................................................................................21
13.3.2 ..............................................................................................................................................21
ARTICLE14 ..................................................................................................................................................21
City's Liability..........................................................................................................................................21
ARTICLE15..................................................................................................................................................21
Interest on Past-Due Obligations............................................................................................................21
ARTICLE16..................................................................................................................................................21
HoldingOver...........................................................................................................................................21
ARTICLE17 ..................................................................................................................................................21
City's Access............................................................................................................................................21
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ARTICLEl8 ..................................................................................................................................................II
PrevailingWage ......................................................................................................................................ll
ARTICLEl9 ..................................................................................................................................................22
Easements...............................................................................................................................................22
ARTICLE20 ..................................................................................................................................................22
GeneralProvisions..................................................................................................................................2Z
20.1 Sevembi|hy/Partva| Invalidity..............................................................................................2l
202 Time nf Essence.......................................................................................................................I2
203 Addhiona| Rent --------------------------------------.ZI
20.4 Entire Agreement, Modification .........................................................................................2Z
20.5 Nu Warranty............................................................................................................................IZ
20.10 Notices...................................................................................................................................23
207 Waivers....................................................................................................................................23
20.8 Cumulative Remedies .............................................................................................................24
2O.9 .....................................................................................................................................................24
I0.10 Condition to Effectiveness of License.................................................................................24
20.11 Attorneys' Fees ...................................................................................................................24
20l2Brokers ....................................................................................................................................l4
20.13 Authority tu Execute........................... ...............................................................................24
I0.14 Non-Liability nf Officials and Employees of the City...............................................................24
20.15 Independent Contractor .........................................................................................................24
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SMALL CELL LICENSE AGREEMENT
This Small Cell License Agreement ("License") is made and entered into as of 6 066k-v-
20[�, by and between the City of Cupertino, California, ("City" or "Licensor") and ExteNet
Systems (California) LLC, a California limited liability company ("Licensee"). Licensor and
Licensee may be collectively referred to as "Parties."
RECITALS
The following recitals are a substantive portion of this License:
A. City is the owner of approximately 3,240 street light poles, traffic signal poles or other
poles(collectively"City Poles")within the public right-of-way and owns or controls public right-
of-way within the City of Cupertino located in Santa Clara County, State of California.
B. Licensee is a California limited liability company organized under the laws of the State of
California, legally qualified to do business within the State of California whose business includes
the installation of small cell cellular antenna sites.
C. Licensee requests the use of certain City Poles as designated on the attached Exhibit"1",
for the installation and operation of small cell cellular antenna and radio sites.
D. City is willing to permit Licensee to License the City Poles in accordance with the terms,
conditions,and covenants of this License.
NOW THEREFORE,THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1
City Poles and Improvements
1.1 License of Cily Poles. City hereby licenses to Licensee and Licensee licenses from
City for the term, at the rental rate and upon all of the other terms and conditions set forth, the
City Poles listed on Exhibit"1",attached hereto and incorporated herein. The Parties acknowledge
that they may amend Exhibit"1" if City and Licensee agree to additional City Pole sites.
1.2 Improvements. City licenses to Licensee the limited right to use City Poles only to locate
a small cell antenna and related equipment of the same or substantially similar initial design as
previously approved by the City and shown on Exhibit "T', attached hereto and incorporated
herein. It is understood and agreed that the final antenna equipment design will be shown in the
plans submitted to the City in connection with the City's encroachment permit process.
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ARTICLE 2
Term
2.1 Term. The term of this License shall be for an initial period of five (5)years commencing
on the Commencement Date and with automatic renewal term of two five (5) year periods
("Renewal Term"), terminating on the anniversary of the Commencement Date, unless earlier
terminated ("Term").
2.2 Commencement Date. The Commencement Date of this License shall be the date this
License is approved by the City Council.
ARTICLE 3
Rental
3.1 Base Rent. Licensee shall pay to City, as annual rent for the use of the City Poles, in
advance on the first day of the calendar month during the Term and the Option Term, if
any, of this License without deduction, offset, prior notice or demand, in lawful money of the
United States, the sum of One Thousand Five Hundred Dollars ($1500.00) ("Base Rent") for
each City Pole. If the Commencement Date is not the first day of the month during the Term, the
Base Rent shall be due on the first day of the calendar month after the Commencement Date of
this License. The first year's rent shall be prorated as necessary,if the License does not commence
upon the first day of the month. A I I payments, including Rent shall be mailed to: City Manager,
City of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014-3202.
3.2 Annual Increase. During the Term of this License, including the Option Terms, the Base
Rent shall be increased annually by the San Francisco-Oakland-San Jose Consumer Price Index
CPI-U("CPI-U")for the prior year,beginning on the first anniversary of the Commencement Date,
and effective each anniversary thereafter throughout the Term and Option Terms, if any. The sum
shall be adjusted annually resulting in a compound rate of increase. For example, the Base Rent
for the first year for one pole would be One Thousand Five Hundred Dollars ($1500.00) per year
and the new rate commencing on the first anniversary, assuming a CPI-U of 3% would be One
Thousand Five Hundred Forty Five Dollars ($1545.00).
3.3 Market Rate Adjustment. At the start of each of the Option Terms,the rental rate shall be
adjusted to equal the highest annual rental rate paid by Licensee to any City within the County of
Santa Clara or to the County itself, with the exception of rental rates paid to the City of San Jose.
In addition this rental rate shall be subject to the annual rent increase as described in section 3.2.
Should the rent paid under this Agreement equal or exceed that paid to other jurisdictions at the
start of each additional five year term, no rental adjustment at the start of the five year term shall
be required.
3.4 Transactional Costs. Licensee shall pay to City, as additional rent, any reasonable
transactional costs, which shall include any reasonable attorneys' fees incurred by City
because of the negotiation, preparation, execution, and delivery of this License, any amendment,
any future consent of City required and the preparation and negotiation of an amendment to the
License ("Transactional Costs"). City shall furnish Licensee with an invoice reflecting the
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Transactional Costs due, and Licensee shall make full payment to City of these costs within thirty
(30) days from the date of City's invoice.
3.5 Late Charge. Licensee acknowledges late payment by Licensee to City of rent will
cause City to incur costs not contemplated by this License, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include, without limitation, processing,
accounting and late charges that may be imposed on City. If any installment of rent due from
Licensee is not received by City within ten (10) days after the date rent is due, Licensee shall pay
to City an additional sum of ten percent (10%) of the overdue rent as a late charge. The parties
agree this late charge represents a fair and reasonable estimate of the costs City will incur
because of late payment by Licensee. Acceptance of any late charge shall not constitute a waiver
of Licensee's default with respect to the overdue amount, nor prevent City from exercising any of
the other rights and remedies available to City.
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ARTICLE 4
Use
4.1 Permitted Uses. Licensee shall use the City Poles for purposes related to the small cell
antenna and radio installation and related equipment including but not limited to support mast
and mounts, cable equipment, amplifiers, receivers, battery units, equipment cabinets, through
bolts,washers, nuts,power supply cabinets, power meters,grounding or bond wires, enclosures,
cabinets, and battery back-up units (collectively"Antenna"), as approved by the City Engineer.
Licensee shall be solely responsible for all costs associated with the construction, installation,
maintenance, and use of the Antenna.
4.2 Access. City grants Licensee reasonable foot access to the City Poles. Access shall be
available to Licensee, Licensee's employees and invitees,during normal business hours, except
if an emergency occurs. It is anticipated, after installation of the Antenna is completed, that
Licensee shall require reasonable access once every month for the purpose of ordinary tuning of
Licensee's equipment and appropriate maintenance of the Antenna. As a part of this License,
City grants to Licensee reasonable access to the area adjacent to the City Poles("City Property")
for the purposes of installing or maintaining the Antennas.
4.3 Prohibited Uses. Licensee shall not use City Poles for any purpose not expressly
permitted herein. Licensee shall not (a) create, cause, or permit any nuisance or waste in, on or
about the City Poles or permit the City Poles to be used for any unlawful purpose, (b) do or
permit to be done anything that unreasonably disturbs the City's use of the City Poles or the
occupants of neighboring property. Specifically, and without limiting the above, Licensee agrees
not to cause any unreasonable odors, noise, vibration, power emissions or other item to emanate
from the Antenna on the City Poles. No materials or articles of any nature shall be stored
outside adjacent to any portion of the City Poles.
