HomeMy WebLinkAbout17 - Master License Agreement for Siting of Small Cell Telecommunication Facilities on City -Owned Light StandardsPORT CITY OF
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_ i NEWPORT BEACH
City Council Staff Report
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February 12, 2019
Agenda Item No. 17
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator,
Iwooding@newportbeachca.gov
PHONE: 949-644-3236
TITLE: Consideration of a Master License Agreement with New Cingular
Wireless PCS, LLC (AT&T) for Siting of Small Cell
Telecommunication Facilities on City -Owned Light Standards
ABSTRACT:
Telecommunications companies operate networks of cellular antennas to transmit
wireless signals for cellular phone calls and data streaming. To keep up with customer
demand, carriers are building out their networks with new technology — namely, small cell
sites — to transmit large amounts of data over a short distance. Streetlights have been
identified as ideal locations to install small cell sites, and require an agreement with the
City of Newport Beach (City) for use of the City -owned property. New Cingular Wireless
PCS, LLC (AT&T) requests a Master License Agreement (Agreement) to install small cell
facilities on City -owned streetlights. Staff has completed negotiations with AT&T and
presents the attached Agreement (Attachment A) for City Council's consideration.
RECOMMENDATION:
a) Find this activity categorically exempt from the California Environmental Quality Act
(CEQA) pursuant to Section 15303 (New Construction or Conversion of Small
Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter
3, because this project has no potential to have a significant effect on the environment;
b) Approve a waiver of City Council Policy F-7 and L-23 based on findings contained in
this staff report and Agreement, and due to the Federal Communications Commission
Declaratory Ruling and Third Report and Order (WT Docket No. 17-79 and WC Docket
No. 17-84), which impose certain limits on state and local governments' ability to
regulate the deployment of small cell telecommunications facilities. The Declaratory
Rule and Order limits the type and amount of fees the City can collect for private use
of public property; and
c) Authorize the City Manager and City Clerk to execute a Master License Agreement
for the Use of City -Owned Streetlights for Telecommunication Facilities with New
Cingular Wireless PCS, LLC, in a form substantially similar to the agreement attached
to the staff report.
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FUNDING REQUIREMENTS:
Pursuant to City Council Policy L-23, the current annual rental rate per streetlight is
$2,316 for the first two years. The initial request is for 20 streetlights within the first
90 days of the agreement. The estimated two-year revenue projection is $46,320. The
rate will reduce to $270 per streetlight per year as per the restrictions in the Federal
Communications Commission (FCC) ruling. Staff will implement the reduced rate
structure after pending legal challenges to the ruling are resolved. Revenues collected
pursuant to the Agreement will be posted to the General Fund in a Real Property account
in the Community Development Department, 01050505-551025.
DISCUSSION:
Background
Telecommunications companies (carriers), such as Sprint, AT&T, and Verizon, operate
networks of cellular antenna sites throughout the country, including in the City of Newport
Beach. The antennas allow the carriers to transmit wireless signals for cellular phone calls
and data streaming. The networks consist of macro sites and micro sites. With more
customers using high volumes of data, carriers are challenged with expanding and
improving their networks to meet customers' demands.
Small cell sites, a more recent technology, fill the gaps in coverage and relieve the
transmission burden between macro and micro sites at a faster speed. Typically installed
on top of streetlight fixtures, small cell sites consist of few antennas and minimal
equipment, broadcast over a smaller radius, and often utilize an existing power source.
Carriers anticipate installing a large number of small cell sites on streetlights throughout
the City to address their respective gaps in coverage and increase the speed of their
networks.
Carriers have indicated their proposed roll out of small cell sites addresses gaps in their
existing 4G networks, but the sites are also intended to support future 5G technology.
Though the exact operating frequency and technology for 5G is still being developed,
indications are the antennas and associated equipment would fit within the physical
footprint of small cell sites.
The purpose of AT&T's proposed small cell roll out is to improve their network capacity.
Improving network capacity improves overall service to residents, businesses, and
visitors. Staff believes that this Agreement will benefit those community members
subscribing to AT&T's service.
Zoning, Local Coastal Program and City Council Policy
Chapter 20.49 of the Newport Beach Municipal Code (NBMC), and City Council Policy
L-23 — Siting of Wireless Telecommunications Equipment on City -Owned Property (Policy
L-23) (Attachment B) provide the regulatory and policy framework for allowing the
installation of small cell sites on City property, with the appropriate licenses, zoning
entitlements, and permits. The Zoning Code requires a Minor Use Permit (MUP) for each
installation, and requires a noticed public hearing.
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Screened antennas and support equipment on replacement streetlights would be exempt
from the requirement to obtain a Coastal Development Permit pursuant to NBMC Section
21.25.035. However, if other equipment or new poles in locations where they do not exist
are necessary for the installation, the carriers will be required to obtain a Coastal
Development permit for sites located within the coastal zone in addition to the MUP.
Small Cell Facilities on City -Owned Property
To create efficiencies in the City's processing of a large volume of requests, a master
license agreement has been developed. This agreement will allow the carriers to agree
to the business terms for a large number of small cell sites before investing in the
subsequent zoning entitlement and design/permit process. It is important to note that at
its initial execution, the agreement will not specify the location of small cell sites. As a
carrier obtains the necessary entitlements for its requested locations, the agreement will
be amended administratively to include each approved location. The proposed
Agreement with AT&T closely follows the template agreement, with some material
changes to the terms further described below.
In order to streamline the zoning entitlement and permit process, staff anticipates the
carriers will process the small cell sites in groups based on geographical areas in the City.
However, pursuant to the NBMC, carriers will be required to submit one application per
site, for each individual streetlight. The Zoning Administrator will be responsible for
reviewing and taking action on each site in the group at a noticed public hearing. Once
sites are approved by the Zoning Administrator, and the plans have been permitted, the
agreement will be amended to include the specific site location and a copy of the
approved plans.
Rental Rate
Given the volume of sites the carriers will be pursuing for approval, a key consideration
for the carriers is the cost of using the City's streetlights. Therefore, to ensure compliance
with Policy L-23, and City Council Policy F-7 — Income Property (Policy F-7) (Attachment
C), the City contracted with Colliers International to perform an appraisal to determine the
fair market rent for small cell sites. Based on the results of the market appraisal, rates are
currently set at $2,316 per streetlight per year.
The rental rate schedule is published on the City's website, and rates and the schedule
shall be updated annually in September, and changed based on the percentage change
in the Consumer Price Index. Rent for a particular site will be set based on the scheduled
rate at the time an amendment is processed to incorporate the particular site into the
agreement.
Federal Communications Commission
On October 15, 2018, the FCC published a Declaratory Ruling and Third Report and
Order (WT Docket No. 17-79 and WC Docket No. 17-84) (Declaratory Rule and Order),
which went into effect on January 14, 2019, and imposes certain limits on state and local
governments' ability to regulate the deployment of small cell telecommunications facilities.
