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Town of Danville, CA
Pole License Agreement
MASTER POLE LICENSE AGREEMENT
between
TOWN OF DANVILLE, A CALIFORNIA MUNICIPAL CORPORATION
and
[INSERT LICENSEE NAME], A [INSERT CORPORATE FORM]
ATTACHMENT B
Town of Danville, CA i
Pole License Agreement
Table of Contents
1.DEFINITIONS ........................................................................................................... 3
2.SITE LICENSE AND LICENSE AREA ...................................................................... 6
2.1. Site License........................................................................................................ 6
2.2 License Area Defined ......................................................................................... 6
2.3. Limited Rights Created ....................................................................................... 6
2.4. No Impediment to Municipal Functions .............................................................. 6
2.5. License Area Condition ...................................................................................... 7
2.6. Licensee’s Due Diligence ................................................................................... 7
2.7. Diminutions in Light, Air or Signal Transmission or Reception ........................... 7
2.8. Certified Access Specialist Disclosure ............................................................... 7
3.USE OF LICENSE AREA ......................................................................................... 8
3.1. Permitted Use .................................................................................................... 8
3.2. Prohibition on Non-Small Wireless Facilities ...................................................... 8
3.3. Prohibition on Nuisances ................................................................................... 8
3.4. Signs and Advertisements ................................................................................. 8
4.TERM ....................................................................................................................... 8
5.FEES ........................................................................................................................ 9
5.1. Annual License Fee ........................................................................................... 9
5.2. Fee Adjustments by Town .................................................................................. 9
5.3. Late Fees ........................................................................................................... 9
5.4. Default Interest ................................................................................................. 10
5.5. Town’s Right to Cost Reimbursement .............................................................. 10
5.6. Town’s Right to Fair Market License Fees Reserved ....................................... 10
5.7. In Lieu Fee for Landscape Restoration and Maintenance ................................ 11
6.CONSTRUCTION, INSTALLATION AND MODIFICATIONS.................................. 11
6.1. Regulatory Approvals ....................................................................................... 11
6.2. Compliance with Approved Plans ..................................................................... 11
6.3. Changes or Corrections to Approved Plans ..................................................... 12
6.4. Licensee’s Contractors and Subcontractors ..................................................... 12
6.5. Labor and Materials ......................................................................................... 12
6.6. Damage or Alterations to Other Property ......................................................... 12
6.7. Underground Service Alert ............................................................................... 13
Town of Danville, CA ii
Pole License Agreement
6.8. Damage and Repair to Subsurface Structures ................................................. 13
6.9. Equipment Modifications .................................................................................. 13
6.10. Post-Completion Inspections ........................................................................ 13
6.11. As-Built Plans and Maps ............................................................................... 14
6.12. Title to Licensee’s Equipment and Other Improvements ............................... 14
7. LICENSEE’S MAINTENANCE OBLIGATIONS....................................................... 14
7.1. General Maintenance and Repair Requirements ............................................. 14
7.2. Damage Reports to the Town .......................................................................... 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 Town Work ............................................... 16
8.2. Rearrangement and Relocation to Accommodate Third Parties ...................... 16
8.3. No Right to Rearrange or Relocate Town 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 ........................................................................ 18
10.1. Town Access to License Area ....................................................................... 18
10.2. Town’s Maintenance, Repairs or Alterations to License Area ....................... 19
10.3. Notice to Licensee for Non-Emergency Maintenance or Repairs ................. 19
10.4. Emergencies ................................................................................................. 19
11. INTERFERENCE ................................................................................................ 20
12. LIENS .................................................................................................................. 20
13. UTILITIES ............................................................................................................ 21
14. TAXES AND OTHER ASSESSMENTS ............................................................... 21
15. INDEMNIFICATION............................................................................................. 21
15.1. Licensee’s Indemnification Obligations ......................................................... 22
15.2. Licensee’s Defense of the Town ................................................................... 22
16. INSURANCE ....................................................................................................... 22
17. LIMITATIONS ON THE TOWN’S LIABILITY ....................................................... 23
17.1. General Limitations ....................................................................................... 23
Town of Danville, CA iii
Pole License Agreement
17.2. Consequential, Indirect or Punitive Damages ............................................... 23
17.3. No Relocation Assistance ............................................................................. 23
17.4. No Personal Liability for Town Personnel ..................................................... 23
18. CASUALTY ......................................................................................................... 24
18.1. Town’s Rights Upon a Casualty Event .......................................................... 24
18.2. Licensee’s Termination Rights Upon a Casualty Event ................................ 24
18.3. Statutory Waiver ........................................................................................... 24
19. CONDEMNATION ............................................................................................... 24
20. ASSIGNMENTS AND OTHER TRANSFERS ...................................................... 25
20.1. General Restriction ....................................................................................... 25
20.2. Permitted Assignments ................................................................................. 25
20.3. Effect of Assignment ..................................................................................... 26
21. DEFAULT ............................................................................................................ 26
21.1. Defaults and Cure Periods ............................................................................ 26
21.2. Licensee’s Remedies .................................................................................... 26
21.3. Town’s Remedies ......................................................................................... 26
21.3.1. License Continuation .............................................................................. 26
21.3.2. License Termination ............................................................................... 27
21.3.3. Default Fees ........................................................................................... 27
21.4. Cumulative Remedies ................................................................................... 27
22. TERMINATION .................................................................................................... 27
23. HAZARDOUS MATERIALS ................................................................................. 27
23.1. Limitations on Hazardous Materials Use ....................................................... 28
23.2. Notice to the Town After a Release .............................................................. 28
23.3. Licensee’s Hazardous Material Indemnification Obligations ......................... 28
24. RULES AND REGULATIONS ............................................................................. 29
25. PERFORMANCE BOND ..................................................................................... 29
26. SURRENDER OF LICENSE AREA ..................................................................... 29
26.1. Removal and Restoration Obligations ........................................................... 29
27. INSPECTIONS .................................................................................................... 30
28. MISCELLANEOUS PROVISIONS ....................................................................... 30
28.1. Notices .......................................................................................................... 30
28.2. Waivers ......................................................................................................... 31
28.3. Integration; Amendments .............................................................................. 32
Town of Danville, CA iv
Pole License Agreement
28.5. Interpretation ................................................................................................. 32
28.5.1. General .................................................................................................. 32
28.5.2. Joint and Several Liability ....................................................................... 32
28.5.3. Captions and Other Reference Material ................................................. 32
28.5.4. Time ....................................................................................................... 33
28.5.5. Inclusive Words and/or Phrases ............................................................. 33
28.5.6 Force Majeure …………………………………………………………….……..33
28.6. Successors and Assigns ............................................................................... 33
28.7. Brokers ......................................................................................................... 33
28.8. Governing Law; Venue ................................................................................. 34
28.9. Litigation Fees and Costs ............................................................................. 34
28.10. Recording ..................................................................................................... 34
28.11. No Third-Party Beneficiaries ...................................................................... 34
28.12. Survival ...................................................................................................... 34
28.13. Severability ................................................................................................ 34
SCHEDULE 1 ................................................................................................................ 37
SCHEDULE 2 ................................................................................................................ 38
EXHIBIT 1 ………………………………………………………………………………………39
EXHIBIT 1-A .................................................................................................................. 40
EXHIBIT 1-B .................................................................................................................. 41
EXHIBIT 2 ..................................................................................................................... 42
Town of Danville, CA 1
Pole License Agreement
POLE LICENSE AGREEMENT
This MASTER POLE LICENSE AGREEMENT (“License”) dated [insert] (the
“Effective Date”) is between the TOWN OF DANVILLE, a California municipal
corporation (the “Town”) 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 Town’s authority to control access to
and manage use of the rights-of-way within the Town’s jurisdictional boundaries, and
to require fair 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 Town 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 Town’s reasonable time, place and manner control; and
C. On September 27, 2018, the Federal Communications Commission adopted a
Declaratory Ruling and Third Report and Order (FCC 18-133) in the rulemaking
proceeding entitled Accelerating Wireless Broadband by Removing Barriers to
Infrastructure Investment, WT Docket No. 17-79 (the “Order”), which interpreted
various provisions in the Telecommunications Act in a manner that, inter alia: (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
D. In order to comply with the Order, the Town adopted: 1) Ordinance No. 2019-03,
adding Section 32-70.4d to the Danville Municipal Code; 2) Resolution No. 26-2019,
adopting a policy regulating small cell wireless facilities in the public right-of-way;
and, 3) Resolution No. 27-2019, approving a pole license agreement for installation
of small cell wireless facilities on Town-owned infrastructure in the public right-of-
way.
