HomeMy WebLinkAboutAGENDA REPORT 2020 1216 CCSA REG ITEM 10FCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of December 16, 2020
ACTION Approved Staff Recommendation.
BY B.Garza.
F. Consider a Municipal Facility License Agreement with New Cingular Wireless
PCS, LLC (AT&T) Governing Use of Municipal Facilities for Small Wireless
Facilities. Staff Recommendation: Authorize the City Manager to execute a
Municipal Facility License Agreement with New Cingular Wireless PCS, LLC
(AT&T) governing use of municipal facilities for small wireless facilities, subject to
final language approval of the City Manager. (Staff: Brian Chong)
Item: 10.F.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Brian Chong, Assistant to the City Manager
DATE: 12/16/2020 Regular Meeting
SUBJECT: Consider a Municipal Facility License Agreement with New Cingular
Wireless PCS, LLC (AT&T) Governing Use of Municipal Facilities for
Small Wireless Facilities
SUMMARY
Consistent with wireless telecommunications industry and local government best
practices, AT&T seeks to enter into a Municipal Facility License Agreement with the City
to govern use the City’s infrastructure (typically streetlights) for placement of small
wireless facilities. Staff recommends approval of the License Agreement.
BACKGROUND
On September 26, 2018, the Federal Communications Commission (FCC) adopted a
Report and Order establishing a new “small wireless facility” category of wireless
facilities. On April 17, 2019, the City Council adopted Ordinance No. 472 to establish a
regulatory framework for these new small wireless facilities, consistent with the FCC
Report and Order.
Despite widespread opposition from local governments across the country – including
from the City of Moorpark – the FCC’s Report and Order also substantially restricted
local governments’ ability to regulate small wireless facilities in public rights-of-way.
However, the City does retain some controls and authority over use of its right-of-way
for small wireless facilities, and these have been incorporated into the proposed
Agreement.
On October 21, 2020, the City Council approved the City’s Broadband Strategic Plan,
which among other things recommended use of Master License Agreements with
wireless telecommunications providers to outline the small wireless facilities’
requirements – such as aesthetics, insurance coverage, and what to do in case of an
emergency – and then amend the Master License Agreement to append specific small
wireless facility locations as they are proposed and installed.
Item: 10.F.
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In recent months, staff has been developing a Municipal Facility License Agreement,
which is congruous with and serves the same purpose as a Master License Agreement,
with New Cingular Wireless, LLC (known commercially as AT&T) to govern its future
installations of small wireless telecommunications facilities on City-owned streetlights
and other municipal facilities. AT&T has advised that it will pursue additional cellular
infrastructure within Moorpark once a License Agreement is in place, since it will have
more certainty about the requirements and procedures needed to locate small wireless
facilities within the City’s right-of-way.
DISCUSSION
Demand for cellular networks, and the wireless telecommunications facilities that
combine to form them, has been increasing steadily for several decades, a trend that is
expected to continue indefinitely. This demand is driven both by the rapidly increasing
numbers of connected devices (phones, smartphones, tablets, watches, etc.) and the
need for faster data transfer speeds.
As a general rule, wireless telecommunications facilities for each successive generation
of communications protocols (3G, 4G, 5G, etc.) have shorter ranges. Whereas early
telecommunications antennas could service miles in each direction, successive
generations’ antennas could only reach thousands of feet, and now hundreds of feet to
service all of the nearby devices and provide the speeds expected by current
consumers. Additionally, over time, the physical sizes of wireless telecommunications
facilities has also decreased, with equipment being smaller and requiring less vertical
clearance.
These two confluent factors have come together to result in the proliferation of small
wireless facilities mounted on streetlights. Streetlights are located frequently enough to
provide the density needed for a functional modern cellular network, and the wireless
telecommunications facilities are small enough that they have a lesser visual impact on
streetlight poles (e.g., you don’t have a 20-foot tall attachment on top of a streetlight and
a much wider pole to accommodate the extra weight).
AT&T has identified a need to expand its network services within the Moorpark
community and is requesting that the City and AT&T establish a Municipal Facility
License Agreement (Attachment) to govern the installation of small wireless facilities on
City-owned infrastructure within the right-of-way, with an intended focus on streetlight
installations. It should be noted that the Agreement does not authorize light poles
located inside City parks.
The proposed Agreement has an initial term of 10 years, with two potential five-year
extensions unless the City or AT&T opts out of the Agreement at the 10-year mark.
However, should the Agreement expire, the Agreement also provides that any specific
small wireless facility be authorized for a minimum of five years even if the Agreement
expires. Thus, if the Agreement were to end in Year 10, then a small wireless facility
installed in Year 8 will be allowed to remain until Year 13.
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The proposed Agreement also contains procedural and operational provisions,
including:
- Creates a standard permit review/inspection process
- Establishes procedures for deactivation of small wireless facilities that cause
interference with municipal operations/communications
- Establishes procedures for responding to damage, such as car accidents
involving a streetlight with a small wireless facility
- Insurance, indemnification, and performance bond protections for the City
Consistent with best practices, the proposed Agreement is structured to establish these
procedures and regulations for all AT&T small wireless facilities proposed on City-
owned infrastructure within its right-of-way. When AT&T proposes a small wireless
facility for a specific site, AT&T will need to obtain City Engineer approval of a
Supplement to the Agreement, the form of which is provided as Exhibit A of the
Agreement.
The FCC’s Report and Order allows jurisdictions to set fees for both non-recurring fees
(such as application review fees) and recurring annual fees (such as operational costs
related to managing a system of wireless telecommunications facilities). The City
Council originally adopted these fees in April 2019 as part of adoption of its Small
Wireless Facility Ordinance to comply with the FCC’s Report and Order. However, staff
has since analyzed the staff time needed to review applications for new small wireless
facilities located on City infrastructure within the City’s right-of-way, finding that the
costs are higher than the previously-adopted fees. As such, the City Council is
considering an increase to that fee as a separate agenda item tonight. The proposed
Agreement requires AT&T to pay this fee in the amount in effect at the time they apply
for the permit.
FISCAL IMPACT
There is no direct fiscal impact associated with the recommended action. To the extent
that AT&T pursues small wireless facilities within the City’s right-of-way, the City will
receive minor revenue increases.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
STAFF RECOMMENDATION
Authorize the City Manager to execute a Municipal Facility License Agreement with New
Cingular Wireless PCS, LLC (AT&T) governing use of municipal facilities for small
wireless facilities, subject to final language approval of the City Manager.
Attachment: Master License Agreement 110
MUNICIPAL FACILITY LICENSE AGREEMENT
THIS MUNICIPAL FACILITY LICENSE AGREEMENT (the “Agreement”) is dated as
of _________________, 2020 (the date fully executed by all parties, referred to herein as
“Effective Date”), and entered into by and between THE CITY OF MOORPARK, a California
municipal corporation (the “Licensor” or “City”), and NEW CINGULAR WIRELESS PCS,
LLC, a Delaware limited liability company (“Licensee”). Licensor and Licensee are referred to
herein collectively as the “Parties” or individually as a “Party.”
Recitals
A. WHEREAS, the Licensor is the owner of certain Municipal Facilities (as defined
below) located in the Rights-of-Way (as defined below) of the City of Moorpark; and
B. WHEREAS, Licensee is authorized by law to conduct business as a telephone
corporation in the State of California; and
C. WHEREAS, Licensee desires to use space on certain of the Licensor’s Municipal
Facilities in the Rights-of-Way (“ROW”) to construct, attach, install, operate, and maintain its
Equipment (as defined below); and
D. WHEREAS, on April 17, 2019, the City Council of City adopted Resolution No.
2019-3800 adopting a City Wide Policy Regarding Permitting Requirements and Development
Standards For Small Wireless Facilities (the “City Policy”); and
E. WHEREAS, the City Policy requires Licensee to enter into a site agreement with
the Licensor for any small wireless facility proposed to be installed on any structure located
within the public rights-of-way that states the terms and conditions for such use by Licensee; and
F. WHEREAS, the Parties mutually desire to enter into this Agreement in
satisfaction of the site agreement required by the City Policy; and
G. WHEREAS, Licensor is willing to allow Licensee to use and physically occupy
portions of the Municipal Facilities in the ROW subject to the terms and conditions of this
Agreement.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to the following covenants, terms, and
conditions:
1. DEFINITIONS. The following definitions shall apply generally to the provisions of this
Agreement:
1.1 “City Policy” means the City Wide Policy Regarding Permitting Requirements and
Development Standards For Small Wireless Facilities, as first adopted by City Council Resolution
No. 2019-3800 and as may be amended.
