HomeMy WebLinkAbout2021-03-09 - AGENDA REPORTS - POLE LICENSE AGMT (2)0
Agenda Item: 11
P
CITY OF SANTA CLARITA AGENDA REPORT
NEW BUSINESS
CITY MANAGER APPROVAL:1
DATE: March 9, 2021
SUBJECT: POLE LICENSE AGREEMENT
DEPARTMENT: Neighborhood Services
PRESENTER: Kevin Tonoian
RECOMMENDED ACTION
City Council:
1. Approve the form and material terms of the Pole License Agreement.
2. Authorize the City Manager or designee to execute Pole License Agreements in a form
materially consistent with the Pole License Agreement Template, subject to City Attorney
approval.
BACKGROUND
On September 26, 2018, the Federal Communications Commission (FCC) adopted its
Declaratory Ruling and Third Report and Order (Order), which establishes a new regulatory
classification for small wireless facilities. The FCC adopted this Order to accelerate the
deployment of small wireless facilities for 5G and other advanced wireless services. The
practical impact of the Order significantly limits the ability of all local authorities to govern the
rates for wireless providers to attach small wireless facilities to publicly -owned infrastructure.
The general thrust of the Order responds to recent and significant changes in wireless network
architecture. As demands for wireless services have increased, so has the strain on network
capacity. Traditional facilities on buildings and towers have been less able to meet consumer
demand. In response, providers shifted their strategy to smaller facilities that cover smaller areas
in closer proximity to the end user.
Small wireless facilities allow providers to increase the number of network access points (or
cells) per user, reducing logjams that occur when too many people attempt to connect to the
same tower at the same time. Focusing deployments to the public right-of-way became the next
logical step as the vertical infrastructure (e.g., streetlights and utility poles) were already present
Page 1
Packet Pg. 96
0
as potential hosts for new wireless facilities.
In November 2019, to respond to these changes in law and technology, the City Council adopted
a Small Wireless Facilities Policy (Policy) and an ordinance amending Municipal Code Chapter
17.69 regulating small wireless facilities and other infrastructure deployments in the public right-
of-way. This Policy complies with the Order and outlines the formal review requirements and
design standards for all new applications seeking to deploy small wireless facilities within the
public right-of-way, whether located on City of Santa Clarita (City) -owned poles (e.g.,
streetlights) or utility -owned poles (e.g., wood utility poles). See attached "Small Wireless
Facilities —Policy Summary."
POLE LICENSING AGREEMENT - OVERVIEW
The City's rights and obligations differ depending on the owner of the underlying pole. Small
wireless facilities deployed on City -owned poles require a contract that governs the relationship
between the City as the pole owner and the wireless provider as the applicant. Conversely, small
wireless facilities on utility -owned poles are subject to their own agreements between the utility
and the provider that the City is not a party to. However, all small wireless facilities in the right-
of-way, regardless of the pole owner, are subject to the comprehensive design standards and
procedures spelled out in the Policy.
The Order specifically limits the City's local authority over attachments of small wireless
facilities to publicly -owned infrastructure, including procedural regulations requiring state and
local governments to negotiate agreements and approve or deny associated permit applications
within 90 days.
Consistent with federal law, staff has prepared and is recommending approval of a Pole
Licensing Agreement (Agreement) template that will govern the terms and conditions for
deploying small wireless facilities on City -owned poles. The scope of the recommended
Agreement is limited to granting telecommunication providers with 1) access to City -owned
streetlight poles within the public right-of-way; and 2) the establishment of a cost -based fee for
the right to use City -owned poles in the public right-of-way.
The recommended Agreement would authorize access to an individual City -owned pole based on
the terms and conditions set forth in the Agreement (e.g., scope of use, term, annual license fee,
regulatory compliance, indemnification, insurance, taxes, limits on City liability, default,
termination, etc.). All licenses for City -owned poles will be subject to all the applicable permits
issued by the City to protect public health and safety.
Consistent with federal and California state law, the proposed Agreement addresses concerns of
local control by defining and limiting areas of access and prohibits any impediments to
municipal functions within the public right-of-way (e.g., street widening projects,
decommissioning of City streetlights, or installing public safety and traffic control devices).
Under current federal law, compensation for use of City -owned poles in the public right-of-way
must conform with a cost -based standard or otherwise meet the Order "safe harbor" fees that
would be presumptively reasonable and safe from challenge and is described below:
Page 2
Packet Pg. 97
0
• $270 per year for all recurring fees, including any pole license fee for attachment to a
municipality -owned structure in the public right-of-way
While Santa Clarita is compelled by applicable federal laws to accept certain cost -based rates
and compensation that are consistent with the Order, the true fair market fees for annual services
performed by the City in connection with issuance of license and regulatory approvals is
estimated by Telecom Law to equal $1,060.90.
To date, the Order's limits on local fees remains the law as challenges from local government
agencies and municipal leagues have been unsuccessful on that front. Local governments that do
not comply with the Order face potential liability through legal claims or petitions to the FCC.
While staff does not anticipate that the Biden Administration will revisit provisions of the
existing Order, the proposed Agreement incorporates provisions for setting fair -market rates as
identified above, should the Order be invalidated at a future date.
Pending approval of the form and material terms by the City Council, the City Manager would
be authorized to execute future Agreements with individual telecommunication providers
granting them immediate access rights to a specific pole or batch of poles for a period of 10
years. All subsequent applications for deployment of small wireless facilities on City -owned
poles will require the execution of a new and separate Agreement.
ALTERNATIVE ACTION
Other actions as determined by the City Council.
FISCAL IMPACT
There is no direct fiscal impact associated with the proposed Pole Licensing Agreement. The
FCC Order effectively requires the Pole License Agreement to be revenue -neutral. If approved,
the granting of access to the public right-of-way and to attach small wireless facilities will be
executed in accordance with the terms of the FCC Order, the City's Small Wireless Facilities
Policy, and the Pole Licensing Agreement.
ATTACHMENTS
Small Wireless Facilities Policy Summary
Santa Clarita Pole License Agreement (available in the City Clerk's Reading File)
Page 3
Packet Pg. 98
SMALL WIRELESS FACILITIES - POLICY SUMMARY
The Small Wireless Facilities Policy guides the deployment of small wireless facilities in the
City's public right-of-way. Standards included in the Policy disclose the City's application
requirements, the locations standards in preferential order, and the design standards each facility
should adhere to. A summary of the areas within the Policy is as follows:
Application Requirements and Review Process
A variety of items must be submitted with all new applications for a small wireless facility in the
public right-of-way, including but not limited to:
• Construction drawings
• Site survey
• Photo simulations
• Project narrative and justification
• Radiofrequency Compliance Report
• Pole License Agreement (if and as applicable)
• Structural analysis
• Acoustic study
• Radiofrequency study
Each application for a small wireless facility must include a submission for the approval of an
Administrative Permit by the Planning Division. Due to the short review periods established by
the FCC, the decision to approve or deny would be administratively made by the Director of
Community Development after a review for completeness and to ensure compliance with the
location and design criteria. Standard Conditions of Approval would be applicable to all
deployments to ensure that the maintenance and operational requirements for all facilities are
evenly applied. The Director of Community Development would have the authority to modify,
add, or remove conditions as deemed necessary or appropriate and as permitted by state and
federal law. A memo would be provided to the City Council detailing the facility location and
design that was approved for small wireless facilities in the public right-of-way, consistent with
current requirements. In addition, the City's decision will be provided to the applicant, detailing
the approval or denial. Once a decision is rendered, there would be a period of 10 days (as
revised by the Planning Commission) to allow for an appeal to be made. The Policy designates
the City Manager as the person responsible for making a decision on the appeal.
Upon completion of the Administrative Permit review and approval, the applicant would then
need to file for a permit to install the facility within the public right-of-way. The Public Works
department is responsible for issuing Encroachment Permits for all facilities within the public
right-of-way and any necessary approvals to physically construct the facility approved by the
Planning Division.
Location Standards
The Small Cell Order requires the adoption of location standards as a part of an approved policy.
The Policy sets forth ranked preferences for locations and support structures within those
Packet Pg. 99
locations. Residential areas and new freestanding poles or similar structures are not permitted
unless the applicant can demonstrate why no other preferred location within 500 feet from the
site is feasible. Location preferences, ranked in the following order, are found in the Policy:
1. Within Industrial zones or Commercial zones on or along arterials
2. Within Industrial zones or Commercial zones on or along collectors
3. Within Industrial zones or Commercial zones on or along local streets
4. Within Public/Institutional zones, Mixed Use zones, or Open Space zones on or along
arterials
5. Within Public/Institutional zones, Mixed Use zones, or Open Space zones on or along
collectors
6. Within Mixed Use zones or Open Space zones on or along local streets
7. Within Residential zones on or along arterials
8. Within Residential zones on or along collectors
9. Within Public/Institutional zones or Residential zones on or along local streets
Design Standards
In accordance with the Small Cell Order, the Policy establishes a number of design standards to
limit or mitigate adverse impacts an approved facility might create. The Policy includes design
standards for finishes, noise, lights, proximity to trees, signs, advertisements, site security
measures, and health and safety regulations. The design standards also include provisions for:
• Antennas: shrouding, volume, height, and projection
• Accessory Equipment: undergrounded, pole -mounted, and/or ground/base-mounted
• Utilities: overhead lines, vertical cable risers, spools and coils, electric meters, and
existing conduit or circuits
• Undergrounded Equipment: The Policy sets standards to minimize new overhead utilities
whenever possible and, when not possible, to minimize the potential additional expense
to the community for future undergrounding. The design standards also take into account
that the City's authority to require undergrounded equipment is impacted by both
technical and legal considerations. Technically, certain wireless equipment, such as the
antennas, cannot operate underground. Legally, California state law places certain limits
on the City's ability to require new facilities be placed underground in areas with existing
overhead utilities, and the CPUC's tariff rules require the City to follow certain
procedures for the undergrounding of existing overhead utilities. The CPUC has an open
proceeding to consider potential changes to the tariff rules for undergrounding existing
overhead telecommunication utilities. City staff and the City's outside counsel will
monitor this proceeding and recommend updates to the policy as may be necessary or
appropriate to bolster local authority.
• Joint Utility Poles: The design standards take into account that the City's authority to
dictate certain physical sizes and equipment configurations on joint utility poles (e.g.,
wood poles) is limited by mandatory safety regulations by the CPUC. For example, while
the City would prefer to limit additional height added to these poles, the CPUC requires a
minimum separation of six feet between electric distribution lines and antenna
equipment. The City would also prefer equipment to be mounted as flush to the pole as
possible, but the CPUC requires that a certain amount of pole space be maintained for the
2
Packet Pg. 100
safety and convenience of the workers. To account for restrictions like these, the Policy
provides an exception, available only when the applicant shows the restriction prevents
strict compliance with the policy. Any exception is further limited to the minimum
deviation from the policy necessary to comply with CPUC regulations.
Preyaproved Designs
To expedite the review process and encourage collaborative designs among applicants and the
City, the Policy would authorize the Director of Community Development to designate one or
more preapproved designs for small wireless facilities and other infrastructure deployments. This
would expedite the review process, while maintaining conformance with the new time frame
requirements. Section 11 of the Policy sets the process to establish or repeal a preapproved
design and the expedited review procedures and findings for these applications.
The following diagrams show the small wireless facilities previously approved by the City on
September 25, 2017. These designs include a small equipment shroud located near the top of the
existing streetlight standard and an antenna placed on top of the existing pole, with all other
associated equipment located underground. If adopted, the Policy would allow for the
preapproval of similar designs to expedite the approval and deployment process.
3
Packet Pg. 101
(f.) COICREll
M Mar
EXISTING DUDE ACNE
....... . ......... ... ................................ -
mi
NNI-DRE70M MTDM
TO IINSIA40
(N) OR MUD
km M(AINI
lIF
SmD, Mwiffm WATH'
'STNUM ml. MoNo
(h) Rf ma PER
Q&-93, plat 90
(o MNCRM
(Q MDU
40 MUNU CONTC
pm, At MNO To p�
TMO)Gfl
AND MUND TO Rtm—
IMM �N) WOHOLE M, �E) WME
NMI (N) HANDHE wn (N) 5 AMR
I" ML KqMF SMI BE SAM MM,
Fcn-
I ALL UBLES SMLL BE =RM To Pod Evo
34, OR LM
ar v
I UOHNINO ROM W BE INCLUDED,08 REQUIRM,
C ALL PUMENT AND MOUNIN NOM WIL K
PNNH 10 MATH EX5MO ME
4
T/ OF
. .. . .. .A. .. . ..............................
.... . ... ..
1 0 r A
. . . .. ... .....
.
tl OF'M MWE 130'gyp'
... . .. . . . .
. . . . . . .. . ............................................................................................................. . ..
01 OF MEN 1 '20, 61
z
T/ of M pm, 104, LLJ
w
j of fNUP0
SHMD W.-I LLJ
w
U)
z
w
L)
-j
B/ OF F SMOE i LLJ
i
0
CL
U-
0
0
w
CL
CL
Q/ Of tN)l NE900C ONTAM 81ON
NEW SIDE VIEW
I Packet Pg. 102 1
m
QVIO-WNROK MTM_'
T/ OF
to 5t WAZ
............. OF (N) ANFW t 30'-P'
SRO"—,
X=
EQUIPMW WOUD MOUNED WMi-,�,
3/10. STAKLOS ffm &WINO
z
Uj
V'M (fl) EQUIPMENT SDo 1 &,4' Uj
LLJ
LLJ
(N Rr ZMK PUR .. ................................. -,
95, Ru4E X5
LLJ
0/ DF RF SWE i1 U)
z
w
w
0
CL
U-
0
ow tm m'E
0
w
CL
CL
M
(N) EMERGDO ONO
(INS MM AND OROUND TO WN-_
THROUgH (o ObUt
POW mo MND m RUN_"
mom (H) WDWU TO (1) *DHOLE NEW I K VIEW
AMP FUSE —
&a.