E. Town Council Resolution No. 2000-xx, modifies Resolution No. 27-2019, to clarify
that the terms for any small cell license are standardized and set forth in this Master
Pole License Agreement and that individual site licenses shall be issued by the Town
only upon approval of a small cell permit.
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F. Collectively, these actions require that any small cell wireless facility proposed to be
located in the public right-of-way must first obtain a small cell permit as required by
Section 2.4 of the Small Cell Wireless Policy and, that if the approved small cell
facility is to be located on a Town-owned Vertical Infrastructure, the Town shall issue
a license for such use as a ministerial matter.
G. Licensee installs and maintains wireless communications facilities on existing
vertical infrastructure in the public right-of-way; and
H. Licensee warrants and represents to the Town that Licensee has the authority under
applicable Laws to install and maintain telecommunications facilities within the State
of California, which include wireless communications facilities, in the public right-of-
way, to provide wireless communications services; and
I. The Town owns Vertical Infrastructure within the public right-of-way that are
potentially suitable for installing wireless communications facilities within the Town’s
jurisdiction and has a duty to derive appropriate value from use of the Town’s
property assets for the public good, in accordance with applicable law; and
J. Licensee desires to install, maintain and operate wireless communications facilities
on the Town’s Vertical Infrastructure in the public right-of-way in a manner consistent
with the Town’s regulatory authority and Licensee is willing to compensate the Town
for the right to use the Town’s Vertical Infrastructure for wireless communications
purposes; and
K. Consistent with California state law, the Town intends this License to be applicable
only to use of Town-owned Vertical Infrastructure, 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
L. The Town desires to authorize Licensee’s access to individual Town-owned Vertical
Infrastructure for which the Town has already issued a small cell permit, based on
the terms and conditions set forth in this License, and pursuant to all the applicable
permits issued by the Town to protect public health and safety; and
M. Consistent with federal and California state law, the Town does not intend this
License to grant Licensee any exclusive right to use or occupy the public rights-of-
way within the Town’s territorial and/or jurisdictional boundaries, and Licensee
expressly acknowledges that the Town may in its sole discretion enter into similar or
identical agreements with other entities, which include without limitation Licensee’s
competitors; and
N. The Town Council of the Town of Danville, in adopting this Master Pole License
Agreement, has approved the form and material terms for to be used in connection
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with the licensing of Town-owned Vertical Infrastructure for wireless facilities, and
delegates authority to the Town Manager to enter into such agreements.
NOW THEREFORE, for good, valuable and sufficient consideration received and
acknowledged by the Town and Licensee, the Town and Licensee agree as follows:
AGREEMENT
1. DEFINITIONS
“Agent” means a party’s agent, employee, director, officer, contractor, subcontractor or
representative in relation to this License.
“Approved Plans” means the detailed plans and equipment specifications, which include
without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage,
concealment elements and other improvements proposed by Licensee and approved by
the Town for an individual site through a small cell permit and building permit for
Licensee’s construction and/or installation work in connection with the License Area. The
Approved Plans shall be attached to and incorporated into the individual Site License, in
the format attached hereto as Exhibits 1-A and 1-B.
“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.
“Building Permit” means any permits required by the California Building or Electrical
Codes, adopted by the Town as part of Chapter IX of the Danville Municipal Code.
“City Attorney” means the City Attorney of the Town of Danville, California.
“City Engineer” means the City Engineer of the Town of Danville, California.
“Claim” means any and all liabilities, losses, costs, claims, judgments, settlements,
damages, liens, fines, penalties and expenses, whether direct or indirect.
“Commencement Date” means the first day of the month following the day Licensee
commences installation of the Wireless Installation at a particular location.
“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
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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 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 Town 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
used in this Master License or any Site 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 Town Party” or “Indemnified Town Parties” means the Town and its
Agents, elected and appointed officials and employees.
“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 2.2 (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).
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“Licensee’s On-Call Representative” means the person(s) assigned by Licensee to be
on-call and available to the Town 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.
“OSHA” means the Occupational Safety and Health Administration of the United States
Department of Labor, or OSHA’s duly appointed successor agency.
“Site License” means the license issued by the Town for a specific License Area,
attached as Exhibit 1.
“Small Cell Permit” means the planning entitlement granted by the Town, authorizing
installation of a small cell wireless installation in the public right-of-way, as provided for in
Town Ordinance No. 2019-03 and Town Resolution No. 26-2019.
“Regulatory Approvals” means the small cell permit, building permit and traffic control
plan issued by the Town 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
Town Property 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 Town’s territorial and/or jurisdictional boundaries and subject to
the Town’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.
“Town Property” means any interest in real or personal property owned or controlled by
the Town, 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; (3) public rights-of-way or public utility easements;
and (4) 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.
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“Vertical Infrastructure” means that certain pole or similar structure, subject to this
License, owned or controlled by the Town 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. SITE LICENSE AND LICENSE AREA
2.1. Site License
Once Licensee has received all required regulatory approvals, the Town shall issue an
individual Site License for use of the specific Vertical Infrastructure. The Site License
issued shall be in the form attached as Exhibit 1 and shall be subject to the terms of the
regulatory approvals and this Master Agreement.