ATTACHMENT
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1.2 “Equipment” means the small wireless facility equipment cabinets, antennas,
utilities, and fiber optic cables, wires, and related equipment, whether referred to individually or
collectively, to be installed on a Municipal Facility and operated by Licensee under a particular
Supplement.
1.3 “Hazardous Substance” means any substance, chemical or waste that is identified
as hazardous or toxic in any applicable federal, state or local law or regulation, including, but not
limited to, petroleum products and asbestos.
1.4 “Laws” means any and all applicable statutes, codes, constitutions, ordinances,
resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, court orders, or
other requirements of the Licensor or other governmental agency having joint or several
jurisdiction over the parties to this Agreement as such laws may be amended from time to time.
1.5 “License Fee” means the compensation paid under any Supplement for use of the
Municipal Facilities.
1.6 “Make-Ready Work” means the work required on or in a Municipal Facility to
create space for the Equipment, and/or replacing and/or reinforcing the existing Municipal
Facility to accommodate Equipment including, but not limited to, rearrangement or transfer of
existing Equipment and the facilities of other entities, and Municipal Facility relocation and
replacement if applicable.
1.7 “Municipal Facilities” means Licensor-owned structures, objects, and equipment
in the ROW, including, but not limited to, street lights, banners, street furniture, bus stops,
billboards, or other poles, lighting fixtures, or electroliers located within the ROW, and may refer
to such facilities in the singular or plural, as appropriate to the context in which used. The term
includes Replacement Facilities referred to in Section 4.1.3. Municipal Facilities do not include
traffic control structures, decorative poles or park poles.
1.8 “Person” means and includes any individual, partnership of any kind, corporation,
limited liability company, association, joint venture, or other organization, however formed, as
well as trustees, heirs, executors, administrators, or assigns, or any combination of such persons.
1.9 “PUC” means the California Public Utilities Commission.
1.10 “Right(s)-of-Way” or “ROW” means the improved or unimproved surface or
subsurface of any public street, or similar public way of any nature, dedicated or improved for
vehicular, bicycle, and/or pedestrian related use. Right-of-Way includes public streets, roads,
lanes, alleys, sidewalks, medians, parkways, public utility easements, and landscaped lots. The
Public Right-of-Way does not include private streets or landscaped lots.
1.11 “Services” means the transmission and reception of communications signals for
the provision of personal wireless services and mobile data services, and the installation,
construction, modification, maintenance, operation, repair, replacement and upgrade of the
Equipment to provide such services.
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1.12 “Small wireless facility” means the same as defined by the FCC in 47 C.F.R. §
1.6002(1), as may be amended or superseded.
1.13 “Supplement” shall mean each separate authorization, granted by Licensor to
Licensee with regard to a specific Equipment installation, the form of which is attached hereto as
Exhibit A, each and every of which shall be subject to the terms and conditions of this
Agreement. Any modifications to Licensee’s Equipment shall require a new supplement.
1.14 “Transfer” means any transaction in which the rights and/or obligations held by
Licensee under this Agreement or a Supplement are transferred, directly or indirectly, in whole or
in part to a party other than Licensee.
2. TERM; SUPPLEMENT TERM.
2.1 Term. The initial term of this Agreement shall be for a period of ten (10) years
(the “Initial Term”), commencing on the Effective Date and ending on the tenth (10th)
anniversary thereof, unless sooner terminated as stated herein. Provided that Licensee is not in
default of the Agreement or any Supplement following written notice and the expiration of any
applicable cure period, this Agreement shall be automatically renewed for two successive five (5)
year renewal terms (each, a “Renewal Term”), unless either party gives the other party written
notice of the intent not to renew this Agreement at least six (6) months prior to the expiration of
the Initial Term or any Renewal Term, as applicable. The Initial Term and all Renewal Terms
shall be collectively referred to herein as the “Term.” Any holding over after the termination or
expiration of the Term shall constitute a default by Licensee, notwithstanding that Licensor may
elect to accept one or more payments of fees from Licensee after such default occurs.
2.2 Supplement Term. The initial term for each particular Supplement shall begin on
its effective date ("Supplement Effective Date") and shall run for an initial term of five (5) years
and shall automatically be extended for two (2) successive five (5) year terms, unless either Pary
notifies the other in writing of its intent not to renew the Supplement at least thirty (30) days prior
to the expiration of the Supplement Term or the then applicable renewal term, as the case may be,
or such individual Supplement is earlier terminated, as provided for herein (the "Supplement
Term"). All of the provisions of this Agreement shall be in effect during the Supplement Term.
Notwithstanding anything herein, after the expiration or earlier termination of this Agreement, the
terms and conditions of a Supplement which was signed during the Term of the Agreement shall
survive and remain in full force and effect until the expiration or earlier termination of such
Supplement.
3. REPRESENTATION CONCERNING SERVICES; NO AUTHORIZATION TO PROVIDE OTHER
SERVICES. Licensee represents, warrants, and covenants that its Equipment installed pursuant to
this Agreement and each Supplement will be utilized solely for providing the Services, and
Licensee is not authorized to and shall not use its Equipment installed on Municipal Facilities to
offer or provide any other services not specified herein without Licensor consent. At any time
that Licensee ceases to operate as a provider of Services under federal or state law, it shall
provide written notice of the same to Licensor within seven (7) days of such cessation, at which
time the Licensor shall have the option, in its sole discretion and upon six (6) months’ written
notice to Licensee, to terminate this Agreement and to require the removal of Licensee’s
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Equipment from the ROW and from Municipal Facilities, including the cost of any site
remediation, at no cost to the Licensor, without any liability to Licensee related directly or
indirectly to such termination.
4. SCOPE OF AGREEMENT. Licensee may only use Municipal Facilities pursuant to an
approved Supplement and subject to all applicable requirements of the City Policy. In the event
of any conflict between the terms of this Agreement or any Supplement and the terms of the City
Policy, the terms of the City Policy shall control. Any and all rights expressly granted to
Licensee under this Agreement shall be exercised at Licensee’s sole cost and expense, and shall
be subject to the restrictions set forth herein
4.1 Attachment to Municipal Facilities. Subject to the conditions herein, Licensor
hereby authorizes and permits Licensee to locate, place, attach, install, operate, maintain, control,
remove, reattach, reinstall, relocate, and replace Equipment on identified Municipal Facilities
located in the ROW for the purpose of providing Services.
4.1.1 Licensee will submit to the authorized representative of the Licensor an
application on a form required by Licensor and which identifies the Equipment and the
Municipal Facilities Licensee proposes to use. One Application may contain up to five (5)
Municipal Facility locations.
4.1.2 Licensor may, consistent with applicable law, approve, approve with
conditions, or disapprove an Application in its sole discretion; provided however, that Licensor
shall not unreasonably delay its decision. Any approved Equipment shall be included as part of
the applicable Supplement.
4.1.3 Before any Equipment is placed on a Municipal Facility, a structural
analysis must be conducted by a qualified engineer to demonstrate that the Municipal Facility
has enough structural integrity to accommodate the proposed Equipment. This structural
analysis must show that, after the proposed Equipment is installed, the Municipal Facility retains
the same structural integrity and strength, including but not limited to wind resistance and
stability. Structural calculations must be provided. Any holes drilled into the Municipal Facility
must be treated to prevent rust.
4.1.4 If Licensee submits an Application to use a Municipal Facility that is
structurally inadequate to accommodate its proposed Equipment, Licensor may permit the
replacement of the Municipal Facility (a “Replacement Facility”) with one that is acceptable to
and approved by the Licensor as part of the applicable Supplement. Any Replacement Facility
shall be installed and maintained in accordance with Section 6 of this Agreement.
4.1.5 Licensee shall be solely responsible for obtaining and maintaining the
provision of electricity to the Equipment, including, but not limited to, making payments to
electric utilities and installation of separate electric meters in compliance with all Licensor’s
requirements and design standards. Unless otherwise mandated by the electricity provider or
approved by the City in writing, Licensee is not allowed to connect to the City power supply, or
use City power in any way. Licensee shall not be permitted to utilize above ground electric
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meters except in the event that the electricity provider cannot provide flat rate electricity in
connection with the use of Licensee’s Equipment.
4.2 Additional Authority. This Agreement is not an authorization to use the Right-
of-Way. Nothing in this Agreement shall limit in any way, or is a substitute for, Licensee’s
obligation to obtain any additional required franchises, authorizations, approvals or permits from
any City department, board, commission, or other governmental agency that has authority over
the Licensee’s activities involving use of the Municipal Facilities in the ROW or limit the
Licensor’s exercise of rights that it may have in connection with the grant or exercise of such
franchises, authorizations, approvals or permits, whether or not such activities involve Services.
