17-056 Crown Castle_Small Cell License Renewal Letter_Signed_CA_FedEx_03152022C/,CAS'WE
Crown Castle
2000 Corporate Drive
Canonsburg, PA15317
March 15, 2022
VIA FEDEX
City of Cupertino
io3oo Torre Avenue
Cupertino, CA 95014-3202
Attention: City Attorney
Phone: (408) 777-3403
RE: Small Cell License Agreement / / CID #1528619
Dear City Attorney,
Pursuant to Article 2.3 - Option to Extend of the above referenced and attached agreement between the City of
Cupertino, California, ("City" or "Licensor") and Crown Castle Fiber LLC, as successor by merger to Crown Castle
NG West LLC ("Licensee") dated May 16, 2017, please accept this letter as our formal notice ("Option Notice") to
exercise our right to extend the first of two periods of five (5) years ("Option Terms").
According to our records, the first five (5) year extension term would nin from June 26, 2022, to June 25, 2027.
If you have any questions about the agreement or extension, please contact Michael Cintron - Permitting
Manager, via email at Michael.Cintron@crowncastle.com or phone at (g:5) 7oi-7igi.
Sincerely,
David C. Kutschbach
David.Kutschbach@crowncastle.com
SCFS Contract Analyst - National
i5oo Corporate Drive
Canonsburg, PA i53i7
(724) 416-9218
The Foundation for a Wireless World.
CrownCastle.com
THE CITY OF CUPERTINO, CALIFORNIA
SMALL CELL LICENSE
AGREEMENT
BETWEEN
AND
CROWN CASTLE NG WEST LLC
Table of Contents
RECIT ALS
ARTICLE I
City Poles and Improvements
1.1 License of City Poles
1.2 Improvements..
ARTICLE 2
Term.........
2.1 Term
2.2 Commencement Date
2.3 0ption to Extend.
ARTICLE 3
Rental
3.1 Base Rent.........
3.2 Annual Increase...
3.3 Market Rate Adjustment...............
3.4 Transactional Costs.
3.5 Late Charge.
ARTICLE 4
Use...
4.1
4.2
4.3
4.4
4.5
4.6
Permitted Uses..
Prohibited Uses.
Approval by the City and Other Agencies..
Compliance with Laws
Condition, Use of City Poles
Hazardous Materials
4.6.1 Hazardous Materials on City Poles....
4.6.2 Hazardous Materials Defined.
4.6.3 Hazardous Materials Indemnity
4.6.4 City's Right to Peform Tests
4.6.5 Survival.
4.6.6 Termination of License.
4.6.7 Covenant of Non-Interference
1
1
1
.1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
...........................3
3
3
3
4
4
.4
4
4
5
5
6
6
6
4.6.8 Co-location.
4.6.9 Eledromagnetic Emissions
4.7 Telecommunications Services.
4.8 Scope of Agreement
ARTICLE 5
Maintenance, Repairs and Alterations
5.1 General.....
5.2 Surrende
5.3 City's Rights..
5.4 City RepairObligations...
5.6 Improvement
5.6.1
5.6.2
5.6.2.1 ProtectionofAdjacentProperty,lndemnityoftheCity.
5.6.2.2 Insurance
5 20
5.6.2.3 Final Inspection
5.6.2.4 Notice of Changes in Plans
City Access...
Licensee Access
Licensee Access during Security Alert..........
Attachment to City Poles
Encroachment Permit.