1, ALL WDWSK,1 101 STAIM.M. ML
2, &L CW SHALL BE SECURED TO Pal DERY
30' OR M,
GROW
3, WRINg IFq SKAU. Of INWED 9 REQUM
4, OUm OWMENT AND MOYPNO WOW 011 BE M, FW NOW%
RIM TQ MANH VFNS F% (EI(IoDflot
5
I Packet Pg. 103 1
POLE LICENSE AGREEMENT
between
CITY OF SANTA CLARITA, A CALIFORNIA MUNICIPAL CORPORATION
[INSERT LICENSEE NAME], A [INSERT CORPORATE FORM]
{00046399;5)
City of Santa Clarita, CA
DRAFT Pole License Agreement
CONTENTS
1. DEFINITIONS...........................................................................................................2
2. LICENSE AREA........................................................................................................
5
2.1. License Area Defined.........................................................................................
5
2.2. Limited Rights Created.......................................................................................5
2.3. No Impediment to Municipal Functions..............................................................
6
2.4. License Area Condition......................................................................................
6
2.5. Licensee's Due Diligence...................................................................................6
2.6. Diminutions in Light, Air or Signal Transmission or Reception ...........................6
2.7. Certified Access Specialist Disclosure...............................................................
7
3. USE OF LICENSE AREA.........................................................................................
7
3.1. Permitted Use....................................................................................................
7
3.2. Prohibition on Non -Small Wireless Facilities......................................................7
3.3. Prohibition on Nuisances....................................................................................7
3.4. Signs and Advertisements..................................................................................
7
4. TERM.......................................................................................................................
8
5. FEES........................................................................................................................
8
5.1. Annual License Fee...........................................................................................
8
5.2. Fee Adjustments by City....................................................................................
8
5.3. Late Fees...........................................................................................................
9
5.4. Default Interest...................................................................................................9
5.5. City's Right to Cost Reimbursement..................................................................
9
5.6. City's Right to Fair Market License Fees Reserved ...........................................
9
5.7. In Lieu Fee for Landscape Restoration and Maintenance ................................
10
6. CONSTRUCTION, INSTALLATION AND MODIFICATIONS .................................
10
6.1. Regulatory Approvals.......................................................................................
10
6.2. Compliance with Approved Plans.....................................................................
10
6.3. Changes or Corrections to Approved Plans .....................................................
11
6.4. Licensee's Contractors and Subcontractors.....................................................
11
6.5. Labor and Materials.........................................................................................
11
6.6. Damage or Alterations to Other Property.........................................................
11
6.7. Underground Service Alert...............................................................................
12
6.8. Damage and Repair to Subsurface Structures .................................................
12
6.9. Equipment Modifications..................................................................................
12
{00046399;5)
City of Santa Clarita, CA
i
DRAFT Pole License Agreement
6.10. Post -Completion Inspections........................................................................
12
6.11. As -Built Plans and Maps...............................................................................
13
6.12. Title to Licensee's Equipment and Other Improvements ...............................
13
6.13. Replacement Vertical Infrastructure..............................................................
13
6.13.1. General Requirements...........................................................................
14
6.13.2. Minimum Stockpile for Future Replacement ...........................................
14
7. LICENSEE'S MAINTENANCE OBLIGATIONS.......................................................
15
7.1. General Maintenance and Repair Requirements .............................................
15
7.2. Damage Reports to the City.............................................................................
15
7.3. Licensee's Obligation to Make Repairs............................................................
15
7.4. Graffiti Abatement............................................................................................
16
8. REARRANGEMENT AND RELOCATION..............................................................
16
8.1. Rearrangement and Relocation for City Work ..................................................
16
8.2. Rearrangement and Relocation to Accommodate Third Parties ......................
17
8.3. No Right to Rearrange or Relocate City Property ............................................
17
9. COMPLIANCE WITH LAWS...................................................................................
17
9.1. Compliance with CPUC General Orders..........................................................
17
9.2. Compliance with Building and Electrical Codes ...............................................
17
9.3. Compliance with FCC RF Exposure Standards ...............................................
18
9.4. Compliance with Prevailing Wage Regulations ................................................
18
10. PUBLIC WORKS' OPERATIONS........................................................................
19
10.1. City Access to License Area.........................................................................
19
10.2. City's Maintenance, Repairs or Alterations to License Area .........................
19
10.3. Notice to Licensee for Non -Emergency Maintenance or Repairs .................
19
10.4. Emergencies.................................................................................................20
11. INTERFERENCE................................................................................................20
12. LIENS..................................................................................................................21
13. UTILITIES............................................................................................................21
14. TAXES AND OTHER ASSESSMENTS...............................................................
21
15. INDEMNIFICATION.............................................................................................
22
15.1. Licensee's Indemnification Obligations.........................................................22
15.2. Licensee's Defense of the City......................................................................
22
16. INSURANCE.......................................................................................................23
17. LIMITATIONS ON THE CITY'S LIABILITY..........................................................23
{00046399;5)
City of Santa Clarita, CA ii
DRAFT Pole License Agreement
17.1. General Limitations.......................................................................................23
17.2. Consequential, Indirect or Punitive Damages ............................................... 24
17.3. No Relocation Assistance............................................................................. 24
17.4. No Personal Liability for City Personnel........................................................ 24
18. CASUALTY......................................................................................................... 24
18.1. City's Rights Upon a Casualty Event............................................................ 24
18.2. Licensee's Termination Rights Upon a Casualty Event ................................ 25
18.3. Statutory Waiver........................................................................................... 25
19. CONDEMNATION............................................................................................... 25
20. ASSIGNMENTS AND OTHER TRANSFERS......................................................25
20.1. General Restriction....................................................................................... 26
20.2. Permitted Assignments................................................................................. 26
20.3. Effect of Assignment..................................................................................... 26
21. DEFAULT............................................................................................................27
21.1. Defaults and Cure Periods............................................................................27
21.2. Licensee's Remedies....................................................................................27
21.3. City's Remedies............................................................................................27
21.3.1. License Continuation..............................................................................27
21.3.2. License Termination............................................................................... 27
21.3.3. Default Fees...........................................................................................28
21.4. Cumulative Remedies...................................................................................28
22. TERMINATION....................................................................................................28
23. HAZARDOUS MATERIALS.................................................................................28
23.1. Limitations on Hazardous Materials Use ....................................................... 28
23.2. Notice to the City After a Release................................................................. 29
23.3. Licensee's Hazardous Material Indemnification Obligations .........................29
24. RULES AND REGULATIONS............................................................................. 30
25. PERFORMANCE BOND..................................................................................... 30
26. SURRENDER OF LICENSE AREA..................................................................... 31
27. INSPECTIONS AND REPORTS.........................................................................31
27.1. License Area Inspections.............................................................................. 31
27.2. Records Maintenance and Audits................................................................. 32
27.3. Annual Capital Improvement Forecasts........................................................32
28. MISCELLANEOUS PROVISIONS.......................................................................32
{00046399;5)
City of Santa Clarita, CA
DRAFT Pole License Agreement
28.1. Notices..........................................................................................................32
28.2. Waivers.........................................................................................................33
28.3. Integration; Amendments..............................................................................34
28.4. Interpretation.................................................................................................
34
28.4.1. General..................................................................................................34
28.4.2. Joint and Several Liability.......................................................................
34
28.4.3. Captions and Other Reference Material .................................................
34
28.4.4. Time.......................................................................................................
35
28.4.5. Inclusive Words and/or Phrases.............................................................35
28.5. Successors and Assigns...............................................................................35
28.6. Brokers.........................................................................................................
35
28.7. Governing Law; Venue.................................................................................
35
28.8. Litigation Fees and Costs.............................................................................
36
28.9. Recording.....................................................................................................36
28.10. No Third -Party Beneficiaries......................................................................36
28.11. Survival......................................................................................................36
28.12. Severability................................................................................................36
SCHEDULE1................................................................................................................39
SCHEDULE2................................................................................................................40
EXHIBITA-1..................................................................................................................41
EXHIBITA-2..................................................................................................................42
EXHIBITB.....................................................................................................................43
{00046399;5)
City of Santa Clarita, CA iv
DRAFT Pole License Agreement
POLE LICENSE AGREEMENT
This POLE LICENSE AGREEMENT ("License") dated [insert] (the "Effective
Date") is between the CITY OF SANTA CLARITA, a California municipal corporation (the
"City") and [LICENSEE], a [insert licensee's corporate form] ("Licensee").
BACKGROUND
A. Section 253 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
56, codified as 47 U.S.C. § 253, preserves the City's authority to control access to
and use the rights -of -way within the City's jurisdictional boundaries, and to require
reasonable compensation for such use on a competitively -neutral and
nondiscriminatory basis so long as such compensation is disclosed; and
B. California Public Utilities Code §§ 7901 and 7901.1 authorizes telephone
corporations to construct "telephone lines along and upon any public road or
highway" within the City and "erect poles, posts, piers, or abutments for supporting
the insulators, wires, and other necessary fixtures of their lines, in such manner and
at such points as not to incommode the public use of the road or highway" subject
to the City's reasonable time, place and manner control; and
C. California Public Utilities Code § 5840 authorizes franchised cable service providers
use the public rights -of -way to deliver cable services as defined by federal law; and
D. On September 27, 2018, the Federal Communications Commission adopted a
Declaratory Ruling and Third Report and Order (FCC 18-133, 33 FCC Rcd 9088) in
the rulemaking proceeding entitled Accelerating Wireless Broadband by Removing
Barriers to Infrastructure Investment, WT Docket Nos. 17-79 and 17-84 (the
"Order"), which interpreted various provisions in the Telecommunications Act in a
manner that, interalia: (1) limited the compensation that state and local governments
may receive from wireless communication and infrastructure providers for access to
their public rights -of -way and government -owned infrastructure; (2) significantly
curtailed state and local discretionary authority over wireless facility placement and
design; and (3) imposed procedural regulations that require state and local
governments to negotiate agreements such as this License and approve or deny
associated permit applications within 60 or 90 days; and
E. The City generally desires to license its Vertical Infrastructure to wireless
communication providers on negotiated terms and conditions but finds that the
Order's provisions leave the City with no incentive or time to conduct such
negotiations and, as a result, the City has adopted this License as a mandatory form
agreement from which no substantive changes can be made by any licensee; and
F. Licensee installs and maintains wireless communications facilities on existing
vertical infrastructure in the public right-of-way; and
{00046399;5)
City of Santa Clarita, CA
Pole License Agreement
G. Licensee warrants and represents to the City that Licensee has the authority under
applicable Laws to install and maintain telephone and/or cable television lines within
the State of California, which include wireless communications facilities, in the public
right-of-way to provide wireless communications services; and
H. The City owns as its personal property a substantial number of existing poles within
the public right-of-way that are potentially suitable for installing wireless
communications facilities within the City's jurisdiction and has a duty to derive
appropriate value from the City's property assets for the public good; and
I. Licensee desires to install, maintain and operate wireless communications facilities
on the City's poles in the public right-of-way in a manner consistent with the City's
regulatory authority and Licensee is willing to compensate the City for the right to
use the City's poles for wireless communications purposes; and
J. Consistent with California state law, the City intends this License to be applicable
only to a City -owned pole, and does not intend this License to require any
consideration as a precondition for any telephone corporation's access to the public
rights -of -way permitted under California Public Utilities Code § 7901; and
K. The City desires to authorize Licensee's access to an individual City -owned pole
based on the terms and conditions set forth in this License, and pursuant to all the
applicable permits issued by the City to protect public health and safety; and
L. Consistent with federal and California state law, the City does not intend this License
to grant Licensee any exclusive right to use or occupy the public rights -of -way within
the City's territorial and/or jurisdictional boundaries, and Licensee expressly
acknowledges that the City may in its sole discretion enter into similar or identical
agreements with other entities, which include without limitation Licensee's
competitors; and
M. On [date], the City Council of the City of Santa Clarita adopted Resolution No.
[insert], which approved the form and material terms for this License to be used in
connection with the licensing of Vertical Infrastructure for wireless facilities, and
further delegated authority to the City Manager to enter into such agreements.
NOW THEREFORE, for good, valuable and sufficient consideration received and
acknowledged by the City and Licensee, the City and Licensee agree as follows:
AGREEMENT
DEFINITIONS
"Agent" means a party's agent, employee, director, officer, contractor, subcontractor or
representative in relation to this License.
{00046399;5)
City of Santa Clarita, CA
Pole License Agreement
"Approved Plans" means the detailed plans and equipment specifications, which include
without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage,
any applicable concealment elements and other improvements proposed by Licensee
and approved by the City for Licensee's construction and/or installation work in
connection with the License Area, as more particularly described in Exhibit A-2
(Approved Plans) attached hereto and incorporated herein.
"Broker" means any licensed real estate broker or other person who could claim a right
to a commission or "finder's fee" in connection with the license(s) or other real estate
rights contemplated or conveyed in this License.
"City Attorney" means the City Attorney of the City of Santa Clarita, California.
"City Property" means any interest in real or personal property owned or controlled by
the City, which includes without limitation any and all (1) land, air and water areas; (2)
license interests, leasehold interests, possessory interests, easements, franchises and
other appurtenant rights or interests; and (3) physical improvements such as buildings,
structures, infrastructure, utility and other facilities, and alterations, installations, fixtures,
furnishings and additions to existing real property, personal property and improvements.
"Claim" means any and all liabilities, losses, costs, claims, judgments, settlements,
damages, liens, fines, penalties and expenses, whether direct or indirect.
"CPUC" means the California Public Utilities Commission established in the California
Constitution, Article XII, § 5, or the CPUC's duly appointed successor agency.
"Environmental Laws" means any Law in relation or connection to industrial hygiene,
environmental conditions or Hazardous Materials (as defined in this License).
"Equipment" means antennas, radios and any associated utility or equipment box, and
battery backup, transmitters, receivers, amplifiers, ancillary fiber-optic cables and/or
wiring, and ancillary equipment used for radio communication (voice, data or otherwise)
transmission and/or reception, which includes without limitation the means, devices and
apparatus used to attach or install any Equipment to any licensed Vertical Infrastructure,
and any ancillary equipment such as wiring, cabling, power feeds or an similar things,
and any signage attached to such Equipment that may be approved by the City or
required by Law.
"FCC" means the Federal Communications Commission or its duly appointed successor
agency.
"Hazardous Material" means any material that, due to its quantity, concentration or
physical or chemical characteristics, is at any time now or hereafter deemed by any local,
regional, state or federal body with jurisdiction and responsibility for issuing Regulatory
Approvals in accordance with applicable Laws to pose a present or potential hazard to
human health, welfare or safety, or to the environment. The term "Hazardous Material" as
{00046399;5)
City of Santa Clarita, CA 3
Pole License Agreement
used in this License will be broadly construed, and includes, without limitation, the
following: (1) any material or substance defined as a "hazardous substance", or "pollutant"
or "contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or California Health & Safety
Code § 25316; (2) any "hazardous waste" listed California Health & Safety Code § 25140;
or (3) any petroleum, including crude oil or any fraction thereof, natural gas or natural gas
liquids.
"Indemnified City Party" or "Indemnified City Parties" means the City and its Agents,
Invitees, elected and appointed officials and volunteers.