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The Declaratory Rule and Order limits the type and amount of fees the City can collect
for private use of public property; and limits the City's ability to regulate design aesthetics.
A lawsuit has been filed by a national coalition of cities and other groups in response to
the Declaratory Rule and Order; and several other lawsuits have also been filed by
carriers in the industry. The proposed agreement has language to allow for regulatory
changes, which the City will implement pending resolution of the legal challenges.
New Cingular Wireless PCS, LLC (AT&T)
AT&T is a worldwide provider of mobile, broadband, video and other communications
services, and will be responsible for their own small cell deployment. AT&T will contract
with the City and be responsible for installing and maintaining the equipment.
AT&T has identified an initial plan to install small cell telecommunications facilities on
approximately 20 City -owned streetlight poles located throughout the City. The exact
number may increase or decrease and the locations will be determined as the sites are
reviewed through the City's process.
Proposed Master License Agreement — New Cingular Wireless PCS, LLC
The proposed terms of the Agreement with AT&T are summarized below:
The initial term of the Agreement will be for ten years, with two five-year option
terms, unless terminated as provided by the Agreement.
2. Rent shall be set per Policy L-23 and Policy F-7, and based on the published rate
schedule posted on the City's website. The rate schedule shall be updated
annually in September, by the percentage change in the Consumer Price Index.
a. The rent shall be tied to the published rate schedule for the first two years
of the term, and then subject to decrease for any new facilities, should the
City enter into a more favorable agreement with another similar small cell
carrier, or based on the rates allowed pursuant to the FCC Declaratory Rule
and Order, or any subsequent state or federal requirements.
b. AT&T agrees to submit use and construction permit applications for no less
than 20 small cell sites within 90 -days of execution of the Agreement.
3. AT&T shall provide a certificate of insurance to the satisfaction of the City's Risk
Manager naming the City as additional insured. A right to self -insure has been
added.
4. AT&T shall be responsible for all installation, maintenance, and repair associated
with the Telecommunication Facilities, including all related costs and expenses.
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5. AT&T shall install Telecommunication Facilities pursuant to the approved designs
included as an exhibit to the Agreement (Attachment E). Approved designs require
all of the small cell antennas, radios, equipment and wiring to be screened and
contained within a shroud on the streetlight, to appear as unobtrusive as possible.
a. Modification of the Telecommunication Facilities or changes to its operating
frequency must be noticed to the City, but shall not be subject to City
approval unless the modification alters the appearance from the approved
design, or changes the structural loading of the streetlight pole.
6. In the event of a default by AT&T, where the default has extended beyond the
specified notice and cure periods, the City's remedies have been limited as follows:
a. If less than 20% of the sites are in default due to non-payment of rent or
other monetary obligations under the lease (with an aggregate limit of
$100,000.00), the City may only terminate the use of that particular site(s),
but may not terminate the entire Agreement.
b. If less than 20% of the sites are in default due to maintenance obligations
in the lease, or as set forth in the applicable permits, as long as the default
does not cause a risk of harm to the public, the City must provide an
extended cure period of 120 days before exercising its rights and may only
terminate the use of that particular site(s), but may not terminate the entire
Agreement.
7. The City's standard language regarding damages has been amended to
specifically reference a waiver of claims pertaining to the Telecommunication
Facilities, to include a reciprocal limitation of damages, and add a requirement for
the licensee to notify the City at least 90 -days prior to filing a lawsuit.
This Agreement has been reviewed by the City Attorney's Office and has been approved
as to form.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15303 (New Construction or
Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations,
Title 14, Chapter 3, because it has no potential to have a significant effect on the
environment. Section 15303 allows construction of new, small facilities or structures and
installation of small new equipment and facilities in small structures. The Agreement
indirectly supports the installation of small wireless telecommunications facilities on City
streetlights throughout the City. Existing streetlights will be replaced with new poles of a
similar design and height to support both a replacement streetlight and the wireless
telecommunication facility (antennas and support equipment). Equipment and cables will
be screened from view either in small vaults or within the pole design itself to minimize
aesthetic issues.
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NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Master License Agreement with New Cingular Wireless PCS, LLC
Attachment B — City Council Policy L-23 — Siting of Wireless Telecommunications
Equipment on City -Owned Property
Attachment C — City Council Policy F-7 — Income Property
Attachment D — Small Cell Telecom Rates, September 2018
Attachment E — AT&T Small Cell Site Designs
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Attachment A
Master License Agreement with New Cingular Wireless PCS, LLC
17-7
MASTER LICENSE AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS PCS, LLC
FOR THE USE OF CITY -OWNED STREETLIGHTS FOR
TELECOMMUNICATION FACILITIES
This MASTER LICENSE AGREEMENT ("Master License") is entered into between
the City of Newport Beach, a California municipal corporation and charter city ("City"), and
New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Licensee") on
this 12th day of February, 2019 ("Effective Date"). City and Licensee are each a "Party"
and together the "Parties" to this Master License.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the City Charter;
B. City is the fee title owner of certain Streetlight(s) located within the Public Right -of -
Way in the City of Newport Beach, California;
C. Licensee desires to license from City, on a non-exclusive basis, the right to attach,
install, operate, maintain, and remove certain Telecommunication Facilities on
certain City -owned Streetlights located within certain areas of the Public Right -of -
Way (collectively, the "License Area"),
D. The Parties anticipate amending this Master License from time -to -time by
attaching and incorporating herein the specific License Area(s) to this Master
License to include additional City -owned Streetlights to allow for the attachment,
installation, operation, maintenance, and removal of additional Telecommunication
Facilities as permits are obtained from the City;
E. Pursuant to the Newport Beach Municipal Code ("NBMC") and City Council Policy
L-23, City sought the assistance of an appraiser to determine the maximum or fair
market value rent for the License Area; and
F. City is willing to make the License Area available to Licensee, subject to the
covenants and conditions set forth in this Master License on a non-exclusive basis,
to facilitate the efficient and orderly deployment of communications facilities in the
City of Newport Beach.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Amendment' means that document prepared by City in substantially the
form attached hereto as Exhibit "A" itemizing the City -owned Streetlight(s) and describing
and depicting the License Area(s) on which Licensee is authorized to install a
Telecommunication Facility.
New Cingular Wireless PCS, LLC, Page 1 17-8
1.2 "FCC" means the Federal Communications Commission or successor
entity.
1.3 "License Year" refers to successive twelve (12) month periods, commencing
with the Effective Date of this Master License.
1.4 "Public Right -of -Way" means the improved or unimproved surface or
subsurface of any public street, or similar public way of any nature, dedicated or improved
for vehicular, bicycle, and/or pedestrian related use. Public Right -of -Way includes public
streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. The
Public Right -of -Way does not include private streets.
1.5 "Replacement Streetlight" means a streetlight furnished by Licensee, in
accordance with Section 8 of this Master License. A Replacement Streetlight shall be in
accordance with the current City specifications for streetlights, subject to approval by the
City.