Replacement Pole
Preference for Municipal Facilities
No Interference
[intentionally deleted]
Payment to PG&E of Power Costs
Commencement of Instal1ation and Operation
Relocation and Displacement of Equipment
Damages Caused by Licensee
Bond Requirement
As Built Plans
ARTICLE 6 .. .. . . . . . . . .. .. . .... . .. .. .... . .. .. . . . .. . 12
Indemnity and Insurance .... . . .. . .... .. .. .. . ... ..... . ........... . 12
6.1 Indemnity. .. .. . ..... .. .. .... . . .. .. . . . .. . .... .... .. ... .. .12
6.3 Insurance. . .. . .. .. ..... .. . ........ . ..... .. .. . ...... .. ... . .12
6.3.I Commercial general liability policy (bodily injury and property damage)........................... 12
6.3.2 Worker's Compensation, employer's liability policy
6.3.3 Commercial automobile liability insurance policy
ARTICLE 7
Damage, Destrudion and Termination..
7.1 Nontermination and Nonabatement..
7,2 Force Majeure
7.3 Waiver
12
12
13
13
ARTICLE 8
Taxes.
8.1 Personal Property.
8.2 Real Property.....
8.3 Definition
. 13
8.3.1...
8.3.2 14
8.3.3 14
8.3.4 14
ARTICLE 9 . 14
Utilities
ARTICLE 10
14
14
Signs...............
ARTICLE 11
Assignment and Subletting
11.1 City's Consent Required
11.2 Net Worth Requirements
11.3 No Release of Licensee
14
14
. 14
14
15
ARTICLE 12
Defaults; Remedies.
12.1 Defaults
15
15
12.1.1 15
12.1.2
12.1.3
12.1.4
12.2 Remedies..
12.2.1
12.2.2
12.2.3
12.3 No Relief from Forfeiture After Default.
ARTICLE 13
Termination of License
13.1 Termination by Licensee
13.1.1
13.1.2
13.1.3
13.2 Termination by City
13.2.1
13.2.2
13.3 Condemnation of Licensed City Poles.
13.3.1
13.3.2
ARTICLE 14
City's Liability...
ARTICLE 15
Interest on Past-Due Obligations
ARTICIE 16
Holding Over
ARTICLE 17
City's Access
ARTICLE 18..
Prevailing Wage
ARTICLE 19
Easements
ARTICLE 20
General Provisions
20.1 Severability 18
20.2 Time of Essence 18
20.3 Addaitional Rent.
20.4 Entire Agreement, Modification
20.5 No Warranty
20.6 Notices
20.7 Waivers
20.8 Cumulative Remedies
20.9 Choice of Law
20.10 Condition to Effectiveness of License
20.11 Attorneys" Fees
2g.12 Brokers
20.13 Authority.
20.14 Non-Liability of Officials and Employees of the City.
2g,15 Ngn-Discrimination
20.16 Independent Contractor
20.17 Conflict of Interest.
19
19
19
19
20
20
20
.20
20
20
. 20
21
21
21
21
v
SMALL CELL LICENSE AGREEMENT
Castle NG West LLC, a Delaware limited liability company ("Licensee"). Licensor and
Licensee inay eacli be referred to as a "Party" or collectively "Parties.
RECIT ALS
The following recitals are a substantive portion of this License:
A. City is the owner of light poles, traffic signal poles or other poles (collectively "City
Poles") within tlie 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 limited liability company organized under the laws of the State of Delaware
and legally qualified to do business within the State of Califoriiia wliose business includes the
provision of telecoinmunications services, which requires, in pait, utilization of small cell sites in
the public right-of-way.
C. Licensee requests the use of ceitain City Poles as designated on the attached Exhibit "1",
for the installation and operation of small cells. Exhibit 'T' is for reference purposes only and
not a designated reservation of a City Pole for Licensee use.
D. City is willing to permit Licensee to License the City Poles in accordance witl'i the ten'ns,
conditions, and covenants of this License.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE l
City Poles and Improvements
1. l License of City Poles. City liereby licenses to Licensee and Licensee licenses from
City for the term, at tlie rental rate and upon all of the other terms and conditions set forth, the
City Poles listed on Exhibit "l", attaclied liereto and incorporated herein. The Parties
acknowledge that they may amend Exliibit "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 of the same or substantially similar initial design as previously approved by the City
and shown on Exhibit "2", attached hereto and incorporated herein. It is understood and agreed
that tlie final Equipment design will be shown in the plans submitted to the City in connection
with tlie City's encroachment permit process.