"Investigate and Remediate" means the undertaking of any activities to determine the
nature and extent of Hazardous Material that may be located in, on, under or about the
License Area or that has been, is being, or is in danger of being Released into the
environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise
control such Hazardous Material.
"Invitee" means the client, customer, invitee, guest, tenant, subtenant, licensee, assignee
and/or sublicensee of a party in relation to the License Area.
"Laws" means all present and future statutes, ordinances, codes, orders, policies,
regulations and implementing requirements and restrictions by federal, state, county
and/or municipal authorities, whether foreseen or unforeseen, ordinary as well as
extraordinary, as adopted or as amended at the time in question.
"License Area" means the same as that term is defined in Section 2.1 (License Area
Defined).
License Fee" means the annual fee for each licensed Vertical Infrastructure authorized
under this License, as specified in Schedule 1 (Annual License Fee).
"Licensee's On -Call Representative" means the person(s) assigned by Licensee to be
on -call and available to the City regarding the operation of Licensee's Equipment. Such
person(s) shall be qualified and experienced in the operation of Equipment and shall be
authorized to act on behalf of Licensee in any emergency in and in day-to-day operations
of the Equipment.
"NESC" means the National Electrical Safety Code, as may be amended or superseded,
published by the Institute of Electrical and Electronics Engineers.
"Preliminary Plans" mean the detailed plans and equipment specifications, which include
without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage,
{00046399;5)
City of Santa Clarita, CA 4
Pole License Agreement
concealment elements and other improvements proposed by Licensee but not yet
approved by the City in connection with the License Area.
"Regulatory Approvals" means all licenses, permits and other approvals necessary for
Licensee to install, operate and maintain Equipment on the License Area.
"Release" when used with respect to Hazardous Material includes any actual or
imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing on, under or about the License Area, other City
Property, the Streets or the environment.
"RF" means radio frequency or electromagnetic waves.
"Streets" mean any public right-of-way, street, alley, highway, sidewalk, curb, gutter,
driveway, parkway or other public place primarily used or dedicated for vehicular
transportation within the City's territorial and/or jurisdictional boundaries and subject to
the City's management regulations. The term "Streets" does not encompass any private
property, private utility easements, any public easements for pedestrian ingress and
egress across private property or any other public easement not dedicated for use as a
public road or highway.
"Vertical Infrastructure" means that certain pole or similar structure, subject to this
License, owned or controlled by the City and located in the public rights -of -way or public
utility easements and meant for, or used in whole or in part for, communications service,
electric service, lighting, traffic control or similar functions.
2. LICENSE AREA
2.1. License Area Defined
The parties to this License define "License Area" to mean that certain space on that
certain Vertical Infrastructure and other City Property, which includes without limitation
any conduits, chases, risers, trays, pipes, vaults, pull boxes, and hand holes, identified
on the Approved Plans as occupied by the Equipment, that the City hereby licenses to
Licensee, all as more particularly described and depicted in Exhibit A-1 (License Area).
2.2. Limited Rights Created
This License grants Licensee only a non -possessory, non-exclusive and revocable
license to enter on to and use the License Area for the Permitted Use in accordance with
the terms and conditions in this License. Licensee expressly acknowledges and agrees
that: (1) this License is not and shall not be deemed to be coupled with an interest; (2)
the City retains legal possession and control over the Vertical Infrastructure for the City's
municipal functions, which will be superior to Licensee's rights and interest in the Vertical
Infrastructure, if any, at all times; (3) subject to the terms and conditions in this License,
the City may terminate this License in whole or in part at any time; (4) except as
{00046399;5)
City of Santa Clarita, CA 5
Pole License Agreement
specifically provided otherwise in this License, the City may enter into any agreement with
third parties to use and/or occupy the Vertical Infrastructure and/or other City Property;
and (5) this License does not create and will not be deemed to create any partnership or
joint venture between the City and Licensee.
2.3. No Impediment to Municipal Functions
Except as expressly provided otherwise in this License, this License shall not limit, alter
or waive the City's absolute right to use the License Area, in whole or in part, as
infrastructure established and maintained for the City's and the public's benefit.
2.4. License Area Condition
Licensee expressly acknowledges and agrees to enter on to and use the License Area in
its "as -is and with all faults" condition. The City makes no representations or warranties
whatsoever, whether express or implied, as to the License Area's condition or suitability
for Licensee's use. Licensee expressly acknowledges and agrees that neither the City
nor its Agents have made, and the City expressly disclaims, any representations or
warranties whatsoever, whether express or implied, with respect to the License Area's
physical, structural or environmental condition, the License Area's present or future
suitability for the Permitted Use or any other matter related to the License Area. This
License shall not be deemed a warranty of title by the City.
2.5. Licensee's Due Diligence
Licensee expressly represents and warrants to the City that Licensee has conducted a
reasonably diligent and independent investigation, either for itself or through an Agent
selected by Licensee, into the License Area's condition and suitability for Licensee's
intended use, and that Licensee relies solely on its due diligence for such determination.
Licensee further expressly represents and warrants to the City that Licensee's intended
use is the Permitted Use as defined in this License. Any testing performed by Licensee
or its Agents shall be subject to the provisions in Section 6.6 (Damage or Alterations to
Other Property). In addition to any other conditions that the City may impose on such
testing, Licensee shall have the obligation to repair any damage caused by such testing
and to restore all affected areas to the condition that existed immediately prior to such
testing.
2.6. Diminutions in Light, Air or Signal Transmission or Reception
In the event that any existing or future structure diminishes any light, air or signal
propagation, transmission or reception, whether erected by the City or not, Licensee shall
not be entitled to any reduction in any License Fee, Regulatory Fees, Reimbursement
Fees or any other sums payable to the City under this License, the City shall have no
liability to Licensee whatsoever and such diminution will not affect this License or
Licensee's obligations except as may be expressly provided in this License.
{00046399;5)
City of Santa Clarita, CA 6
Pole License Agreement
2.7. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, as may be amended or superseded, and to the
extent applicable to this License, the City expressly advises Licensee, and Licensee
expressly acknowledges, that a Certified Access Specialist (as defined in California Civil
Code § 55.53) has not inspected any License Area in whole or in part to determine
whether it meets all applicable construction -related accessibility requirements.
3. USE OF LICENSE AREA
3.1. Permitted Use
Licensee may use the License Area solely to construct, install, operate and maintain
Equipment for transmission and reception of wireless communications signals (the
"Permitted Use") in compliance with all applicable Laws, which includes without limitation
the Santa Clarita Municipal Code and any conditions in any Regulatory Approvals and for
no other use whatsoever without the City's prior written consent, which the City may
withhold in its sole and absolute discretion for any or no reason.
3.2. Prohibition on Non -Small Wireless Facilities
The City intends this License to cover only wireless facilities that (1) qualify as a "small
wireless facility" as that term is defined by the FCC under 47 C.F.R. § 1.6002(1); and (2)
have been approved by the City in accordance with all applicable provisions in the Santa
Clarita Municipal Code. Licensee expressly acknowledges and agrees that the Permitted
Use under this License does not include the right to use any Vertical Infrastructure as a
support structure for a "macro cell" or a traditional wireless tower or base station.
3.3. Prohibition on Nuisances
Licensee shall not use the License Area in whole or in part in any unlawful manner or for
any illegal purpose. In addition, Licensee shall not use the License Area in whole or in
part in any manner that constitutes a nuisance. Licensee shall take all precautions to
eliminate any nuisances or hazards in connection with its uses and activities on or about
the License Area. The Permitted Use shall not constitute a violation of this section to the
extent compliant with this License and all applicable Laws.
3.4. Signs and Advertisements
Licensee acknowledges and agrees that this License does not authorize Licensee to
erect, post or maintain, or permit others to erect, post or maintain, any signs, notices,
graphics or advertisements whatsoever on the License Area, except as may be
specifically authorized under this License or as may be required for compliance with any
Regulatory Approvals and applicable Laws.
{00046399;5)
City of Santa Clarita, CA
Pole License Agreement
4. TERM
Unless earlier terminated in accordance with this License or as may be permitted under
applicable Laws, the term under this License shall commence on the Effective Date and
automatically expire ten (10) years from the Effective Date. Licensee may apply for a new
license within not more than 60 days before this License expires or at any time after this
License's expiration or earlier termination.
5. FEES
5.1. Annual License Fee
Licensee shall pay the first annual License Fee within 90 days from the Effective Date
without any prior demand, deduction, setoff or counterclaim for any reason. Thereafter,
Licensee shall pay the City the License Fee, on a per site basis, on the anniversary of the
Effective Date throughout the Term without any prior demand, deduction, setoff or
counterclaim for any reason. The License Fee shall be (1) reasonably approximate to the
City's objectively reasonable costs consistent with applicable Laws; (2) in addition to any
fees charged by the City in connection with any permit applications, permit issuance fees,
inspection fees, fines, penalties or other fees charged by the City in connection with the
Equipment and/or any related Regulatory Approvals (collectively, "Regulatory Fees");
and (3) in addition to any other nonrecurring cost -based reimbursements owed to the City
by Licensee ("Reimbursement Fees"). Schedule 1 attached to this License and
incorporated by this reference specifies the License Fee payable by Licensee to the City
in each year throughout the Term. Unless otherwise adjusted in accordance with this
License, the License Fee shall automatically increase by 3% each year on the anniversary
of the Effective Date. The parties acknowledge that such 3% increase is memorialized in
the License Fee table in Schedule 1 attached to this License.
5.2. Fee Adjustments by City
At any time throughout the Term, the City shall have the option (but not the obligation) to
adjust any License Fee and Regulatory Fees to reflect the City's reasonable costs
incurred in connection with this License, any Regulatory Approvals issued or administered
by the City in connection with this License or the Equipment or Licensee's acts or
omissions on or about the License Area and/or the Streets. Subject to applicable Laws,
the City may exercise such option either by an ordinance or resolution approved and
adopted by the City Council (a "Fee Ordinance") or by written notice to Licensee (the
"Adjustment Notice"). If the adjustment concerns the annual License Fee, the City shall
have the right to substitute a new Schedule 1 to reflect such adjustment in either a Fee
Ordinance or Adjustment Notice. Any adjustment by Fee Ordinance shall be effective at
the same time such Fee Ordinance becomes effective. Any adjustment by Adjustment
Notice shall be immediately effective. Licensee shall have the right to appeal any
Adjustment Notice to the City Council in the manner prescribed by the Santa Clarita
Municipal Code.
{00046399;5)
City of Santa Clarita, CA
Pole License Agreement
5.3. Late Fees
In the event that Licensee fails to pay any License Fee or any other amount payable to
the City on the date that such amounts are due and unpaid, such amounts will be subject
to a late charge equal to five percent (5%) of unpaid amounts.
5.4. Default Interest
Any License Fee, Regulatory Fees, Reimbursement Fees and all other amounts payable
to the City pursuant to this License other than late charges will bear interest at ten percent
(10%) per annum from the due date when not paid within 10 days after due and payable
to the City. Any sums received shall be first applied towards any interest, then to the late
charge and lastly to the principal amount owed. Any interest or late charge payments will
not alone excuse or cure any default by Licensee.
5.5. City's Right to Cost Reimbursement
Notwithstanding anything in this License to the contrary, the City shall be entitled to
recover from Licensee the reasonable cost to furnish, provide and/or perform any services
in connection with this License and any Regulatory Approvals issued or administered by
the City, which includes without limitation any costs incurred by City staff or the City's
contractors, consultants and experts to review permit applications, issue permits or
supervise or inspect any construction, installation or other work in connection with this
License. Payments by Licensee for any License Fee and Regulatory Fees in connection
with this License or any related Regulatory Approvals issued or administered by the City
shall not relieve Licensee's obligation to reimburse the City for any and all actual costs
incurred by the City in the future that exceed the License Fee or Regulatory Fees.
Licensee shall reimburse the City for all such costs within 30 days after a written demand
for reimbursement and reasonable documentation to support such costs. The provisions
in this Section 5.5 shall survive this License's expiration, revocation or termination.
5.6. City's Right to Fair Market License Fees Reserved
Licensee acknowledges that: (1) the City is compelled by applicable Laws, which includes
without limitation the Order, to accept certain cost -based rates and compensation; (2) but
for such Laws, the City would be entitled to condition its assent to any lease, license or
other agreement for attachments to its Vertical Infrastructure (such as this License) on
consideration that exceed the City's costs; and (3) but for such Laws, the City would not
assent to all the terms and conditions in this License. Licensee further acknowledges that,
in the event that the Order or other such laws described in this Section 5.6 are repealed,
invalidated, no longer effective or otherwise not applicable to the City, the then -current
License Fee shown in Schedule 1 and the License Fee in all remaining years on the
Term shall be automatically replaced by the amount(s) shown in Schedule 2 (City's
Estimated Fair Market License Fees), attached hereto and incorporated herein. As an
illustration, and not as a limitation, if the License Fee commenced in 2020 and the Order
was invalidated in 2022, then the License Fee in 2022 would increase from $286.44 to
{00046399;5)
City of Santa Clarita, CA 9
Pole License Agreement
$1,060.90, the License Fee in 2023 would be $1,092.73 and so on until the License
expired in 2030 or was earlier terminated in accordance with its terms.
5.7. In Lieu Fee for Landscape Restoration and Maintenance
If the installation, construction or other work on or about the License Area damages or
destroys any landscape features that would require the Licensee to repair, replace and/or
maintain any existing or new landscape features pursuant to the Municipal Code or other
applicable City policies, the parties may (but shall not be obligated to) enter into a written
agreement to accept an in -lieu fee for the actual cost to repair, replace and/or maintain
the existing and/or new landscape features on the Licensee's behalf. Such in -lieu fee(s)
shall be established by the Director of Public Works (or his or her designee) in
consultation with the Licensee and shall be reasonably related to the actual cost of any
such repair, replacement and/or maintenance necessitated by the damage or destruction
caused by Licensee's installation, construction or other work.
6. CONSTRUCTION, INSTALLATION AND MODIFICATIONS
6.1. Regulatory Approvals
Licensee shall not commence any installation, construction and other work on or about
the License Area until and unless Licensee first obtains all necessary prior Regulatory
Approvals, which includes without limitation any approvals required to provide the
services offered by Licensee either to the public or Licensee's customers within the
geographic area that encompasses the City's territorial and/or jurisdictional boundaries,
and any required use permits, design review permits, encroachment permits, building
permits, grading permits and electrical permits. Any installation, construction or other
work performed by Licensee or its Agents or Invitees without such Regulatory Approvals
will be a default under this License in addition to any other liabilities or penalties the City,
in its regulatory capacity, may impose on Licensee for the same acts or omissions. The
full execution of this License and Licensee's receipt of all Regulatory Approvals required
to commence construction shall be Licensee's notice to proceed with installation.