1.6 "Streetlight" or "City -owned Streetlight" means the streetlights owned and
operated by the City within the Public Right -of -Way, including any Replacement
Streetlight approved and accepted by the City, for which the Parties have executed an
Amendment to this Master License. The Streetlight shall include the pole, light fixture,
photocell and all structures associated with the operation of the Streetlight.
1.7 "Telecommunication Facility" or "Telecommunication Facilities" means
Licensee owned and operated antennas, equipment cabinets, utilities and fiber optic
cables, wires, brackets, conduit, screening elements, and all and related equipment for
providing wireless telecommunication services from the License Area, as further
described and depicted on in the applicable Amendment(s) to this Master License.
Telecommunication Facilities under this Master License shall be limited to "small cell"
facilities attached to existing or Streetlights or Replacement Streetlights. Antennas and
all related equipment consists of three (3) or fewer antennas and four (4) or fewer radio
units, with a small broadcast radius, and shall include screening elements to the
maximum extent feasible so a facility blends into the area, does not create visual clutter,
and does not negatively affect public views. Each Telecommunication Facility installed
pursuant to this Master License shall match the designs shown on Exhibit "B" ("Approved
Design"), attached hereto and incorporated herein by this reference. Licensee shall seek
prior written approval from City for any Telecommunication Facility where installation of
the Approved Design is not feasible. Support equipment for the Telecommunication
Facility must be placed on the Streetlight or underground within the Public Right -of -Way
or otherwise be located on private property. If support equipment is placed on private
property, a separate agreement may be required by the private property owner and
written authorization from the property owner shall be secured by Licensee and provided
to City.
1.8 "Telecommunication Services" means the transmission and reception of
wireless, cellular telephone, and/or data communications.
1.9 "Temporary Streetlight" means a standard design streetlight of equal
version to surrounding Streetlights that is temporary in nature.
New Cingular Wireless PCS, LLC, Page 2 17-9
2. LICENSE
2.1 City grants a non-exclusive license to Licensee for the term of this Master
License, to install, operate, maintain, and remove Telecommunication Facilities in the
License Area(s). City further grants to Licensee a non-exclusive license to access the
License Area(s), subject to the conditions of the permits issued by the Public Works
Department and the Community Development Department, and to the terms of all
governmental licenses, permits and approvals required by federal, state or local
governmental agencies, for construction, installation, operation, maintenance and
removal of the Telecommunication Facilities. All construction, installation, operation,
maintenance and removal activities shall be at Licensee's sole cost and expense,
including but not limited to the fees and costs associated with the installation and
government approvals described in this Master License, and pursuant to plans approved
in advance in writing by the City. The Master License granted herein is subject to the
terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a
material part of the consideration for this Master License, to keep and perform each and
every term, covenant and condition of this Master License.
2.2 Licensee shall be responsible for all maintenance associated with the
Telecommunication Facilities, including all costs and expenses associated therewith.
Except in connection with an outage or emergency, Licensee shall provide five (5)
calendar days' written notice to the Municipal Operations Director or his/her designee at
949 West 16th Street, Newport Beach, CA 92663 prior to performing any maintenance on
Telecommunication Facilities that are located on Streetlights.
2.3 City shall be responsible for all maintenance associated with the
Streetlights, including but not limited to, the working Streetlights themselves, and the
wires and equipment necessary to operate the Streetlights. In the interest of the safety
of its employees, City shall have the right to temporarily turn off the power to any and all
Telecommunications Facilities if any required maintenance for the Streetlights requires
City employees to be within ten (10) feet of the transmitting antennas, provided however,
City provides no less than twenty-four (24) hours' notice of same by calling the phone
number identified in Section 35 (except in an emergency, in which case, no notice shall
be required). City shall not be required to notify Licensee when maintenance does not
interfere with operation of Licensee's Telecommunication Facilities.
3. USES
3.1 Licensee shall use the License Area for the sole purpose of constructing,
installing, operating, and maintaining, securing and operating Telecommunication
Facilities to transmit and receive radio communication signals on various frequencies as
authorized by the FCC, all in compliance with the approved site plans and related
drawings on file with the City Community Development Department, the conditions of
approval contained in the permit issued by the Community Development Department in
accordance with Chapter 20.49 and Chapter 21.49 of the Newport Beach Municipal Code,
as may be amended from time to time, and any permit issued by the Public Works
Department. The Telecommunication Facilities may not be expanded or modified except
upon prior written approval by the City as well as issuance of any permits or approvals
that may be required under federal, state and local laws and regulations. Notwithstanding
the foregoing, but with prior written notice to the City describing and depicting the
New Cingular Wireless PCS, LLC, Page 3 17-10
change(s), Licensee shall not be required to obtain a new building permit for modification
of equipment for a Telecommunication Facility within a License Area, so long as such
modification does not alter the appearance of the Approved Design, increase pole loading
beyond the approved specifications, or involve placement of Telecommunication
Facilities outside of the License Area and Approved Design. Construction, installation,
operation, maintenance, repair, replacement, and removal of the Telecommunication
Facilities shall be at Licensee's sole expense. Licensee shall keep the
Telecommunication Facilities free from hazards or risk to the public health, safety or
welfare.
3.2 Except as provided under this Master License, Licensee shall not make or
permit to be made any alterations, additions or improvements to the Streetlights, or paint,
install lighting or decorations, or install any signs, lettering or advertising media of any
type or any other visual displays, on or about the Streetlights without the prior written
consent of the City Manager or his/her designee and any necessary permits.
Notwithstanding the foregoing, Licensee shall place warning signs on or about the
Telecommunication Facilities in the manner required by federal, state or local law, which
signs shall be shown as to type, size, and location on the permit set of plans.
4. PERMITS, APPROVALS AND PUBLIC NOTIFICATION
4.1 This Master License is expressly made contingent upon Licensee obtaining
all applicable certificates, permits, entitlements, environmental review, studies, and other
approvals that any federal, state, or local authority may require to enable Licensee to
construct, install, operate, maintain, repair and remove the Telecommunication Facilities.
Licensee shall bear the sole cost and expense related to the procurement of these
approvals. Licensee shall obtain any required permits and approvals as set forth in the
NBMC and City Council Policies, and Licensee agrees to comply with the City's
ordinances and policies regarding such installations and removals, including public
notification when required, as well as any future regulations that may be adopted by the
City respecting such installations that are consistent with the City's rights under applicable
law.
4.2 For an Amendment(s) to the Master License to be prepared and executed
to include a new License Area(s), Licensee shall provide the City's Real Property
Administrator with a copy of all required permits, licenses and approvals that are required
to enable Licensee to install and operate the Telecommunication Facilities. Licensee shall
submit all required items along with the processing fee, as outlined in Section 7. 1, below.
5. AMENDMENT TO MASTER LICENSE
5.1 The City may approve, approve with conditions, or disapprove the
installation of a Telecommunication Facility or a Replacement Streetlight, at its sole
discretion to the extent consistent with applicable laws.