2.2 License Area Defined
The parties to this License define “License Area” to mean that certain space on that
certain Vertical Infrastructure and other Town 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 and licensed to Licensee, all as
more particularly described and depicted in Exhibit 1-A attached to the Site License
(“License Area”).
2.3. Limited Rights Created
The Site 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 Master Agreement. Licensee expressly acknowledges
and agrees that: (a) Site Licenses are not and shall not be deemed to be coupled with
an interest; (2) the Town retains legal possession and control over the Vertical
Infrastructure for the Town’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 Master Agreement, the Town may terminate a Site License in whole
or in part at any time; (4) except as specifically provided otherwise in this Master
Agreement, the Town may enter into any agreement with third parties to use and/or
occupy the Vertical Infrastructure and/or other Town Property; and (5) neither this Master
Agreement nor the Site License creates and will not be deemed to create any partnership
or joint venture between the Town and Licensee.
2.4. No Impediment to Municipal Functions
Except as expressly provided otherwise in this License, this License shall not limit, alter
or waive the Town’s absolute right to use the License Area, in whole or in part, as
infrastructure established and maintained for the Town’s and the public’s benefit.
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2.5. 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 Town 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 Town nor its Agents have made, and the Town 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 Town.
2.6. Licensee’s Due Diligence
Licensee expressly represents and warrants to the Town 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 Town 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 Town 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.
2.7. 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 Town 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 Town under this License, the
Town 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. Notwithstanding the foregoing, if Licensee determines in its sole judgment that
the diminishment in light, air or signal propagation, transmission or reception caused by
the Town renders the continued use of Licensee’s Equipment not in Licensee’s interests,
it may terminate the applicable Site License.
2.8. 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 Town 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.
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3. USE OF LICENSE AREA
3.1. Permitted Use
Licensee may use the License Area solely to construct, install, operate, maintain, repair
and replace Equipment for transmission and reception of wireless communications
signals, for the provision of all services authorized by federal or state law, including
personal wireless services, telecommunications services and commercial mobile data
services, as those terms are defined by federal law (the “Permitted Use”) in compliance
with all applicable Laws, which includes without limitation the Danville Municipal Code
and any conditions in any Regulatory Approvals and for no other use whatsoever without
the Town’s prior written consent, which the Town may withhold in its sole and absolute
discretion for any or no reason.
3.2. Prohibition on Non-Small Wireless Facilities
The Town intends this License to cover only wireless facilities that (a) qualify as a “small
wireless facility” as that term is defined by the FCC under 47 C.F.R. § 1.6002(l); and (b)
have been approved by the Town in accordance with all applicable provisions in the
Danville Municipal Code and applicable policies and regulations. 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 as determined by the Town in its
reasonable discretion. Licensee shall take all precautions to eliminate any nuisances or
hazards in connection with its uses and activities on or about the License Area.
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.
4. TERM
Unless earlier terminated in accordance with this Master Agreement or as may be
permitted under applicable Laws, the term of a Site License shall commence on the date
it is issued and automatically expire ten (10) years thereafter, unless the Town extends
the term of the Small Cell Permit, in which case the Site License shall be extended to
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match the term of the Small Cell Permit. This Master Agreement shall expire as of the
later of (i) ten (10) years from the Effective Date, or (ii) the expiration of the last Small Cell
Permit issued hereunder.
5. FEES
5.1. Annual License Fee
Licensee shall pay the annual License Fee for each Site License granted hereunder, pro-
rated from January 1, within 30 days from the Commencement Date for that Site License
without any prior demand, deduction, setoff or counterclaim for any reason. Thereafter,
Licensee shall pay the Town the License Fee for all active Site Licenses on January 1
throughout the Term without any prior demand, deduction, setoff or counterclaim for any
reason. The License Fee shall (a) reasonably approximate the Town’s objectively
reasonable costs consistent with applicable Laws; (b) be in addition to any fees charged
by the Town in connection with any permit applications, permit issuance fees, inspection
fees, fines, penalties or other fees lawfully charged by the Town in connection with the
Equipment and/or any related Regulatory Approvals (collectively, “Regulatory Fees”);
and (c) in addition to any other cost-based reimbursements lawfully owed to the Town by
Licensee (“Reimbursement Fees”). Schedule 1 attached to this License and
incorporated by this reference specifies the License Fee payable by Licensee to the Town
in each year throughout the Term. Unless otherwise adjusted in accordance with this
License, the License Fee shall automatically increase by 2% each year on the anniversary
of the Effective Date.
5.2. Fee Adjustments by Town
After the first two years of the Term, the Town may propose an adjustment to the License
Fee (other than the automatic annual increase provided for in Section 5.1 above). In
order to do so, the Town shall prepare a cost study to establish that the proposed new
amount of the License Fee is a reasonable approximation of its objectively reasonable,
actual costs in providing such access to the public right-of-way and Vertical Infrastructure.
The Town shall provide the cost study to Licensee at least ninety (90) days prior to the
study being presented to the Town Council for consideration. During that ninety (90) day
period, Licensee may provide input to the Town and may request a meeting to discuss
the cost study. Any increase in the License Fee approved by the Town Council shall
become effective sixty (60) days after approval by the Town Council, shall be applied
prospectively only and shall be applied to similarly situated carriers on a non-
discriminatory basis. The revised fee shall be reflected in a new Schedule 1 to be
substituted to this License.
5.3. Late Fees
In the event that Licensee fails to pay any License Fee or any other amount payable to
the Town within thirty (30) days after due and payable to the Town, such amounts will be
subject to a late charge equal to five percent (5%) of unpaid amounts.
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5.4. Default Interest
Any License Fee, Regulatory Fees, Reimbursement Fees and all other amounts payable
to the Town other than late charges will bear interest at ten percent (10%) per annum
from the due date when not paid within thirty (30) days after due and payable to the Town.
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. Town’s Right to Cost Reimbursement
Notwithstanding anything in this License to the contrary, the Town 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 Town, which includes without limitation any costs incurred by Town staff or the Town’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, Regulatory Fees, and
Reimbursement Fees in connection with this License or any related Regulatory Approvals
issued or administered by the Town shall not relieve Permittee’s obligation to reimburse
the Town for any and all actual costs incurred by the Town in the future. Licensee shall
reimburse the Town for all such costs within thirty (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. Town’s Right to Fair Market License Fees Reserved
Licensee acknowledges that: (a) the Town is compelled by applicable Laws, which
includes without limitation the Order, to accept certain cost-based rates and
compensation; (b) but for such Laws, the Town 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 Town’s costs; and (c) but for such
Laws, the Town 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 Town, 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 (Town’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 2019 and the Order was invalidated in 2021, then the License Fee in 2021
would increase from $280.91 to $1,040.40, the License Fee in 2022 would be $1,061.21
and so on until the applicable Site Licenses expired.