6.2. Compliance with Approved Plans
Upon the City's approval of all permits required to commence construction for Licensee's
construction and/or installation work on the License Area, the Approved Plans shall be
substituted for the Preliminary Plans. Licensee shall perform all installation, construction
and other work in connection with the License Area (1) in accordance with the terms and
conditions in this License; (2) at Licensee's sole cost and expense, and at no cost to the
City; (3) in strict compliance with the Approved Plans; (4) in compliance with all applicable
Laws, which includes without limitation all applicable provisions in the Santa Clarita
Municipal Code and any conditions in any applicable Regulatory Approvals; (5) in a safe,
diligent, skillful and workmanlike manner; and (6) to the Director of Public Works' (or his
or her designee's) satisfaction. After any work at the License Area concludes, Licensee
{00046399;5)
City of Santa Clarita, CA 10
Pole License Agreement
shall restore the License Area, City Property and any other affected areas to the condition
that existed immediately prior to the work commenced.
6.3. Changes or Corrections to Approved Plans
At all times relevant to this License, Licensee shall have the obligation to correct any
errors or omissions in the Preliminary Plans (or, once approved, the Approved Plans) and
related Regulatory Approval(s). Licensee shall immediately send written notice to the City
in the event that Licensee discovers any such defects. The Approved Plans and/or
amendments to Approved Plans by the City will not release or excuse Licensee's
obligations under this Section 6.3.
6.4. Licensee's Contractors and Subcontractors
Licensee shall use only qualified and trained persons and appropriately licensed
contractors for all installation, construction or other work performed on or about the
License Area. At least five business days before any installation, construction or other
work commences on or about the License Area, Licensee shall provide the City with: (1)
a schedule with all activities to be performed in connection with the installation,
construction or other work; and (2) a list with all the names, contractors' license numbers
and contact information for all contractors or subcontractors who will perform the
installation, construction or other work on the License Area.
6.5. Labor and Materials
Licensee shall be responsible for all direct and indirect costs (labor, materials and
overhead) in connection with designing, purchasing and installing all Equipment in
accordance with the Approved Plans and all applicable Laws. Licensee shall also bear all
costs to obtain and maintain all Regulatory Approvals required in connection with the
installation, which includes without limitation all direct and indirect costs to comply with
any approval conditions or mitigation measures that arise from Licensee's proposed
installation. Licensee shall timely pay for all labor, materials, Equipment and all
professional services related to the Permitted Use or furnished to the License Area at
Licensee's direction or for Licensee's benefit. Licensee shall keep the License Area and
all other City Property free from any and all mechanics', materialmen's and other liens
and claims arising out of any work performed, materials furnished or obligations incurred
by or for Licensee.
6.6. Damage or Alterations to Other Property
Nothing in this License authorizes Licensee to use, occupy, remove, damage or in any
manner alter any private personal or real property, wherever located, owned by the City
or any third parties. Licensee shall not remove, damage or in any manner alter any private
personal or real property, wherever located, owned by the City or any third parties without
prior written consent from property owner. To the extent permitted by applicable Laws,
{00046399;5)
City of Santa Clarita, CA 11
Pole License Agreement
the City may withhold and/or condition its consent to any request to alter City's private
personal or real property in its sole and absolute discretion.
6.7. Underground Service Alert
Licensee warrants and represents to City that Licensee is presently a member in good
standing with the Underground Service Alert of Southern California ("DigAlert"). Licensee
shall maintain and keep current its membership in DigAlert throughout the Term. Prior to
any excavation performed in the Streets, Licensee shall observe and perform all notice
and other obligations required under applicable Laws, which includes, without limitation,
California Government Code §§ 4216 et seq., as may be amended or superseded.
6.8. Damage and Repair to Subsurface Structures
Any excavation performed in the Streets must be monitored by Licensee for any lateral
movement, trench failures and other similar hazards. Licensee shall, at Licensee's sole
cost and expense, repair any damage (which includes without limitation any subsidence,
cracking, erosion, collapse, weakening and/or any loss or reduction in lateral or subjacent
support) to the Streets, any adjacent private property, any utility lines or systems (whether
overhead or underground) and any sewer and/or water lines or systems resulting from or
in connection with any excavation by Licensee or its Agents. All repair or restoration work
performed pursuant to this Section 6.8 shall be performed under the Director of Public
Works' (or his or her designee's) supervision and to the Director of Public Works' (or his
or her designee's) satisfaction.
6.9. Equipment Modifications
If, after the initial construction, installation or other work is completed, Licensee proposes
to modify existing Equipment or install new equipment on the existing License Area, and
such proposal is different in any material way from the specifications or design
configurations shown in the Approved Plans, then Licensee shall first obtain the City's
prior written consent to modify this License to reflect the material difference, which the
City shall approve or deny in accordance with applicable Laws (if any). No modification
to this License shall be required for any modification to existing Equipment that (1)
involves only repairs, maintenance, replacement of damaged or inoperable Equipment or
substituted internal components; (2) will be in compliance with applicable Laws (such as
radio -frequency emission standards); (3) does not result in any change to the
Equipment's external appearance, dimensions or weight; and (4) does not cause any
interference with any municipal functions or equipment. In any case, Licensee's
modification shall be performed in compliance with all applicable provisions in this
License, which includes, without limitation Licensee's obligation to obtain and pay for all
Regulatory Approvals required for the proposed modification.
6.10. Post -Completion Inspections
{00046399;5)
City of Santa Clarita, CA 12
Pole License Agreement
Within five days after Licensee completes any Equipment construction, installation,
modification or other work, Licensee shall provide the City with a written notice that
confirms the precise locations and dates on which the Licensee completed the work. The
City shall have the right to inspect Licensee's Equipment at any time after Licensee
completes any construction, installation or other work in connection with this License. If
the City discovers any defects or non -compliant conditions in connection with the
Equipment, Licensee shall, at Licensee's sole cost and expense, correct any such defects
and conditions within 15 days after written notice from the City. Licensee shall promptly
reimburse the City for all costs incurred in connection with any inspections or re -
inspections by the City.
6.11. As -Built Plans and Maps
Within 30 days after the City issues a certificate of completion, Licensee shall file as -built
plans and maps in a format specified by the Director of Public Works (or his or her
designee). In addition to any format required by the Director of Public Works (or his or her
designee), all as -built plans and maps shall include digital copies in a native format
compatible with the City's document management, GIS and/or other digital information
management systems. Licensee's as -built plans and maps must show the accurate
location and dimensions for all Equipment. The City shall have the right to reject any as -
built plans or maps for cause, in which case Licensee shall file revised as -built plans
and/or maps within 30 days after notice from the City. The City shall have the right to
incorporate the as -built plans for the then -current description of the License Area in
Exhibit A-1 and/or the then -current Approved Plans in Exhibit A-2.
6.12. Title to Licensee's Equipment and Other Improvements
Except as specifically provided otherwise in this License, all Equipment and other
improvements installed, constructed or placed on or about the License Area by Licensee
or its Agents or Invitees will be and remain at all times Licensee's (or Licensee's
customer's) personal property. All structural improvements to any Vertical Infrastructure
and any replacement Vertical Infrastructure, as approved by the City and shown in the
Approved Plans, conditioned on there being no liens or encumbrances on or any other
obligation relating to the same, will become City Property and remain City Property should
Licensee vacate or abandon such License Area, unless the City elects in a written notice
to Licensee within fifteen (15) business days after installation that the City does not wish
to take title to such structural improvements. Licensee acknowledges and agrees that the
City's approval of this License will be the only consideration due to Licensee in exchange
for transferring title to any structural improvements to any Vertical Infrastructure and any
replacement Vertical Infrastructure to the City, and Licensee will not be entitled to any
additional pecuniary or non -pecuniary consideration. Subject to Section 26 (Surrender of
License Area), Licensee may remove its Equipment from the License Area at any time
after 30 days' written notice to the City.
6.13. Replacement Vertical Infrastructure
{00046399;5)
City of Santa Clarita, CA 13
Pole License Agreement
6.13.1. General Requirements
If Licensee proposes to replace any existing Vertical Infrastructure, or if the City requires
Licensee to replace any existing Vertical Infrastructure, Licensee shall: (1) design and/or
procure the replacement Vertical Infrastructure to be (a) substantially the same as the
existing Vertical Infrastructure to be replaced and (b) consistent with the City's
specifications and design standards for similar Vertical Infrastructure; and (2) install the
replacement Vertical Infrastructure at Licensee's sole cost and expense and in
accordance with all applicable provisions in this License, which includes without limitation
Section 6. After Licensee removes the existing Vertical Infrastructure, Licensee shall
transport, or allow the City to transport, the removed Vertical Infrastructure to the City's
designated storage yard. After Licensee installs any replacement Vertical Infrastructure,
the City will have the right to inspect the improvements and installation work and within
fifteen (15) business days of installation City shall notify Licensee of the City's decision to
accept, reject and/or require corrections to such improvements or installation work for
consistency with the Preliminary Plans, Approved Plans and/or Regulatory Approvals.
Licensee shall make any and all necessary corrections to any replacement Vertical
Infrastructure within sixty (60) days after the City's written notice. After the City accepts
the replacement Vertical Infrastructure, conditioned on there being no liens or
encumbrances on or any other obligation relating to the same, title to the replacement
Vertical Infrastructure shall automatically transfer to the City without the need for any
additional written instrument, unless such instrument is required for a valid transfer.
Licensee acknowledges and agrees that the City's approval of this License will be the
only consideration due to Licensee in exchange for transferring title to any replacement
Vertical Infrastructure to the City, and Licensee will not be entitled to (i) any additional
pecuniary or non -pecuniary consideration or (ii) retain the removed Vertical Infrastructure.
If the replacement Vertical Infrastructure includes the installation of a new street light or
the re -installation of the City's existing street light, the City will own, operate, maintain and
repair the lighting.
6.13.2. Minimum Stockpile for Future Replacement
In order to expedite the maintenance and replacement of Vertical Infrastructure that is
knocked -down or damaged, the City desires to maintain a minimum stockpile of spare
poles designed to support Licensee's Equipment. Given that ordering replacement
Vertical Infrastructure at the time a knockdown or damage occurs may cause significant
delays, Licensee shall provide or order the City one (1) spare pole that meets the City's
standards and specifications that the City will store for future use, provided that Licensee
has not previously provided the City a spare pole under other pole licenses with the City.
Thereafter, Licensee shall provide one spare pole for every twenty (20) Vertical
Infrastructure in use by Licensee throughout the City. The City anticipates retaining
approximately five spare poles to maintain the minimum stockpile. Licensee shall provide
or order the additional spare pole(s) by the Effective Date; provided, however, that if the
City has a sufficient number of spare poles in the stockpile at such time, the City will notify
Licensee that the spare pole will not be required for this License.
{00046399;5)
City of Santa Clarita, CA 14
Pole License Agreement
7. LICENSEE'S MAINTENANCE OBLIGATIONS
7.1. General Maintenance and Repair Requirements
Licensee shall maintain all Equipment installed on, under, over, in or about the License
Area in good, safe and orderly condition at all times, and shall promptly repair any damage
to any Equipment whenever repair or maintenance may be required, subject to any
Regulatory Approvals if required for such maintenance work. All work performed by or for
Licensee under this Section 7 shall be performed: (1) in accordance with the terms and
conditions in this License; (2) at Licensee's sole cost and expense, and at no cost to the
City; (3) by only qualified, trained, experienced and appropriately licensed contractors or
Licensee's Agents or other personnel; (4) in a manner and with equipment and materials
that will not interfere with or impair the City's municipal operations on or about the License
Area; (5) in a safe, diligent, skillful and workmanlike manner; and (6) in compliance with
all applicable Laws, which includes without limitation all applicable provisions in the Santa
Clarita Municipal Code and any conditions in any applicable Regulatory Approval(s).
7.2. Damage Reports to the City
Licensee shall promptly notify the City if Licensee discovers damage or other alteration
to the Streets, any City Property or any personal or real property owned by third parties
within a reasonable distance from the License Area for any reason and through any
cause. Notices shall contain the following information to the extent available at the time
Licensee sends the notice: (1) the location where the event occurred; (2) a statement to
describe the damage or other alteration and the surrounding circumstances; (3) the
names and contact information for any persons or entities involved in the matter, as well
as the names and contact information for any potential witnesses to the damage or other
alteration; and (4) any other pertinent information. Licensee will not be deemed to have
assumed liability for any such damage or other alteration by giving such notice; provided,
however, that Licensee shall be liable to the extent such damage or other alteration was
caused by or arose in connection with Licensee's or its Agent's or Invitee's act, omission,
negligence or willful misconduct.
7.3. Licensee's Obligation to Make Repairs
In the event that Licensee or its Agents or Invitees directly or indirectly caused such
damage or other alterations to the Streets, any City Property or any personal or real
property owned by third parties, Licensee shall, at its sole cost and expense, repair such
damage or other alteration and restore the affected property to the condition that existed
immediately before the damage or other alteration occurred, reasonable wear and tear
excepted. If Licensee fails or refuses to perform its obligations under this Section 7 within
15 calendar days after written notice from the City (or as such period may be extended
by the City for good cause), the City may (but will not be obligated to) cause the repair
and restoration to be performed at Licensee's sole cost and expense. The City may
exercise its rights to perform Licensee's obligations under this Section 7 without prior
notice to Licensee when the Director of Public Works determines that the repair and/or
{00046399;5)
City of Santa Clarita, CA 15
Pole License Agreement
restoration is immediately necessary to protect public health or safety; provided, however,
that the City will use reasonable efforts to notify Licensee's On -Call Representative as
soon as reasonably practicable. Licensee shall reimburse the City for all costs and
expenses in connection with such work within 10 days after a written demand for
reimbursement and reasonable documentation to support such costs. In addition,
Licensee shall indemnify, defend and hold any and all Indemnified City Parties harmless
from and against any Claims in connection with such performance by the City.
7.4. Graffiti Abatement
In addition to Licensee's other maintenance obligations under this License, Licensee shall
remove any graffiti or other similar markings from the License Area and/or the Equipment
deployed under this License promptly upon actual notice (but in no event later than 48
hours after notice from the City).