5.2 Upon receipt of the necessary approvals and permits, Licensee shall
prepare a list of sites ("Site List") to identify the location of City -owned Streetlights to be
licensed to Licensee as well as a description and depiction of the License Area(s)
("License Area Depiction") to be licensed under an Amendment(s) to this Master License.
The Amendment(s) will grant Licensee an exclusive right to install Telecommunication
New Cingular Wireless PCS, LLC, Page 4 17-11
Facilities on the License Area(s) as described and depicted in the Amendment(s) to this
Master License from the date of execution of the Amendment until the expiration of this
Master License. Should the Licensee determine a location on the Site List is no longer
necessary, or wish to obtain a License Area for a location not on the Site List, Licensee
shall be responsible for obtaining the necessary approvals and permits for any site where
they wish to install Telecommunication Facilities, and execute an Amendment to the
Master License adding the new Streetlight location(s) or removing the existing location(s).
5.3 Approval of the Site List and the License Area Depiction shall be at the sole
and absolute discretion of the City Manager. City reserves the right to require Licensee
to exchange locations on the Site List to allow for appropriate spacing throughout a
neighborhood and the City.
5.4 The Parties shall execute an Amendment to this Master License updating
the Site List and License Area Depiction once the installation of a Telecommunication
Facility on a Streetlight is approved by City. The Amendment shall be effective and
incorporated into this Master License once the Amendment is fully executed by the
Parties. A sample form of the Amendment is attached hereto as Exhibit A.
5.5 The City Manager is authorized to execute Amendments on the City's behalf
with the approval as to form by the City Attorney.
5.6 Licensee shall only install Telecommunication Facilities within the License
Areas identified on the Site List, incorporated into this Master License by a fully executed
Amendment to Master License.
6. TERM
6.1 The initial term of the license granted hereunder ("Initial Term") shall
commence on the Effective Date and continue for a period of ten (10) years. After the
Effective Date, this Master License shall not be revoked or terminated except as expressly
provided in this Master License.
6.2 This Master License shall automatically be extended on the same terms and
conditions as set forth in this Master License, for up to two (2) successive terms of five
(5) years (each, a "Renewal Term"), unless at least thirty (30) calendar days prior to the
expiration of the Initial Term or the applicable Renewal Term, either Party notifies the
other Party in writing of their intention not to extend this Master License. Notwithstanding
the above, this Master License shall not be automatically extended if Licensee has
defaulted in the performance of any term or condition of the Master License and has failed
to cure such default after notice as provided in this Master License. "Term" shall refer to
the Initial Term and all Renewal Terms (if applicable), unless expressly stated elsewhere
within this Master License.
7. RENT AND FEES
7.1 Processing Fee. For each Amendment, Licensee shall pay City a non-
refundable document preparation fee in the amount of Two Hundred Sixty -Six Dollars and
00/100 ($266.00), as adjusted from time -to -time in accordance with the City's then current
fee schedule. This amount shall be paid upon request to prepare an Amendment and
prior to execution of the Amendment by the Parties.
New Cingular Wireless PCS, LLC, Page 5 17-12
7.2 Rent. Licensee shall pay the City rent ("Rent") as follows:
7.2.1 For the period of time from the Effective Date until the end of the
second calendar year, Licensee shall pay to City, commencing forty-five (45)
calendar days after execution of any Amendment, the amounts listed in the most
current published rents schedule approved by the City Manager and available on
the City's website, for each Streetlight, per month, based upon the License Year
at the time of Amendment to the Master License, and the number of License Areas.
7.2.2 After the time period set forth in Section 7.2.1, the Rent for each
Streetlight, shall either be: (1) Twenty -Two Dollars and Fifty Cents ($22.50) per
month (i.e. Two Hundred and Seventy Dollars ($270) per year); or (2) any higher
amount allowed to be charged by the City pursuant to Federal Communications
Commission's Declaratory Ruling and Third Report and Order, FCC 18-133,
Released September 27, 2018 ("FCC 2018 Order"), or any FCC subsequent order
or ruling related to small wireless facilities use of the Public Right -of Way.
7.2.3 In the event the FCC 2018 Order provisions related charges for
small wireless facilities use of the Public Right -of -Way, are determined to be
invalid, removed, stayed, or altered in a significant manner by the FCC or a court
of competent jurisdiction ("Subsequent Significant Action"), either Party to this
Agreement may request that the Parties meet and confer as to whether the Rent
provisions in this Master License should be modified. If after good faith negotiation
the Parties are unable to reach an agreement regarding the Rent to be paid
hereunder, the Rent for each Streetlight, per month, shall revert to the most current
published rents schedule approved by the City Manager and available on the City's
website.
7.2.4 Rent shall be calculated per Streetlight, and includes all
Telecommunications Facilities and appurtenant equipment and facilities.
7.2.5 During the period commencing two (2) calendar years after the
Effective Date of this Master License, through the end of the Initial Term, the City
shall not offer rental rates in an amount less than the Rent under this Master
License, pursuant to the terms of this Section 7.2, to a licensee under the same
type of master license agreement for the installation of small cell
Telecommunication Facilities on City -owned Streetlights, unless, in any such case,
Licensee is provided with the same rental rates for installation of new
Telecommunication Facilities incorporated into this Master License by Amendment
from and after the date such rental rates are agreed to by City, as evidenced by a
fully executed agreement. The Parties expressly agree that this provision will not
apply to agreements that have a non -monetary component, such as, but not limited
to, the agreement between Los Angeles SMSA Limited Partnership (doing
business as Verizon Wireless) and the City, which has an effective date of
February 13, 2018, and is incorporated herein.
7.2.6 In exchange for City's agreement to the provisions outlined in
Section 7.2, Licensee, in furtherance of its intent to improve wireless
telecommunication signals in the City, hereby agrees to submit use and
construction permit applications for installation of new Telecommunication
New Cingular Wireless PCS, LLC, Page 6 17-13
Facilities on no fewer than twenty (20) Streetlights, pursuant to this Master
License, within ninety (90) calendar days of the Effective Date of this Master
License. Licensee further agrees to submit all documents and information
necessary to enter into an Amendment for no fewer than twenty (20) Streetlights
within ten (10) business days of obtaining said permits. Licensee shall execute and
return said Amendment to City, approved as to form by the City Attorney, within
ten (10) business days of receipt of the Amendment.
7.3 Time and Place of Payment. Commencing forty-five (45) calendar days
following the execution of an Amendment to this Master License, and on the first (1St) day
of each month during the Term, Licensee shall pay to City, Rent for each Streetlight. Rent
for any partial month shall be prorated in accordance with the actual number of days in
that month.
All payments of Rent shall be made in lawful money of the United States of America
and shall be paid to City in person or by United States mail, or overnight service, at the
Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach,
California, 92658, or to such other address as City may from time to time designate in
writing to Licensee. If requested by City, Licensee shall make payments electronically (at
www.newportbeachca.gov) or by wire transfer (at Licensee's cost). Licensee assumes all
risk of loss and responsibility for late charges and delinquency rates if payments are not
timely received by City regardless of the method of transmittal.