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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 Section 7.3 of this
Agreement, the Municipal Code or other applicable Town policies, the Parties may elect
(but shall not be obligated to) enter into a written agreement under which the Town
accepts from Licensee 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 Chief of Planning (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 Town’s territorial and/or jurisdictional boundaries,
and any required small cell permits, , building 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 Town, in its regulatory capacity, may impose on Licensee
for the same acts or omissions. Town will grant or deny a Site License within the
timeframes required under applicable law.
6.2. Compliance with Approved Plans
Licensee shall perform all installation, construction and other work in connection with the
License Area (a) in accordance with the terms and conditions in this License; (b) at
Licensee’s sole cost and expense, and at no cost to the Town; (3) in strict compliance
with the Approved Plans; (4) in compliance with all applicable Laws, which includes
without limitation all applicable provisions in the Danville Municipal Code and any
conditions in any applicable Regulatory Approvals; (5) in a safe, diligent, skillful and
workmanlike manner; and (6) to the Chief of Planning’s (or his or her designee’s)
satisfaction. After any work at the License Area concludes, Licensee shall restore the
License Area and any other Town Property to the condition that existed immediately prior
to the work commenced.
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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 Approved Plans and related Regulatory Approval(s). Licensee
shall immediately send written notice to the Town in the event that Licensee discovers
any such defects. The Approved Plans and/or amendments to Approved Plans by the
Town 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. Except in the case of an emergency, at least five business days before
any installation, construction or other work commences on or about the License Area,
Licensee shall provide the Town with: (a) a schedule with all activities to be performed in
connection with the installation, construction or other work; and (b) 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 Town 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 Town
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 Town or any third parties
without prior written consent from property owner. The Town may withhold and/or
condition its consent to any request to alter any Town Property in its sole and absolute
discretion.
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6.7. Underground Service Alert
Licensee warrants and represents to Town that Licensee is presently a member in good
standing with the Underground Service Alert of Northern/Central California and Nevada
(“USA North 811”). Licensee shall maintain and keep current its membership in USA
North 811 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 Chief of Planning’s
(or his or her designee’s) supervision and to the Chief of Planning’s (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 Town’s
consent to modify this License to reflect the material difference. No modification to the
Site License shall be required for any modification to an existing Equipment that (a)
involves only substituted internal components or like-kind replacement of equipment; (b)
will be in compliance with applicable Laws (such as radio-frequency emission standards);
(c) does not result in any material change to the Equipment’s external appearance,
dimensions or weight; (d) and 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
Within five days after Licensee completes any Equipment construction, installation or
other work, Licensee shall provide the Town with a written notice that confirms the precise
locations and dates on which the Licensee completed the work. The Town shall have the
right to inspect Licensee’s Equipment at any time after Licensee completes any
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construction, installation or other work in connection with this License. If the Town
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 Town. Licensee shall promptly
reimburse the Town for all costs incurred in connection with any inspections or re-
inspections by the Town.
6.11. As-Built Plans and Maps
Within 30 days after the Town issues a certificate of completion, Licensee shall file as-
built plans and maps in a format specified by the Chief of Planning (or his or her
designee). In addition to any format required by the Chief of Planning (or his or her
designee), all as-built plans and maps shall include digital copies in a native format
compatible with the Town’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 Town 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 Town, unless such defects or conditions
will reasonably take a longer period of time to correct, in which case Licensee shall have
up to ninety (90) days to correct such condition or defect.. The Town shall have the right
to incorporate the as-built plans for the then-current description of the License Area in
Exhibit 1-A and/or the then-current Approved Plans in Exhibit 1-B.
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 personal property. All
structural improvements to any Vertical Infrastructure and any replacement Vertical
Infrastructure, as approved by the Town and shown in the Approved Plans, will become
Town Property and remain Town Property should Licensee vacate or abandon such
License Area, unless the Town elects in a written notice to Licensee that it does not wish
to take title to such structural improvements. 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 Town.
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: (a) in accordance with the terms and
conditions in this License; (b) at Licensee’s sole cost and expense, and at no cost to the
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Town; (c) by only qualified, trained, experienced and appropriately licensed contractors
or Licensee’s Agents or other personnel; (d) in a manner and with equipment and
materials that will not interfere with or impair the Town’s municipal operations on or about
the License Area; (e) in a safe, diligent, skillful and workmanlike manner; and (f) in
compliance with all applicable Laws, which includes without limitation all applicable
provisions in the Danville Municipal Code and any conditions in any applicable Regulatory
Approval(s).
7.2. Damage Reports to the Town
Licensee shall promptly notify the Town if Licensee discovers damage or other alteration
to the Streets, any Town Property or any personal or real property owned by third parties
caused by Licensee, its Agents or Invitees. Notices shall contain the following information
to the extent available at the time Licensee sends the notice: (a) the location where the
event occurred; (b) a statement to describe the damage or other alteration and the
surrounding circumstances; (c) 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 (d) any other pertinent
information. Licensee will not be deemed to have assumed liability for any such damage
or other alteration by giving such notice, unless 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, 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
30 calendar days after written notice from the Town, the Town may (but will not be
obligated to) cause the repair and restoration to be performed at Licensee’s sole cost and
expense. The Town may exercise its rights to perform Licensee’s obligations under this
Section 7 without prior notice to Licensee when the City Engineer determines that the
repair and/or restoration is immediately necessary to protect public health or safety.
Licensee shall reimburse the Town for all costs and expenses in connection with such
work within 30 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 Town Parties harmless from and against any Claims in
connection with such performance by the Town, except to the extent the any such Claim
is due to the negligence or willful misconduct of the Town, its Agents or Invitees.
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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 promptly upon actual
notice (but in no event later than 4 days after notice from the Town).
8. REARRANGEMENT AND RELOCATION
8.1. Rearrangement and Relocation for Town Work
Licensee acknowledges that the Town, 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 Town 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 Town (collectively, “Town Work”). The Town reserves the rights to do
any and all Town Work without any admission on its part that the Town would not have
such rights without the express reservation in this Permit. In the event that the City
Engineer determines that any Town 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 receipt of the City Engineer’s notice, the Town may (but will
not be obligated to) cause the rearrangement or relocation to be performed at Licensee’s
sole cost and expense. The Town will use reasonable efforts to provide Licensee with six
months prior notice of the need to rearrange or relocate, however, the Town may exercise
its rights to rearrange or relocate the Equipment without prior notice to Licensee when the
City Engineer determines that the Town Work is immediately necessary to protect public
health or safety. Licensee shall reimburse the Town for all costs and expenses in
connection with such work within 30 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 Town 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 any such Claim is due to the negligence or willful misconduct of the
Town, its Agents or Invitees. Within 90 days after any Equipment have been rearranged
or relocated, Licensee shall file as-built plans and maps with the City Engineer 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
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shall be borne by the person or entity to be accommodated; provided, however, that
Licensee shall be solely responsible to collect any costs incurred by Licensee from such
third party and the Town shall have no liability to Licensee for any such costs. Prior to any
Third-Party Accommodations performed by Licensee, Licensee shall be permitted to
require (1) either a cash deposit, bond or other surety from the person or entity to be
accommodated in a commercially reasonable form and in an amount reasonably
estimated by Licensee to cover the costs associated with the proposed Third-Party
Accommodations; and (2) a written agreement signed by the person or entity to be
accommodated to indemnify, defend and hold Licensee and its Agents harmless from
and against any and all Claims that arise in connection with the proposed Third-Party
Accommodations, except to the extent any Claims are directly caused by Licensee’s or
its Agent’s negligence or willful misconduct. 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 City Engineer 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 Town Property
Nothing in this License will be construed to require the Town or authorize Licensee to
change any street grade, width or location, or add, remove or otherwise change any
improvements owned by the Town 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.