Without limiting the generality of the foregoing, Licensor believes it may have the right to require
a franchise and franchise fees under Cal. Const. Art. XII, Section 8, or franchise fees under
Section 5840(q) of the Digital Infrastructure and Video Competition Act (as codified in Public
Utilities Code section 5800 et seq.) (“DIVCA”) or federal law, 47 U.S.C. 542, and Licensor does
not intend by entering into this Agreement to waive any of those rights or any legal arguments it
might make to defend such rights. Licensee by entering into this Agreement does not waive any
rights or arguments it might have under state or federal law. The Parties do not intend to resolve
those disputes here nor do they intend to create uncertainty about what services can be offered
under this Agreement. If Licensor demands a franchise or franchise fees pursuant to DIVCA or
other state or federal law, or if there is a change of law or other legal development under which
the services being provided by Licensee pursuant to this Agreement are subject to a franchise or
franchise fees under DIVCA or other state or federal law, the Parties will meet and confer in good
faith for a period not to exceed one hundred and twenty (120) days (“the Negotiation Period”) to
negotiate terms, including any compensation owed by Licensee to the City under DIVCA or other
state or federal law. If the Parties are not able to reach agreement during the Negotiation Period,
the parties may exercise any remedies that they may have. However, the Parties agree that in no
instance shall Licensor seek to prevent Licensee from providing any such service under this
Agreement.
4.3 No Interference. Licensee acknowledges and agrees that the primary purpose of
the Municipal Facilities is to serve the Licensor and the public. In the performance and exercise of
its rights and obligations under this Agreement, Licensee shall not interfere in any manner with
Licensor’s own services or the existence and operation of any and all public and private rights-of-
way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground
electrical and telephone wires, traffic signals, communication facilities owned by the Licensor,
electroliers, cable television, location monitoring services, public safety and other then existing
telecommunications equipment, utilities, or municipal property, without the express written
approval of the owner or owners of the affected property or properties, except as permitted by
applicable laws or this Agreement. If such interference should occur, Licensee shall discontinue
using the Equipment, methodology, or technology that causes the interference until such time as
Licensee takes corrective measures to eliminate such interference. In the event that such
interference does not cease promptly, Licensee acknowledges that continuing interference may
cause irreparable injury and harm, and therefore, in addition to any other remedies, and without
limitation of any other remedy, Licensor shall be entitled to seek temporary and permanent
injunctions against the breach of this Subsection. Notwithstanding the foregoing, Licensor and
Licensee agree to work in good faith with each other and any other affected party to resolve any
interference to or by Licensee.
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4.4 Permits; Default. In addition to any other remedies available hereunder,
whenever Licensee is in default of this Agreement or an applicable Supplement, after notice and
applicable cure periods, Licensor may deny further encroachment, excavation, or similar permits
for work in connection with installations under this Agreement until such time as Licensee cures
all of its defaults.
4.5 Compliance with Laws. Licensee shall comply with all Laws in the exercise and
performance of its rights and obligations under this Agreement.
4.6 Non-Exclusive Use Rights. Notwithstanding any other provision of this
Agreement, any and all rights expressly or impliedly granted to Licensee under this Agreement
shall be non-exclusive, and shall be subject and subordinate to (1) the continuing right of the
Licensor to use, and to allow any other person or persons to use, any and all parts of the ROW or
Municipal Facilities, exclusively or concurrently with any other person or persons, and (2) the
public easement for streets and any and all other deeds, easements, dedications, conditions,
covenants, restrictions, encumbrances, and claims of title (collectively, “Encumbrances”) which
may affect the ROW or Municipal Facilities now or at any time during the term of this
Agreement, including, without limitation any Encumbrances granted, created, or allowed by the
Licensor at any time.
5. COMPENSATION. Licensee shall be solely responsible for the payment of all lawful fees
in connection with Licensee’s performance under this Agreement, including, but not limited to,
those set forth below.
5.1 One Time Fees. The Licensor activities described in Section 5.1 are “One-Time
Fees” that reimburses the City for its costs associated with reviewing and approving applications
to attach Equipment on identified Municipal Facilities located in the ROW, this Agreement and
Supplements to this Agreement for additional locations. The fee amounts shall be assessed and
administered consistent with applicable law.
5.1.1 Permit Fees. Licensee shall be responsible for paying all costs associated
with City review, processing and inspection as part of all permit applications filed for the
installation, modification, maintenance and removal of Equipment on identified Municipal
Facilities located in the ROW.
5.1.2 License and Supplement Fee. Each application for a Supplement shall be
accompanied by a non-refundable application fee ("Application Fee") as adopted by City
Council resolution.
5.2 License Fees.
5.2.1 Annual Fee. Licensee acknowledges that the FCC has adopted a
Declaratory Ruling (FCC 18-133) that relates to the rent which went into effect on January 14,
2019 and was affirmed as to the rent, among other provisions by the Ninth Circuit on August 12,
2020. Depending on the timing of execution of this Agreement, the Declaratory Ruling may still
be the subject of litigation. Paragraphs 5.2.2, 5.2.3 and 5.2.4 govern the payment of recurring
fees and how it may be impacted by the Declaratory Ruling and the resolution of related
litigation during the Term and any renewal terms.
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5.2.2 During any period in which the FCC Declaratory Ruling (FCC 18-133) is
in effect and during any period in which the Alternate Annual Fee provisions in paragraph 5.2.3
are not applicable, the Licensee shall pay an Annual Fee as described in this paragraph. Licensee
shall pay to the Licensor the base amount of two hundred and seventy dollars ($270.00) per
calendar year for each location covered by a Supplement (“Annual Fee”). The base amount
under all Supplements shall be subject to an annual adjustment of three percent (3%) applied on
each anniversary of the Effective Date. Any new Supplements entered into during a given year
shall commence at the rent, as adjusted by this Section to reflect the then-current rate. The
Annual Fee for the first calendar year of a Supplement for each location shall be pro-rated based
on the number of days covered from the Supplement Effective Date to December 31. The first
payment of the Annual Fee shall be paid on the Supplement Effective Date. Every payment of
the Annual Fee, after the first payment, shall be due and payable in advance on January 1 of each
calendar year throughout the term of each such Supplement. There shall be no refunds of the
Annual Fee paid due to the termination or expiration of the License for any reason.
5.2.3 Alternate Annual Fee. In the event the relevant provisions of the FCC
Declaratory Ruling cease to be effective, (for example, because they are stayed after having gone
into effect, or they are vacated or invalidated and have not been replaced by the FCC with an
alternative provision setting a specific amount as the Annual Fee), the Licensee shall
automatically and immediately be obligated to pay an Alternate Annual Fee as described in this
paragraph 5.2.3, if applicable. For each location covered by a Supplement, Licensee shall pay to
the Licensor an Alternate Annual Fee in the base amount of one thousand two hundred seventy
dollars ($1,270.00) per calendar year (“Alternate Annual Fee”). The base amount under all
Supplements shall be subject to an annual adjustment of three percent (3%) applied on each
anniversary of the Effective Date. The Alternate Annual Fee for the first calendar year of a
Supplement for each individual location shall be pro-rated based on the number of days covered
from the Supplement Effective Date to December 31. The first payment of the Alternate Annual
Fee shall be paid on the Supplement Effective Date. Every payment of the Alternate Annual
Fee, after the first payment, shall be due and payable in advance on January 1 of each calendar
year throughout the term of each such Supplement. There shall be no refunds of the Alternate
Annual Fee paid due to the termination or expiration of the License for any reason.
5.2.4 The Licensor agrees that irrespective of whether the relevant provisions of
the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Alternate Annual Fee shall
be due for any periods during which the relevant provisions of the FCC Declaratory Ruling were
in effect. However, if Licensee has paid the Annual Fee pursuant to the provisions of Section
5.2.2 above for a calendar year, and the relevant provisions of the FCC Declaratory Ruling
subsequently cease to be effective during the same calendar year, Licensee shall pay the
difference between the Annual Fee and the Alternate Annual Fee for the period from the date the
relevant provisions of the FCC Declaratory Ruling ceased to be effective, until December 31 of
that year (“Annual Fee Adjustment”). Such Annual Fee Adjustment shall be paid to Licensor on
January 1 of the following year.