8. REARRANGEMENT AND RELOCATION
8.1. Rearrangement and Relocation for City Work
Licensee acknowledges that the City, in its sole discretion and at any time, may: (1)
change any street grade, width or location; (2) add, remove or otherwise change any
improvements owned by the City or any other public agency located in, on, under or along
any Street, which includes without limitation any sewers, storm drains, conduits, pipes,
vaults, boxes, cabinets, poles and utility systems for gas, water, electric or
telecommunications; and/or (3) perform any other work deemed necessary, useful or
desirable by the City in connection with the City's municipal functions or otherwise
reasonably related to a governmental interest by the City (collectively, "City Work"). The
City reserves the rights to do any and all City Work without any admission on its part that
the City would not have such rights without the express reservation in this License. In the
event that the Director of Public Works determines that any City Work will require the
Equipment to be rearranged and/or relocated Licensee shall, at its sole cost and expense,
do or cause to be done all things necessary to accomplish such rearrangement and/or
relocation. If Licensee fails or refuses to either permanently or temporarily rearrange
and/or relocate the Equipment within a reasonable time after the Director of Public Works'
written notice, the City may (but will not be obligated to) cause the rearrangement or
relocation to be performed at Licensee's sole cost and expense. The City will use
reasonable efforts to provide Licensee with at least six months' prior notice, but the City
may exercise its rights to rearrange or relocate the Equipment without prior notice to
Licensee when the Director of Public Works determines that the City Work is immediately
necessary to protect public health or safety. Licensee shall reimburse the City for all costs
and expenses in connection with such work within 10 days after a written demand for
reimbursement and reasonable documentation to support such costs. In addition,
Licensee shall indemnify, defend and hold any and all Indemnified City Parties harmless
from and against any Claims in connection with rearranging or relocating the Equipment,
or turning on or off any water, oil, gas, electricity or other utility service in connection with
the Equipment, except to the extent directly and exclusively caused by the sole active
{00046399;5)
City of Santa Clarita, CA 16
Pole License Agreement
negligence or willful misconduct of City. Within 90 days after any Equipment have been
rearranged or relocated, Licensee shall file as -built plans and maps with the Director of
Public Works in the same manner and subject to the same requirements as provided in
Section 6.11 (As -Built Plans and Maps).
8.2. Rearrangement and Relocation to Accommodate Third Parties
Licensee shall reasonably cooperate with and promptly respond to requests to rearrange
or relocate the Equipment to accommodate third parties authorized to use the Streets
("Third -Party Accommodations"). All costs to perform any Third -Party Accommodations
shall be borne by the person or entity to be accommodated; provided, however, that the
City shall have no liability to Licensee for any such costs. Nothing in this License shall be
construed to require Licensee to perform any Third -Party Accommodations that would
materially reduce, impair or otherwise diminish Licensee's Equipment or Licensee's
operations on the License Area. Within 90 days after any Third -Party Accommodations,
Licensee shall file as -built plans and maps with the Director of Public Works in the same
manner and subject to the same requirements as provided in Section 6.11 (As -Built Plans
and Maps).
8.3. No Right to Rearrange or Relocate City Property
Nothing in this License will be construed to require the City or authorize Licensee to
change any street grade, width or location, or add, remove or otherwise change any
improvements owned by the City or any other public agency located in, on, under or along
the License Area or any Street, which includes without limitation any sewers, storm
drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water,
electric or telecommunications, for Licensee's or any third party's convenience or
necessity.
9. COMPLIANCE WITH LAWS
9.1. Compliance with CPUC General Orders
In addition to Licensee's obligation to maintain compliance with all other Laws, Licensee
shall conduct all activities on the License Area in accordance with all applicable CPUC
general orders, which includes without limitation CPUC General Order 95 and CPUC
General Order 128 as those orders may be amended or superseded in the future, and all
other rules, regulations and other requirements adopted or enacted by the CPUC. The
City shall maintain the Vertical Infrastructure in compliance with applicable Laws.
9.2. Compliance with Building and Electrical Codes
In addition to Licensee's obligation to maintain compliance with all other Laws, Licensee
shall conduct all activities on the License Area in accordance with the requirements in the
California Building Code and the California Electric Code as adopted by the City with any
legally permitted amendments.
{00046399;5)
City of Santa Clarita, CA 17
Pole License Agreement
9.3. Compliance with FCC RF Exposure Standards
Licensee's obligation to comply with all Laws includes all Laws related to maximum
permissible exposure to RF emissions on or about the License Area, which includes all
applicable FCC standards, whether such RF emissions or exposure results from the
Equipment alone or from the cumulative effect of the Equipment added to all other
sources on or near the License Area.
9.4. Compliance with Prevailing Wage Regulations
The services to be provided under the License are or may be subject to prevailing wage
rate payment as set forth in California Labor Code § 1771. Accordingly, to the extent that
any such services are subject to the prevailing wage rate payment requirements,
Licensee shall and shall cause its Agents to comply with all applicable California Labor
Code requirements pertaining to "public works," including the payment of prevailing
wages in connection with the services to be provided to the City hereunder (collectively,
"Prevailing Wage Policies"). Licensee shall submit and allow the City to inspect, upon
request by the City, Licensee's payroll records that pertain to this License and are subject
to the Prevailing Wage Policies and other relevant proof of compliance with the Prevailing
Wage Policies consistent with the requirements in California Labor Code § 1776, as may
be amended or superseded.
Licensee shall defend, indemnify and hold the City and Indemnified City Parties harmless
from and against any and all present and future Claims, that arise from or in connection
with Licensee's obligation to comply with Prevailing Wage Policies and all Laws with
respect to the installation, construction or other work in connection with this License,
which includes without limitation any and all Claims that may be made by Licensee's
Agents or any other contractors, subcontractors or other third parties within the scope of
this indemnity pursuant to California Labor Code §§ 1726 and 1781, as amended and
added by California Senate Bill 966 (Alarcon), and as may be amended or superseded in
the future.
Licensee hereby waives, releases and discharges forever the City and Indemnified City
Parties from any and all present and future Claims that arise from or in connection with
Licensee's obligation to comply with Prevailing Wage Policies and all Laws with respect
to the installation, construction or other work in connection with this License. Licensee
hereby acknowledges that Licensee is aware of and familiar with the provisions in
California Civil Code § 1542 which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
{00046399;5)
City of Santa Clarita, CA 18
Pole License Agreement
Licensee hereby waives and relinquishes all rights and benefits which it may have under
California Civil Code § 1542, as such relates to this Section 9.4. Licensee's obligations
under this Section 9.4 will survive this License's expiration or earlier termination.
To the extent applicable, as provided in SB 854 (Scats. 2014, ch. 28). (1) no contractor or
subcontractor may be qualified to bid on, be listed in a bid proposal, subject to the
requirements California Public Contracts Code § 4104, or engage in the performance of
any contract for public work, unless currently registered with DIR and qualified to perform
public work pursuant to California Labor Code § 1725.5 (Cal. Lab. Code § 1771.1(a))- (2)
no contractor or subcontractor may be awarded a public works contract unless registered
with the DIR to perform public work pursuant to California Labor Code § 1725.5 (Cal. Lab.
Code § 1771.1(b)); and (3) work performed on the project is subject to compliance
monitoring and enforcement by DIR (Cal. Lab. Code § 1771.4).
10. PUBLIC WORKS' OPERATIONS
10.1. City Access to License Area
Except as specifically provided otherwise in this License, the City and its Agents have the
absolute right to access any License Area, in whole or in part, at any time and with or
without notice for any purpose related to its municipal functions. The City will not be liable
in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience,
disturbance, lost business, nuisance or other damages that may arise from the City's or
its Agents' access to the License Area, which includes, without limitation, any Equipment
removed in an emergency or other exigent circumstances pursuant to Section 10.4,
except to the extent that the damage is caused directly and exclusively from the City's or
its Agent's sole active negligence or willful misconduct and not contributed to by
Licensee's or its Agents' or Invitees' acts, omissions or negligence.
10.2. City's Maintenance, Repairs or Alterations to License Area
The City may maintain, alter, add to, repair, remove from and/or improve the License Area
as the City may, in its sole discretion, deem necessary or appropriate for its streetlighting
operations and other municipal functions. The City shall not be obligated to maintain or
repair the License Area, in whole or in part, solely for Licensee's benefit. Neither any City
work on the License Area nor any condition on any License Area will: (1) entitle Licensee
to any damages, except as may be expressly provided otherwise in this License; (2)
excuse or reduce any obligation by Licensee to pay any License Fees, Regulatory Fees
or Reimbursement Fees or perform any covenant under this License; or (3) constitute or
be construed as a constructive eviction or termination from the License Area.
10.3. Notice to Licensee for Non -Emergency Maintenance or Repairs
From time -to -time, the City may find it necessary or appropriate to perform work on the
License Area that temporarily affects the Equipment or requires the Equipment to be
{00046399;5)
City of Santa Clarita, CA 19
Pole License Agreement
temporarily powered down. In non -emergency circumstances, the City will use
reasonable efforts to: (1) make a good -faith effort to provide prior notice to Licensee's
On -Call Representative; (2) allow Licensee to observe the City's work; and (3) avoid or
minimize disruption to Licensee's ordinary operations on the License Area, taking into
account any unforeseen exigencies that may threaten persons or property. The provisions
in this Section 10.3 will not be construed to impede or delay the City's authority and ability
to make changes to the License Areas necessary to maintain street light services, traffic
control services, any municipal utility services (to the extent permissible under applicable
Laws) or any other municipal functions carried out for the public's health, safety, welfare
or benefit.
10.4. Emergencies
In emergencies, and unless expressly provided in applicable Laws, the City's work and
operations will take precedence over Licensee's operations, which includes without
limitation any Equipment operated on the License Area, and the City may access the
License Area in whole or in part as the City deems necessary in its sole and absolute
determination and in accordance with this Section 10.4, with or without notice to Licensee.
When safe and practicable, as solely determined by the City, the City will notify Licensee
of any emergency or other exigent circumstances that requires the City to remove or
replace any City Property within the License Area, provided the Equipment is marked with
Licensee's current contact information, and will allow Licensee to remove its Equipment
before the City removes or replaces such City Property; provided, however, that the City
will remove the Equipment from the License Area when in the City's sole determination it
would: (1) be unsafe or not practicable to wait for Licensee to perform (or cause to be
performed) the work; (2) result in significant delay; or (3) otherwise threaten or
compromise public health, safety, welfare or public services. The City will remove any
Equipment with reasonable care and store such Equipment for retrieval by Licensee. The
City shall provide notice to Licensee as soon as reasonably practicable after such
emergency and removal of any of Licensee's Equipment. Licensee shall have the right to
reinstall such removed Equipment (or equivalent replacement Equipment) at Licensee's
sole expense on the License Area and in accordance with the provisions in this License
and all applicable Laws. Licensee expressly acknowledges that any act(s) taken by the
City pursuant to this Section 10.4, which includes without limitation any Equipment
removal or storage, will not be deemed to be a forcible or unlawful entry onto the License
Area or any interference with Licensee's contractual privilege to use the License Area.
11. INTERFERENCE
Licensee may not install, maintain or operate any Equipment in a manner that interferes
with or impairs other communication (radio, telephone, cable television, data and/or other
transmission or reception) or computer equipment lawfully used by the City and its
Agents, which includes without limitation any first responders or other public safety
personnel. Such interference will be a default by Licensee, and upon notice from the City,
Licensee shall promptly eliminate such interference at no cost to the City. Licensee will
be required to use its best efforts to remedy and cure such interference without any
{00046399;5)
City of Santa Clarita, CA 20
Pole License Agreement
impairment to any City operations. If Licensee does not promptly cure such default, the
parties acknowledge that continued interference may cause irreparable injury to the City
and, therefore, the City will have the right to bring an action against Licensee to, at the
City's election, immediately enjoin such interference and/or to terminate this License. The
parties acknowledge that the Licensee possesses technical expertise that puts Licensee
in the best position to identify and mitigate interference sources, and Licensee shall be
primarily responsible for identification and mitigation work. Notwithstanding the foregoing,
the City and Licensee hereby agree to comply with and enforce FCC guidelines and
protocols with regard to third party interference.
12. LIENS
Licensee shall keep the License Area free and clear from any and all liens or other
impositions in connection with any work performed, material furnished or obligations
incurred by or for Licensee. Licensee will inform all contractors and material suppliers that
provide any work, service, equipment or material to Licensee in connection with the
License Area that the License Area is public property not subject to any mechanics' liens
or stop notices. In the event that any Licensee contractor or material supplier files any
lien or imposition that attaches to the License Area, Licensee shall promptly (but in no
case later than 30 days after discovery) cause such lien or imposition to be released. In
the event that Licensee does not cause such lien or imposition to be released within the
30-day period, the City will have the right, but not the obligation, to cause such lien or
imposition to be released in any manner the City deems proper, which includes without
limitation payment to the lienholder, with or without notice to Licensee. Licensee shall
reimburse the City for all costs and expenses incurred to cause such lien or imposition to
be released (which includes without limitation reasonable attorneys' fees) within 10 days
after Licensee receives a written demand from the City together with reasonable
documentation to support such costs and expenses.
13. UTILITIES
Licensee shall be responsible to secure its own utility services for its Permitted Use and
shall not be permitted to "submeter" from any electrical service provided to the City on
any License Area without the City's prior written consent, which the City may withhold in
its sole and absolute discretion. Licensee shall timely pay when due all charges for all
utilities furnished to its Equipment on the License Area. Any interconnection between the
City's and Licensee's electrical facilities permitted by the City shall be accomplished in
compliance with all applicable Laws and all utility service providers' policies for such
interconnection.
14. TAXES AND OTHER ASSESSMENTS
Licensee agrees to pay when due (and prior to delinquency) any and all taxes,
assessments, charges, excises and exactions whatsoever, including without limitation
any possessory interest taxes, that arise from or in connection with Licensee's use within
the License Area or Licensee's Equipment that may be imposed on Licensee under
{00046399;5)
City of Santa Clarita, CA 21
Pole License Agreement
applicable Laws. Licensee shall not allow or suffer any lien for any taxes, assessments,
charges, excises or exactions whatsoever to be imposed on the License Area or
Licensee's Equipment. In the event that the City receives any tax or assessment notices
on or in connection with the License Area or Licensee's Equipment, the City shall promptly
(but in no event later than 30 calendar days after receipt) forward the same, together with
reasonably sufficient written documentation that details any increases in the taxable or
assessable amount attributable to Licensee's Equipment. Licensee understands and
acknowledges that this License may create a possessory interest subject to taxation and
that Licensee will be required to pay any such possessory interest taxes. Licensee further
understands and acknowledges that any sublicense or assignment under this License
and any options, extensions or renewals in connection with this License may constitute a
change in ownership for taxation purposes and therefore result in a revaluation for any
possessory interest created under this License.