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 Town with
any legally permitted amendments.
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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 Town hereunder (collectively,
“Prevailing Wage Policies”). Licensee shall submit and allow the Town to inspect, upon
request by the Town, Licensee’s payroll records and other proof of compliance with the
Prevailing Wage Policies to the extent required in California Labor Code § 1776, as may
be amended or superseded.
Licensee shall defend, indemnify and hold the Town and Indemnified Town Parties
harmless from and against any and all present and future Claims, that arise from
Licensee’s obligation to comply with Prevailing Wage Policies with respect to the
installation, construction or other work by Licensee or its Agents 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 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.
To the extent applicable, as provided in SB 854 (Stats. 2014, ch. 28): (a) no contractor or
subcontractor may be qualified to bid on, be listed in a bid proposal, subject to the
requirements of 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)); (b) 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 (c) 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. Town Access to License Area
Except as specifically provided otherwise in this License, the Town and its Agents have
the absolute right to access any License Area, in whole or in part, at any time and with or
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without notice for any purpose related to its municipal functions. The Town 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 Town’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 by the Town or
its Agent’s negligence or willful misconduct.
10.2. Town’s Maintenance, Repairs or Alterations to License Area
The Town may maintain, alter, add to, repair, remove from and/or improve the License
Area as the Town may, in its reasonable discretion, deem necessary or appropriate for
its streetlighting operations and other municipal functions. The Town shall not be
obligated to maintain or repair the License Area, in whole or in part, solely for Licensee’s
benefit. Except as may be expressly provided otherwise in this License, neither any Town
work on the License Area nor any condition on any License Area will: (a) entitle Licensee
to any damages; (b) excuse or reduce any obligation by Licensee to pay any Fees or
perform any covenant under this License; or (c) 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 Town may find it necessary or appropriate to perform work on the
License Area that temporarily affects the Equipment or requires the Equipment to be
temporarily powered down. In non-emergency circumstances, the Town will use
reasonable efforts to: (a) provide prior notice to Licensee’s On-Call Representative; (b)
allow Licensee’s On-Call Representative to observe the Town’s work; and (c) avoid or
minimize disruption of 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 Town’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 Town’s work and
operations will take precedence over Licensee’s operations, which includes without
limitation any Equipment operated on the License Area, and the Town may access the
License Area in whole or in part as the Town 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 Town, the Town will notify
Licensee of any emergency or other exigent circumstances that requires the Town to
remove or replace any Town Property within the License Area and will allow Licensee to
remove its Equipment before the Town removes or replaces such Town Property;
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provided, however, that the Town will remove the Equipment from the License Area when
in the Town’s sole determination it would: (a) be unsafe or not practicable to wait for
Licensee to perform (or cause to be performed) the work; (b) result in significant delay; or
(c) otherwise threaten or compromise public health, safety, welfare or public services.
The Town will remove any Equipment with reasonable care and store such Equipment
for retrieval by Licensee. The Town 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 Town 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
11.1 Licensee may not install, maintain or operate any Equipment in a manner
that interferes with or impairs other communication (radio, telephone, data and/or other
transmission or reception) or computer equipment lawfully used by the Town 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
Town, Licensee shall promptly eliminate such interference at no cost to the Town.
Licensee will be required to use its best efforts to remedy and cure such interference
without any impairment to any Town operations. If Licensee does not promptly cure such
default, the parties acknowledge that continued interference may cause irreparable injury
to the Town and, therefore, the Town will have the right to bring an action against
Licensee to, at the Town’s election, immediately enjoin such interference and/or to
terminate the affected Site 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.
11.2 The Town will not authorize a third party to use any Town Vertical
Infrastructure previously licensed to Licensee if the Town knows or has reason to know
that such third party use will interfere with Licensee’s use of the Vertical Infrastructure.
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
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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 Town will have the right, but not the obligation, to cause such lien or
imposition to be released in any manner the Town deems proper, which includes without
limitation payment to the lienholder, with notice to Licensee. Licensee shall reimburse the
Town for all costs and expenses incurred to cause such lien or imposition to be released
(which includes without limitation reasonable attorneys’ fees) within thirty (30) days after
Licensee receives a written demand from the Town together with reasonable
documentation to support such costs and expenses.
13. UTILITIES
Consistent with the Town’s Design Guidelines for Wireless Installations, which aim to
minimize visual impacts of wireless installations, the Town’s preference for Licensee’s
electrical power supply is to utilize the Town’s existing electrical infrastructure for its
Vertical Infrastructure. If such a connection is approved as part of the small cell permit
approved by the Town, Licensee shall be responsible for installation of their electrical
connection and shall be responsible for making payments to the Town’s electrical provider
directly. If utilizing the Town’s existing electrical infrastructure is not feasible, Licensee
retains the right to install a stand-alone meter if required by its electrical provider.