5.2.5 Receipt of any Annual Fee or Alternate Annual Fee by the Licensor, with
knowledge of any breach of this License by Licensee, or of any default on the part of Licensee in
the observance or performance of any of the conditions or covenants of this License, shall not be
deemed a waiver of any provision of this License
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5.3 Delinquent Payment. A ten percent (10%) late fee shall be added to the License
Fee if not received by Licensor within fifteen (15) calendar days after the due date. In addition,
all unpaid fees shall accrue interest on the amount due at the rate of one percent (1%) per month
until paid in full. All late fees and interest payments shall be treated as part of, and subject to the
same terms as, the Annual Fee or Alternate Annual Fee under this Agreement.
5.4 Payment Method. The Annual Fee or Alternate Annual Fee shall be paid by
check made payable to the City and mailed or delivered to the Finance Department, at the address
provided for in Section 10 below. The place and time of payment may be changed at any time by
Licensor upon thirty (30) days’ written notice to Licensee. Mailed payments shall be deemed
paid upon the date such payment is officially postmarked by the United States Postal Service. If
postmarks are illegible to read, the payment shall be deemed paid upon actual receipt. Licensee
assumes all risk of loss and responsibility for late payment charges if payments are made by mail.
Notwithstanding the foregoing, upon agreement of the Parties, Licensee may pay the Annual Fee
or Alternate Annual Fee by electronic funds transfer, and if agreed, the Licensor will provide to
Licensee bank routing information for such purpose upon request of Licensee.
5.5 Additional Remedies. The late fee set forth in Section 5.3 above is not exclusive,
and does not preclude the Licensor from pursuing any other or additional remedies in the event
that payments become overdue by more than thirty (30) days.
6. CONSTRUCTION. Licensee shall comply with all applicable federal, state, and local codes
related to the construction, installation, operation, maintenance, and control of Licensee’s
Equipment installed on Municipal Facilities. Except as otherwise provided herein, Licensee
shall not attach, install, maintain, or operate any Equipment on Municipal Facilities without the
prior written approval of an authorized representative of the Licensor for each location as
evidenced in a signed Supplement. Licensee shall keep the Municipal Facilities free and clear
from any liens arising out of any work performed, material furnished, or obligations incurred by
or for Licensee. Licensee shall ensure that its employees, agents or contractors which perform
work in furtherance of this Agreement are adequately licensed, trained and skilled to access
Municipal and Replacement Facilities in accordance with all applicable industry and
governmental standards and regulations
6.1 Installation and Operation. Within thirty (30) days of the completion of each
installation, Licensee shall promptly furnish to Licensor a current list and map that identifies the
exact location of the Equipment in or on the Municipal Facility. That information must be
provided in a format that is compatible with Licensor’s information technology, including but not
limited to ESRI compatible GIS shapefiles, which Licensor shall provide to Licensee upon
request.
6.2 Design Standards. Licensor’s Equipment shall comply with the design standards
and requirements adopted by Licensor, which Licensor, in its sole discretion, may update from
time to time. Each Supplement application must comply with the design standards applicable at
the time of the application.
6.3 Obtaining Required Permits. Licensee acknowledges that in addition to a signed
Supplement, each installation of Equipment and maintenance thereof shall also be subject to then-
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current City permitting requirements as set out in the City’s Municipal Code. Licensee agrees to
comply with the current applicable ordinances regarding such installations and maintenance as
well as any future regulations that may be adopted by the City related to such installations and
maintenance. Licensee shall apply for the appropriate permits and pay any standard and
customary permit fees.
6.4 Relocation and Displacement of Equipment.
6.4.1 This Agreement creates no right for Licensee to receive any relocation
assistance or payment for any reason under the Relocation Assistance Act, the Uniform
Relocation Assistance Act, or under any existing or future law upon any termination of tenancy.
6.4.2 Licensee understands and acknowledges that Licensor may require
Licensee to relocate one or more of its Equipment installations. Licensee shall at Licensor’s
direction and upon as much notice as possible under the circumstances but no less than one
hundred twenty (120) days’ prior written notice to Licensee, relocate such Equipment at
Licensee’s sole cost and expense whenever Licensor reasonably determines that the relocation is
needed for any of the following purposes: (a) if required for the construction, modification,
completion, repair, relocation, or maintenance of a Licensor or other public agency project;
(b) because the Equipment is interfering with or adversely affecting proper operation of
Licensor-owned Municipal Facilities; or (c) to protect or preserve the public health or safety,
including, but not limited to, the safe or efficient use of rights-of-way. In any such case,
Licensor shall use reasonable efforts to afford Licensee a reasonably equivalent alternate
location. If Licensee shall fail to relocate any Equipment as requested by the Licensor within the
prescribed time, Licensor shall be entitled to remove or relocate the Equipment at Licensee’s
sole cost and expense, without further notice to Licensee. Licensee shall pay to the Licensor
actual costs and expenses incurred by the Licensor in performing any removal work and any
storage of Licensee’s property after removal within thirty (30) days of the date of a written
demand for this payment from the Licensor.
6.4.3 To the extent the Licensor has actual knowledge thereof, the Licensor will
attempt promptly to inform Licensee of the displacement or removal of any Municipal Facility
on which any Equipment is located.
6.5 Relocations at Licensee’s Request. In the event Licensee desires to relocate an y
Equipment from one Municipal Facility to another, Licensee shall so advise Licensor. Licensor
will use reasonable efforts to accommodate Licensee by making another reasonably equivalent
Municipal Facility available for use in accordance with and subject to the terms and conditions of
this Agreement. Licensor may require Licensee to submit an application and/or enter into a new
Supplement for the prospective relocation site. Licensee shall be liable for all costs of relocation,
including any costs which Licensor may incur.
6.6 Make Ready
6.6.1 Make Ready Work and Costs.
(a) Licensee shall bear responsibility for all Make-Ready Work. If a
Person other than Licensee or Licensor would have to rearrange or adjust any of its facilities in
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order to accommodate new Equipment, Licensee shall be responsible, at Licensee’s sole
expense, to coordinate such activity. Licensee shall be responsible for directly paying such other
Person for its charges for the same. If Licensee is requested by another Person, in comparable
circumstances, to relocate or adjust any Equipment to accommodate that Person’s facilities,
subject to Licensor’s written approval of such relocation, Licensee shall reasonably cooperate
with such request.
(b) Construction, installation, and operation of the Equipment shall be
conditioned on the completion of all Make-Ready Work needed to establish full compliance with
all applicable Laws, and with Licensor’s regulatory rules and engineering standards, including
the requirement that Licensee obtain an encroachment permit before starting any Make-Ready
Work; provided, however, that Licensee shall not be responsible for any third-party or Licensor
costs necessary to correct third party or Licensor attachments that are non-compliant at the time
of Licensee’s Application.
6.6.2 Notification of Completion of Installation. Within twenty (20) business
days of completing the installation of Equipment on each Municipal Facility, Licensee shall
notify Licensor of such completion.
6.7 Replacement Facilities
6.7.1 Ownership of Replacement Facilities. Licensor shall own any approved
Replacement Facility. Licensee shall cooperate with Licensor to transfer ownership and any
associated warranties of any Replacement Facility from Licensee to Licensor without charge to
Licensor.
6.7.2 Replacement Facility Installation. If Licensee is performing Make-Ready
Work, Licensee shall be responsible for providing and installing any approved Replacement
Facility.
6.8 Damage, Maintenance & Repair.
6.8.1 Licensee shall, at its sole cost and expense and to the satisfaction of the
Licensor: (a) remove, repair, or replace any of its Equipment that is damaged or becomes
detached; and/or (b) repair any damage to ROW, Municipal Facilities, Replacement Facilities, or
other property, whether public or private, caused by Licensee, its agents, employees, or
contractors in their actions relating to attachment, operation, repair, or maintenance of
Equipment. Licensee shall complete such removal, repair, or replacement within thirty (30) days’
of written notice or other longer period of time reasonably necessary to complete such work as
determined by Licensor.
6.8.2 Licensee shall, at its sole cost and expense, perform the initial installation
of a Replacement Facility. Thereafter, in the event a Replacement Facility needs to be replaced,
repaired, or cleared from the ROW, Licensor shall conduct this work at Licensor’s own expense.
For every ten (10) locations at which the Municipal Facilities are replaced by Replacement
Facilities, Licensee shall provide Licensor with one (1) Replacement Facility for storage by
Licensor free of charge, with a minimum of one (1) Replacement Facility at the time the first
Municipal Facility is activated and up to a maximum of three (3) Replacement Facilities (“Spare
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Replacement Facilities”). Licensee shall retrieve all Spare Replacement Facilities within sixty
(60) days of the expiration or earlier termination of this Agreement and/or applicable
Supplement.