4.4 Approval by the City and Other Agencies. Licensee, at its sole cost and expense, may
install the Antenna, subject to Licensee's obtaining all required permits, licenses, and approvals
from the City and any other governmental agencies having jurisdiction. Licensee shall maintain
permits, licenses, and approvals in force through the Term and the Renewal Term, if any. The
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revocation or expiration of any permit, license, or approval is a breach of this License. If Licensee
replaces the Antenna,it shall not do so without the prior written approval of City,and all required
permits, licenses, and approvals from the City and any other governmental agencies with
jurisdiction. If a change in the Antenna is approved, Licensee and City shall amend Exhibit
"2" to reflect the change. Should Licensee change or expand any Antenna without the prior
approval of City, City may require that Licensee remove the expansion at Licensee's sole cost
and expense. Licensee Antenna replacement approval shall not be required if the replacement
meets the requirements of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act.
Licensee shall be solely responsible for conducting any environmental review required in
association with Licensee's use of the City Poles and for all costs associated, as well as all fees,
charges or other expenses imposed by the City or other regulatory agencies in connection with
Licensee's use of the City Poles prior to the License commencement, or at any time during the
Term of the License.
4.5 Compliance with Laws.
4.5 . 1 General Laws. Licensee shall comply with all laws and regulations
applicable to this Lease. Licensee will promptly notify City of changes in the law or other
conditions that may affect the Project or Licensee's ability to perform. Licensee is responsible for
verifying the employment status of employees performing the Work, as required by the
Immigration Reform and Control Act.
4.5.2 Labor Laws.
(a) Agreements of$1,000 or more are subject to the requirements of the California Labor Code,
including but not limited to:
(i) Prevailing wage laws under Labor Code Section 1775, which require Licensee to pay
prevailing wages applicable in Santa Clara County for each craft, classification, or type of
worker needed to perform the Work,including health,pension and vacation.The prevailing
wage rates are on file with the City Engineer's office and are available online at
http://www.dir.ca.gov/DLS ;
(ii) Apprenticeship requirements under Labor Code Section 1777.5 for Contracts $30,000
or more;
(iii) Maintain certified payroll records in accordance with Labor Code Sections 1776 and
1812, and electronically submit them to the Labor Commissioner as required by the
regulations of California, Department of Industrial Relations ("DIR");
(iv) Comply with DIR Monitoring, Enforcement and Registration requirements of Labor
Code Section 1725.5.
(b)Licensee must compensate workers who are paid less than prevailing wages or required to work
more than a legal day's work. Licensee will also be required to pay City a penalty of$500 per
worker for each day of violation.
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(c) As required by Labor Code Section 1861, by signing this Lease Agreement Licensee certifies
as follows: "I am aware of Labor Code Section 3700 which requires every employer to be insured
against liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and I will comply with such provisions before commencing the Work on
this Lease Agreement."
4.5.3 Discrimination Laws. Licensee shall not discriminate on the basis of race, religious
creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy,
age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome
(AIDS) or any other protected classification. Licensee shall comply with all anti-discrimination
laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735,
1777 and 3077.5. Consistent with City policy prohibiting harassment and discrimination,Licensee
understands that harassment and discrimination directed toward a job applicant, an employee, a
City employee, or any other person, by Licensee or Licensee's employees or sub-Licensees will
not be tolerated.
4.5.4 Conflicts of Interest. Licensee, its employees, subcontractors, servants and agents,
may not have, maintain or acquire a conflict of interest in relation to this Agreement in violation
of law, including Government Code section 1090 and Government Code section 81000 and their
accompanying regulations. No officer, official, employee, consultant, or other agent of the City
("City Representative") may have, maintain, or acquire a "financial interest" in the Lease
Agreement, as that term is defined by state law, or in violation of a City ordinance or policy while
serving as a City Representative or for one year thereafter. Licensee,its employees,subcontractors,
servants and agents warrant they are not employees of City or have any relationship with City
officials, officers or employees that creates a conflict of interest. Licensee may be required to file
a conflict of interest form if it makes certain governmental decisions or serves in a staff capacity,
as defined in section 18700 of the California Code of Regulations. Licensee agrees to abide by
City rules governing gifts to public officials and employees.
4.5.5 Remedies. Any violation of Section 4.5 constitutes a material breach and may result
in City suspending payments, requiring reimbursement,or terminating the Lease Agreement. City
reserves all rights and remedies under the law and this Lease, including seeking indemnification.
4.6 Condition, Use of City Poles. Licensor makes no warranty or representation concerning
the condition of City Poles, or the fitness of City Poles for the use intended by Licensee, and
disclaims any personal knowledge. Licensee has personally inspected the City Poles, knows their
condition, finds them fit for Licensee's intended use,accepts them "as is", and has ascertained
that they can be used for the limited purposes specified in Section 4.1.
4.7 Hazardous Materials.
4.7.1 Hazardous Materials on Ci, Poles. Licensee shall not introduce any Hazardous
Materials (as defined below) to the City Property, (excluding any Hazardous Materials which are
components of commercially available products) unless the Hazardous Materials are transported,
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obtained, handled, stored, and/or disposed of in accordance with all federal, state, and local laws,
ordinances, rules, regulations, or policies.
4.7.2. Hazardous Materials Defined. The term "Hazardous Material(s)" shall mean
any toxic or hazardous substance, material, or waste or any pollutant or contaminant or
infectious or radioactive material, including but not limited to, those substances, materials, or
wastes regulated now or in the future under any of the following statutes or regulations and any
and all of those substances included within the definitions of"hazardous substances," "hazardous
waste," "hazardous chemical substance or mixture," "imminently hazardous chemical substance
or mixture," " toxic substances," "hazardous air pollutant," "toxic pollutant" or "solid waste" in
the (a) "CERCLA" or "Superfund" as amended by SARA, 42 U.S.C. Secs. 9601 et seq., (b)
RCRA, 42 U.S.C. Secs. 6901 et seq., (c) CWA, 33 U.S.C. Secs. 1251 et seq., (d) CAA, 42
U.S.C. Secs. 7401 et seq., (e) TSCA, 15 U.S.C. Secs. 2601 et seq., (f) The Refuse Act of 1899,
33 U.S.C. Secs. 407, (g) OSHA, 29 U.S.C. Secs. 651 et seq. (h) Hazardous Materials
Transportation Act,49 U.S.C. Secs. 5101 et seq., (i)USDOT Table(49 CFR Sec. 172.101 App.A
and amendments) or the EPA Table (40 CFR Part 302 and amendments), 0) Carpenter- Presley-
Tanner Hazardous Substance Account Act, Cal. Health & Safety Code Secs. 25300 et seq., (k)
California Hazardous Waste Control Act, Cal. Health & Safety Code Secs. 25100 et seq., (1)
Porter-Cologne Act, Cal. Water Code Secs. 13000 et seq., (m) Hazardous Waste Disposal Land
Use Law, Cal. Health & Safety Code Sec. 25220 et seq., (n) "Proposition 65," Cal. Health
and Safety Code Sec. 25249.5 et seq., (o)Hazardous Substances Underground Storage Tank Law,
Cal. Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal.
Health & Safety Code Sees. 108100 et seq., (q)Air Resources Law, Cal.Health & Safety Code
Secs. 39000 et seq., (r) Hazardous Materials Release Response Plans and Inventory, Cal. Health
& Safety Code Secs. 25500 et seq., (s) TPCA, Cal. Health and Safety Code Secs. 25208 et
seq.,and(t)regulations promulgated pursuant to said laws or any replacement thereof, or as similar
terms are defined in the federal, state and local laws, statutes, regulations, orders or rules.
Hazardous Materials shall also mean any and all other substances, materials and wastes which
are,or in the future become regulated under applicable local, state or federal law for the protection
of health or the environment, or which are classified as hazardous or toxic substances, materials
or wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state or local
law, regulation or order or by common law decision, including, without limitation, (i)
trichloroethylene,tetracholoethylene,perchloroethylene and other chlorinated solvents, (ii) any
petroleum products or fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v)
flammable explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste.