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 are directly attributable to Licensee’s use within the
License Area or Licensee’s Equipment that may be imposed on Licensee under
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 Town receives any tax or assessment notices
that are directly attributable to the License Area or Licensee’s Equipment, the Town 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
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15.1. Licensee’s Indemnification Obligations
Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the
Indemnified Town 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
Permit, except to the extent that that such Claim is caused by the Town’s 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 Town’s actual costs to investigate and defend against any Claim. Licensee
expressly acknowledges and agrees that: (a) Licensee has an immediate and
independent obligation to defend any Indemnified Town 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 (b) Licensee’s obligations arise
at the time any Indemnified Town 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 Town
In the event that any Claim is brought against any Indemnified Town Parties in connection
with any subject matter for which any Indemnified Town 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 Town. The Town shall not unreasonably
withhold, delay or condition its consent. Licensee shall not, without the Town’s written
consent, enter into any compromise or settlement agreement on any Indemnified Town
Parties’ behalf that: (1) admits any liability, culpability or fault whatsoever on any
Indemnified Town Parties’ part; or (2) requires any Indemnified Town Party to take or
refrain from any action, which includes without limitation any change in the Town’s
policies or any monetary payments. Nothing in this License shall be construed to limit or
preclude any Indemnified Town 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 2 (Licensee’s
Insurance Obligations), attached hereto and incorporated herein, and shall provide the
Town with all required certificates and endorsements. Any non-substantive changes to
the requirements of Exhibit 2 may be approved by the Town’s Risk Manager. Any
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uncured 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 TOWN’S LIABILITY
17.1. General Limitations
Licensee expressly acknowledges that the Town is not responsible or liable to Licensee
for any Claims that arise in connection with: (a) acts or omissions of third parties using
the Streets or other areas adjoining, adjacent to or connected with any License Area; (b)
any utility service interruption; (c) theft; (d) burst, stopped or leaking water, gas, sewer,
steam or other pressurized pipes; (e) fires, floods, earthquakes or other force majeure; (f)
any vehicular collision on or about the License Area or other Town Property; (g) any costs
or expenses incurred in connection with any relocation or rearrangement as provided in
Section 8 (Rearrangement and Relocation); or (h) 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 by the Town’s negligence or willful misconduct. Licensee,
in perpetuity, expressly waives and releases all Claims it may now or in the future have
against any Indemnified Town Parties, whether known or unknown, whether foreseeable
or unforeseeable, that arise in connection with the events 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 Town 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
Neither party shall be liable under this Agreement for consequential, special, punitive or
indirect damages, whether under theory of contract, tort, strict liability or otherwise.
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 Town for any compensation from the Town except as
provided in Section 19 (Condemnation).
17.4. No Personal Liability for Town Personnel
In no event will any Town board, agency, member, officer, employee or other Agent be
personally liable to Licensee, its successors or assigns, for any default, breach, other
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nonperformance or sum unpaid sum by the Town. The provisions in this Section 17.4
shall survive this License’s revocation, termination or expiration.
18. CASUALTY
18.1. Town’s Rights Upon a Casualty Event
In the event the License Area in whole or in part becomes damaged due to any cause,
the Town will have no obligation whatsoever to repair or replace the damaged License
Area. Within 30 days after the date on which the Town discovers damage or destruction
to the License Area, the Town will give Licensee notice of the Town’s decision whether
to repair or replace the damaged License Area and its good-faith estimate of the amount
of time the will need to complete the work. If the Town cannot complete the work within
30 days after the date that the Town specifies in its notice, or if the Town elects not to do
the work, then Licensee will have the right to terminate the affected Site License on 30
days’ notice to the Town. If the Town elects to remove, rather than repair or replace, the
damaged or destroyed License Area, then the affected Site 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 Town’s reasonable determination, the Equipment on the License Area cannot
be operated in a safe manner, the Town may elect to terminate the affected Site License
on 30 days’ notice to Licensee and require Licensee to remove the Equipment from the
damaged License Area before the termination date specified in the Town’s notice.
18.2. Licensee’s Termination Rights Upon a Casualty Event
In the event that the Town terminates the affected Site License pursuant to Section 18.1
(Town’s Rights Upon a Casualty Event), the Town will prioritize its review any request by
Licensee for a substantially similar license on a different pole 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 Town and Licensee each hereby waives and releases the
provisions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws.
19. CONDEMNATION
In the event of a condemnation of any Vertical Infrastructure or License Area on which
Licensee has installed its equipment, the corresponding Site License will automatically
terminate on the date the permanent taking or transfer occurs. The Town 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 Town for the value of any unexpired Term
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of this License or otherwise except that Licensee may claim any portion of the award that
is specifically allocable to Licensee or 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 Town 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
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 Town’s prior written consent. The Town
shall not unreasonably withhold its consent to any proposed assignment; provided,
however, that the parties acknowledge that the Town 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 Town reasonably determines that the proposed
assignee lacks the financial qualifications perform all Licensee’s obligations; (3) Licensee
refuses to reimburse the Town 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 Town’s prior consent but with notice to the Town, to: (a)
an entity that acquires all or substantially all Licensee’s assets in the market in which the
Town is located (as the “market area” is or may be defined by the FCC); (b) Licensee’s
parent; (c) an entity that acquires a controlling interest in Licensee by a change in stock
ownership or partnership interest; or (4) an entity controlled by Licensee (each a
“Permitted Assignment”). Notwithstanding anything in this License to the contrary, a
Permitted Assignment will be subject to all the following conditions: (i) the Assignee may
use the License Area only for the Permitted Use and for no other purpose whatsoever;
(ii) the Assignee possesses all Regulatory Approvals necessary to lawfully install,
operate, and maintain Equipment on the License Area; (iii) Licensee provides the Town
with notice as soon as is reasonably practicable following the effective date of such
Permitted Assignment, stating the contact information for the proposed Assignee and
making available financial information reasonably establishing that the proposed
Assignee can perform Licensee’s obligations under the License; (iv) Licensee is in good
standing under this License; (v) the Assignee shall covenant to perform all Licensee’s
obligations under this License; and (vi) within 30 calendar days after Licensee receives a
written demand from the Town, Licensee shall reimburse the Town for all reasonable and
documented costs incurred by the Town in connection with the Permitted Assignment.
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20.3. Effect of Assignment
No assignment by Licensee, consent to assignment by the Town, or Permitted
Assignment will relieve or release Licensee from any obligation on its part under this
License, unless expressly provided in a writing signed by the Town. Any 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 Town’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 Town’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 thirty (30) 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. For any non-monetary default, the defaulting party shall have thirty (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 thirty (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 thirty (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 Town’s uncured default will be (1) to terminate this Agreement or an
individual Site License on 30 days’ prior written notice; and (2) an action for damages
subject to the provisions in Section 17 (Limitations on the Town’s Liability).
21.3. Town’s Remedies
In addition to all other legal and equitable rights and remedies available to the Town, the
Town 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 Town may continue this Agreement
and individual Site Licenses 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.
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21.3.2. License Termination
If the Town determines, in its sole judgment, that Licensee’s default materially impairs the
Town’s ability to perform its municipal functions or threatens public health, safety or
welfare, then the Town may terminate this Agreement for a default relating to all Site
Licenses or individual Site Licenses to which the default pertains on written notice to
Licensee.
21.3.3. Default Fees
In addition to all other rights and remedies available to the Town, the Town may require
Licensee to pay an additional fee for any and all actual costs incurred by the Town in
connection with a default event to reimburse the Town’s administrative cost to enforce
compliance with this License (each a “Default Fee”). Licensee shall pay the Default Fee
within thirty (30) days after the Town’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 Town 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 thirty (30) 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
Town or Licensee are cumulative, and not a substitute for, any rights or remedies
otherwise available to the Town or Licensee.
22. TERMINATION
This Agreement or an individual Site License may be terminated as follows: (1) by a non-
defaulting party upon written notice if the defaulting party remains in default beyond any
applicable cure period and the default pertains to the individual Site License(s) sought to
be terminated, or in the case of termination of this Agreement, the default pertains to all
Site Licenses; (2) by the Town upon written notice if Licensee attempts to assign or
otherwise transfer this License in a manner that violates this License; or (3) by Licensee
upon 60 days’ prior written notice to the Town for any or no reason. In addition, the Town
has the right to terminate an individual Site License on written notice to Licensee when
the Town determines, in the Town’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 Town’s municipal functions, or require the Town to maintain Vertical
Infrastructure that the Town no longer needs for its own purposes.