15. INDEMNIFICATION
15.1. Licensee's Indemnification Obligations
Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the
Indemnified City Parties harmless from and against any and all Claims, incurred in
connection with or arising in whole or in part from any act or omission by Licensee or its
Agents, licensees, customers or Invitees in connection with this License or any
Equipment, whether any negligence may be attributed to any Indemnified City Parties or
not, whether any liability without fault is imposed or sought to be imposed on any
Indemnified City Parties or not, but except to the extent that that such Claim is directly
and exclusively caused by the City's sole active negligence or willful misconduct.
Licensee's obligations under this Section 15 includes, without limitation, all reasonable
fees, costs and expenses for attorneys, consultants and experts, and the City's actual
costs to investigate and defend against any Claim. Licensee expressly acknowledges and
agrees that: (1) Licensee has an immediate and independent obligation to defend any
Indemnified City Parties from any Claim that actually or potentially falls within this Section
15, even when the allegations in the Claim are or appear to be groundless, fraudulent or
false; and (2) Licensee's obligations arise at the time any Indemnified City Parties tender
a Claim to Licensee and continue until such Claim's final, non -appealable resolution.
Licensee's obligations under this Section 15.1 shall survive this License's revocation,
termination or expiration.
15.2. Licensee's Defense of the City
In the event that any Claim is brought against any Indemnified City Parties in connection
with any subject matter for which any Indemnified City Parties are indemnified by
Licensee under this License, Licensee shall, upon written notice and at Licensee's sole
cost and expense, resist and defend against such Claim with competent and experienced
legal counsel reasonably acceptable to the City. The City shall not unreasonably withhold
or delay its consent to legal counsel selected by Licensee; provided, however, that the
City has the absolute right to reject any proposed legal counsel that: (1) does not have
{00046399;5)
City of Santa Clarita, CA 22
Pole License Agreement
substantial, direct experience representing public agencies in similar actions or
proceedings as those brought against the Indemnified City Parties; (2) is not duly licensed
to practice law in the State of California by the State Bar of California; (3) has any past or
pending disciplinary actions by any United States tribunal or state bar association; or (4)
has any actual or potential conflicts of interest with any Indemnified City Parties who
would be represented by such proposed legal counsel. Licensee shall not, without the
City's written consent, enter into any compromise or settlement agreement on any
Indemnified City Parties' behalf that: (a) admits any liability, culpability or fault whatsoever
on any Indemnified City Parties' part; or (b) requires any Indemnified City Party to take or
refrain from any action, which includes without limitation any change in the City's policies
or any monetary payments. Nothing in this License shall be construed to limit or preclude
any Indemnified City Parties or their respective legal counsel from cooperating with
Licensee and/or participating in any judicial, administrative, alternative dispute resolution
or other litigation or proceeding. Licensee's obligations under this Section 15.2 shall
survive this License's revocation, termination or expiration.
16. INSURANCE
Prior to any construction, installation or other work by Licensee or its contractors or
subcontractors in, on, under or above the Streets, Licensee shall comply with all
insurance requirements and other obligations contained in Exhibit B (Licensee's
Insurance Obligations), attached hereto and incorporated herein, and shall provide the
City with all required certificates, endorsements and other documentation. The City shall
have the right to amend or replace the insurance requirements and other obligations
contained in Exhibit B on 60 days' prior written notice to Licensee if the City's risk
manager determines that the then -current insurance requirements are inadequate to
protect the City against risks associated with the Permitted Use or as may be required to
comply with applicable Laws. Any noncompliance with any insurance requirements in this
License by Licensee or its contractors or subcontractors shall be a material default by
Licensee.
17. LIMITATIONS ON THE CITY'S LIABILITY
17.1. General Limitations
Licensee expressly acknowledges that the City is not responsible or liable to Licensee for
any Claims that arise in connection with: (1) acts or omissions by persons or entities using
the Streets or other areas adjoining, adjacent to or connected with any License Area; (2)
any utility service interruption; (3) theft; (4) burst, stopped or leaking water, gas, sewer,
steam or other pressurized pipes; (5) fires, floods, earthquakes or other force majeure.
(6) any vehicular collision on or about the License Area, Streets or other City Property;
(7) any costs or expenses incurred in connection with any relocation or rearrangement as
provided in Section 8 (Rearrangement and Relocation); or (8) any costs or expenses
incurred in connection with any removal or restoration as provided in this License; all
except to the extent such events are caused directly and exclusively by the City's gross
negligence or willful misconduct. Licensee, in perpetuity, expressly waives and releases
{00046399;5)
City of Santa Clarita, CA 23
Pole License Agreement
all Claims it may now or in the future have against any Indemnified City Parties, whether
known or unknown, whether foreseeable or unforeseeable, that arise in connection with
the events and to the extent described in this Section 17 as may be related to this License
or locations on or about the License Area. In no event will Licensee or its Agents be
personally liable to the City for any default, breach or any other nonperformance or unpaid
sum by Licensee. The provisions in this Section 17.1 shall survive this License's
revocation, termination or expiration.
17.2. Consequential, Indirect or Punitive Damages
Without limiting any indemnification obligation placed on Licensee or other waivers
contained in this License, Licensee fully releases, waives and discharges forever any and
all Claims against the City for consequential and incidental damages that may arise from
or in connection with this License or Licensee's use on or about the License Area, which
includes without limitation any lost profits related to any disruption to Equipment, any
interference with uses or operations conducted by Licensee, from any cause whatsoever,
and whether or not due to the active or passive negligence or willful misconduct by the
City or any Indemnified City Parties, and covenants not to sue for such damages the City,
the City's departments and all City agencies, officers, directors and employees, and all
persons acting by, through or under them.
17.3. No Relocation Assistance
This License shall not create any right in Licensee to receive any relocation assistance
or payment for any reason under the California Relocation Assistance Law (California
Government Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real
Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.), as either may be amended
or superseded, or any similar Laws upon or after any termination. To the extent that any
such Laws may apply, Licensee waives, releases and relinquishes forever any and all
Claims that it may have against the City for any compensation from the City except as
provided in Section 19 (Condemnation).
17.4. No Personal Liability for City Personnel
In no event will any City board, agency, member, officer, employee or other Agent be
personally liable to Licensee, its successors or assigns, for any default, breach, other
nonperformance or sum unpaid sum by the City. The provisions in this Section 17.4 shall
survive this License's revocation, termination or expiration.
18. CASUALTY
18.1. City's Rights Upon a Casualty Event
In the event the License Area in whole or in part becomes damaged due to any cause,
the City will have no obligation whatsoever to repair or replace the damaged License
Area. Within approximately 30 days after the date on which the City discovers damage
{00046399;5)
City of Santa Clarita, CA 24
Pole License Agreement
or destruction to the License Area, the City will give Licensee notice of the City's decision
whether to repair or replace the damaged License Area and its good -faith estimate of the
amount of time the City will need to complete the work. If the City cannot complete the
work within 30 days after the date that the City specifies in its notice, or if the City elects
not to do the work, then Licensee will have the right to terminate this License on 30 days'
notice to the City. If the City elects to remove, rather than repair or replace, the damaged
or destroyed License Area, then this License will automatically terminate on the last day
of the month in which the removal occurs. If the acts of third parties or an act of nature or
other force-majeure circumstance outside the control of Licensee or its Agents or Invitees
damages or destroys the License Area to such an extent that, in the City's or Licensee's
reasonable determination, the Equipment on the License Area cannot be operated in a
safe manner, either party may elect to terminate this License on 30 days' notice to the
other and Licensee shall remove the Equipment from the damaged License Area before
the 30-day period elapses.
18.2. Licensee's Termination Rights Upon a Casualty Event
In the event that the City terminates this License pursuant to Section 18.1 (City's Rights
Upon a Casualty Event), the City will prioritize its review of any request by Licensee for a
substantially similar license on a different Vertical Infrastructure as a replacement for this
License.
18.3. Statutory Waiver
The parties understand, acknowledge and agree that this License fully governs their rights
and obligations in the event that the License Area becomes damaged or destroyed, and,
to the extent applicable, the City and Licensee each hereby waives and releases the
provisions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws.
19. CONDEMNATION
If all or part of the License Area is permanently taken in the exercise of the power of
eminent domain or any transfer in lieu thereof, this License will automatically terminate
as to the part taken or transferred on the date the permanent taking or transfer occurs.
The City will be entitled to any award paid or made in connection with the taking or any
sums paid in lieu of such taking. Licensee will have no Claim against the City for the value
of any unexpired Term of this License or otherwise except that Licensee may claim any
portion of the award that is specifically allocable to Licensee's loss or damage to
Licensee's Equipment. The parties understand, acknowledge and agree that this Section
19 is intended to fully govern the parties' rights and obligations in the event of a permanent
taking. Licensee and the City each hereby waives and releases any right to terminate this
License in whole or in part under California Code of Civil Procedure §§ 1265.120 and
1265.130 and under any similar Laws to the extent applicable to this License.
20. ASSIGNMENTS AND OTHER TRANSFERS
{00046399;5)
City of Santa Clarita, CA 25
Pole License Agreement
20.1. General Restriction
Licensee shall have no right to assign or transfer any right, title or interest, in whole or in
part, in, under or through this License without the City's prior written consent. The City
shall not unreasonably withhold its consent to any proposed assignment; provided,
however, that the parties acknowledge that the City may reasonably withhold its consent
to any proposed assignment under the following circumstances: (1) the proposed
assignee lacks the necessary Regulatory Approvals to conduct the Permitted Use or
perform all Licensee's obligations; (2) the City reasonably determines that the proposed
assignee lacks the financial qualifications to perform all Licensee's obligations; (3)
Licensee refuses to reimburse the City for the reasonable and documented costs to
consider the proposed assignment and/or the proposed assignee; and/or (4) at any time
in which any default by Licensee remains uncured.
20.2. Permitted Assignments
Notwithstanding the preceding section, Licensee will be permitted to assign or otherwise
transfer this License without the City's prior consent but with notice to the City, to: (1) an
entity that acquires all or substantially all Licensee's assets in the market in which the City
is located (as the "market area" is or may be defined by the FCC); (2) Licensee's parent;
(3) an entity that acquires a controlling interest in Licensee by a change in stock
ownership or partnership interest; or (4) an entity controlled by or under common control
with Licensee (each a "Permitted Assignment"). Notwithstanding anything in this
License to the contrary, a Permitted Assignment will be subject to all the following
conditions: (a) the assignee may use the License Area only for the Permitted Use and for
no other purpose whatsoever; (b) the assignee possesses all Regulatory Approvals
necessary to lawfully install, operate, and maintain Equipment on the License Area; (c)
Licensee provides the City with notice 60 days before the effective date of such Permitted
Assignment, stating the contact information for the proposed assignee and providing
financial information establishing that the proposed assignee has the capital and fiscal
qualifications greater than or equal to Licensee's as it existed on the Effective Date; (d)
Licensee is in good standing under this License; (e) the assignee shall covenant to
perform all Licensee's obligations under this License and Licensee will be and remain
liable jointly and severally with the assignee for all obligations to be performed by
assignee; and (f) within 30 calendar days after Licensee receives a written demand from
the City, Licensee shall reimburse the City for all reasonable and documented costs
incurred by the City in connection with the Permitted Assignment.
20.3. Effect of Assignment
No assignment by Licensee, consent to assignment by the City, or Permitted
Assignment will relieve or release Licensee from any obligation on its part under this
License, until and unless the assignee signs a written agreement in a form reasonably
acceptable to the City to unconditionally assume all Licensee's obligations under this
License and receives the City's prior written acknowledgement that to City's reasonable
satisfaction it is financially and organizationally able to meet all such obligations. Any
{00046399;5)
City of Santa Clarita, CA 26
Pole License Agreement
assignment that is not in compliance with this Section 20 will be void and be a material
default by Licensee under this License without a requirement for notice and a right to
cure. The City's receipt or acceptance of any License Fee, Regulatory Fees,
Reimbursement Fees, or other payments from a proposed assignee or transferee will not
be deemed to be the City's consent to such assignment.
21. DEFAULT
21.1. Defaults and Cure Periods
The parties agree that any failure to perform or observe any term, condition, obligation or
other provision in this License shall be a default. For any monetary default, the defaulting
party shall have 15 days after written notice from the non -defaulting party to perfect a
cure. The defaulting party shall not be entitled to any additional time to cure a monetary
default unless agreed to by the party claiming default. For any non -monetary default, the
defaulting party shall have 30 days after written notice from the non -defaulting party to
perfect a cure; provided, however, that for any non -monetary default that cannot
reasonably be cured within 30 days, the defaulting party shall have additional time as is
reasonably necessary to perfect the cure if the defaulting party commences to cure the
default within the first 30 days after notice and diligently pursues the cure to completion.
21.2. Licensee's Remedies
Except as may be otherwise provided elsewhere in this License, Licensee's sole
remedies for the City's uncured default will be (1) to terminate this License on 30 days'
prior written notice; and (2) an action for damages subject to the provisions in Section 17
(Limitations on the City's Liability).
21.3. City's Remedies
In addition to all other legal and equitable rights and remedies available to the City, the
City will have the following remedies after an uncured default by Licensee:
21.3.1. License Continuation
Without prejudice to its right to other remedies, the City may continue this License with
the right to enforce all its rights and remedies, which includes without limitation the right
to receive the License Fee and other sums as they may become due.
21.3.2. License Termination
If the City determines, in its sole judgment, that Licensee's default materially impairs the
City's ability to perform its municipal functions or threatens public health, safety or welfare,
then the City may terminate this License on written notice to Licensee.
{00046399;5)
City of Santa Clarita, CA 27
Pole License Agreement
21.3.3. Default Fees
In addition to all other rights and remedies available to the City, the City may require
Licensee to pay an additional fee for any and all actual and reasonable costs incurred by
the City in connection with a default event to reimburse the City's administrative cost to
enforce compliance with this License (each a "Default Fee"). Licensee shall pay the
Default Fee within 30 days after the City's written demand for reimbursement and
reasonable documentation to support such costs. If Licensee fails to timely pay the
Default Fee or cure the underlying default within the applicable cure period, the City shall
have the right (but not the obligation) to send Licensee a follow-up notice and demand for
an additional Default Fee that will be due and payable within 10 days. Licensee's
obligation to pay Default Fees is separate and distinct from the underlying default. Default
Fee payments shall not be deemed to cure the underlying default.
21.4. Cumulative Remedies
Except as otherwise provided in this License, all rights and remedies available to the City
or Licensee are cumulative, and not a substitute for, any rights or remedies otherwise
available to the City or Licensee.