ARTICLE 2
Term
2.1 Term. The term of this License shall be for a period of five (5) years commencing on
the Commencement Date and terminating on the fifth anniversary of the Commencement Date,
unless earlier terminated ("Term").
2.2 Commencement Date. The Cornrnencement Date of this License shall be the date
this License is approved by the City Council.
2.3 0ption to Extend. Provided Licensee is not in default, either at the time of exercise or at
the time the extended Term commences, Licensee shall have the option to extend the Term of
this License for two periods of five (5) years ("Option Terms") on the same terms and conditions
provided. City shall not unreasonable deny this extension. Licensee shall exercise its option by
giving City written notice ("Option Notice") at }east sixty (60) days, but not more than one
hundred twenty (120) days, prior to the expiration of the Term of this License or each of the
Option Terms.
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 Terms,
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 Tertn,
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. All payments, including Rent shall be mailed to:
City Manager, City of Cupertino, and 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 aru'iiversary thereafter throughout the Term and Option Terms, if any.
The Rent shall be increased by not less than 2.5% and not more than 5% depending upon the
prior's year's CPI-U. 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 comrnencing on the first anniversary,
assuming a CPI-U of 2.5% would be One Thousand Five Hundred Thirty Seven Dollars and
Fifty Cents ($1537.50).
3.3 Market Rate Adjustment. At the start of each of the Option Terms, at City's request, the
rental rate shall be adjusted to equal the highest annual rental rate paid 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 agreements for similar equipment and providing similar telecommunication
services. 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 tertn 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
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 at'rd 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.
ARTICLE 4
Use
4. 1 Permitted Uses. Licensee shall use the City Poles for purposes related to the small cell
installation (collectively "Equipment") only. Licensee shall be solely responsible for all costs
associated with the construction, installation, maintenance, and use of the Equipment.
4.2 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 Equipment on the City Poles. No materials or articles 'of any nature shall
be stored outside adjacent to any portion of the City Poles.
4.3 Approval by the City and Other Agencies. Licensee, at its sole cost and expense,
may install the Equipment, subject to Licensee's obtaining all required permits, licenses, and
approvals from the City and any other govemmental agencies having jurisdiction. Licensee
shall maintain permits, licenses, and approvals in force through the Temi and the Option
Term, if any. The revocation or expiration of any permit, license, or approval is a breach of this
License. If Licensee replaces the Equipment, it shall not do so without the prior written
approval of City, and all required pertnits, licenses, and approvals from the City and any other
governmental agencies with jurisdiction. If a change in the Equipment is approved, Licensee
and City shall amend Exhibit "2" to reflect the change. Should Licensee change or expand
any Equipment without the prior approval of City, City may require that Licensee remove the
expansion at Licensee's sole cost and expense. 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 Tetm of the License.
4.4 Compliance with Laws. Licensee shall not do or permit anything to be done in, on the
City Poles, or bring or keep anything in or on the City Poles which will conflict with any law,
statute, ordinance, or governmental rule or regulation now in force or wl'iich may hereafter be
enacted.
4.5 Condition, Use of City Poles. Licensor makes no warranty or representation
conceming 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.
4.6 Hazardous Materials.
4.6. l Hazardous Materials on City 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, obtained, handled, stored, and/or disposed of in accordance with all federal, state,
and local laws, ordinances, rules, regulations, or policies.
4.6.2. 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 a'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), (j) 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., (l) 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 Secs. 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) flarnrnable explosives, (vi) urea formaldehyde, and (vii)
radioactive materials and waste.
4.6.3 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 vaIue 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 City Poles 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, attomey's 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 6aused or resulting, either prior to or during the License
Ternn, in whole or in 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 decontarnination 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.