23. HAZARDOUS MATERIALS
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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 or any other
Town Property, in whole or part, or transported to or from any Town Property in any
manner that violates any Environmental Laws; provided, however, that Licensee may use
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 Town After a Release
Licensee shall immediately notify the Town if and when Licensee learns any Hazardous
Material Release has occurred in, on, under or about the License Area or other Town
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 or other Town Property, or in a Hazardous Material Release from,
on, about, in or beneath the License Areas or any other Town 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 Town and any Indemnified Town Parties
harmless, from and against any and all Claims (including damages for decrease in value
of the License Area or other Town Property, the loss or restriction of the use of usable
space in the License Area or other Town 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 by the Town’s 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 or other Town Property by Licensee or its Agents, clients, customers,
invitees, guests, tenants, subtenants, licensees, assignees and/or sublicensees, and to
restore the License Area or other Town 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 Town and the other Indemnified Town Parties from any Claim that actually or
potentially falls within this indemnity provision even if the allegations supporting the Claim
Town of Danville, CA 29
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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 Town 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 or other Town Property, then in any such event Licensee shall, immediately,
at no expense to any Indemnified Town Party, take any and all necessary actions to return
the License Area and/or other Town Property, as applicable, to the condition existing prior
to such Hazardous Materials Release on the License Area or other Town Property or
otherwise abate the Release in accordance with all Environmental Laws, except to the
extent such Release was caused by the Town’s negligence or willful misconduct.
Licensee shall afford the Town 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 Town 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 Town 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
Chief of Planning (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. The bond shall be in the amount of $50,000
for up to twenty Site Licenses and be increased by $50,000 for each additional twenty
Site Licenses (or portion thereof.). 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.
26. SURRENDER OF LICENSE AREA
26.1. Removal and Restoration Obligations
Within sixty (60) days after a written demand from the Town, 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 Chief of Planning’s (or his or her designee’s) reasonable satisfaction. The Town
may, in its reasonable discretion, extend the sixty (60) day period by written notice to
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Licensee. If Licensee fails to timely perform its removal and restoration obligations under
this License, then: (a) 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; (b) the Town shall have the right (but not the obligation) to perform such
obligations; (c) the Town 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 (d) Licensee shall reimburse the Town for all costs incurred by the Town
in connection with such removal and restoration work within thirty (30) days after a written
demand for reimbursement and reasonable documentation to support such costs.
27. INSPECTIONS
At all reasonable times throughout the Term, the Chief of Planning (or his or her
designee), shall have the right (but not the obligation) to: (a) inspect all the Equipment,
all appurtenant structures and any other equipment or improvements in the Streets
constructed, installed, laid, maintained or operated by Licensee; and (b) 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 were installed, operated or maintained without all
Regulatory Approvals then Licensee shall reimburse the Town for the Town’s reasonable,
actual and documented costs and expenses to conduct the inspection and/or evaluation
of any Equipment that was installed, operated or maintained without all Regulatory
Approvals, which includes without limitation any costs or expenses by any third-party
inspectors or consultants.
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 (i) an established national courier service that
maintains delivery records and confirmations; (ii) hand delivery; or (iii) certified or
registered U.S. Mail with prepaid postage and return receipt requested, and addressed
as follows:
TO TOWN: _________________________
_________________________
_________________________
_________________________
with copies to: _________________________
_________________________
_________________________
_________________________
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Pole License Agreement
TO LICENSEE: _________________________
_________________________
_________________________
_________________________
with copies to: _________________________
_________________________
_________________________
_________________________
All notices, demands or other correspondence in connection with this License will be
deemed to have been delivered on: (a) the date delivery is made by personal delivery,
U.S. certified mail, or overnight delivery; or (b) 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 Town 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 Town’s or its Agents’ acceptance of
any License Fee or any other sums due to the Town or its Agents under this License
during any such default will be deemed to cure any such default, waive the Town’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 Town may have for further or
additional sums. Any express waiver by either the Town or Licensee in connection with
any default or obligation to perform any provision, term, covenant or condition under this
License will: (i) be limited to the specific default or performance for which the express
waiver is granted; (ii) not be deemed to be a continuing waiver; and (iii) not affect any
other default or performance no matter how similar or contemporaneous such other
default or performance may be. The Town’s or Licensee’s consent given in any specific
instance in connection with or pursuant to this License will not relieve the Town 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.
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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 Site
License issued hereunder and any default in connection with this License or any Site
License may not be orally changed, waived, discharged, altered, modified, amended or
terminated. This License and any Site License issued hereunder and any default in
connection with this License or any Site License may not be changed, waived,
discharged, altered, modified, amended or terminated, except by a written instrument
signed by both parties.
28.4 Change of Law
Either Party may, upon thirty (30) days written notice, notify the other Party of the need
to renegotiate any provisions of this Agreement which are materially affected by any
change in applicable law resulting from new legislation, regulation or judicial action. In
the event that the Parties are unable to agree upon amended provisions within ninety (90)
days after such notice, then either Party may seek relief from an agency or court of
competent jurisdiction.
28.5. Interpretation
The parties acknowledge and agree that the following interpretive rules will be applicable
to this License:
28.5.1. 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.).
28.5.2. Joint and Several Liability
In the event that multiple licensees are or become parties to this License, the obligations
and liabilities imposed under this License will be joint and several among the multiple
licensees to this License. This section does not apply if this License is executed by a
sole licensee or if multiple licensees execute identical but separate agreements.
28.5.3. 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.
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28.5.4. 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
Town 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.
28.5.5. 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.
28.5.6 Force Majeure
Time periods for performance under this Agreement shall be deemed extended day for
day for time lost attributable to any delay resulting from any act of God, strike, civil riot,
fire, flood, material or labor shortage, restriction by governmental authority or any other
cause not within the reasonable control of the Party whose performance is required under
this Agreement.
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 Town 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.
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28.7. Governing Law; Venue
This License must be construed and enforced in accordance with the laws of the State of
California, and federal law as applicable without regard to the principles of conflicts of
law. This License is made, entered and will be performed in the Town of Danville, County
of Contra Costa, State of California. Any action concerning this License must be brought
and heard in the California Superior Court for the County of Contra Costa or in United
States District Court, the Northern District of California
28.8. Litigation Fees and Costs
In the event the Town or Licensee prevails in an action to enforce its rights under this
License, the prevailing 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) Licensee shall not have the right to record
this License, any memorandum or any short-form agreement in relation to this License;
and (2) Licensee shall, at Licensee’s sole cost and expense, remove any document or
other instrument recorded against the Town’s title to any Town Property promptly upon
the Town’s request or demand.