6.8.3 If a Municipal Facility or a Replacement Facility falls or is damaged such
that there is an imminent threat of harm to persons or property, then the Licensor may cause the
Facility to be removed to the side of the street or a location that Licensor believes reasonably
eliminates the risk of such imminent threat of harm to persons or property. Licensor shall not be
required to replace or repair the Facility except as Licensor shall within its complete discretion
determine to do so and then at the time schedule that Licensor determines. Licensor shall,
however, provide written notice to Licensee that the Facility has been damaged and, if applicable
removed.
6.8.4 If Licensee does not remove, repair, replace, or otherwise remediate such
damage to its Equipment, a Replacement Facility, or to the ROW, Municipal Facilities or other
property as required in this Section 6.8, the Licensor shall have the option to perform or cause to
be performed such removal, repair, or replacement on behalf of Licensee and shall charge
Licensee for the actual costs incurred by the Licensor. If such damage causes a public health or
safety emergency, as reasonably determined by Licensor, Licensor may immediately perform
reasonable and necessary repair or removal work on behalf of Licensee and will notify Licensee
as soon as practicable; provided, however, that such repair work shall not include any technical
work on Licensee’s Equipment. Licensor shall have no obligation to maintain or safeguard the
Equipment.
6.8.5 Upon the receipt of a written demand for payment by the Licensor
pursuant to this Section 6.8, Licensee shall within thirty (30) days of such receipt reimburse the
Licensor for such costs.
6.8.6 The terms of this Section 6.8 shall survive the expiration termination of
this Agreement.
6.9 Change in Equipment. If Licensee desires to install Equipment which is different
in any material way from the then-existing and approved Equipment, then Licensee shall first
obtain the written approval for the use and installation of such Equipment from an authorized
representative of the Licensor. Any such approval shall take the form of an amendment to the
applicable Supplement. In addition to any other submittal requirements, and if requested by
Licensor, Licensee shall provide “load” (structural) calculations for all Equipment changes.
Notwithstanding the foregoing, Licensor’s approval and/or a new Supplement for modifications
shall not be required in connection with routine maintenance or modifications that consist of
upgrades or replacement of “like-kind” Equipment which is substantially similar (or smaller in
size) in appearance, dimensions, weight, and RF emissions to the then-existing and approved
Equipment. In addition to the foregoing, Licensee shall comply with any other applicable City
permitting or approval process for the Equipment change.
6.10 Unauthorized Equipment. If Licensor discovers any Equipment has been
installed on Municipal Facilities without authorization pursuant to a Supplement, Licensor may
send an invoice to Licensee for a sum equal to five (5) times the then-current License Fee as
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compensation for the unauthorized attachments, and, within sixty (60) days from the date of such
invoice, Licensee shall (i) pay the invoiced amount to Licensor and submit an Application for the
unauthorized Equipment, or (ii) produce documentation showing Licensor’s prior approval of the
Equipment identified in the invoice. If, in accordance with this Section, Licensee fails to pay all
fees and submit the Application or submit documentation satisfactorily showing Licensor’s prior
approval within sixty (60) days of Licensor’s invoice, Licensor may remove the unauthorized
Equipment at Licensee’s expense. If Licensor removes such unauthorized Equipment, such
Equipment shall become the property of Licensor, who shall have sole rights over such
Equipment’s disposition. Licensor’s removal of unauthorized Equipment shall not release
Licensee from its obligation to pay those invoiced fees accruing pursuant to this Section.
6.11 Termination of a Supplement.
6.11.1 Licensee shall have the right to terminate any Supplement on thirty (30)
days’ notice to Licensor. In the event of such termination, removal of Equipment associated with
the terminated Supplement shall be governed by Section 6.12 below and Licensor shall retain
any License Fee paid, without refund or setoff.
6.11.2 Licensor shall have the right to terminate any Supplement in any of the
following circumstances: (a) if Licensor determines the covered Equipment has been inoperative,
or abandoned, for sixty (60) consecutive days; (b) if Licensee’s operation under a particular
Supplement is deemed by Licensor to endanger or pose a threat to the public health, safety, or
welfare or interfere with the normal day-to-day operation of any Licensor department or service;
or (c) Licensor is mandated by law, a court order or decision, or the federal, state, or local
government to take certain actions that will cause or require the removal of any Equipment.
Licensor shall provide written notice to Licensee regarding its intent to terminate the applicable
Supplement pursuant to this Section, after which Licensee shall have thirty (30) days to cure. If
Licensee does not cure within thirty (30) days following notice, Licensor may then terminate the
applicable Supplement upon written notice to Licensee.
6.12 Removal of Equipment. Within sixty (6 0) days after the expiration or earlier
termination of a Supplement, Licensee shall promptly, safely, and carefully remove the
Equipment covered by the terminated or expired Supplement from the applicable Municipal
Facility and ROW. Within ninety (90) days after the expiration or earlier termination of this
Agreement, Licensee shall promptly, safely, and carefully remove all Equipment from all
applicable Municipal Facilities and ROW. If Licensee fails to complete removal work pursuant to
this Section, then the Licensor, upon written notice to Licensee, shall have the right at the
Licensor’s sole election, but not the obligation, to perform this removal work and charge Licensee
for the actual costs and expenses, including, without limitation, reasonable administrative costs.
Licensee shall pay to the Licensor actual costs and expenses incurred by the Licensor in
performing any removal work and any storage of Licensee’s property after removal within thirty
(30) days of the date of a written demand for this payment from the Licensor. After the Licensor
receives the reimbursement payment from Licensee for the removal work performed by the
Licensor, the Licensor shall promptly make available to Licensee the property belonging to
Licensee and removed by the Licensor pursuant to this Section at no additional liability to the
Licensor. If the Licensor does not receive reimbursement payment from Licensee within such
thirty (30) days, or if Licensor does not elect to remove such items at the Licensor’s cost after
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Licensee’s failure to so remove pursuant to this Section, or if Licensee does not remove
Licensee’s property within thirty (30) days of such property having been made available by the
Licensor after Licensee’s payment of removal reimbursement as described above, any items of
Licensee’s property remaining on or about the ROW, Municipal Facilities, or stored by the
Licensor after the Licensor’s removal thereof may, at the Licensor’s option, be deemed
abandoned and the Licensor may dispose of such property in any manner by allowed for by Law.
Alternatively, the Licensor may elect to take title to the abandoned property, and Licensee shall
submit to the Licensor an instrument satisfactory to the Licensor transferring to the Licensor the
ownership of such property. The provisions of this Section shall survive the expiration or earlier
termination of this Agreement.
6.13 Risk of Loss. Licensee acknowledges and agrees that Licensee, subject to the
terms of this Agreement, bears all risks of loss, damage, relocation, or replacement of its
Equipment and materials installed in the ROW or on Municipal Facilities pursuant to this
Agreement from any cause, and Licensor shall not be liable for any cost of replacement or of
repair to damaged Equipment, including, without limitation, damage caused by the Licensor’s
removal of the Equipment, except to the extent that such loss or damage was caused by the willful
misconduct or negligence of the Licensor, including, without limitation, each of its elected
officials, department directors, managers, officers, agents, employees, and contractors, subject to
the limitation of liability provided in Section 7.3 below.
6.14 Hazardous Substances. Licensee agrees that Licensee, its contractors,
subcontractors, and agents, will not use, generate, store, produce, transport, or dispose any
Hazardous Substance on, under, about or within the area of a ROW or Municipal Facility in
violation of any Law. Except to the extent of the negligence or intentional misconduct of
Licensor, Licensee will pay, indemnify, defend, and hold Licensor harmless against and to the
extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed
of, or used by Licensee pursuant to this Agreement. Licensee will ensure that any on-site or off-
site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will
be performed by persons who are properly trained, authorized, licensed and otherwise permitted
to perform those services. Licensee’s obligations under this section shall survive this agreement.
6.15 Inspection. Licensor may conduct inspections of Equipment on Municipal
Facilities. Except in circumstances where Licensor has special reason to be concerned about
potential violations or in case of an emergency, Licensor will give Licensee thirty (30) days’ prior
written notice of such inspections, and Licensee shall have the right to be present at and observe
any such inspections. Licensee shall pay Licensor for its reasonable costs for safety inspections
performed for the purpose of determining if a safety violation of which Licensor has provided
notice to Licensee has been corrected by Licensee.