4.7.3 Hazardous Materials Indemnity. Licensee shall indemnify, defend (by counsel
reasonably acceptable to City), protect and hold Licensor harmless from and against any and
all claims, liabilities, penalties, forfeitures, losses, and/or expenses, including, without limitation,
diminution in value of the City Poles or City Property, damages for the loss or restriction on use
of the rentable or usable space or of any amenity of C i t y P o 1 e s or, damages arising from
any adverse impact or marketing of the City Poles and sums paid in settlement of claims,response
costs, cleanup costs, site assessment costs, attorneys' fees,consultant and expert fees,judgments,
administrative rulings, or orders, fines, costs of death of or injury to any person or damage to any
property whatsoever(including,without limitation, groundwater, sewer systems and atmosphere),
arising from, or caused or resulting, either prior to or during the License Term, in whole or in
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part, directly or indirectly, by the presence or discharge in, on, under or about the City Poles by
Licensee, Licensee's agents, employees, licensees or invitees or at Licensee's direction, of
Hazardous Material, or by Licensee's failure to comply with any Hazardous Materials Law,
whether knowingly or by strict liability. Licensee's indemnification obligations shall include,
without limitation,and whether foreseeable or unforeseeable,all costs of any required or necessary
Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or
decontamination of the City Poles or Project, and the presence and implementation of any closure,
remedial action or other required plans, and shall survive the expiration of or early termination of
the License Term. For purposes of the indemnity, any acts or omissions of Licensee or its
employees, agents, customers, assignees, contractors, or subcontractors of Licensee (whether or
not they are negligent, intentional, willful, or unlawful) shall be strictly attributable to Licensee.
4.7.4 City's Right to Perform Tests. At any time d u r i n g t h e License Term,City shall
have the right to conduct tests of water and soil and to deliver to Licensee the results of such tests
to demonstrate that levels of any Hazardous Materials in excess of permissible levels has occurred
as a result of Licensee's use of the City Poles. Licensee shall be solely responsible for and shall
indemnify, protect, defend and hold City harmless from and against all claims, costs and
liabilities including actual attorneys' fees and costs arising out of or in connection with any
removal, remediation, clean up, restoration and materials required hereunder to return the City
Poles and any other property of whatever nature to their condition existing prior to the appearance
of the Hazardous Materials. The testing shall be at Licensee's expense if City has a reasonable
basis for suspecting and confines the presence of Hazardous Materials in the soil or surface or
groundwater in on, under, or about the City Poles or the Project, which has been caused by or
resulted from the activities of Licensee, its agents, employees, contractors, or invitees. Licensee
shall demonstrate that the antenna meets or exceeds all appropriate FCC requirements. Licensee
shall provide results of any test results on the antenna prepared for the FCC or any other testing
body.
4.7.5 Survival. This entire Section 4.7 of this License shall survive termination of the
License, as to any activities during the Term or Option Term of this License.
4.7.6 Termination of License. City shall have the right to terminate the Term of the
License in City's sole and absolute discretion in the event that (i) any anticipated use of the City
Poles or City Property by Licensee involves the generation or storage, use,treatment, disposal, or
release of Hazardous Material in a manner or for a purpose prohibited or regulated by any
governmental agency, authority or Hazardous Materials Laws; (ii) Licensee has been required to
take remedial action in connection with Hazardous Material contaminating the City Poles or City
Property, if the contamination resulted from Licensee's action or use of the City Poles or City
Property; or (iii) Licensee is subject to an enforcement order issued by any governmental
authority in connection with the release, use, disposal, or storage of a Hazardous Material on the
City Poles or City Property.
4.7.7 Covenant of Non-Interference. Licensee shall be responsible for inspecting City
Poles and finding adequate space at the site without moving or relocating any of City's Poles or
equipment, or any other facility, or utility located at the City Property, at the time Licensee's
facilities are installed. Licensee's equipment shall not negatively impact any other existing facility
or antenna. In the event that Licensee's equipment does impact other facilities, Licensee shall
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be required to install, at its own expense, frequency filters or take other reasonable measures to
correct the problem. Licensee shall be required to coordinate with other existing utilities located
at the property,to ensure that Licensee's equipment does not interfere with the frequencies utilized
by existing utilities or other parties.
4.7.8 Co-location. Licensee acknowledges that City has the right to license additional
positions on City Poles to third parties. All operations by Licensee shall comply with all Federal
Communications Commission ("FCC") requirements. If City adds new C i ty Po l e s or other
facilities in the future, Licensee will not electronically or physically interfere with City owned
and operated equipment. Licensee shall reasonably cooperate with current and future City
licensees. Licensor will not grant a license to any party for use of the City Pole site, if the new
use would unreasonably interfere with Licensee's operation of its Antenna. Any future license
of the City Pole site, which permits installation of Antennas, shall be conditioned
upon the new Antennas not interfering with Licensee's Antenna.
4.7.9 Electromagnetic Emissions. Licensee's operations on the City Poles shall comply
with all applicable federal laws and regulations regarding electromagnetic emissions. Licensee
shall conduct all necessary tests after its improvements are constructed on the City Poles to ensure
that its facilities comply with those laws and regulations. The tests shall be conducted by a licensed
professional engineer, and the results shall be provided to the City.
4.8 Telecommunications Services. At any time that Licensee ceases to operate as a provider of
telecommunications services under Federal law, the Licensor shall have the option, in its sole
discretion and upon sixty(60)days written notice to Licensee,to terminate this License and to require
the removal of Licensee's Antennas from City Poles, including the cost of any site remediation,at no
cost to the Licensor.
4.9 Scope of Agreement. All rights expressly granted to Licensee under this License, which
shall be exercised at Licensee's sole cost and expense, shall be subject to the prior and continuing
right of the Licensor to use all parts of the public right-of-way exclusively or concurrently with
any other person or entity and shall be further subject to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect
the right-of-way as of the date of this License.
ARTICLE 5
Maintenance,Repairs and Alterations
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5.1 General. Licensee shall keep in good order, condition, and repair City Poles and the
Antenna placed on the Poles. Licensee shall keep the City Poles clean and free of debris.
5.2 Surrender. On the last day of the Term, or of the Renewal Term, Licensee shall surrender
City Poles to City in the same condition as when received, clean and free of debris. Licensee
shall also remove all improvements and cables and wires located above ground or below ground
that Licensee placed upon City Poles, and repair any damage to City Poles by the installation,
maintenance, or removal of Licensee's improvements and any related cables, wires or other
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equipment, and shall restore City Poles to the same conditions as when Licensee received City
Poles from City.
5.3 City's Rights. If Licensee is in default, subject to the applicable cure periods, City may
(but shall not be required to) enter upon City Poles, (except in the case of an emergency, in
which case no notice shall be required), to perform obligations on Licensee's behalf and put
the City Poles and/or Antenna in good order, condition and repair, and the cost, together with
interest at the maximum rate then allowable by law, shall become due and payable as additional
rent to City with Licensee's next rental installment, provided, however, in the case of a non-
emergency, City shall notify Licensee of City's intention to perform Licensee's obligations ten
(10) days prior to performing any work on Licensee's behalf. If no rental installment is due to
City, these costs shall become due and payable within thirty (30) days from the date of City's
invoice.
5.4 City Repair Obligations._ City shall have no obligation to repair and maintain the City
Poles nor the Improvements and facilities. Licensee expressly waives the benefit of any statute
now or hereinafter in effect which would afford Licensee the right to make repairs at City's
expense or to terminate this License because of City's failure to keep City Poles in good order,
condition, and repair.
5.5 Improvements.
5.5.1 Licensee Payment for Labor or Materials. Licensee shall pay,when due, all claims
for labor or materials furnished or alleged to have been furnished to or for Licensee at or for use
on the City Poles, which claims are or may be secured by any mechanic or material lien against
the City Poles or any interest therein. Licensee shall give City not less than ten(10) days' notice
prior to the commencement of any work on the City Poles, if City shall require a surety bond,
Licensee shall furnish to City a surety bond satisfactory to City in an amount equal to the
contested lien, claim indemnifying City against liability for and holding the City Poles free from
the lien or claim. In addition, City shall have the right to require Licensee to pay City's attorneys'
fees and costs in participating in the action if City decides to participate.