22. TERMINATION
This License may be terminated, as to any individual site shown in Exhibit A-1 and/or
Exhibit A-2 subject to this License, as follows: (1) by a non -defaulting party upon written
notice if the defaulting party remains in default beyond any applicable cure period; (2) by
the City upon written notice if Licensee assigns or otherwise transfers this License in a
manner that violates this License; or (3) by Licensee upon 60 days' prior written notice to
the City for any or no reason. In addition, the City has the right to terminate this License
on written notice to Licensee when the City determines, in the City's sole discretion, that
Licensee's operations on or about the License Area adversely affect or threaten public
health and safety, materially interfere with the City's municipal functions or require the
City to maintain Vertical Infrastructure that the City no longer needs for its own purposes.
The City will use reasonable efforts to prioritize Licensee's request for an alternate
Vertical Infrastructure reasonably acceptable to Licensee to facilitate the continuation of
its service.
23. HAZARDOUS MATERIALS
23.1. Limitations on Hazardous Materials Use
Licensee covenants and agrees that neither Licensee nor its Agents, clients, customers,
invitees, guests, tenants, subtenants, licensees, assignees and/or sublicensees will
cause or permit any Hazardous Material to be brought upon, kept, used, stored,
generated, disposed or Released in, on, under or about the License Area, Streets or any
other City Property, in whole or part, or transported to or from the License Area in any
manner that violates any Environmental Laws; provided, however, that Licensee may use
{00046399;5)
City of Santa Clarita, CA 28
Pole License Agreement
Hazardous Materials in small quantities that are customarily used for routine operation,
cleaning and maintenance and so long as all such Hazardous Materials are contained,
handled and used in compliance with all Environmental Laws.
23.2. Notice to the City After a Release
Licensee shall immediately notify the City if and when Licensee learns or has reason to
believe any Hazardous Material Release has occurred in, on, under or about the License
Area, Streets or other City Property. Licensee will not be deemed to have assumed liability
for any such Release by giving such notice, unless such Release was caused by or arose
in connection with Licensee's or its Agent's, client's, customer's, invitee's, guest's,
tenant's, subtenant's, licensee's, assignee's and/or sublicensee's acts, omissions or
negligence.
23.3. Licensee's Hazardous Material Indemnification Obligations
If Licensee breaches any obligations contained in this Section 23, or if any act, omission
or negligence by Licensee or its Agents, clients, customers, invitees, guests, tenants,
subtenants, licensees, assignees and/or sublicensees results in any contamination on or
about the License Area, Streets or other City Property, or in a Hazardous Material
Release from, on, about, in or beneath the License Area, Streets or any other City
Property, in whole or in part, or any Environmental Law violation, then Licensee, for itself
and its successors and assigns, shall indemnify, defend and hold the City and any
Indemnified City Parties harmless, from and against any and all Claims (including
damages for decrease in value of the License Area, Streets or other City Property, the
loss or restriction of the use of usable space in the License Area, Streets or other City
Property and sums paid in settlement of Claims, attorneys' fees, consultants' fees, and
experts' fees and related costs) that arises during or after the Term related to or in
connection with such Release or violation; provided, however, Licensee shall not be liable
for any Claims to the extent such Release or violation was caused directly and exclusively
by the City's sole active negligence or willful misconduct. Licensee's indemnification
obligation includes all costs incurred in connection with any activities required to
Investigate and Remediate any Hazardous Material brought or Released onto the License
Area, Streets or other City Property by Licensee or its Agents, clients, customers, invitees,
guests, tenants, subtenants, licensees, assignees and/or sublicensees, and to restore the
License Area, Streets or other City Property to its condition prior to such introduction or
Release, or to correct any Environmental Law violation. Licensee specifically
acknowledges and agrees that it has an immediate and independent obligation to defend
the City and the other Indemnified City Parties from any Claim that actually or potentially
falls within this indemnity provision even if the allegations supporting the Claim are or may
be groundless, fraudulent or false, and that said obligation arises at the time such Claim
is tendered to Licensee by the Indemnified City Party and continues until the Claim is
finally resolved. Without limiting the foregoing, if Licensee or any of its Agents, clients,
customers, invitees, guests, tenants, subtenants, licensees, assignees and/or
sublicensees causes any Hazardous Material Release on, about, in or beneath the
License Area, Streets or other City Property, then in any such event Licensee shall,
{00046399;5)
City of Santa Clarita, CA 29
Pole License Agreement
immediately, at no expense to any Indemnified City Party, take any and all necessary
actions to return the License Area, Streets and/or other City Property, as applicable, to
the condition existing prior to such Hazardous Materials Release on the License Area,
Streets or other City Property or otherwise abate the Release in accordance with all
Environmental Laws, except to the extent such Release was caused directly or
exclusively by the City's sole active negligence or willful misconduct. Licensee shall afford
the City a full opportunity to participate in any discussions with regulatory agencies
regarding any settlement agreement, cleanup or abatement agreement, consent decree
or other compromise or proceeding that involves Hazardous Material Release covered
under this Section 23.
24. RULES AND REGULATIONS
At all times throughout the Term, Licensee shall faithfully comply with any and all
reasonable rules, regulations and instructions that the City may from time -to -time
establish and/or amend with respect to the Permitted Use, the License Area or the
Streets.
25. PERFORMANCE BOND
Before the City issues any Regulatory Approval required to commence construction,
installation or other work in connection with the Equipment, Licensee shall, at its sole cost
and expense, post a performance bond from a surety and in a form acceptable to the
Director of Public Works (or his or her designee) and the City Attorney in an amount
reasonably necessary to cover the cost to remove the Equipment and all associated
improvements and completely restore all affected areas based on a written estimate from
a qualified contractor with experience in wireless facilities removal. The written estimate
must include the cost to remove all the Equipment and all associated improvements,
which includes, without limitation, all antennas, radios, batteries, generators, utilities,
cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, poles, footings
and foundations, whether above ground or below ground, constructed or installed in
connection with the Equipment, plus the cost to completely restore any areas affected by
the removal work to a condition that is neat, clean, safe and compliant with applicable
Laws. In establishing or adjusting the bond amount required under this condition, and in
accordance with California Government Code § 65964(a), the Director of Public Works
(or his or her designee) shall take into consideration any information provided by Licensee
regarding the cost to remove the Equipment as provided in this Section 25. The
performance bond shall expressly survive the Term to the extent required to completely
remove the subject Equipment and restore the affected areas in accordance with this
Section 25 and upon completion of such removal and restoration, Licensee may release
the performance bond and the City shall cooperate with such release. The parties
acknowledge that Licensee and the City may enter into one or more pole license
agreements and that Licensee may elect to have one performance bond that covers
multiple pole license agreements in lieu of obtaining a separate performance bond for
each pole license agreement; provided that a performance bond that covers multiple pole
{00046399;5)
City of Santa Clarita, CA 30
Pole License Agreement
license agreements remains, at all times relevant to this License, sufficient to meet the
removal and restoration conditions in this Section 25 for each separate wireless facility.
26. SURRENDER OF LICENSE AREA
Within 60 days after expiration or early termination of this License, Licensee shall, at
Licensee's sole cost and expense, remove all Equipment and restore all affected areas
to a condition compliant with all applicable Laws, in at least as good as the condition
existed immediately before such Equipment were installed, reasonable wear and tear
excepted, and to the Director of Public Works' (or his or her designee's) satisfaction. The
City may, in its discretion, extend the 60-day period by written notice to Licensee. In
addition to the foregoing, in the event that this License involves replacement Vertical
Infrastructure, Licensee shall, at the City's sole discretion, modify or replace the Vertical
Infrastructure to meet the City's standards and specifications. The City's acceptance of
any replacement Vertical Infrastructure shall be in accordance with Section 6.13
(Replacement Vertical Infrastructure). If Licensee fails to timely perform its removal and
restoration obligations under this License, then: (1) Licensee shall remain responsible for
all its obligations under this License and liable for all Claims that may arise in connection
with the Equipment through and until such Equipment are completely removed and the
affected areas are completely restored; (2) the City shall have the right (but not the
obligation) to perform such obligations; (3) the City shall have the right to store, sell or
destroy any Equipment, improvements, personal property or other things installed by
Licensee in connection with this License; and (4) Licensee shall reimburse the City for all
costs incurred by the City in connection with such removal and restoration work within 10
days after a written demand for reimbursement and reasonable documentation to support
such costs. Within 90 days after any Equipment have been removed, Licensee shall file
as -built plans and maps with the Director of Public Works (or his or her designee) in the
same manner and subject to the same requirements as provided in Section 6.11 (As -Built
Plans and Maps).
27. INSPECTIONS AND REPORTS
27.1. License Area Inspections
At all reasonable times throughout the Term, the Director of Public Works (or his or her
designee), shall have the right (but not the obligation) to: (1) inspect the License Area and
all the Equipment subject to this License; and (2) evaluate Licensee's compliance with
this License and any permit or other authorization in connection with the Equipment. In
the event that any such inspection or evaluation concludes that any Equipment was
installed, operated or maintained without all Regulatory Approvals or the Equipment was
not installed, operated or maintained in compliance with this License, any as -built plans
or maps associated with the Equipment or any applicable Laws, then Licensee shall
reimburse the City for the City's reasonable, actual and documented costs and expenses
to conduct the inspection and/or evaluation, which includes without limitation any costs or
expenses by any third -party inspectors or consultants.
{00046399;5)
City of Santa Clarita, CA 31
Pole License Agreement
27.2. Records Maintenance and Audits
Licensee shall maintain throughout the Term (and for at least four years after this License
expires or terminates) the following records in physical format and/or in an electronic
format: (1) identification information and physical location (e.g., a physical address and/or
GPS coordinates) for all Equipment subject to this License; (2) a ledger or other similar
document that contains the amount, payment date and reason for all sums paid to the
City pursuant to this License; (3) true and correct copies of all as -built plans, maps and
Regulatory Approvals in connection with the Equipment subject to this License; (4) proof
of all insurance required to be carried and maintained under Section 16 (Insurance); and
(5) all correspondence with the City in connection with any matter related to this License.
To determine whether Licensee has fully and accurately paid all sums payable to the City
under this License, if any, and to determine whether Licensee has complied with its other
obligations under this License, the City, or its designee, will have the right (but not the
obligation) to inspect, audit and make copies of Licensee's records pertaining to this
License during regular business hours on 10 days' notice to Licensee and/or Licensee
shall provide City, or its designee, electronic copies of documentation reasonably required
by City to confirm Licensee's compliance hereunder.
27.3. Annual Capital Improvement Forecasts
Upon at least 60 days' prior written notice, but no more than once per year, Licensee shall
submit a written report to the Director of Public Works (or his or her designee) that
contains: (1) a list of all permits issued by the City in connection with this License in the
last calendar year; (2) a description of all construction authorized under such permits,
which includes without limitation the total length of all communication lines, wires and
cables; (3) the total length of all communication lines, wires and cables actually installed
under such permits; and (4) a map that depicts the accurate location for all Equipment. In
addition, upon at least 60 days' prior written notice, but no more than once per year,
Licensee shall submit a projected capital improvement forecast for its operations within
the City's territorial and jurisdictional boundaries, if any. The capital improvement forecast
must include anticipated schedules for all new Equipment and repairs, replacements and
modifications to existing Equipment to the extent feasible and with sufficient detail to allow
the City to coordinate its own public improvements and other capital improvement projects
by third parties.
28. MISCELLANEOUS PROVISIONS
28.1. Notices
Except as may be specifically provided otherwise in this License, all notices, demands or
other correspondence required to be given in connection with or pursuant to this License
must be written and delivered through (1) an established national courier service that
maintains delivery records and confirmations; (2) hand delivery; or (3) certified or
registered U.S. Mail with prepaid postage and return receipt requested, and addressed
as follows:
{00046399;5)
City of Santa Clarita, CA 32
Pole License Agreement
TO CITY:
with copies to:
TO LICENSEE:
with copies to:
All notices, demands or other correspondence in connection with this License will be
deemed to have been delivered: (1) two days after deposit if delivered by U.S. certified
mail; (2) the date delivery is made by personal delivery or overnight delivery; or (3) the
date an attempt to make delivery fails if a party changes its address without proper notice
or refuses to accept delivery after an attempt. Any copies required to be given constitute
an administrative step for the parties' convenience and not actual notice. The parties may
change the notice addresses above from time -to -time through written notice to the
addresses above or the then -current notice address.
28.2. Waivers
No failure by either the City or Licensee to insist that the other strictly perform any
obligation, term, covenant or condition under this License or to exercise any rights,
powers or remedies in connection with the other party's failure to strictly perform such
obligation, term, covenant or condition no matter how long the failure to insist on such
performance or exercise such rights, powers or remedies, will be deemed to waive any
default for non-performance. No behaviors, patterns or customs that may arise between
the parties with respect to their performance required under this License will be deemed
to waive any rights, powers or remedies the parties' may have to insist on strict
performance. Neither Licensee's payment nor the City's or its Agents' acceptance of any
License Fee or any other sums due to the City or its Agents under this License during any
such default will be deemed to cure any such default, waive the City's right to demand
material compliance with such obligation, term, covenant or condition or be deemed to be
an accord and satisfaction for any Claim the City may have for further or additional sums.
{00046399;5)
City of Santa Clarita, CA 33
Pole License Agreement
Any express waiver by either the City or Licensee in connection with any default or
obligation to perform any provision, term, covenant or condition under this License will-
(1) be limited to the specific default or performance for which the express waiver is
granted; (2) not be deemed to be a continuing waiver; and (3) not affect any other default
or performance no matter how similar or contemporaneous such other default or
performance may be. The City's or Licensee's consent given in any specific instance in
connection with or pursuant to this License will not relieve the City or Licensee from the
obligation to secure the other's consent in any other or future specific instances, no matter
how similar or contemporaneous the request for consent may be.
28.3. Integration; Amendments
This License constitutes the entire agreement and understanding between the parties,
and supersedes any and all prior agreements and understandings, whether written or
oral, with respect to the subject matter covered in this License. This License and any
default in connection with this License may not be orally changed, waived, discharged,
altered, modified, amended or terminated. This License and any default in connection
with this License may not be changed, waived, discharged, altered, modified, amended
or terminated, except by a written instrument signed by both parties.
28.4. Interpretation
The parties acknowledge and agree that the following interpretive rules will be applicable
to this License:
28.4.1. General
Whenever required by the context, the singular includes the plural and vice versa; the
masculine gender includes the feminine or neuter genders and vice versa; and defined
terms encompass all their correlated forms (e.g., the definition for "indemnify" applies to
"indemnity," "indemnification," etc.).
28.4.2. Joint and Several Liability
In the event that the City consents to enter into this License with more than one Licensee,
which consent the City may withhold or condition in the City's sole and absolute discretion,
the obligations and liabilities imposed on Licensee under this License will be joint and
several among the multiple Licensees to this License.