4.6.4 City's Right to Perform Tests. At any time during the License Term, City shall
have the right to enter upon City Poles in order to conduct tests of water and soil and to deliver
to Licensee the results of such tests to demonstrate that leveis 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 attorney's 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 confirms 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 Equipment meets or
exceeds all appropriate FCC requirements. Licensee shall provide results of any test results on
the Equipment prepared for the FCC or any other testing body.
4.6.5 Survival. This entire Section 4.6 of this License shall survive termination of the
License, as to any activities during the Term or Option Term of this License.
4.6.6 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 mamer or for a purpose prohibited or regulated
by any governrnental 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
govemmental authority in connection with the release, use, disposal, or storage of a Hazardous
Material on the City Poles or City Property.
4.6.7 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 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.
4.6.8 Co-location. Licensee acknowledges that City has the right to license
additional positions on City Poles to third parties. All operations by Licemee shall comply
with all Federal Communications Commission ("FCC") requirements. If City adds new City
Poles 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
Equipment. Any future license of the City Pole site, which permits installation of
similar equipment, shall be conditioned upon the new Equipment not interfering with
Licensee's Equipment.
4.6.9 Electromapetic 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. At least twenty
calendar days prior to conducting the testing required for the implementation of the
improvements, the Licensee shall mail notice to the Department of Public Works, as well as to
the resident of any legal dwelling unit within 100 feet of a transmitting antenna, of the date on
which testing will be conducted. The Licensee will submit a written affidavit attesting to this
mail notice along with the mailing list. When requested in advance by a resident, the Project
Sponsor shall also conduct testing of total power density of RF emissions within and/or around
the residence of that resident on the date on which the testing is conducted for the
implementation of the improvements.
4.7 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 Equipment from City Poles, including the cost of any site
remediation, at no cost to the Licensor, without any liability to Licensee related directly or indirectly
to such ternnination.
4.8 Scope of Agreement. All rights expressly granted to Licensee under this License, which
shall be exercised at Licensee's sole cost arid 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
5.1 General. Licensee shall keep in good order, condition, and repair City Poles and the
Equipment placed on the Poles. Licensee shall keep the City Poles clean and free of debris.
5.2 Sutrender. On the last day of the Tem'i, or of the Option 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 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 reqriired), to perform obligations on Licensee's behalf and put
the City Poles and/or Equipment 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.
5.6 Improvements.
5.6.1 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 fumish 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 attomeys' fees and costs
in participating in the action if City decides to participate.
5.6.2 Before construction of any improvements are commenced on C ity Poles, and
before any building materials have been delivered to City Poles by Licensee or its agents,
Licensee shall comply with the following conditions or procure City's written waiver of the
conditions specified:
5.6.2.1 Protection of Adiacent 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.
5.6.2.2 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, Licensee, or the City Poles. 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.
5.6.2.3 Final Inspection. Licensee shall not provide service to its customers from
the Equipment in any way without receiving a final inspection of the Equipment from the City.
5.6.2.3 Notice of Changes in Plans. Upon completion of the installation of any
Equipment, 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.
5.7 City Access. The City or its agents, may enter onto 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. City grants Licensee reasonable foot or climbing access to the City
Poles. Access shall be available to Licensee, Licensee's employees and invitees, during
normal business hours Monday through Friday from 8 a.m. to 5 p.m. upon reasonable notice to
City, except if an emergency occurs. In the event of an emergency, Licensee's access shall be
24/7. It is anticipated, after installation of the Equipment 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 Equipment. 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 Equipment. 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.
5.9 Licensee Access during Security Alert. During times of high security alert by the
Homeland Security Advisory System, Licensee must obtain City's consent to access City Poles.
5.10 Attachment to City Poles. Licensee will submit to the authorized representative of the
Licensor, no more than two proposed designs for any proposed Equipment installations.