7.4 Delinquent Payments. A ten percent (10%) penalty shall be added to the
Rent if not received by City within five (5) calendar days after the due date. In addition,
all unpaid Rent shall accrue interest on the amount due at the rate of ten percent (10%)
interest per annum from the date due and payable by the terms of this Master License
until paid in full. All late charges and interest payments hereunder, shall, as incurred,
become Rent due under this Master License.
7.5 Adjustment of Rent Upon Modification of Use. The City and Licensee intend
this Master License and any Amendment to cover only "small cell" installations, as those
terms are commonly understood to mean small, low-power, low -elevation, unobtrusive
wireless facilities intended to cover relatively small geographic areas. Licensee expressly
acknowledges and agrees that the permitted uses under this Master License does not
include the right to use any Streetlight for any other purpose. Rental rates, as set out in
Section 7.2, are based upon the scope of the project outlined. Changes to the
Telecommunication Facility, Telecommunication Facilities, Telecommunications
Services, the Streetlight, or License Area may increase the value of the Master License.
To the degree that a change in the Telecommunication Facility(ies) requires amendment
or modification to the permit beyond what is outlined in Section 1.7 and 3.1, City and
Licensee understand and mutually agree that a corresponding increase in the market rate
of the Telecommunications Facilities shall be commensurate with the additional License
Area being used to reflect an adjustment to the Rent. Such an adjustment may be defined
at the time at which Licensee seeks City's approval for modifications in the
Telecommunications Facility, and shall be mutually agreed to by the Parties as a condition
of the City's approval of such expanded service by the Licensee.
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8. REPLACEMENT OF STREETLIGHTS
8.1 If the Telecommunication Facilities require replacement of a City -owned
Streetlight, Licensee shall be responsible for all costs to remove the existing Streetlight
and design, procure, and install a Replacement Streetlight. The Replacement Streetlight
shall be subject to the review and approval of City. Upon completion of the installation of
the Replacement Streetlight and acceptance by City Manager, or his/her designee, the
Replacement Streetlight shall become the City's property, in its then existing "as -is"
condition, with no payment owed to Licensee. Licensee shall execute any documents
required by City to cause the Replacement Streetlight to transfer ownership to City,
including transfer of manufacturer's warranty, or provide copy of manufacturer's warranty
to City and assist City in processing a claim against such manufacturer's warranty.
Alternatively, Licensee may self -warranty the Replacement Streetlight to the City, in a
scope and value equal to or greater than that provided by the manufacturer to the
Licensee.
8.2 Upon approval of the installation of a Replacement Streetlight, Licensee
shall have one hundred eighty (180) calendar days to install the Replacement Streetlight.
The existing Streetlight shall remain in operating condition until such time the
Replacement Streetlight is installed. Licensee shall have seventy-two (72) hours to
complete the installation of the Replacement Streetlight once the existing Streetlight is
removed.
8.3 In the event Licensee removes a Streetlight or Temporary Streetlight,
Licensee shall use its best efforts to remove the Streetlight or Temporary Streetlight in a
manner whereby the Streetlight or Temporary Streetlight can be reused. Licensee shall
contact the Municipal Operations Director or his/her designee at (949) 644-3011 at least
five (5) working days prior to removal for instructions on where to deliver the Streetlight
upon removal.
8.4 In the event a Streetlight has been removed and a Replacement Streetlight
for that Streetlight has not been accepted by City prior to removal of the License Area
from the Site List, Licensee shall be responsible for all costs and expenses associated
with making such adjustments to the Replacement Streetlight so that it is consistent with
City standards. Such Streetlight shall be subject to the review and approval process set
forth in Section 8.1.
9. INTERFERENCE WITH CITY TELECOMMUNICATION FACILITIES
9.1 Licensee agrees that its operation of the Telecommunication Facilities shall
at all times comply with all FCC requirements and shall not cause any direct or indirect
interference with the operation of the Streetlights as streetlights or City's own wireless
communications facilities, including but not limited to public safety transmissions, police
and fire communications, water or sewer internal or external radio signals and
communications, as they now exist or may from time -to -time hereafter exist ("City's
Facilities").
9.2 In the event of any interference with City Police or Fire Department public
safety communications, Licensee shall work with the affected department(s) to correct
the interference within twenty-four (24) hours of City's written or telephone notice to
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Licensee. In the event of interference with City's Streetlight or own wireless
communications system or external radio signals and communications other than Police
or Fire Department, Licensee shall work with City to correct the interference within
seventy-two (72) hours of City's written or telephone notice to Licensee. If it is determined
the interference is caused by the Telecommunication Facilities and if Licensee is unable
to correct interference to City's satisfaction, Licensee shall cease its operation of the
interfering Telecommunication Facilities immediately, until the cause of the interference
is corrected to City's satisfaction. If Licensee fails to correct any interference, City may,
in addition to and without compromising any other available remedy, cut off power to the
Telecommunication Facilities in the manner set forth in this License.
9.3 Should Licensee make any changes to the frequency or operating
conditions approved by any permit issued by the City, which interferes with City's
Facilities, then Licensee shall submit plans for the changes to City for its review and
approval. Licensee agrees to fund any studies required to ensure that any contemplated
changes to the frequency or operating conditions will be compatible with the City's
Facilities. No further changes to the interfering frequency or Telecommunications Facility
shall be made, pursuant to this Section 9.3, prior to the City's written approval.
10. EMERGENCY
10.1 Licensee understands that the Telecommunication Facilities are located on
a public structure or on public property and emergency situations may develop from time -
to -time that require power to the Telecommunication Facilities to be immediately shut off
and thereby interfere or temporarily terminate the Licensee's use of its
Telecommunication Facilities on the Streetlights and License Area. Notwithstanding any
other provision in this Master License, Licensee agrees that if such a situation occurs,
and/or there are frequency interferences of any nature between City's Police or Fire
Department public safety communications equipment or City's facilities affecting
operation of sewer or water service and that of Licensee in a manner that threatens public
health or safety, City shall have the right to immediately shut off power to the
Telecommunication Facilities and any equipment of Licensee's located on the Streetlights
or License Area for the duration of the emergency. However, City agrees to use
reasonable efforts to provide notice to Licensee prior to shutting -off power to the
Telecommunications Facilities. Licensee agrees not to hold City responsible or liable for
and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim
or liability of any nature suffered as a result of the loss of the use of the
Telecommunication Facilities or other communication facilities by the shutoff of power, as
permitted hereunder.
10.2 Licensee agrees to install a clearly marked and accessible master power
"cut-off' switch on the Telecommunication Facilities for the purpose of assisting City in
such an emergency.
10.3 Unless otherwise specifically provided in a notice of termination of this
Master License, City's exercise of the right to shut off any power to the
Telecommunication Facilities pursuant to this Master License is not intended to constitute
a termination of this Master License by either Party and such event is a risk accepted by
the Licensee. Licensee and City shall meet after the City determines that an emergency
situation has ended to establish the time and manner in which power shall be restored.