28.4.3. Captions and Other Reference Material
The section captions in this License and the table of contents have been included for the
parties' convenience and reference and neither the captions nor the table of contents in
no way define or limit the scope or intent of any provision in this License.
{00046399;5)
City of Santa Clarita, CA 34
Pole License Agreement
28.4.4. Time
References in this License to "days" mean calendar days, unless specifically provided
otherwise. A "business day" means a day other than a Saturday, Sunday or a bank or
City holiday. If the last day in any period to give notice, reply to a notice or to undertake
any other action occurs on a day that is not a business day, then the last day for giving
notice, replying to the notice or undertaking any other action will be the next business
day. Except as modified in this Section 28.4.4, time is of the essence with respect to all
provisions in this License for which a definite time for performance is specified.
28.4.5. Inclusive Words and/or Phrases
Inclusive terms and/or phrases, which includes without limitation the terms and/or phrases
"including," "such as" or similar words or phrases that follow any general or specific term,
phrase, statement or matter may not be construed to limit the term, phrase, statement or
matter to the stated terms, statements or matters, or the listed items that follow the
inclusive term or phrase, whether any non -limitation language or disclaimers, such as
"including, but not limited to" and/or "including without limitation" are used or not. Rather,
the stated term, phrase, statement or matter will be interpreted to refer to all other items
or matters that could reasonably fall within such term, phrase, statement or matter given
its broadest interpretation.
28.5. Successors and Assigns
Except as may be expressly provided in this License, the conditions, covenants, promises
and terms contained in this License will bind and inure to the benefit of the City and
Licensee and their respective successors and assigns.
28.6. Brokers
The parties represent to each other that neither has had any contact, dealings or
communications with any Broker in connection with this License, whose commission, if
any, would be paid pursuant to a separate written agreement between such Broker and
such party with which such Broker contracted. In the event that any Broker perfects any
claim or finder's fee based upon any such contact, dealings or communications, the party
to such written contract with such Broker shall indemnify the other party from all Claims
brought by such Broker. This Section 28.6 will survive this License's expiration or earlier
termination.
28.7. Governing Law; Venue
This License must be construed and enforced in accordance with the laws of the State of
California without regard to the principles of conflicts of law. This License is made, entered
and will be performed in the City of Santa Clarita, County of Los Angeles, State of
California. Any action concerning this License must be brought and heard in the California
{00046399;5)
City of Santa Clarita, CA 35
Pole License Agreement
Superior Court for the County of Los Angeles or, if jurisdiction is proper, in the United
States District Court for the Central District of California.
28.8. Litigation Fees and Costs
In the event the City or Licensee prevails in an action to enforce its rights under this
License, the prevailing party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees, incurred in connection with such action.
28.9. Recording
Licensee acknowledges and agrees that: (1) this License affects the City's personal
property and therefore cannot be recorded in any official records; (2) Licensee shall not
have the right to record this License, any memorandum or any short -form agreement in
relation to this License; and (3) Licensee shall, at Licensee's sole cost and expense,
remove any document or other instrument recorded against the City's title to any City
Property promptly upon the City's request or demand. In the event that this License affects
or is deemed to affect any real property owned by the City, Licensee may not record any
document or instrument in connection with this License without the City's prior written
consent, which the City may withhold in the City's sole and absolute discretion.
28.10. No Third -Party Beneficiaries
This License is not intended to (and shall not be construed to) give any third party, which
includes without limitation Licensee's customers or any other third -party beneficiaries,
any right, title or interest in this License or the real or personal property(ies) that may be
affected by the same.
28.11. Survival
All terms, provisions, covenants, conditions and obligations in this License will survive
this License's expiration or termination when, by their sense or context, such provisions,
covenants, conditions or obligations: (1) cannot be observed or performed until this
License's expiration or earlier termination; (2) expressly so survive; or (3) reasonably
should survive this License's expiration or earlier termination. Notwithstanding any other
provision in this License, the parties' rights to enforce any and all indemnities,
representations and warranties given or made to the other party under this License or any
provision in this License will not be affected by this License's expiration or termination.
28.12. Severability
If any provision in this License or such provision's application to any person, entity or
circumstances is or is held by any court with competent jurisdiction to be invalid or
unenforceable: (1) such provision or its application to such person, entity or circumstance
will be deemed severed from this License; (2) all other provisions in this License or their
application to any person, entity or circumstance will not be affected; and (3) all other
{00046399;5)
City of Santa Clarita, CA 36
Pole License Agreement
provisions in this License or their application to any person, entity or circumstance will be
valid and enforceable to the fullest extent permitted by Law, except to the extent that such
enforcement would (a) be manifestly unreasonable or manifestly inequitable under all the
circumstances or (b) undermine one or both parties' fundamental purpose in entering this
License.
[END OF AGREEMENT — SIGNATURES APPEAR ON NEXT PAGE]
{00046399;5)
City of Santa Clarita, CA 37
Pole License Agreement
The City and Licensee executed this License as of the date last written below:
THE CITY:
City of Santa Clarita,
a California municipal corporation
Its: City Manager
Date:
APPROVED AS TO FORM:
la
Office of the City Attorney
ATTEST:
Mary Cusick
City Clerk
LICENSEE:
[licensee name],
a [licensee's corporate form]
By-
Its-
Date -
[END OF SIGNATURES — EXHIBITS AND SCHEDULES APPEAR ON NEXT PAGE]
{00046399;5)
City of Santa Clarita, CA 38
Pole License Agreement
SCHEDULE 1
ANNUAL LICENSE FEE
YEAR
OF TERM
YEAR
ANNUAL
LICENSE FEE
1
2020
$270.00
2
2021
$278.10
3
2022
$286.44
4
2023
$295.04
5
2024
$303.89
6
2025
$313.00
7
2026
$322.39
8
2027
$332.07
9
2028
$342.03
10
2029
$352.29
{00046399;5)
City of Santa Clarita, CA 39
Pole License Agreement
SCHEDULE 2
CITY'S ESTIMATED FAIR MARKET LICENSE FEES
YEAR
ANNUAL
LICENSE FEE
2020
$1,000.00
2021
$1,030.00
2022
$1,060.90
2023
$1,092.73
2024
$1,125.51
2025
$1,159.27
2026
$1,194.05
2027
$1,229.87
2028
$1,266.77
2029
$1,304.77
2030
$1,343.92
2031
$1,384.23
2032
$1,425.76
2033
$1,468.53
2034
$1,512.59
2035
$1,557.97
2036
$1,604.71
2037
$1,652.85
2038
$1,702.43
2039
$1,753.51
{00046399;5)
City of Santa Clarita, CA 40
Pole License Agreement
EXHIBIT A-1
LICENSE AREA
(Site survey(s) that depicts the location(s) of the Vertical
Infrastructure within the City and the location(s) of the
Licensee's attachments to such Vertical Infrastructure
appears behind this coversheet. Pursuant to Section 6.11 of
this License, the City shall have the right to substitute post -
construction surveys and/or as -built drawings of the
completed facility.)
{00046399;5)
City of Santa Clarita, CA 41
Pole License Agreement
EXHIBIT A-2
APPROVED PLANS
(Prior to the issuance of a construction permit or permits, the
Licensee shall tender its Preliminary Plans as this exhibit.
After the City issues a construction permit or permits, the
Approved Plans shall be substituted in place of the
Preliminary Plans in accordance with Section 6.2 of this
License. Pursuant to Section 6.11 of this License, the City
shall have the right to substitute post -construction surveys
and/or as -built drawings of the completed facility(ies) in place
of the Approved Plans.)
{00046399;5)
City of Santa Clarita, CA 42
Pole License Agreement
EXHIBIT B
LICENSEE'S INSURANCE OBLIGATIONS
(a) Required Insurance Policies and Limits
Licensee shall carry and keep in effect at all times during the Term, at Licensee's sole
cost and expense, insurance policies with coverage and limits as stated below. The
required limits may be met by a combination of primary and excess or umbrella insurance.
(1) Commercial General Liability Insurance
Licensee shall carry and maintain commercial general liability insurance (including
premises operations; explosion, collapse and underground hazard; broad form property
damage; products/completed operations; contractual liability; independent contractors;
and personal injury) with a combined single limit for each occurrence of not less than Five
Million Dollars ($5,000,000).
(2) Workers' Compensation Insurance
Licensee shall carry and maintain workers' compensation insurance per California
statutory limits with Employer's Liability Limits not less than One Million Dollars
($1,000,000) per each accident or disease per employee.
(3) Commercial Automobile Liability Insurance
Licensee shall carry and maintain commercial automobile liability insurance, for owned,
non -owned and hired autos, with a combined single limit for bodily injury and property
damage of not less than Two Million Dollars ($2,000,000) combined single limit per
accident for bodily injury and property damage.
(4) "All Risk" Property Insurance
Licensee shall carry and maintain property insurance coverage for perils usual to a
standard "all risk" insurance policy that covers all Licensee's Equipment within the
Streets, and with limits equal to the cumulative replacement value for all such Equipment.
(b) Required Endorsements
Commercial General Liability Insurance and Commercial Automotive Liability Insurance
policies must contain the following endorsements: (1) name the City, its officers, agents,
employees and volunteers as additional insureds; (2) that such policies are primary
insurance to any other insurance available to the additional insureds with respect to any
Claims that arise in connection with this License; (3) that such insurance applied
separately to each insured against whom a Claim is made or brought, except with respect
{00046399;5)
City of Santa Clarita, CA 43
Pole License Agreement
to limits; (4) that such policies provide for the severability of interests and that an act or
omission of one of the named insureds that would void or otherwise reduce coverage
shall not void or otherwise reduce coverage below the minimum requirements in this
Exhibit B as to any other named insured; and (5) that such policies shall afford coverage
for all Claims based on acts, omissions, for bodily injury or property damage that occurred
or arose (or the onset occurred or arose) in whole or in part during the policy period. The
City's additional insured status shall not extend to claims for punitive or exemplary
damages arising out of the acts or omissions of City, its employees, agents or
independent contractors or where such coverage is prohibited by law.
All insurance policies required to be maintained by Licensee under this License shall be
endorsed to provide written notice of cancellation for any reason, including without
limitation intent not to renew or reduce coverage excluding non-payment of premium to
both Licensee and the City. In the event that Licensee receives a notice of intent to cancel
or notice of cancellation for any coverage required under this License, Licensee shall
forward such notice to the City within one business day and promptly take action to
prevent cancellation, reinstate cancelled coverage or obtain coverage from a different
insurer qualified under Section (f) to this Exhibit B.
All insurance policies required to be maintained by Licensee under this License shall
contain a standard separation of insureds provision. No insurance policies required to be
maintained by Licensee under this License may contain any special limitations on the
scope of protections to the City or any Indemnified City Party.
(c) Claims -Made Policies
In the event that any required insurance under this License is provided under a claims -
made form, Licensee shall continuously maintain such coverage throughout the Term
and, without lapse, for three years after this License expires or terminates, to the effect
that, should any event during the Term give rise to a Claim brought after this License
expires or terminates, such Claims will be covered under Licensee's claims -made
policies. The provisions in this Section shall survive this License's expiration or
termination.
(d) General Aggregate Limit
The general aggregate limit for any required insurance under this License must be double
the per -occurrence or Claims limits specified in Section (a) to this Exhibit B when
coverage includes a general annual aggregate limit or provides that Claims investigation
or legal defense costs will be included in such general annual aggregate limit.
(e) Certificates
On or before the Effective Date, Licensee shall deliver to the City all insurance certificates
and endorsements from Licensee's insurance providers in a form reasonably satisfactory
to the City that evidences all the required coverages under this License. In addition,
{00046399;5)
City of Santa Clarita, CA 44
Pole License Agreement
Licensee shall promptly deliver to the City all certificates and required endorsements after
Licensee receives a request from the City.
(f) Insurer Qualifications
Licensee's insurance providers must be authorized to do business in California and must
meet or exceed an A.M. Best's Key Rating A -IX or its equivalent. Any other insurance
providers shall require the prior approval by the City's Risk Manager, which approval may
be refused in the City's Risk Manager's sole discretion.
(g) Waiver of Subrogation
Licensee and Licensee's insurers each hereby waives any right of recovery against the
City for any loss or damage sustained by Licensee with respect to the License Area, in
whole or in part, the contents on, under, above or within the License Area or any operation
therein, whether such loss is caused by the City's fault or negligence or not, and to the
extent such loss or damage is covered by insurance obtained by Licensee under this
License or is actually covered by insurance obtained by Licensee. Licensee agrees to
cause its insurers to issue appropriate waiver of subrogation rights endorsements to all
policies relating to the License Area, but the failure to obtain any such endorsement will
not affect the waivers in this Section.
(h) Prohibition Against Self -Insurance Alternatives
Licensee shall not be permitted to meet its insurance obligations under this License
through self-insurance without prior written consent from the City, which the City may
withhold in its sole discretion for any or no reason. In the event that the City consents to
allow Licensee to self -insure as an alternative insurance program, such consent will not
be deemed: (1) an amendment or implied waiver to any other requirement in this License-
(2) to extend to any assignee or successor to Licensee; or (3) to waive or lessen
Licensee's obligation to comply with Section (i) to this Exhibit B.
(i) Contractor's Bonds and Insurance
Licensee shall ensure that any person or entity performing work or service on Licensee's
behalf or for Licensee's benefit pursuant to this License within the Streets or on any City
Property shall secure or provide all bonds and insurance required to be secured or
provided by Licensee under this Exhibit B, and shall provide the City with evidence to
show such bonds or insurance exist before the City issues any permits for such work. In
the event that any applicable Law imposes any bonding or insurance requirements on
Licensee's contactors or subcontractors that are more protective to the City's interests,
such requirements shall control over the requirements in this Exhibit B.
0) City's Right to Terminate
{00046399;5)
City of Santa Clarita, CA 45
Pole License Agreement
The City may elect, in its sole and absolute discretion, to terminate this License on written
notice to Licensee if Licensee allows any required insurance coverage to lapse and does
not reinstate the lapsed insurance coverage within three days after Licensee receives
such written notice.
(k) No Limitation on Licensee's Indemnification Obligations
Licensee's insurance obligations under this Exhibit B in no way relieves, decreases or
modifies Licensee's liability or Licensee's obligations to indemnify, protect and hold the
City and any Indemnified City Parties harmless under any other provision in this License.
(1) Contractor's Insurance is Primary
The policies required by this Exhibit B shall constitute primary insurance as to the City,
its officers, agents, employees and volunteers, so that any other policies held by the City
shall not contribute to any loss under said insurance.
{00046399;5)
City of Santa Clarita, CA 46
Pole License Agreement