6.16 Access. Prior to Licensee accessing its Equipment during normal business hours
(Monday-Friday 8:00 a.m. to 5:00 p.m.) for non-emergency purposes, Licensee shall provide
email notice, at least forty-eight (48) hours in advance, to the Licensor at the following email
address: PublicWorks@moorparkca.gov. If Licensee wishes to access its Equipment during
weekend or holiday hours for non-emergency purposes, Licensee shall provide said email notice
to Licensor at least seventy-two (72) hours in advance. In the event of an emergency at any time,
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Licensee will, if time permits, attempt to provide prior telephonic notice to the Licensor at the
following telephone number: (805) 517-6256.
7. INDEMNIFICATION AND WAIVER.
7.1 Indemnification of City. Licensee shall defend, indemnify and hold harmless the
Licensor, its elected and appointed officers, officials, Council, commissions, agents, employees
and volunteers (collectively, the "indemnitees") from any and all (i) damages, liabilities, injuries,
losses, costs and expenses and from any and all claims, demands, law suits, writs and other
actions or proceedings ("claims") brought against the indemnitees to challenge, attack, seek to
modify, set aside, void or annul the City's approval of this Agreement, and (ii) other claims of any
kind or form, whether for personal injury, death or property damage, that arise from or in
connection with the permittee's or its agents', directors', officers', employees', contractors',
subcontractors', licensees' or customers' acts or omissions in connection with this Agreement or
the Equipment, except for claims arising from or caused by the negligence or willful misconduct
of indemnitees. In the event the Licensor becomes aware of any claims, it will use best efforts to
promptly notify Licensee and shall reasonably cooperate in the defense. Licensee expressly
acknowledges and agrees that its indemnification obligations under this section are a material
consideration that motivates the Licensor to approve this Agreement, and that such
indemnification obligations will survive the expiration or other termination of this Agreement.
7.2 Waiver of Claims. Licensee waives any and all claims, demands, causes of
action, and rights it may assert against the Licensor on account of any loss, damage, or injury to
any Equipment or any loss or degradation of the Services as a result of any event or occurrence
which is beyond the control of the Licensor.
7.3 Waiver of Subrogation. Licensee hereby waives and releases any and all rights
of action for negligence against Licensor which may hereafter arise on account of damage to
Equipment, Municipal Facilities, or to the ROW, regardless of whether or not, or in what
amounts, such insurance is now or hereafter carried by the Licensee. This waiver and release shall
apply between the parties and shall also apply to any claims under or through either party as a
result of any asserted right of subrogation. All such policies of insurance obtained by Licensee
concerning the Municipal Facilities, Equipment, or the ROW shall waive the insurer’s right of
subrogation against the Licensor. Licensee self-insures its property insurance and in satisfaction
of the waiver of subrogation requirement will include Licensor as joint loss payee to the extent of
Licensor’s insurable interest which would have been covered had Licensee purchased property
insurance.
7.4 Limitation on Consequential Damages. Neither party shall be liable to the other,
or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss
of technology, rights or services, incidental, punitive, indirect, special or consequential damages,
loss of data, or interruption or loss of use of service, even if advised of the possibility of such
damages, whether under theory of contract, tort (including negligence), strict liability or
otherwise.
8. PERFORMANCE BOND. In order to secure the performance of its obligations under this
Agreement, Licensee will provide the following security instrument to the Licensor:
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8.1 Performance Bond. Prior to the commencement of any work under this
Agreement, Licensee must provide a performance bond running to the Licensor according to this
Section. Licensee shall provide a one-time performance bond in the amount of $5,000 for each
Supplement. The performance bond is conditioned upon the faithful performance by Licensee of
all the terms and conditions of this Agreement and upon the further condition that, if Licensee
fails to comply with any terms or conditions governing this Agreement, there shall be recoverable
jointly and severally from the principal and surety of the bond any damage or loss suffered by the
Licensor as a result, including, without limitation, the full amount of any compensation,
indemnification, or costs of removal or abandonment of Licensee’s property, plus costs and
reasonable attorneys’ fees up to the full amount of the performance bond. Licensee shall keep the
performance bond in place during the term of this Agreement.
8.2 Assessment of the Bond. The performance bond may be assessed by the Licensor
for any failure by Licensee to pay Licensor an amount owed under this Agreement, including, but
not limited to: (a) reimbursement of costs borne by the Licensor to correct violations of the
Agreement not corrected by Licensee, after Licensor provides notice and a reasonable opportunity
to cure such violations, which shall include, without limitation, removal of Equipment; and (b)
providing monetary remedies or satisfying damages assessed against Licensee due to a material
breach of this Agreement.
8.3 Restoration of the Bond. Licensee must deposit a sum of money or a
replacement instrument sufficient to restore the performance bond to its original amount within
thirty (30) days after written notice from the Licensor that any amount has been recovered from
the performance bond. Failure to restore the bond to its full amount within thirty (30) days will
constitute a material breach of this Agreement. Licensee will be relieved of the foregoing
requirement to replenish the bond during the pendency of an appeal from the Licensor’s decision
to draw on the performance bond.
8.4 Required Endorsement. The performance bond is subject to the approval of the
Licensor and must contain the following endorsement:
“This bond may not be canceled until sixty (60) days after receipt
by the Licensor, by registered mail, return receipt requested, of a
written notice of intent to cancel or not to renew.”
8.5 Reservation of Licensor Rights. The rights reserved by Licensor with respect to
the performance bond are in addition to all other rights and remedies Licensor may have under
this Agreement or any other Law.
8.6 Admitted Surety Insurer. The surety supplying the bond shall be an “admitted
surety insurer”, as defined in California Code of Civil Procedure Section 995.120 and authorized
to do business in the State of California.
8.7 Cash Deposit. In lieu of obtaining a performance bond, Licensee shall have the
right to instead deposit a cash deposit with Licensor securing Licensee’s obligations under this
Agreement.
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9. INSURANCE. Licensee shall obtain and maintain at all times during the Term (a)
Commercial General Liability insurance per ISO form CG 00 01 or its equivalent with a limit,
which may be met by combination of primary and excess or umbrella policies, of $2,000,000 per
occurrence for bodily injury and property damage and $4,000,000 general aggregate including
premises-operations, contractual liability, personal injury, and products completed operations;
and (b) Commercial Automobile Liability insurance covering all owned, non-owned, and hired
vehicles with a limit of $1,000,000 each accident for bodily injury and property damage. The
required insurance policies shall include the Licensor, its elected/appointed officials, commission
members, officers, representatives, agents, and employees as additional insured by endorsement
as respects any covered liability caused in whole or in party, by Licensee’s performance of work
under this Agreement. Coverage shall be in an occurrence form and in accordance with the
limits and provisions specified herein. Upon receipt of notice from its insurer, Licensee shall use
its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation of
any required coverage that is not replaced. Licensee shall be responsible for notifying the
Licensor of such cancellation. Licensee’s indemnity and other obligations shall not be limited by
the foregoing insurance requirements. If Licensee fails, for any reason, to obtain or maintain
insurance coverage required by this Agreement or fails to furnish certificates of insurance as
detailed in Section 9.1, such failure shall be deemed a material breach of this Agreement, giving
Licensor, in its discretion, the option to terminate this Agreement and obtain damages therefor.
9.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Agreement, Licensee shall file with the Licensor the required certificate(s)
of insurance with blanket additional insured endorsements, which shall state the following: (a) the
policy number; name of insurance company; name and address of the agent or authorized
representative; name and address of insured; project name; policy expiration date; and specific
coverage amounts; (b) that Licensee’s Commercial General Liability insurance policy is primary
as respects any other valid or collectible insurance that the Licensor may possess, including any
self-insured retentions the Licensor may have; and any other insurance the Licensor does possess
shall be considered excess insurance only and shall not be required to contribute with this
insurance; and (c) that Licensee’s Commercial General Liability insurance policy waives any
right of recovery the insurance company may have against the Licensor. The certificate(s) of
insurance with required endorsements and notices shall be mailed to the Licensor at the address
specified in Section 10 below.
9.2 Workers’ Compensation and Employer’s Liability Insurance. Licensee shall
obtain and maintain at all times during the term of this Agreement statutory workers’
compensation and employer’s liability insurance as follows: (a) workers’ compensation limits as
required by the Labor Code of the State of California, and (b) employer’s liability limits of
$1,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury
or disease. The insurer shall agree to waive all rights of subrogation against the City, its officials,
employees, agents and authorized volunteers for losses paid under the terms of the insurance
policy which arise from work performed by Licensee. Licensee shall furnish the Licensor with a
certificate showing proof of such coverage.