Assuming that all of Licensor's requirements are met, Licensor will preapprove up to two
acceptable designs for Equipment. Licensee may only install Equipment designs that are the
same as the preapproved design. All installations shall to the maximum extent possible be
placed behind equipment 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 unless the City, in its sole discretion, approves 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, where possible, to City's
Engineer's satisfaction and shall not exceed the preapproved size. Each Equipment 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 encroacbment 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 Equipment 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 Equipment to City Poles at the
sole discretion of the City Engineer. Licensee agrees to abide by decisions made by the City
Engineer regarding Equipment placement.
5.12 Replacement Pole. If Licensee selects a Pole that is structurally inadequate to
accommodate the Equipment, 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-party-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 and are offered by
Licensor to Licensee at a comparable rental rate.
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 Equipment will be pemiitted to install only equipment that
is of the type and frequency which wilI not cause harnnful 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 [intentionallydeleted)
5.I6 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 the 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 shaIl 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 instalIation of
its initial Equipment no later than one (1) year after the mutual execution of an applicable
Encroachment Permits. 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 arid Displacement of Equipment. From time to time, Licensor may require
Licensee to relocate its equipment. Upon Licensor's ninety (90) 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 constniction, modification, completion, repair, relocation, or
maintenance of a Licensor or other public agency project; (b)because the Equipment is
interfering with or adversely affecting proper operation of City Poles, traffic signais,
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
altemate location for its equipment. If Licensee shall fail to relocate any Equipment 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 cost and expenses incurred by tlie Licensor in
performing any removal work and any storage of Licensee's property after removal witin 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 Equipment safely, the Licensor will
have no obligation to repair or replace the City Pole for the use of Licensee's Equipment.
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 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 Equipment that is damaged
or becomes 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
their actions relating to attachment, operation, repair or maintenance of its Equipment. If
Licensee does not remove, repair or replace such damage to its Equipment 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 incuned 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 Equipment 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 shall 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
$50000.00 for the first twenty five City Poles upon which Equipment is installed to protect
Licensor in that event that Licensee fails to remove its Equipment upon termination of this
License. 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
Attomey. City reserves the right to increase the bond amount required depending upon the
reasonable determination of the City Engineer.
5.21 As Built Plans. Licensee shall provide as built plans, to the City, for each Equipment
}ocation within 30 days of the completion of the installation,
ARTTCLF, 6
Indemnity and 'Insurance
6.1 %. This License is made upon the express condition that Licensee shall
indemnify and hold harmless City and its officers, agents and employees against any suits,
claims or actions arising out of Licensee's use of City Poles or from any act permitted, or any
omission to act, in or about the City Poles or City Property by Licensee or its agents, employees,
contractors or invitees, including, but not limited to, any injury or injuries to, or death or deaths
of, persons or property that may occur, or that may be alleged to have occurred from any carise
or causes whatsoever, while in, upon, about or in any way connected with City Poles during the
term of this License, or during any holdover tenancy thereof (except where caused solely by
the active negligence or willful misconduct of City, its employees or agents). Licensee agrees to
defend any actions, suits or claims and pay all reasonable charges of attorneys and all other costs
and expenses arising therefrom. If any judgment is rendered against the City or any of the other
individuals enumerated above in any action (except to the extent the judgment arises from
the negligence or willful misconduct of the City, its employees' or agents) Licensee shall, at its
expense, satisfy and discharge same. In no event will either party be liable to the other party for
punitive damages.
6.3 Insurance. Diuing the term of this License, Licensee shall maintain in full force and
affect the following insurance policies:
6.3.1 Commercial general liability policy (bodily injury and property damage);
6.3.2 Worker's Compensation, employer's liability policy; and
6.3.3 Commercial automobile liability insurance policy.
These policies shall be maintained with respect to employees and vehicles using the City
Property with coverage atnounts and including the required endorsements, certificates of
insurance and coverage verifications as defined in Exhibit "3" attached and incorporated by this
reference.