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10.4 City shall have the right to determine what constitutes an "emergency
situation" pursuant to this Section.
11. ACCEPTANCE OF CONDITION OF LICENSE AREA
Licensee accepts use of the Streetlights and License Area in an "as is" condition,
with no warranty, express or implied from the City as to any latent, patent, foreseeable
and unforeseeable condition of the Streetlights and License Area, including their
suitability for the use intended by Licensee. To the best of City's knowledge, the
Streetlights and the License Area have not been used for generation, storage, treatment
or disposal of Hazardous Substances as defined in this Master License. The Licensee
has conducted its own appropriate due diligence investigation of the Streetlights and
License Area prior to its execution of this Master License or any Amendment hereto, or
will do so prior to its installation of Telecommunications Facilities within the License
Area(s).
12. NO INTEREST IN PROPERTY
Nothing herein shall be deemed to create a lease, or easement of any property
right, or to grant any, possessory or other interest in the Streetlights, License Area, or any
Public Right -of -Way, other than a real property license to use and access the Streetlights
and License Area, revocable and for a term as set forth in this Master License.
13. RESERVATION OF RIGHTS
Licensee understands, acknowledges and agrees that any and all authorizations
granted to Licensee under this Master License are non-exclusive and shall remain subject
to all prior and continuing regulatory and propriety rights and powers of City to regulate,
govern and use City property, as well as any existing encumbrances, deeds, covenants,
restrictions, easements, dedications and other claims of title that may affect City property.
14. UTILITIES
Licensee shall not do anything, nor shall it permit anything to be done that may
interfere with the effectiveness and accessibility of the Streetlights, or utility, heating, air
conditioning or ventilation systems located in the License Area, except as may be
specifically permitted by any permit issued by the City. The Telecommunication Facilities
shall be separately metered. In addition to the Rent, Licensee shall be responsible for the
cost of all utility services necessary for the operation of the Telecommunication Facilities,
and if required by City, shall have such utilities installed underground and/or connected if
already installed, and maintained at Licensee's sole cost and expense (along with all
ongoing use charges). Subject to City's approval, Licensee shall obtain an encroachment
permit from City's Public Works Department and submit plans for underground
construction of any required utility lines to City for its review and approval prior to
commencement of construction. Alternatively, Licensee may tap into City's power source
within each License Area. Licensee shall pay to City a monthly fee as outlined in the Rate
Sheet for Telecommunications Facilities, approved by the City Manager and available on
the City's website, for estimated utility costs based on Licensee's equipment and
consumption history, to pay for the use of the City's Utility services ("Utility Use Fee").
City, upon not less than thirty (30) days' notice to Licensee, may increase or decrease
the Utility Use Fee commensurate with costs incurred by City for Licensee's use of City
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provided utilities. City's costs incurred for Licensee's use of City provided utilities shall be
determined in City's sole and absolute discretion, and Licensee agrees not to dispute the
accuracy of any fee charged hereunder, either during the Term of the Agreement or at
any time thereafter, on the basis that it exceeds the cost(s) actually incurred by City for
Licensee's use of City provided utilities.
15. INSPECTION
15.1 City shall be entitled, at any time, to inspect the Streetlights and
Telecommunication Facilities for compliance with the terms of this Master License, and
with all applicable federal, state and local (including those of the City) government
regulations, provided any changes to such regulations shall not apply retroactively unless
required by applicable laws
15.2 The Telecommunication Facilities shall be structurally and aesthetically
compatible with the NBMC and in accordance with this Master License. If
Telecommunication Facilities are not compliant with this foregoing requirement, Licensee,
at Licensee's sole cost and expense, shall remove any such non-compliant
Telecommunication Facilities or make Telecommunication Facilities compliant upon the
request of the City. Licensee shall remove non-compliant Telecommunication Facilities
or make Telecommunication Facilities compliant within the timeframes required by the
City in writing. In the event Licensee fails to complete the foregoing within the timeframes
required by the City, the City may terminate Licensee's use of the affected Streetlight in
accordance with Section 23.3. Any termination is subject to the Licensee complying with
the surrender obligations in this Master License.
16. CITY RETENTION RIGHTS
Licensee's right to use the Streetlights and License Area during the term of this
Master License shall be subordinate and junior to the rights of City to use and occupy the
Streetlights and License Area for any purpose that does not interfere with Licensee's use
of the Streetlights and License Area as provided herein.
17. LICENSEE'S RETENTION OF TITLE
Title to the Telecommunication Facilities placed on the Streetlights and License
Area by Licensee shall be held by Licensee or its equipment lessors, successors, or
assigns. The Telecommunication Facilities shall not be considered fixtures. Licensee has
the right to remove any or all of the Telecommunications Facilities at its sole expense
from time -to -time during the term of the Master License. Licensee shall remove all of the
Telecommunications Facilities, at its sole cost and expense, within ninety (90) calendar
days of expiration or termination of this Master License.
18. SURRENDER
Within ninety (90) calendar days of expiration or termination of this Master License,
or relocation or termination of a specific Streetlight or License Area, Licensee at its sole
cost and expense, shall remove the Telecommunication Facilities, restore the Streetlights
and License Area to a condition satisfactory to and approved in writing by City, and vacate
the Streetlights and License Area. Should Licensee fail to restore the Streetlights and
License Area to a condition satisfactory to City, City may perform such work or have such
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work performed by others and Licensee shall reimburse City within thirty (30) calendar
days for all direct and indirect costs associated with such work upon receipt of an invoice
for such costs. Any Telecommunication Facility that is not removed by Licensee within
the time frames set forth in this Section may be declared by the City to have become its
sole and exclusive property, after which the City may utilize or dispose of the
Telecommunication Facility as it sees fit. Licensee shall continue to pay the Rent until the
Telecommunications Facilities have been removed, and the Streetlights and License Area
are restored as required by this Master License. Licensee shall be liable for and pay any
Rent owed until such time as the Telecommunications Facilities have been removed from
the License Area.
19. ASSIGNMENT
19.1 All of the terms and provisions of this Master License shall inure to the
benefit of and shall be binding upon the Parties and their respective successors and
assigns. This Master License and the rights and obligations of Licensee shall not be
assigned, transferred, or hypothecated (collectively, "transferred"), in whole or in part,
without the express written consent of the City Manager or his/her designee. Any
attempted transfer in violation of this Section shall be null and void. Except as provided
below, the transfer of the rights and obligations of Licensee to any successor in interest
or entity acquiring fifty-one percent (51 %) or more of Licensee's stock or assets, shall be
deemed an assignment requiring consent. Licensee shall provide City at least thirty (30)
calendar days advance written notice of any proposed transfer.