9.3 Insurer Criteria. Any insurance provider of Licensee shall be admitted and
authorized to do business in the State of California and shall carry a minimum rating assigned by
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A.M. Best & Company’s Key Rating Guide of “A-” Overall and a Financial Size Category of
“VII.”
9.4 Severability of Interest. “Severability of interest” or “separation of insureds”
clauses shall be made a part of the Commercial General Liability and Commercial Automobile
Liability policies.
9.5 Self-Insurance. Notwithstanding the foregoing, Licensee may, in its sole
discretion, self-insure any of the required insurance under the same terms as required by this
Agreement. In the event Licensee elects to self-insure its obligation under this Agreement to
include Licensor as an additional insured, the following conditions apply: (i) Licensor shall
promptly and no later than thirty (30) days after notice thereof provide Licensee with written
notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this
Section and provide Licensee with copies of any demands, notices, summonses, or legal papers
received in connection with such claim, demand, lawsuit, or the like; (ii) Licensor shall not settle
any such claim, demand, lawsuit, or the like without the prior written consent of Licensee; and
(iii) Licensor shall fully cooperate with Licensee in the defense of the claim, demand, lawsuit, or
the like.
10. NOTICES.
10.1 Method and Delivery of Notices. All notices pursuant to this Agreement shall be
in writing and delivered personally or transmitted (a) through the United States mail, by registered
or certified mail, postage prepaid; or (b) by means of prepaid overnight delivery service,
addressed as follows:
If to the Licensor: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
If to Licensee:
New Cingular Wireless PCS, LLC
Attn: Tower Asset Group – Lease Administration
Re: Wireless Installation on Public Structures
(City of Moorpark) (CA)
FA No.: _________________________
1025 Lenox Park Blvd NE
3rd Floor
Atlanta, GA 30319
with a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept. - Network Operations
Re: Wireless Installation on Public Structures
(City of Moorpark) (CA)
FA No: __________________________
208 S. Akard Street
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Dallas, TX 75202-4206
10.2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon
receipt in the case of personal delivery, three days after deposit in the mail, or the next business
day in the case of overnight delivery. Either party may from time to time designate any other
address for this purpose by written notice to the other party delivered in the manner set forth in
this Section.
11. DEFAULT; CURE; REMEDIES.
11.1 Licensee Default and Notification. This Agreement is granted upon each and
every condition herein, and each of the conditions is a material and essential condition to the
granting of this Agreement. Except for causes beyond the reasonable control of Licensee, if
Licensee fails to comply with any of the conditions and obligations imposed hereunder, and if
such failure continues for more than thirty (30) days after written demand from the Licensor to
commence the correction of such noncompliance on the part of Licensee, the Licensor shall have
the right to revoke and terminate this Agreement by written notice to Licensee, if such failure is in
relation to the Agreement as a whole, or any individual Supplement, if such failure is in
connection solely with such Supplement, in addition to any other rights or remedies set forth in
this Agreement or provided by law.
11.2 Cure Period. If the nature of the violation is such that it cannot be fully cured
within thirty (30) days due to circumstances not under Licensee’s control, the period of time in
which Licensee must cure the violation shall be extended for such additional time reasonably
necessary to complete the cure, provided that: (a) Licensee has promptly begun to cure; and (b)
Licensee is diligently pursuing its efforts to cure; and (c) Licensee provides a timeline to complete
its cure efforts and makes commercially reasonable efforts to respond within twenty-four (24)
hours of any status request by Licensor. Licensor may not maintain any action or effect any
remedies for default against Licensee, unless and until Licensee has failed to cure the breach
within the time periods provided in these Sections 11.1 and 11.2.
11.3 Licensor Default. If Licensor breaches any covenant or obligation of Licensor
under this Agreement in any manner, and if Licensor fails to commence to cure such breach
within thirty (30) days after receiving written notice from Licensor specifying the violation (or if
Licensor fails thereafter to diligently prosecute the cure to completion), then Licensee may
enforce any and all of its rights and/or remedies provided under this Agreement or by Law.
12. ASSIGNMENT AND CUSTOMER EQUIPMENT. This Agreement shall be binding upon, and
inure to the benefit of, the successors and assigns of the parties.
12.1 Licensee shall not assign this Agreement or its rights or obligations to any firm,
corporation, individual, or other entity, without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, upon thirty (30)
days’ written notice to Licensor, Licensee may assign or transfer this Agreement and its rights,
privileges or obligations granted herein (a) to any entity that controls Licensee, (b) to any parent
or subsidiary of Licensee, (c) to any entity with or into which Licensee may merge or consolidate,
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(d) to any entity which Licensee is controlled by, or (e) to any entity purchasing all or
substantially all of Licensee’s assets in the FCC market area where the Equipment is located, so
long as the successor provides written confirmation to Licensor that it is then fully liable to the
Licensor for compliance with all terms and conditions of this Agreement. The Licensee shall
reimburse the Licensor for all direct and indirect costs and expenses actually and reasonably
incurred by the Licensor in considering a request to transfer or assign this Agreement.
12.2 Licensee need not own all components of Equipment subject to this Agreement,
and may permit its customers to maintain ownership of Equipment components. However, (1) all
Equipment must be wholly under the control and management of Licensee; and Licensee shall be
liable for all acts or omissions, and all harms associated with the Equipment whether the same are
its acts or omissions, or the acts or omissions of the owner of the Equipment; and (2) Licensee
acknowledges and agrees that no rights of ownership in Equipment by Licensee’s customers shall
permit any such customer to enter upon, or use the any portion of the Municipal Facilities or the
Equipment, in any other manner or at any other place, including to add to, or modify or install
Equipment, which shall be Licensee’s sole responsibility. Further, Licensee may not install
Equipment it does not own on Municipal Facilities, unless the entity for on whose behalf the
Equipment has been installed acknowledges and agrees, in a form acceptable to the Licensor, that
the Licensor has not granted it a consent to be in the ROW for any purpose; that it is bound by
Licensee’s representations, obligations and duties hereunder; that it shall have no rights or claims
against the Licensor of any sort related to the Equipment or Municipal Facilities; that its
Equipment may be subject to taxes, fees or assessments as provided in the Laws or the
Agreement, and that Licensor may treat any Equipment owned by such entity as if it were owned
by Licensee for all purposes (including, but not limited to, removal and relocation); and the
Equipment may only be used for the purposes and uses permitted herein. Such acknowledgement
may be provided for all Equipment on Municipal Facilities, and need not be provided separately,
site by site.
13. RECORDS; AUDITS.
13.1 Records Required by Code. Licensee will maintain complete records pursuant to
all applicable Laws.
13.2 Additional Records. The Licensor may require such additional reasonable non-
confidential information, records, and documents from Licensee from time to time as are
appropriate in order to reasonably monitor compliance with the terms of this Agreement.
13.3 Production of Records. Licensee shall provide such records at a mutually
convenient location within twenty (20) business days of a request by the Licensor for production
of the same, unless additional time is reasonably needed by Licensee, in which case, Licensee
shall have such reasonable time as needed for the production of the same. If any person other
than Licensee maintains records on Licensee’s behalf, Licensee shall be responsible for making
such records available to the Licensor for auditing purposes pursuant to this Section.
13.4 Public Records. Licensee acknowledges that information submitted to Licensor
may be open to public inspection and copying under the Law.
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14. MISCELLANEOUS PROVISIONS. The provisions that follow shall apply generally to the
obligations of the parties under this Agreement.
14.1 Waiver of Breach. The waiver by either party of any breach or violation of any
provision of this Agreement shall not be deemed to be a waiver or a continuing waiver of any
subsequent breach or violation of the same or any other provision of this Agreement.
14.2 Severability of Provisions. If any one or more of the provisions of this
Agreement is for any reason determined to be invalid, illegal, void, voidable, or unenforceable, by
a court of competent jurisdiction in a final judicial action or superseded by other lawful authority
including any state or federal, legislative, regulatory or administrative authority having
jurisdiction thereof, such provision(s) shall be deemed severable from the remaining provisions of
this Agreement and shall not affect the legality, validity, or constitutionality of the remaining
portions of this Agreement. Each party hereby declares that it would have entered into this
Agreement and each provision hereof regardless of whether any one or more provisions may be
declared illegal, invalid, or unconstitutional.
14.3 Contacting Licensee. Licensee shall be available to the staff employees of any
Licensor department having jurisdiction over Licensee’s activities twenty-four (24) hours a day,
seven days a week, regarding problems or complaints resulting from the attachment, installation,
operation, maintenance, or removal of the Equipment. The Licensor may contact by telephone
the Licensee’s network control center operator at telephone number: 1-800-638-2822.