ARTICLE 7
Damage, Destructton 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 Equipment.
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, governrnental controls, judicial orders, enemy, or hostile
govemrnental actions, civil comrnotion, 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
License<='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 . City and Licensee waive the provisions of any statutes, which relate to
temiination of Licenses when licensed property is destroyed and agree that such event shall be
governed by the terms of this License.
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. Licerisee'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 Califomia
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.I All taxes, assessments, levies and other charges, general and special, foreseen and
unforeseen, now or hereafter imposed by any govemrnental or quasi-govemmental 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 governrnental 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 duting the Term, the taxation or assessment of
the City Poles and/or the improvements prevailing as of the cornrnencement 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 infornnation, shall be included within the meaning
of the term "real property taxes."
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, l 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 such consent shall be void and shall constitute a breach of this License. However,
the assignment, transfer or delegation of the rights and obligations of Licensee hereunder to
Licensee's financially viable parent, subsidiary, successor, or affiliate under common control
shall not require consent and shall be effective upon written notice to the City. Tliis Agreement is
binding upon tlie successors and assigns of tlie Parties.
11.2 Net Worth Requirements. Notwithstanding the foregoing, Licensee may not assign or
sublet its equipment attached to tlie City Poles, or any portion thereof, witliout tlie City's
consent, to any entity which controls, is controlled by, or is under the common control witl'i
Licensee, or to any entity resulting from any merger or consolidation witli Licensee, or to any
partner of Licensee or to any paitnership in which Licertsee is a general paitner, 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 tliis
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. Tlie 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 sliall 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 teims hereof, City may proceed directly against
-JM! ?*vviilioutthenecessityofexhaustingremediesagainstsaidassignee.
"Licensee"
W69, ARTICLE12
Defaults; Remedies
12. l Defaults. Tlie occurrence of any one or more of the following events shall constitute a
material default or breach of this License by Licensee:
12.1.1 The abandonment of the City Poles by Licensee as defined by Civil Code
§1951.3.
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 tlie 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 Tlie failure by Licensee to observe or perforni any of the covenants, conditions,
or provisions of this License in any material respect to be observed or performed by
Licensee, where the failure sliall 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 deen'ied
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 assigi'u'nent for tlie
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 withiri 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.I 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
attomeys' 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 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
relieffrom forfeiture under Califomia 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 Temiination by Licensee. Except as provided otherwise herein or by applicable
law, Licensee may tertninate 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 thirty (30) 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 thirty (30) 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
13.1.3 Licensee determines that the site is inappropriate for technological reasons,
beyond its control, including but not limited to signal interference.
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 Equipment 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 pertnit required by City
necessary for operation of City Poles as a location for the Equipment.
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:
13.3.I 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 Term 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 15
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 Term or Option Tertns, 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.
ARTICLF, 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.
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 . The invalidity of any provision of this License as determined by a court
of competent jurisdiction shall in no way affect the validity of any other provision.
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 License contains all agreements of the parties
with respect to any matter mentioned herein. No prior agreement or understanding shall be
effective. This License may be modified in writing only.
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 Notices. Any notice required or permitted to be given, shall be in writing and may be
given by personal delivery or by first class mail, and if given personally or by mail, shall
be deemed sufficiently given if addressed to Licensee or to City at the address noted below:
Licensee:
Crown Castle NG West LLC
c/o Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
Attn: Ken Simon, General Counsel
with a copy to:
Crown Castle NG West LLC
c/o Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
Attn: SCN Contracts Management
City Manager
City of Cupeitino
10300 Torre Avenue
Cupertino, CA 95014-3202
with a copy to.'