5.5.2 Conditions Precedent. Before construction of any improvements are commenced
on C ity Poles, and before any building materials have been delivered to City Property and
property adjacent to the Pole locations by Licensee or its agents, Licensee shall comply with the
following conditions or procure City's written waiver of the conditions specified:
5.5.2.1 Compliance with Applicable codes. All work on City Poles shall be done in strict
compliance with all versions or editions of the latest applicable building, technical, safety and
safety-related codes adopted by the City, State,or United States, including but not limited to the
most recent edition of the TIA ANSI Code, National Electrical Safety Code, the National
Electrical Code and the Occupational and Safety and Health Administration (OSHA)regulations,
recommended practices of the National Association of Tower Erectors and accepted and
responsible workmanlike industry practices. The codes referred to are codes that include, but are
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not limited to, construction, building, electrical, fire,safety, health, and land use. In the event of
a conflict between or among any of the preceding,the more stringent shall apply.
5.5.2.2 Certification. Where a certification is called for on a technological matter or issue, such
certification shall bear the signature and seal of a Professional Engineer licensed in the State of
California. All other certifications shall be made by an individual authorized to make
commitments for or on behalf of the Licensee.
5.5.2.3 Permits and Licenses. A holder of a Special Use Permit or Administrative Special Use
Permit granted under this Agreement shall obtain, at its own expense, all permits and licenses
required by applicable law, ordinance, rule, regulation or code, and must maintain the same, in
full force and effect, for as long as required by the City or other governmental entity or agency
having jurisdiction over the Licensee.
5.5.2.4 Construction Schedule. A construction schedule approved by Licensee and the City
setting forth in detail a description of the Improvements and all steps for construction of the
Improvements, and Licensee's best estimate of the date upon which each step shall be
substantially completed is attached and incorporated herein as Exhibit"D".
5.5.2.5 Line Location Requests. Licensee is responsible for promptly responding to line location
requests. For underground service alerts for street lighting and traffic signal conduits, City's
Service Center must be called at (408) 777-3269. Government Code Section 4215 requires
Licensee to notify City and Utility in writing if it discovers utilities or utility facilities not identified
in the Agreement.
5.5.2.6 Pursuant to Government Code Section 7104, Licensee must stop work, notify City in
writing, and wait for instructions if one of the conditions below is found at the worksite.
(a) Material believed to be hazardous waste under Health and Safety Code Section 25117,
and which requires removal to a Class I,Class II,or Class III disposal site pursuant to law;
(b) Subsurface or latent physical conditions at the Project worksite differing from those
indicated by information about the worksite made available to Licensee;
(c) Unknown physical conditions at the Project worksite of any unusual nature, materially
different from those ordinarily encountered and from those generally recognized as
inherent in the character of the Work.
5.5.2.7 For contracts $25,000 or higher that require excavation or involve trenches five feet or
more in depth, Licensee must submit a detailed plan for City approval, per Labor Code Section
6705 prior to commencing work. The plan must show the design of shoring, bracing, sloping and
other provisions for worker protection from caving ground and other hazards. The protective
system must comply with all Construction Safety Orders. If the plan varies from shoring system
standards, it must be prepared by a registered civil or structural engineer.
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5.5.2.8 PROJECT COORDINATION City Project Manager. City assigns as the City
representative for all purposes under this Agreement, with authority to require compliance with
the Scope of Work. City may substitute Project Managers at any time and without prior notice to
Licensee. Licensee Project Manager. Subject to City approval, Licensee assigns as its single
representative for all purposes under this Agreement, with the responsibility to ensure progress
with the Work. Licensee's Project Manager is responsible for coordinating and scheduling the
Work and must regularly update the City Project Manager about the status and any delays with the
Work, consistent with the Scope of Work.Any substitutions must be approved in writing by City.
5.5.2.9 Protection of Adjacent Property, Indemnity of the City. Licensee shall protect the City
Property and adjacent property against damage resulting from the performance of work undertaken
by Licensee or Licensee's agents, employees, contractors(excluding any damage caused by gross
negligence or the willful act of City) and shall indemnify the City against all liens or liability
arising out of the performance of the work or the furnishing of labor, services, materials, supplies,
equipment, or power.
5.5.2.10 Worker's Compensation Insurance. In addition to the insurance coverage
otherwise required under this License, Licensee shall maintain workers' compensation insurance
covering all persons employed in connection with the construction of any improvements, repair,
or maintenance activities with respect to whom death or injury claims could be asserted against
the City, or Licensee. City may require any third party(ies) contractor performing work at the
City Poles to maintain workers' compensation insurance as contractor's sole cost and expense at
all times when any work is in process and shall otherwise conform to the requirements of this
License with respect to insurance.
5.5.2.11 Final Inspection. Licensee shall not provide service to its customers from the
Antenna in any way without receiving a final inspection of the Antenna from the City.
5.5.2.12 Notice of Changes in Plans. Upon completion of the installation of any Antenna,
Licensee shall give City notice of all changes in the plans and specifications made during
the course of the work and at the same time deliver to City "as built" drawings accurately
reflecting all changes, provided that no change that substantially alters the final plans last
approved by the City shall be made without the City's prior written approval.
5.6 URBAN RUNOFF MANAGEMENT
5.6.1 All Work must fully comply with federal, state and local laws and regulations concerning
storm water management. Licensee must avoid creating excess dust when breaking asphalt or
concrete and during excavation and grading. If water is used for dust control, Licensee will use
only the amount of water necessary to dampen the dust. Licensee will take all steps necessary to
keep wash water out of the streets, gutters and storm drains.Prior to the start of the Work,Licensee
will implement erosion and sediment controls to prevent pollution of storm drains, and must
upgrade and maintain these controls based on weather conditions or as otherwise required by City.
These controls must be in place during the entire Lease time and must be removed at the end of
construction and completion of the Work. Such controls must include, but will not be limited to,
the following requirements:
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(a)Install storm drain inlet protection devices such as sand bag barriers,filter fabric fences,
and block and gravel filters at all drain inlets impacted by construction. During the annual
rainy season,October 15 through June 15,storm drain inlets impacted by construction work
must be filter-protected from onsite de-watering activities and saw-cutting activities.
Shovel or vacuum saw-cut slurry and remove from the Work site;
(b) Cover exposed piles of soil or construction material with plastic sheeting. Store all
construction materials in containers;
(c) Sweep and remove all materials from paved surfaces that drain to streets, gutters and
storm drains prior to rain and at the end of each work day. When the Work is completed,
wash the streets, collect and dispose of the wash water offsite in lawful manner;
(d) After breaking old pavement, remove debris to avoid contact with rainfall/runoff
(e)Maintain a clean work area by removing trash, litter, and debris at the end of each work
day and when Work is completed. Clean up any leaks,drips,and other spills as they occur.
5.6.2 These requirements must be used in conjunction with the California Stormwater Quality
Association and California Best Management Practices Municipal and Construction Handbooks,
local program guidance materials from municipalities, and any other applicable documents on
stormwater quality controls for construction. Licensee's failure to comply with this Section will
result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines.
5.7 City Access. The City or its agents,may inspect City Poles at all reasonable times during
the term of this License Agreement to determine whether Licensee is complying with the terms
and conditions or for any other purpose incidental to rights of the City.
5.8 Licensee Access. Licensee may access City Poles during normal business hours,Monday
through Friday from 8:00 a.m.to 5:00 p.m. upon reasonable notice to the City. In the event of an
emergency, Licensee's access shall be 24/7, but such access outside of normal business hours
must be reported to City within 48 hours of the emergency. Licensee acknowledges that other
licensees also have rights to access the City Poles, and that if multiple licensees or licensees
request simultaneous access, the City may have to delay Licensee's access to the City Poles to
accommodate others or vice versa.Licensee must report any damage to City Poles within 24 hours
of causing or discovering the damage. Damage to City Poles caused or discovered by Licensee
that may impact public safety must be reported to City immediately by Licensee.
5.9 Licensee Access During Security Alert. During times of high security alert by the
Homeland Security Advisory System, Licensee must in all instances obtain City's prior consent to
access City Poles.