19.2 If Licensee desires at any time to effect a transfer, it shall first deliver to City:
(a) a written request for approval; (b) the name, address and most recent financial
statements of the proposed transferee; (c) the proposed instrument of assignment or
sublease, which in the case of assignment shall include a written assumption by the
assignee of all obligations of this Master License arising from and after the effective date
of assignment; and (d) any other reasonable information requested by the City Manager
to assist him/her in making their decision.
19.3 Notwithstanding Section 19.1 above, Licensee may, without prior approval
from time -to -time, do any of the following:
19.3.1 Grant to any person or entity a security interest in some or all of
Licensee's Telecommunication Facilities which lien shall be subordinate and junior
to this Master License. A security interest shall not include the Streetlights or other
City property, and does not imply approval of any other use of the
Telecommunication Facilities or License Area; and
19.3.2 Assign its rights hereunder: (i) to any entity which has, directly, or
indirectly, a thirty percent (30%) or greater interest in Licensee (a "Parent") or in
which Licensee or a Parent has a thirty percent (30%) or greater interest (an
"Affiliate"), (ii) to any entity with which Licensee and/or any Affiliate may merge or
consolidate; (iii) to a buyer of substantially all of the outstanding ownership units
or assets of Licensee or any Affiliate, or (iv) to the holder or transferee of the FCC
license under which the Telecommunication Facilities is operated, upon FCC and,
if applicable, California Public Utilities Commission approval of any such transfer.
Any such assignment shall be conditioned upon and not be effective until Licensee
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cures any defaults under this Master License and the assignee signs and delivers
to City a document in which the assignee accepts responsibility for all of Licensee's
post, current and future obligations under the Master License.
19.4 No assignment by the Licensee shall release Licensee from continuing
liability under this Master License with the exception of a buyout of the Licensee by
another entity that formally assumes all past, current and future obligations of the
Licensee under this Master License.
19.5 Telecommunication Facilities shall be mounted by Licensee and shall not
be otherwise assigned, transferred, contracted, or subcontracted out without the prior
written approval of City.
20. TAXES
Licensee shall pay all personal interest property taxes, real property taxes, fees
and assessments which may at any time be imposed or levied by any public entity and
attributable directly or indirectly to the Telecommunication Facilities authorized herein.
City hereby gives notice to Licensee, pursuant to California Revenue and Tax Code
Section 107.6 that this Master License may create a possessory interest, which is the
subject of property taxes levied on such interest, the payment of which taxes shall be the
sole obligation of Licensee.
21. RELOCATION
Licensee agrees that whenever any City improvements may be required (for
example, the widening of a street or replacement of a bridge or City utility), the City may
require the removal or relocation of any such Telecommunication Facility at the
Licensee's expense, without Licensee making any claim against the City for
reimbursement or damage therefore. Except in the event of an emergency or other
situation requiring immediate relocation of the Telecommunication Facilities, City shall
provide Licensee with not less than ninety (90) calendar days written notice of removal or
relocation specifying a date by which the relocation is to take place. When a removal or
relocation is required by the City, the City shall take reasonable steps to provide a suitable
alternative for Licensee to relocate its affected Telecommunication Facility. If, however,
a suitable alternative location is not available, City or Licensee, at their sole discretion,
may terminate use of the Streetlight and require removal of the Telecommunication
Facilities. Any relocation or removal of a Streetlight from Site List shall require a new
Amendment to be executed by the Parties. If Licensee fails to remove the
Telecommunication Facilities to a condition satisfactory to City within the ninety (90)
calendar day period, City may perform such work or have such work performed by others
and Licensee shall reimburse City within thirty (30) calendar days for all direct and indirect
costs associated with such work upon receipt of an invoice for such costs.
22. DAMAGE AND DESTRUCTION OF STREETLIGHT
22.1 In the event of (a) partial or total destruction of a Streetlight during the term
of this Master License which requires repairs to the Streetlight, or (b) the Streetlight being
declared unsafe by any authorized public authority for any reason other than Licensee's
act, use or occupation, which declaration requires repairs to the Streetlight, City shall use
reasonable efforts to make said repairs or remove the Streetlight within one hundred
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eighty (180) calendar days of the date of destruction or the date the declaration was
served on City. If the City determines it is necessary for the Telecommunication Facility
to be removed in order to make said repair to or remove the Streetlight, Licensee shall do
so within forty-eight (48) hours of written notice from the City. Licensee shall have the
right to either (a) use reasonable efforts to repair or replace the Streetlight that needs
repair or replacement, or (b) remove the Telecommunications Facility from the Streetlight
and from the Site List by Amendment to the Master License by providing written notice to
the City within sixty (60) calendar days following the date of such destruction or the date
the declaration was served on Licensee. Licensee shall be responsible for installing a
Replacement Streetlight within ninety (90) calendar days of notice from the City. The City
has the option to install a Temporary Streetlight, until a Replacement Streetlight is
installed. Licensee shall be responsible for removing the Temporary Streetlight and
installing the Replacement Streetlight as set forth in Section 8.
22.2 If Licensee elects not to terminate their use of the Streetlight pursuant to
this Section, the Rent shall remain in full force and effect. If Licensee elects to terminate
their use of the Streetlight pursuant to this Section, Rent shall remain in full force and
effect until the date of removal of a Telecommunication Facility from a Streetlight and
execution of an Amendment by the Parties to remove the Telecommunication Facility
from the Site List.
22.3 Any termination is subject to the Licensee complying with the surrender
obligations in this Master License.
23. DEFAULT
23.1 Default bV Licensee. The occurrence of any one or more of the following
events shall constitute a default and material breach of this Master License by Licensee:
23.1.1 Failure of Licensee to pay Rent due hereunder within ten (10)
calendar days after written notice from City;
23.1.2 Any failure by Licensee to perform any of the other terms,
conditions or covenants of this Master License to be observed or performed by
Licensee after thirty (30) calendar days written notice from City;
23.1.3 Licensee becoming insolvent or filing any debtor proceedings, or
should any adjudications in bankruptcy be rendered against Licensee, or should
Licensee take or have taken against it, in any court pursuant to any statute either
of the United States or of any State, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a portion of
Licensee's property, and should the same not be discharged within one hundred
twenty (120) calendar days thereafter;
23.1.4 Licensee permitting the License Area to become vacant or
unoccupied for thirty (30) consecutive calendar days after written notice to
Licensee (except for vacancies caused by any force majeure or by remodeling,
reconstruction, alteration or repairs permitted under this Master License); or
23.1.5 The appointment of a trustee or receiver to take possession of
substantially all of the assets of Licensee located at the License Area or Licensee's
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interest in this Master License or the License Area, where possession is not
restored within thirty (30) calendar days.
23.2 Cure Period. Except for the payment of Rent and unless explicitly stated
elsewhere in this Agreement, if the nature of Licensee's default or breach under this
Master License is such that more than thirty (30) calendar days are reasonably required
for its cure, then Licensee shall not be deemed to be in default or breach if Licensee
commences such cure within such thirty (30) calendar day period and diligently proceeds
with such cure to completion.