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 held by any court with competent jurisdiction to be invalid or
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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
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]
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The Town and Licensee executed this License as of the date last written below:
THE TOWN: LICENSEE:
Town of Danville, [licensee name],
a California municipal corporation a [licensee’s corporate form]
By: __________________________ By: __________________________
Its: Town Manager Its: __________________________
Date: __________________________ Date: __________________________
APPROVED AS TO FORM:
By: __________________________
Robert B. Ewing
City Attorney
ATTEST:
By: __________________________
Marie Sunseri
City Clerk
[END OF SIGNATURES – EXHIBITS AND SCHEDULES APPEAR ON NEXT PAGE]
Town of Danville, CA 37
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SCHEDULE 1
ANNUAL LICENSE FEE
YEAR
OF TERM
ANNUAL
LICENSE FEE
1 $270.00
2 $275.40
3 $280.91
4 $286.53
5 $292.26
6 $298.10
7 $304.06
8 $310.14
9 $316.35
10 $322.67
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SCHEDULE 2
TOWN’S ESTIMATED FAIR MARKET LICENSE FEES
YEAR ANNUAL
LICENSE FEE
2019 $1,000.00
2020 $1,020.00
2021 $1,040.40
2022 $1,061.21
2023 $1,082.43
2024 $1,104.08
2025 $1,126.16
2026 $1,148.69
2027 $1,171.66
2028 $1,195.09
2029 $1,218.99
2030 $1,243.37
2031 $1,268.24
2032 $1,293.61
2033 $1,319.48
2034 $1,345.87
2035 $1,372.79
2036 $1,400.24
2037 $1,428.25
2038 $1,456.81
Town of Danville, CA 39
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EXHIBIT 1
FORM OF SITE LICENSE
This Site License is issued on _______________, 20___, by the Town of Danville, a
California municipal corporation (Licensor) to [insert name of carrier], based on the
following conditions:
1. This site license authorized the use of Town Vertical Infrastructure and the License
Area by Licensee as approved in Small Cell Permit ____, attached hereto as Exhibit 1-A
and incorporated herein and the building permit(s) issued by the Town, which are
attached hereto as Exhibit 1-B and incorporated herein.
2. All terms and conditions contained in the Master Pole License agreement between the
Town and [insert name of carrier] dated _____________, 20___. .
3. The term of this Site License shall be ten (10) years and shall be extended if the Small
Cell Permit is renewed.
4. The License Fee shall be in the amount and shall be paid at the time specified in
Section 5 and Schedule 1 of the Master Pole License Agreement.
TOWN OF DANVILLE
By:
[name and title of person signing]
Date: ______________________________
Town of Danville, CA 40
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EXHIBIT 1-A
[Attach approved small cell permit]
Town of Danville, CA 41
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EXHIBIT 1-B
[Attach building permit]
Town of Danville, CA 42
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EXHIBIT 2
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 any combination of primary and excess or umbrella
insurance.
(1) Commercial General Liability Insurance
Licensee shall maintain commercial general liability insurance per ISO form CG 00 01 or
equivalent (including premises operations; explosion, collapse and underground hazard;
property damage; products/completed operations; contractual liability; independent
contractors; and personal and advertising injury) with a limit per occurrence of Five Million
Dollars ($5,000,000)
(2) Workers’ Compensation Insurance
Licensee shall maintain workers’ compensation insurance per California statutory limits
with Employer’s Liability Limits of One Million Dollars ($1,000,000) per each accident or
disease and policy limit.
(3) Commercial Automobile Liability Insurance
Licensee shall maintain commercial automobile liability insurance, for owned, non-owned
and hired autos, with a combined single limit for bodily injury and property damage of Two
Million Dollars ($2,000,000) per accident.
(4) “All Risk” Property Insurance
Licensee shall maintain a property insurance policy 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. Licensee may self-
insure this risk.
(b) Required Endorsements
Commercial General Liability Insurance and Commercial Automobile Liability Insurance
policies must include the following: (1) include the Town, its officers, agents and
employees as additional insureds by endorsement as respects this Agreement; (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
Town of Danville, CA 43
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such insurance applied separately to each insured against whom a Claim is made or
brought, except with respect 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 as to any other
named insured; and (5) that such policies shall afford coverage for all insurable 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.
Licensee shall provide the Town with a minimum of thirty (30) days’ notice of cancellation
or nonrenewal of any required coverage that is not replaced.
No insurance policies required to be maintained by Licensee under this License may
contain any special limitations on the scope of protections to the Town or any Indemnified
Town Party. The Town’s additional insured status shall (i) be limited to bodily injury,
property damage or personal and advertising injury caused, in whole or in part, by
Licensee, its employees, agents or independent contractors; (ii) not extend to claims for
punitive or exemplary damages arising out of the acts or omissions of the Town, its
employees, agents or independent contractors or where such coverage is prohibited by
law or to claims arising out of the gross negligence of the Town, its employees, agents or
independent contractors; and, (iii) not exceed Licensee’s indemnification obligation under
this Agreement, if any.
(c) 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 2 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.
(d) Certificates
On or before the Effective Date, Licensee shall deliver to the Town ACORD form
insurance certificates or its form for self-insurance and the required endorsements from
Licensee’s insurance broker authorized by Licensee to bind coverage on Licensee’s
behalf that evidences all the required coverages under this License. In addition, Licensee
shall promptly deliver to the Town all certificates after Licensee receives a request from
the Town.
(e) Insurer Qualifications
Licensee’s insurance providers must be eligible to do business in California and must
meet or exceed an A.M. Best’s Key Rating A-VII or its equivalent. Any other insurance
providers shall require the prior approval by the Town’s Risk Manager, which approval
may be refused in the Town’s Risk Manager’s sole discretion.
Town of Danville, CA 44
Pole License Agreement
(f) Waiver of Subrogation
Licensee and Licensee’s insurers each hereby waives any right of recovery against the
Town 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 Town’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. Licensee self-insures its property coverage and in
satisfaction of the waiver of subrogation requirement will include the Town as joint loss
payee to the extent of the Town’s insurable interest which would have bene covered had
Licensee purchased property insurance.
(g) Self-Insurance Alternatives
The Town consents to allow Licensee to self-insure all or part of the insurance required
in this Agreement 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 (h) to this Exhibit 2.
(h) Contractor’s 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 Town
Property shall secure or provide insurance of the types and in the amounts reasonably
required in light of the work to be performed hereunder.”
(i) Town’s Right to Terminate
The Town 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 seven days after Licensee
receives such written notice.
(j) No Limitation on Licensee’s Indemnification Obligations
Licensee’s insurance obligations under this Exhibit 2 in no way relieves, decreases or
modifies Licensee’s liability or Licensee’s obligations to indemnify, protect and hold the
Town and any Indemnified Town Parties harmless under any other provision in this
License.