5.10 Attachment to Ci1y Poles. Licensee will submit to the authorized representative of the
Licensor, no more than two proposed designs for any proposed Antenna installations. Assuming
that all of Licensor's requirements are met,Licensor will preapprove up to two acceptable designs
for Antennas. Licensee may only install Antenna designs that are the same as the preapproved
design. All installations shall, to the maximum extent possible, be placed behind equipment
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shrouds or located so as to minimize visual impacts to the City Engineer's satisfaction. The City
Engineer may require a physical mock-up of the installation and photo simulations. If required
the mock-up shall be the actual size of the equipment and include the actual color(s)to be used for
the final installation. Licensee is prohibited from installing ground mounted cabinets. Licensee
shall install all wires within the pole, any external wires that feed external equipment shall be
hidden or shrouded from view. Any equipment (including but not limited to radio boxes),on poles
shall be screened by street signs to City Engineer's satisfaction and shall not exceed the
preapproved size. Each antenna shall have identifying information on it including emergency
contact numbers. No advertising may be placed on any equipment.
5.11 Encroachment Permit. Subject to the conditions herein, Licensee shall submit an
application for an encroachment permit("Encroachment Permit")to the Licensor to enter upon the
right-of-way and to locate, place, attach, install, operate, maintain, control, remove, reattach,
reinstall, relocate, and replace the Antenna on City Poles in the public right-of-way for the
purposes of providing telecommunications services. Licensor reserves the right to deny any
application for an Encroachment Permit for the installation of an Antenna to City Poles at the sole
discretion of the City Engineer. Licensee agrees to abide by decisions made by the City Engineer
regarding Antenna placement.
5.12 Replacement Pole. If Licensee selects a Pole that is structurally inadequate to
accommodate the Antenna, Licensee may at its sole cost and expense, and at the discretion of the
City Engineer,replace the Pole(a"Replacement Pole")with one that is acceptable to and approved
by the Licensor and dedicate such Replacement Pole to the Licensor.
5.13 Preference for Municipal Facilities. In any situation where Licensee has a choice of
attaching its equipment to either City Poles or third-parry-owned poles in the public right-of-way,
Licensee shall use good faith efforts to attach to City Poles, provided that City Poles are suitable
for the Antenna and the operation of the telecommunication network.
5.14 No Interference. Licensee shall not interfere in any manner with the existence and
operation of any public and private rights-of-way,sanitary sewers, water mains, storm drains, gas
mains,poles,aerial and underground electrical and telephone wires,traffic signals,communication
facilities owned by the Licensor,electroliers, cable television, location monitoring services,public
safety, and other then existing telecommunications equipment, utility, or municipal property,
without the express written approval of the owner or owners of the affected property or properties,
except as permitted by applicable law or this License. However, the Licensor agrees that the
Licensor and/or any other tenants, licensees, or users of the public right-of-way who currently
have, or in the future take possession of, space within the public right-of-way adjacent to any of
Licensee's Antennas will be permitted to install only equipment that is of the type and frequency
which will not cause harmful interference which is measurable in accordance with then existing
industry standards to the then existing equipment of Licensee. Licensee shall act reasonably to
accommodate future providers so that the public right-of-way may be used by additional providers.
5.15 No Authorization to Provide Other Services. Licensee represents,warrants,and covenants
that the Antennas installed pursuant to this License will be utilized solely for providing the
telecommunications services identified herein. Licensee is not authorized to and shall not use its
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Antennas to offer or provide any services not specified herein. Licensee shall not use the Antenna
or related hardware or software for data collection.
5.16 Payment to PG&E of Power Costs. Licensee shall cause a separate electric line to be run
to its equipment. Licensee shall pay all electricity costs directly to Pacific Gas and Electric
Company ("PG&E") or its other electric service provider. Licensee shall not use Licensor's
electricity to power its equipment. Licensee shall make good faith efforts to negotiate a flat rate
with PG&E to avoid above ground metering facilities where practicable. Should Licensee be
unable to secure a flat rate service from PG&E then a ground mounted meter or pole mounted
smart meters may be utilized with written approval by the City Engineer. All Equipment shall
have a master cutoff switch installed which will allow power shut down to the Equipment in case
of emergencies.
5.17 Commencement of Installation and Operation. Licensee shall commence installation of its j
initial Antenna no later than one(1)year after the mutual execution of an applicable Encroachment
Permit. Licensee shall commence operation no later than six(6)months after Licensee commences
installation, excepting delays due to any force majeure event. Failure of Licensee to commence
installation or commence operation of the applicable telecommunications service as provided
above shall afford Licensor the right to terminate the License upon thirty (30) days' notice to
Licensee, unless within such thirty (30) day period, Licensee shall commence installation or
commence operation, as applicable.
5.18 Relocation and Displacement of Equipment. From time to time, Licensor may require
Licensee to relocate its equipment. Upon Licensor's sixty (60) days written notice to Licensee,
Licensee shall relocate such equipment at Licensee's sole cost and expense when Licensor
reasonably determines that the equipment relocation is necessary for any of the following
purposes: (a) if required for the construction, modification, completion, repair, relocation, or
maintenance of a Licensor or other public agency project; (b) because the Antenna is interfering
with, or adversely affecting proper operation of City Poles, traffic signals, communications, or
other municipal facilities; or (c)to protect or preserve the public health or safety. Licensor shall
use reasonable efforts to provide Licensee with a reasonably equivalent alternate location for its
equipment. If Licensee shall fail to relocate any Antenna as requested by the Licensor in
accordance with this provision, Licensor shall be entitled to remove or relocate the equipment at
Licensee's sole cost and expense, without further notice to Licensee. Licensee shall pay to the
Licensor actual costs and expenses incurred by the Licensor in performing any removal work and
any storage of Licensee's property after removal within thirty (30) days of Licensor's written
demand for such payment. If the City Pole is damaged or downed for any reason, and as a result
is not able to hold the Antenna safely, the Licensor will have no obligation to repair or replace the
City Pole for the use of Licensee's Antenna. Licensee shall bear all risk of loss because of
damaged or downed City Poles, and may choose to replace City Poles pursuant to the provisions
of Section 5.11 above.
5.19 Damages Caused by Licensee. Licensee shall, at its sole cost and expense and to the
satisfaction of the Licensor: (a) remove, repair or replace any of its Antennas that are damaged or
become detached; and/or (b) repair any damage to public right-of-way, City Property or other
property, whether public or private, caused by Licensee, its agents, employees or contractors in
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their actions relating to attachment, operation, repair or maintenance of its Antennas. If Licensee
does not remove, repair or replace such damage to its Antenna or to the public right-of-way, City
Property or other property,the Licensor shall have the option, upon 30 days' prior written notice
to Licensee, to perform or cause to be performed such removal, repair, or replacement on behalf
of Licensee and shall charge Licensee for the actual costs incurred by the Licensor. If such damage
causes a public health or safety emergency, as reasonably determined by the Licensor,the Licensor
may immediately perform reasonable and necessary repair or removal work on behalf of Licensee
and will notify Licensee as soon as practicable; provided, such repair work involves reattachment
of its Antennas to a Pole or repair of the Pole itself, and shall not include any technical work on
Licensee's equipment. Upon the receipt of a demand for payment from the Licensor, Licensee
shall within thirty (30) days of such receipt, reimburse the Licensor for such costs. The terms of
this provision shal l survive the expiration, completion, or earlier termination of this License.
5.20 Bond Requirement. Licensee shall provide a bond to Licensor in the amount of fifty
thousand dollars($50000.00), for the first twenty five (25) installed Antennas to protect Licensor
in the event that Licensee fails to remove its Antennas upon termination of this License. For
subsequent Antenna installations exceeding the first twenty five, a bond amount of $2,000 per
additional installed Antenna is required. The bonding company shall be a United States based
entity with legal rights to issue bonds in the State of California. The bond forms shall be in a form
approved by the City Attorney. City reserves the right to increase bond amount required depending
upon the reasonable determination of the City Public Works Director.
5.21 As Built Plans. Licensee shall provide as built plans, to the City, for each Antenna
installation within 30 days of the completion of the installation.