14.4 Governing Law; Jurisdiction. This Agreement shall be governed and construed
by and in accordance with the laws of the State of California, without reference to its conflicts of
law principles. If suit is brought by a party to this Agreement, the parties agree that trial of such
action shall be vested exclusively in the state or federal courts of jurisdiction in Ventura County,
California.
14.5 Change of Law. Nothing in this Agreement shall prevent the application or
enforcement of any change in law resulting from any legislative, regulatory, judicial, or other
action after the Effective Date (“New Law”); including but not limited to any or all health and
safety regulations (e.g., fire, building, and seismic, plumbing, and electric codes) that become
applicable to the City as a whole. Notwithstanding any such New Law, the Parties agree that the
Agreement shall remain in effect until the end of the Initial Term unless mutually agreed to in
writing by the Parties.
14.6 Force Majeure. Except for payment of amounts due, neither Party shall have any
liability for its delays or its failure of performance due to: fire, explosion, pest damage, power
failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil
or military authorities or the public enemy, inability to secure raw materials, transportation
facilities, fuel or energy shortages, or other causes reasonably beyond its control, whether or not
similar to the foregoing.
14.7 “AS IS” condition of Municipal Facilities. Municipal Facilities licensed to
Licensee pursuant to this Agreement are licensed to and accepted by Licensee “as is” and with all
faults. The Licensor makes no representation or warranty of any kind as to the present or future
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condition of or suitability of the Municipal Facilities for Licensee’s use and disclaims any and all
warranties express or implied with respect to the physical, structural, or environmental condition
of the Municipal Facilities and their merchantability or fitness for a particular purpose. Licensee
is solely responsible for investigation and determination of the condition and suitability of any
Municipal Facility for Licensee’s intended use.
14.8 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity, and authority to enter into
and perform the party’s respective obligations hereunder and that such obligations shall be
binding upon such party without the requirement of the approval or consent of any other person or
entity in connection herewith, except as provided in Section 4.2 above. This Agreement shall not
be revocable or terminable except as expressly permitted herein.
14.9 Amendment of Agreement. This Agreement may not be amended except
pursuant to a written instrument signed by both parties.
14.10 Entire Agreement. This Agreement contains the entire understanding between
the parties with respect to the subject matter herein. There are no representations, agreements, or
understandings (whether oral or written) between or among the parties relating to the subject
matter of this Agreement which are not fully expressed herein. In witness whereof, and in order
to bind themselves legally to the terms and conditions of this Agreement, the duly authorized
representatives of the parties have executed this Agreement as of the Effective Date.
14.11 Non-Exclusive Remedies. No provision in this Agreement made for the purpose
of securing enforcement of the terms and conditions of this Agreement shall be deemed an
exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and
conditions, but the remedies herein provided are deemed to be cumulative.
14.12 No Third-Party Beneficiaries. It is not intended by any of the provisions of this
Agreement to create for the public, or any member thereof, a third-party beneficiary right or
remedy, or to authorize anyone to maintain a suit for personal injuries or property damage
pursuant to the provisions of this Agreement. The duties, obligations, and responsibilities of the
Licensor with respect to third parties shall remain as imposed by state law.
14.13 Construction of Agreement. The terms and provisions of this Agreement shall
not be construed strictly in favor of or against either party, regardless of which party drafted any
of its provisions. This Agreement shall be construed in accordance with the fair meaning of its
terms.
14.14 Effect of Acceptance. Licensee (a) accepts and agrees to comply with this
Agreement and all Laws; (b) agrees that this Agreement was entered into pursuant to processes
and procedures consistent with Law; and (c) agrees that it will not raise any claim to the contrary
or allege in any claim or proceeding against the Licensor that at the time of acceptance of this
Agreement any provision, condition or term of this Agreement was unreasonable or arbitrary, or
that at the time of the acceptance of this Agreement any such provision, condition or term was
void or unlawful or that the Licensor had no power or authority to make or enforce any such
provision, condition, or term.
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14.15 Time is of the Essence. Time is of the essence with regard to the performance of
all of Licensee’s obligations under this Agreement.
14.16 Taxes. Licensee shall be responsible for payment of all fees and taxes charged in
connection with the right, title, and interest in and construction, installation, maintenance, and
operation of Equipment for the purposes set forth herein.
14.17 Tax Notice. Licensor hereby provides notice pursuant to California Revenue and
Taxation Code Section 107.6, and Licensee acknowledges, that this Agreement may create a
possessory interest and Licensee may be subject to property taxes levied on such interest, as
described in California Revenue and Taxation Code Section 107.6. Licensee shall pay directly to
the appropriate authority, when due, all real and personal property taxes, fees, and assessments,
assessed against the area licensed and the Equipment.
14.18 Counterparts. This Agreement (and any Supplement) may be executed in
multiple counterparts, including by electronic means, each of which shall be deemed an original,
and all such counterparts once assembled together shall constituted one integrated instrument.
[Signature page to follow.]
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SIGNATURE PAGE TO MUNICIPAL FACILITY LICENSE AGREEMENT
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be legally
executed as of the Effective Date.
LICENSOR:
CITY OF MOORPARK
__________________________________________
Troy Brown, City Manager
ATTEST:
____________________________________
Ky Spangler, City Clerk
APPROVED AS TO FORM
CITY ATTORNEY’S OFFICE
____________________________________
Kevin Ennis, City Attorney
LICENSEE:
NEW CINGULAR WIRELESS PCS, LLC
By: AT&T Mobility Corporation
Its: Manager
By: _______________________________________
Name: ___________________________________
Title: _____________________________________
Exhibits:
Exhibit A – Supplement(s)
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A-1
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT
This Supplement (“Supplement”), is approved by Licensor this _____ day of ____________,
20____ (the date executed by all parties, referred herein as “Supplement Effective Date”).
1. Supplement. Licensee has submitted an application for approval to use a Municipal
Facility pursuant to that certain Municipal Facility License Agreement between Licensor,
__________, and Licensee, ________, dated ______________, 20__ (“Agreement”). Licensor
has reviewed the Application to Use Municipal Facility and grants approval subject to the terms
of this Supplement. All of the terms and conditions of the Agreement are incorporated hereby by
reference and made a part hereof without the necessity of repeating or attaching the Agreement.
In the event of a contradiction, modification, or inconsistency between the terms of the
Agreement and this Supplement, the terms of this Supplement shall govern. Capitalized terms
used in this Supplement shall have the same meaning described for them in the Agreement
unless otherwise indicated herein. IF THE SUPPLEMENT IS NOT COUNTER-SIGNED BY
LICENSEE AND RETURNED TO LICENSOR WITHIN 30 DAYS AFTER LICENSOR HAS
GRANTED APPROVAL, THE SUPPLEMENT SHALL BE VOID AND OF NO LEGAL
EFFECT. IF LICENSEE STILL WANTS TO USE THE MUNICIPAL FACILITY, LICENSEE
WILL BE REQUIRED TO SUBMIT A NEW APPLICATION AND ASSOCIATED FEES.
2. Licensed Area Description and Location. Licensee shall have the right to use the space
on the specific Municipal Facility (the “Licensed Area”) depicted in Attachment 1 attached
hereto to install Equipment as further listed in Attachment 2 attached hereto.
3. Equipment. The Equipment to be installed at the Licensed Area is described in
Attachment 2 and depicted in Attachment 1. By entering into this Supplement, Licensee agrees
that the design standards required by Licensor are technically feasible and reasonably directed at
accomplishing the aesthetic goals of Licensor.
4. Term. The term of this Supplement shall commence on the Supplement Effective Date
and continue for the Term of the Agreement.
5. License Fee. The initial License Fee for this Supplement shall be as follows per year:
_____________________________. License Fee is subject to annual increase and is payable in
accordance with Section 5 of the Agreement.
6. Performance Bond. The amount of the Performance Bond shall be _________.
7. Miscellaneous.____________________________________________________.
[signature page follows]
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A-2
IN WITNESS THEREOF, the parties hereto have caused this Supplement to be legally
executed in duplicate, effective upon execution by both parties.
Licensor:
City of Moorpark
By: ____________________________________
Name: ____________________________________
Title: City Engineer
Date: ____________________________________
Licensee:
NEW CINGULAR WIRELESS PCS, LLC
By: AT&T Mobility Corporation
Its: Manager
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
Attachments:
Attachment 1 – Licensed Area
Attachment 2 – Equipment List and Description
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