Randolph Hora
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. No waiver by City or Licensee of any provision shall be deemed a waiver of
any other provision or of any subsequent breach by City or Licensee of the same or any other
provision. Licensor or Licensee's approval of any act shall not be deemed to render unnecessary
obtaining of the other Party's consent for any subsequent act. The acceptance of rent by City
shall not be a waiver of any preceding breach by Licensee of a provision, other than the failure
of Licensee to pay the particular rent so accepted, regardless of City's knowledge of the breach
at the time of acceptance of rent.
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 Choice of Law. This License shall be governed and construed by and in accordance with
the laws of the State of Califomia, without reference to its conflicts of law principles. If suit is
brought by a Party to this License, the Parties agree that trial of such action shall be conducted in
the state courts of California, County of Santa Clara or in federal court with jurisdiction over the
City. The language of all parts of this License shall be construed with its fair meaning and not
strictly for or against the City or Licensee.
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 either party brings an action to enforce the terms or declare rights
hereunder, the prevailing Party in any such action, shall be entitled to its reasonable
attorneys' fees and court costs to be paid by the other Party.
20.12 . 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 . Each individual executing this License on behalf of Licensee and City
represents and warrants that he or she is duly authorized to execute and deliver this License on
behalf of said Party.
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 Non-Discrimination. Licensee covenants it shall not discriminate based upon race,
color, creed, religion, sex, marital status, age, liandicap, national origin, or ancestry in any
activity under this License.
20.16 Independent Contractor. It is agreed tliat Licensee shall act aiid be ar'i independent
contractor and not an agent nor employee of City.
20.17 Conflict of Interest. Licensee shall at all times avoid conflict of interest or appearance
of conflict of interest in performance of this License.
CITY OF CUPERTINO, CALIFORNIA
APPROVED AS TO
FORM:
pAA
!mnootpn HOMCity Attorney
ATTEST:
i4[ityll
Crown Castle NG West LLC
By: William Barnett- VP Assets & Network Ops.
"Licensee"
Small Cell License Agrecmcnt Final Version City ol' Cuperlino Crown Castle revised 4-12-17
"EXHIBIT l"
City Poles
Exact pole locations to be determined by coverage requiremems with City Engineer's approval.
EXHIBIT "2"
Pole Design Options
See two (2) attached pole design options.
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1 6/9/201 7 CONCEPTUAL
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EXHIBIT "3"
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"
shaIl include the duly elected or appointed council members, commissioners, officers, agents,
employees, and volunteers of the City of Cupertino, California, individually or collectively.
1.MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES.
On or before the commencement of the Term of this I,icense, 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 do not
limit Licensee's indemnification. The policies required should be endorsed to contain
substantially the following statement: "Should the insurance covered by this policy be canceled
for any reason other than for non-payment of premium before the expiration date thereof, the
insurer affording coverage shall provide thirty (30) days' advance written notice to the City of
Cupertino by mail, "Attention: City Manager."" Endorsements naming the City as additional
insured on the general liability and automobile liability policies 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 reasonably
satisfactory to the City:
(1) Workers' CompensatioB:
Statutory coverage as required by the State of California.
Commercial general liability coverage in the following minimum limits:
Bodily Injury:
l.OOO.OOO each occurrence
$2,000,000 aggregate - all other
Property Damage:
$500,000 each occurrence
$1,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of
$2,000,000 will be considered equivalent to the required minimum limits shown above
The required limits may be met by a combination of primary and excess or umbrella policies.
(3) Automotive:
Comrnercial automobile liability coverage in the following minimum
limits:
Bodily injury:
Property Darnage:
Combined Single Limit:
$500,000 each occurrence
$500,000 each occurrence or
$1,000,000 each occurrence
2.SUBROGATION WATVER:
Licensee agrees that in the event of loss due to any of the perils for which it has agreed to
provide commercial 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
commercial general and automotive liability insurance to either Licensee or City with
respect to the services of Licensee, a waiver of any right to subrogation, which any
insurer of the Licensee may acquire against City by virtue of the payment of any loss under the
lnSuranCe.
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 Vl 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