ARTICLE 6
Indemnity and Insurance
6.1 Indemnification.
6.1.1 To the fullest extent allowed by law, and except for losses caused by the sole and
active negligence or willful misconduct of City personnel, Licensee shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, officials, employees,
agents, servants,volunteers and consultants (''Indemnitees"), through legal counsel acceptable to
City, from and against any and all liability, damages, claims, actions, causes of action, demands,
charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to
litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from
this Agreement or in any manner relating to any of the following:
6.1.1.1 Breach of contract,obligations, representations or warranties;
6.1.1.2 Negligent or willful acts or omissions committed during
performance of the Services;
6.1.1.3 Personal injury, property damage, or economic loss resulting from
the work or performance of Licensee or its contractors or sub-
contractors;
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6.1.1.4 Unauthorized use or disclosure of City's confidential and
proprietary Information;
6.1.1.5 Claim of infringement or violation of a U.S. patent or copyright,
trade secret, trademark, or service mark or other proprietary or
intellectual property rights of any third party.
6.1.2 Licensee must pay the costs City incurs in enforcing this provision. Licensee must
accept a tender of defense upon receiving notice from City of a third-party claim, in accordance
with California Public Contract Code Section 9201. At City's request, Licensee will assist City in
the defense of a claim, dispute or lawsuit arising out of this Agreement.
6.1.3 Licensee's duties under this section are not limited to the Contract Price, workers'
compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in
the Agreement shall be construed to give rise to an implied right of indemnity in favor of Licensee
against City or any Indemnitee.
6.2 Insurance. Licensee shall comply with the Insurance Requirements, attached and
incorporated here as Exhibit 3, and must maintain the insurance for the duration of the Agreement,
or longer as required by City. City will not execute the Agreement until City approves receipt of
satisfactory certificates of insurance and endorsements evidencing the type, amount, class of
operations covered,and the effective and expiration dates of coverage. Failure to comply with this
provision may result in City, at its sole discretion and without notice, purchasing insurance for
Licensee and deducting the costs from Licensee's compensation or terminating the Agreement.
ARTICLE 7
Damage,Destruction and Termination
7.1 Nontermination and Nonabatement. Except as provided herein, no destruction or damage
to the City Poles by fire, windstorm or other casualty, whether insured or uninsured, shall entitle
Licensee to terminate this License, unless City Poles are rendered unusable for the Antenna.
7.2 Force Majeure. Prevention, delay or stoppage due to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor, materials or reasonable substitutes, governmental
restrictions, governmental regulation, governmental controls, judicial orders, enemy, or hostile
governmental actions, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of Licensee, shall excuse the performance by Licensee for a period equal to the
prevention, delay or stoppage, except the obligations imposed with regard to rent to be paid by
Licensee pursuant to this License. In the event any work performed by Licensee or Licensee's
contractor's results in a strike, lockout, and/or labor dispute, the strike, lockout, and/or labor
dispute shall not excuse the performance by Licensee of the provisions of this License.
7.3 Waiver of Statutory Termination. City and Licensee waive the provisions of any statutes,
which relate to termination of Licenses when licensed property is destroyed and agree that such
event shall be governed by the terms of this License.
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ARTICLE 8
Taxes
8.1 Personal Property. Licensee shall pay, prior to delinquency, all taxes, license fees, and
public charges assessed or levied against Licensee or Licensee's estate in this License or Licensee's
improvements,trade fixtures, furnishings, equipment and other personal property.
8.2 Real Property. Licensee shall pay Licensee's share of all real property taxes (as defined
in Section 8.3 below) which become due and payable to City on or before the later of ten (10)
days prior to the delinquency, or three (3) days after the date on which Licensee receives a copy
of the tax bill and notice of City's determination, including documentation reasonably supporting
determination hereunder. Licensee's liability to pay real property taxes shall be prorated based
on a three hundred sixty-five (365) day year to account for any fraction or portion of a tax year
included in the License Term at the commencement or end of the License. Licensee is not
responsible for taxes related to rental income to City under this License. Licensee specifically
acknowledges it is familiar with Section 107.6 of the California Revenue and Taxation Code and
realizes that a possessory interest subject to property taxes may be created, agrees to pay any tax,
and waives any rights Licensee may have under Revenue and Taxation Code 107.6.
8.3 Definition. The term"real property taxes" as used herein shall mean:
8.3.1 All taxes, assessments, levies and other charges, general and special, foreseen and
unforeseen, now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy assessments, which are levied or
assessed against or with respect to (i)value,occupancy, use or possession of City Poles and/or the
Improvements, (ii) any improvements, fixtures, equipment and other real or personal property of
Licensee that are an integral part of City Poles, (iii) use of City Poles, improvements, public
utilities, or energy within City;
8.3.2 All charges, levies, or fees imposed by reason of environmental regulation or other
governmental control of City Poles and/or the improvements;
8.3.3 New excise, transaction, sales, privilege, or other taxes now or hereafter imposed
upon City as a result of this License; and
8.3.4 All costs and fees (including attorneys' fees) incurred by City in contesting any
real property taxes and in negotiating with public authorities as to any real property taxes affecting
the City Poles. If at any time during the Term, the taxation or assessment of the City Poles
and/or the improvements prevailing as of the commencement of this License shall be altered, then
any tax or charge, however designated, shall be included within the meaning of the term "real
property taxes." If any real property taxes are based upon property or rents unrelated to the City
Poles and/or the improvements, then only that part of such tax that is fairly allocable to the City
Poles and/or the improvements, as determined by City, on the basis of the assessor's worksheets
or other available information, shall be included within the meaning of the term "real property
taxes."
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ARTICLE 9
Utilities
9. Licensee shall pay for all power, telephone, and other utilities and services supplied to
the Licensee's improvements or equipment, together with any taxes.
ARTICLE 10
Signs
10. Licensee shall not place any signs upon City Poles without prior written consent of City.
ARTICLE 11
Assignment and Subletting
11.1 City's Consent Required. Licensee shall not voluntarily or by operation of law assign,
transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of Licensee's interest
in this License or in City Poles, without City's prior written consent, which consent shall not
be unreasonably withheld. City shall respond to Licensee's request for consent in a
reasonably timely manner and any attempted assignment, transfer, mortgage, encumbrance,
or subletting without s u c h consent shall be void and shall constitute a breach of this License.
Use of Licensee Antenna equipment by third parties or attachment of third-party owned Antenna
equipment to Licensor Poles by Licensee shall not constitute an assignment or transfer of
privileges for purposes of this Agreement.
11.2 Net Worth Requirements. Notwithstanding the foregoing, Licensee may not assign or
sublet its equipment attached to the City Poles, or any portion thereof, without the City's consent,
to any entity which controls, is controlled by, or is under the common control with Licensee, or to
any entity resulting from any merger or consolidation with Licensee, or to any partner of Licensee
or to any partnership in which Licensee is a general partner, or to any person or entity which
acquires all of the assets of Licensee as a going concern, or to any entity which obtains a security
interest in a substantial portion of Licensee's assets. Any entity listed in this paragraph shall
have a new worth of not less than ten million dollars($10,000,000.00).
11.3 No Release of Licensee. No subletting or assignment as approved by City shall eliminate
Licensee's obligation or alter the primary liability of Licensee to pay the rent and to perform all
other obligations to be performed by Licensee hereunder. The acceptance of rent by City from
any other person shall not be deemed to be a waiver by City of any provision hereof. Consent to
one assignment or subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by any assignee of Licensee or any successor of Licensee in the
performance of any of the terms hereof, City may proceed directly against Licensee without the
necessity of exhausting remedies against said assignee.
ARTICLE 12
Defaults; Remedies
12.1 Defaults. The occurrence of any one or more of the following events shall constitute a
material default or breach of this License by Licensee:
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12.1.1 The abandonment of the City Poles by Licensee for non-payment of rent as defined
by Civil Code §1951.3, or the abandonment of the City Poles for non-use for the period of time
specified in the Cupertino Municipal Code, Section 19.136.080, which shall require removal of
Licensee's facilities with Licensee to bear the entire cost of removal and restoration.
12.1.2 The failure by Licensee to make any payment of rent or any other payment required
to be made by Licensee hereunder, as and when due, where the failure shall continue for a period
of ten (10) business days after written notice from City to Licensee. In the event City serves
Licensee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes,
Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph.
12.1.3 The failure by Licensee to observe or perform any of the covenants, conditions,
or provisions of this License in any material respect to be observed or performed by Licensee,
where the failure shall continue for a period of thirty (30) days after written notice from City to
Licensee; provided, however, that if the nature of Licensee's default is that more than thirty
(30) days are reasonably required for its cure, then Licensee shall not be deemed to be in default
if Licensee commences cure within the thirty(30) day period and thereafter diligently prosecutes
the cure to completion.
12.1.4 The making by Licensee of any general arrangement or assignment for the benefit
of creditors; Licensee's becoming a"debtor"as defined in 11 U.S.C. §101 or any successor statute
thereto (unless, in the case of a petition filed against Licensee, it is dismissed within sixty
(60) days); the appointment of a bankruptcy trustee or receiver to take possession of all or
substantially all of Licensee's assets located at or on City Poles or of Licensee's interest in this
License where possession is not restored to Licensee within thirty (30) days; or the attachment,
execution or other judicial seizure of all or substantially all of Licensee's assets located at the City
Poles or of Licensee's interest in this License, where seizure is not discharged within thirty (30)
days.
12.2 Remedies. In the event of any material default or breach by Licensee, City may at any
time thereafter, following any notice required by statute, and without limiting City in the exercise
of any right or remedy which City may have by reason of default or breach:
12.2.1 Terminate Licensee's right to possession of the City Poles by any lawful means,
in which case this License shall terminate and Licensee shall immediately surrender possession of
City Poles and improvements to City. In that event, City shall be entitled to recover from Licensee
all damages incurred by City by reason of Licensee's default including, but not limited to, the
cost of recovering possession of the City Poles, expenses of reletting, including if necessary,
removal of improvements and restoration of the City Poles, reasonable attorneys' fees, the
worth at the time of the award of the unpaid rent that had been earned at the time of termination
of this License and the worth at the time of award of the amount by which the unpaid rent for the
balance of the Term after the time of such award exceeds the amount of rental loss for the same
period that Licensee proves could be reasonably avoided;
12.2.2 Maintain Licensee's right to possession, in which case this License shall continue
in effect whether or not Licensee shall have abandoned City Poles. In that event, City shall
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be entitled to enforce all of City's rights and remedies under this License, including the
right to recover rent as it becomes due; and
12.2.3 Pursue any other remedy now or hereafter available to City under the laws or
judicial decisions of the State of California.
12.3 No Relief from Forfeiture After Default. Licensee waives all rights of redemption or
relief from forfeiture under California Code of Civil Procedure §§1174 and 1179, and any
other present or future law, in the event Licensee is evicted or City otherwise lawfully takes
possession of the City Poles by reason of any default or breach of this License by Licensee.
ARTICLE 13
Termination of License
13.1 Termination by Licensee. Except as provided otherwise herein or by applicable law,
Licensee may terminate this License for cause upon the giving of not less than thirty (30)
days written notice to City if any of the following occur:
13.1.1 The failure by City to observe or perform any of the covenants, conditions, or
provisions of this License in any material respect to be observed or performed by City, where the
failure shall continue for a period of sixty (6 0)days after written notice from Licensee to
City; provided,however, that if the nature of the City's default is such that more than thirty (30)
days are reasonably required for its cure, then City shall not be deemed to be in default, if City
commenced to cure within a sixty (60)day period and thereafter diligently prosecutes such cure
to completion;
13.1.2 Licensee fails to obtain or loses any permits necessary for operation of the City
Poles as a cellular telephone communications facility; or
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13.1.3 Licensee determines that the site is inappropriate for technological reasons, beyond
its control, including but not limited to signal interference.
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13.2 Termination by City. Except as otherwise provided or by applicable law, City may
terminate this License for cause upon giving thirty (30) days written notice if any of the following
occur:
13.2.1 The City Council of City determines through credible scientific evidence collected
with regard to the Antenna operated on the City Poles, that the facility is a threat to public health
or safety; or
13.2.2 Licensee loses or fails to satisfy any condition of any permit required by City
necessary for operation of City Poles as a location for the Antenna.
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13.3 Condemnation of Licensed City Poles. Should all or part of the Licensed City Poles be
taken by any public or quasi-public agency or entity under the power of eminent domain under
the term of this License:
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13.3.1 Either City or Licensee may terminate this License by giving the other thirty (30)
days written notice of termination; and
13.3.2 Any damages and compensation awarded or paid because of the taking shall
belong to the City, except for amounts paid Licensee for moving expenses or for damage
to property owned by Licensee and the value of the unexpired Tenn of this License.
ARTICLE 14
City's Liability
14. The term "City" as used herein, shall mean the City only while the City is the owner of
the fee title of City Poles. In the event of any transfer of title or interest, the City(and in case of
any subsequent transfer, then the grantor) shall, after the date of such transfer, be relieved
from all liability with respect to its obligations hereunder occurring after the transfer date,
provided that any funds in the hands of City at the time of transfer, in which Licensee has an
interest, shall be delivered to the City's grantee.
ARTICLE 1
Interest on Past-Due Obligations
15. Except as expressly provided, any overdue amount due to City shall bear interest at
the lesser of ten percent (10%) per year or the maximum rate allowable by law from the date
due.
ARTICLE 16
Holding Over
16. If Licensee remains in possession of City Poles or any part of City Poles after the expiration
of the Tenn or Option Term, the occupancy shall be a tenancy from month to month. All the
obligations of this License applicable to Licensee shall remain in effect. The monthly rental
obligation shall be two (2) times the Base Rent in effect at the time of expiration.
ARTICLE 17
City's Access
17. City and City's agents shall have the right to access City Poles for the purpose of showing
to prospective purchasers, lenders, or licensees, and making alterations,repairs, improvements, or
additions to City Poles as City may deem necessary.
ARTICLE 18
Prevailing Wage
18. To the extent applicable by law to Licensee's activities under this Agreement, Licensee
shall pay prevailing wages.
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ARTICLE 19
Easements
19. City reserves to itself, the right, from time to time, to grant such easements, rights, and
dedications that City deems necessary or desirable, and to cause the recordation of parcel maps
and restrictions, so long as the easements, rights, dedications, maps and restrictions do not
materially interfere with Licensee's use of the City Poles. Licensee shall sign any of the
aforementioned documents upon request of City and failure to do so shall constitute a material
breach of this License.
ARTICLE 20
General Provisions
20.1 Severability/Partial Invalidity. If a court finds any term or provision of this Agreement to
be illegal, invalid, or unenforceable, the legal portion of said provision and all other Agreement
provisions will remain in full force and effect.
20.2 Time of Essence. Time is of the essence under this License.
20.3 Additional Rent. Any monetary obligations of Licensee to City under the terms of this
License shall be deemed to be rent and all references herein to "rent" shall be deemed to include
the Base Rent and all other sums paid or payable by Licensee to City.
20.4 Entire Agreement, Modification. This Agreement and the attachments, documents, and
statutes attached, referenced,or expressly incorporated herein, including authorized amendments
or change orders constitute the final and complete Agreement between City and Licensee with
respect to the Work and the Project.No oral Agreement or implied covenant will be enforceable
against City. If any attachment or incorporated provisions conflict or are inconsistent with the
terms of this Agreement, the Agreement terms will control. This Agreement may be modified in
writing only. A major modification of the terms of this Agreement shall require the approval of
the City Council.
20.5 No Warranty. Except as otherwise stated in this License, Licensee hereby acknowledges
that neither the City nor any employees or agents of the City has made any oral or written
warranties or representations to Licensee relative to the condition or use by Licensee of the City
Poles. Licensee assumes all responsibility regarding the Occupational Safety and Health Act, the
legal use and adaptability of City Poles, and compliance with all applicable laws and regulations
in effect during the Term of this License.
20.6 Survival. The Agreement provisions which by their nature should survive the Agreement,
including without limitation all warranties,indemnities,payment obligations,insurance and bonds,
shall remain in full force and effect after the License ends.
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20.7 Inserted Provisions. Each provision and clause required by law to be inserted in this
Agreement will be deemed to be included and will be inferred herein. Either party may request an
amendment to cure mistaken insertions or omissions of required provisions.
20.8 Captions. The captions,titles, and headings in this Agreement are for convenience only and
may not be used in the construction or interpretation of the Agreement or for any other purpose.
20.9 Counterparts. This Agreement may be executed in counterparts, each of which is an original
and all of which taken together shall form one single document.
20.10 Notices. All notices, requests, and approvals must be sent in writing to the persons below
and will be considered effective on the date of personal delivery,the date confirmed by a reputable
overnight delivery service,on the fifth calendar day after deposit in the United States Mail,postage
prepaid, registered or certified,or the next business day following electronic submission:
Licensee:
ExteNet Systems (California)LLC
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
Attn: Vice President
With a copy to General Counsel at same address
City:
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
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With Copy to:
Rocio Fierro
City Attorney
20410 Town Center Lane, Suite 210
Cupertino, CA 95014-3255
Each notice shall specify the License provision pursuant to which it is given. Either Party may
specify a different address or contact person. Notice given under this section shall be deemed in
compliance with applicable statutory notice requirements, including Code of Civil Procedure
§1162.
20.7 Waivers. Neither acceptance of the Work nor payment thereof shall constitute a waiver of
any provision. City waiver of any breach shall not constitute waiver of another provision or breach.
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20.8 Cumulative Remedies. No remedy or election under this License shall be deemed
exclusive but shall,wherever possible, be cumulative with all other remedies at law or in equity.
20.9 Governing Law, Venue, and Dispute Resolution. This Agreement is governed by the laws
of State of California. Venue for any legal action shall be the Superior Court of the County of
Santa Clara,California.The dispute resolution procedures of Public Contract Code Section 20104,
incorporated here by reference, apply to this Agreement and Licensee is required to continue the
Work pending resolution of any dispute. Prior to filing a lawsuit, Licensee must comply with the
claim filing requirements of the California Government Code. If the Parties elect arbitration, the
arbitrator's award must be supported by law and substantial evidence and include detailed written
findings of law and fact.
20.10 Condition to Effectiveness of License. The approval of the City Council of City constitutes
an express condition precedent to the effectiveness of this License.
20.11 Attorneys' Fees. If City initiates legal action, files a complaint or cross-complaint, or
pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection
with this Lease,the prevailing party will be entitled to reasonable attorney fees and costs.
20.12 Brokers. Each Party represents that it has not had dealings with any real estate broker or
finder, with respect to this License in any manner. Each Party shall hold harmless the other Party
from all damages resulting from any claims that may be asserted against the other Party by any
broker, finder, or other person with whom the indemnifying Party has or purportedly has dealt.
20.13 Authority to Execute. The persons signing below warrant they have the authority to enter
into this Lease Agreement and to legally bind their respective Parties. If Licensee is a corporation,
signatures from two officers of the corporation are required pursuant to California Corporations
Code Section 313.
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20.14 Non-Liability of Officials and Employees of the City. No official or employee of City
shall be personally liable for any default or liability under this License.
20.15 Independent Contractor.
20.15.1 Status. Licensee is an independent Contractor and not an employee of City.
Licensee is solely responsible for the means and methods of performing the Work and for the
persons under this employment. Licensee is not entitled to worker's compensation or any other
City benefits.
20.15.2 Licensee's Qualifications. Licensee warrants on behalf of itself and its
subcontractors that they have the qualifications and skills to perform the Work in a competent and
professional manner and according to the highest standards and best practices in the industry.
20.15.3 Permits And Licenses. Licensee warrants on behalf of itself and its subcontractors
that they are properly licensed,registered, and/or certified to perform the Work as required by law,
and have procured a City Business License. Licensee shall possess a California Contractor's
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License in good standing for the following classification(s), which must remain valid for the entire
Lease time.
20.15.4 Subcontractors. Only Licensee's employees are authorized to work under this
Agreement. Prior written approval from City is required for any subcontractor, and the terms and
conditions of this Agreement will apply to any approved subcontractor.
20.15.5 Tools, Materials And Equipment. Licensee will supply all tools, materials and
equipment required to perform the Work under this Agreement.
20.15.6 Payment of Taxes. Licensee must pay income taxes on the money earned under
this Agreement. Upon City's request, Licensee will provide proof of payment and will indemnify
City for violations pursuant to the indemnification provision of this Agreement.
20.16 Memorandum of Lease. Following execution of this Agreement, either party, at its sole
expense shall be entitled to record a Memorandum of Lease in the official records of Santa Clara
County. Upon termination or expiration of this Agreement, Licensee shall execute and record a I
quitclaim deed.
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20.17 Estoppel Certificate. Licensee shall,from time to time, upon at least thirty(30)days prior
written notice from City, execute, acknowledge and deliver to City a statement in writing (a)
certifying this Agreement is unmodified and in full force and effect, or, if modified, stating the
nature of the modification and certifying that the Agreement, as modified, is in full force and
effect, and the date to which the rental and other charges, if any, have been paid; and, (b)
acknowledging that there are not to Licensee's knowledge, any defaults, or stating if any defaults
are claimed,any statement may be relied upon by any prospective purchaser or encumbrancer
of the City Property.
20.18 The language of all parts of this Agreement shall be construed with its fair meaning and not
strictly for or against the City or Licensee.
20.19 Validity Of Agreement.This Agreement is valid and enforceable only if(a) it is signed by
the City Manager or an authorized designee, and (b) is approved for form by the City Attorney's
Office.
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CITY OF CUPERTINO, CALIFORNIA
APPROVED AS TO FOW:
ROCfo O
City Attorney City Manager
ATTEST:
r
City Clerk "Ci "
Licensee
ExteNet Systems (California) LLC
By: Daniel L. Timm
Title: Vice President
10 j 03 I B
Licensee's Address:
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
Attn: Vice President
Telephone: 630-505-3800
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EXHIBIT "Y'
Insurance Requirements
Licensee shall purchase and maintain the insurance policies set forth below at its sole cost and
expense. Such policies shall be maintained for the full Term of this License. The term "City"
shall include the duly elected or appointed council members, commissioners, officers, agents,
employees, and volunteers of the City of Cupertino, California, individually or collectively.
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1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES.
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On or before the commencement of the Term of this License, Licensee shall furnish City with
certificates showing the type, amount, class of operations covered, effective dates and dates of
expiration of insurance coverage in compliance with this Exhibit. These certificates, which do
not limit Licensee's indemnification, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage reduced
before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days'
advance written notice to the City of Cupertino by certified mail, "Attention: City Manager."
Endorsements naming the City as additional insured shall be submitted with the insurance
certificates. The following policies shall be maintained with insurers authorized to do business
in the State of California and shall be issued under forms of policies satisfactory to the City:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabil'
Commercial general liability coverage in the following minimum limits:
Bodily Injury:
$2,000,000 each occurrence
$4,000,000 aggregate-all other
Property Damage:
$1,000,000 each occurrence
$4,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of$4,000,000
will be considered equivalent to the required minimum limits shown above.
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(3) Automotive:
Comprehensive automobile liability coverage in the following minimum
limits:
Bodily injury: $1,000,000 each occurrence
Property Damage: $1,000,000 each occurrence or
Combined Single Limit: $1,000,000 each occurrence
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2. SUBROGATION WAIVER.
Licensee agrees that in the event of loss due to any of the perils for which it has agreed to provide
comprehensive general and automotive liability insurance, Licensee shall look solely to its
insurance for recovery. Licensee hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Licensee or City with
respect to the services of Licensee, a waiver of any right to subrogation, w h i c h any insurer
of the Licensee may acquire against City by virtue of the payment of any loss under the insurance.
3. ABSENCE OF INSURANCE COVERAGE.
City may direct Licensee to immediately cease all activities with respect to this License if it
determines that Licensee fails to carry, in full force and effect, all insurance policies with
coverages at or above the limits specified in this License. Any delays or expense caused due
to stopping of work and change of insurance shall be considered Licensee's delay and expense.
At the City's discretion, under conditions of lapse, City may purchase appropriate insurance and
charge all costs related to such policy to Licensee.
4. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.
A Certificate of Insurance, on an Accord form, and completed coverage verification shall be
provided to City by each of Licensee's insurance companies as evidence of the stipulated
coverages prior to the Commencement Date of this License, and annually thereafter for the term
of this License. All of the insurance companies providing insurance for Licensee shall have,and
provide evidence of, a Best Rating Service rate of A VI or above. The Certificate of Insurance
and coverage verification and all other notices related to cancellation or non-renewal shall be
mailed to:
City Clerk
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
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