23.3 Remedies. In the event of a default or breach by Licensee and Licensee's
failure to cure such default or breach, City may at any time and with or without notice,
except as expressly required below, do any or more of the following:
23.3.1 If Licensee is in default of: (i) its obligation to pay Rent for twenty
percent (20%), or more, Streetlights of the total number of Streetlights set forth on
the most recent Site List; (ii) its maintenance obligations, as set forth in this Master
License, or other conditions set forth in an applicable permit, and the default relates
in any way to twenty percent (20%), or more, of the Streetlights set forth on the
most recent Site List, or (iii) Licensee's other monetary obligations, set forth herein,
in an amount of One Hundred Thousand Dollars ($100,000), or more, the City may
exercise the remedies set forth in Subsection 23.3.4.
23.3.2 If Licensee is in default of: (i) its obligation to pay Rent for less than
twenty percent (20%) of the Streetlights set forth on the most recent Site List, (ii)
its maintenance obligations, set forth in this Master License, or other conditions
set forth in an applicable permit, and the default relates in any way to less than
twenty percent (20%) of the Streetlights set forth on the most recent Site List, or
(iii) Licensee's other monetary obligations, set forth herein, in amount less than
One Hundred Thousand Dollars, ($100,000), the City may exercise any remedy
set forth in Subsection 23.3.4, except the City hall not have the right to terminate
the Master License under Subsection 23.3.4.2.
23.3.3 If Licensee is in default of any maintenance obligations, set forth in
this Master License, or other conditions set forth in an applicable permit, and if the
default does not cause a risk of harm to the public, as determined by the City in its
sole discretion, prior to exercising the remedies authorized under this Subsections
23.3.1, or 23.3.2, , the City shall send Licensee a notice stating that the City intends
to exercise its rights pursuant to Subsection 23.3.4, if Licensee does not comply
with the applicable maintenance obligation or permit condition and cure the default
within one hundred and twenty (120) calendar days.
23.3.4 As provided herein and for all other breaches and defaults, the City
may do any of the following:
23.3.4.1 Re-enter the portion of the License Area giving rise to
the default, remove all persons and property, and repossess and enjoy such
License Area.
23.3.4.2 Terminate the entire Master License and Licensee's right
of possession of the License Area. Such termination shall be effective upon
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City's giving written notice and upon receipt of such notice, Licensee shall
immediately surrender possession of the License Area to City.
23.3.4.3 Terminate Licensee's right of possession of the portion
of the License Area giving rise to the default, by entering into an
Amendment to modify the Site List and remove the Streetlight(s) in default.
Licensee agrees to execute said Amendment at the request of the City
within ten (10) calendar days.
23.3.4.4 Exercise any other right or remedy, which City may have
at law or equity.
23.4 City's Right to Cure Licensee's Default. Upon continuance of any material
default beyond applicable notice and cure periods, City may, but is not obligated to, cure
the default at Licensee's cost. If City pays any money or performs any act required of, but
not paid or performed by, Licensee after notice, the payment and/or the reasonable cost
of performance shall be due as additional Rent not later than thirty (30) days after service
of a written demand accompanied by supporting documentation. No such payment or act
shall constitute a waiver of default or of any remedy for default or render City liable for
any loss or damage resulting from performance.
23.5 Waiver of Rights. Licensee waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any
other present or future law, in the event Licensee is evicted or City takes possession of
the License Area by reason of any default by Licensee.
24. TERMINATION
24.1 This Master License is not a lease; it is a license to use City -owned property.
As such, the Parties hereby acknowledge and agree that City, as the licensor, may revoke
this Master License at will and at any time during the Term, for any reason, with or without
cause, by giving thirty (30) calendar days' written notice to the Licensee. However, City
agrees that City will not exercise its right to revoke this Master License at will unless City
determines, in its sole discretion, that Licensee is in default of this Master License, the
events of default being set forth in Section 23. The decision of whether to revoke the
Master License when the basis of the revocation is an event of default as set forth in
Section 23 shall be in the City's sole and absolute discretion.
24.2 In the event of City's material breach of any material obligation contained in
this Master License and City's failure to cure such material breach within thirty (30)
calendar days of receiving Licensee's written notice thereof, Licensee may terminate this
Master License or license to use a specific License Area upon thirty (30) calendar days'
prior written notice to City. Notwithstanding the above, if the nature of City's material
breach under this Master License is such that more than thirty (30) calendar days are
reasonably required for its cure, then City shall not be deemed to be in material breach if
City commences such cure within such thirty (30) calendar day period and diligently
proceeds with such cure to completion. Notwithstanding the foregoing, during a Renewal
Term and upon one hundred eighty (180) days' written notice to City, Licensee may
terminate this Master License or license to use a specific License Area for any reason;
provided, however, if Licensee terminates this Master License or license to use a specific
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License Area under this subsection for any reason other than City's uncured material
breach, Licensee shall pay to the City, concurrently with the delivery of its written
termination notice, a termination fee equal to twelve (12) months' Rent in effect as of the
date of such termination for the specific License Area(s) affected thereby.
24.3 Termination of use of a specific Streetlight or License Area must be effected
by amending the Master License and removing the location from the Site List and/or
License Area Depiction. Upon Licensee's termination of this Master License or removal
of any Streetlight and/or License Area from the Site List or License Area Depiction during
the Term or any exercised Renewal Term, pursuant to the terms of Section 24.2 above,
Licensee shall pay to the City that pro -rated portion of Rent and/or fees specified in this
Master License that is unpaid prior to the effective date of termination. Licensee shall be
liable for and pay any Rent owed for the Streetlight until such time as the
Telecommunications Facilities have been removed from the License Area and the Master
License has been amended to remove the location, whichever is later.
24.4 Any termination is subject to the Licensee complying with the surrender
obligations of this Master License.
25. CONSTRUCTION
25.1 Licensee agrees to take all prudent action to protect the Telecommunication
Facilities and City facilities from any damage or injury caused by any work performed by
or on behalf of Licensee regarding the construction, installation, operation, inspection,
maintenance, repair, reconstruction, replacement, relocation, or removal of its
Telecommunication Facilities or the failure, deterioration or collapse of such
Telecommunication Facilities.
25.2 Licensee shall, at its sole cost and expense, continually maintain in a first-
class manner, and repair any damage to the Streetlights and License Area to the extent
such damage is caused by Licensee or any of its agents, representatives, employees,
contractors, subcontractors, or invitees. Licensee shall immediately notify the City's
emergency contact listed in Section 35 of this Master License and the appropriate public
safety agency (e.g., police and fire department) of any damage or injury caused by work
authorized pursuant to this Master License.
25.3 In accordance with the California Labor Code (Sections 1770 et seq.), the
Director of Industrial Relations has ascertained the general prevailing rate of per diem
wages, if applicable, in the locality in which the work is to be performed for each craft,
classification, or type of workman or mechanic needed to execute the work under this
Master License. A copy of said determination is available by calling the prevailing wage
hotline number (415) 703-4774, and requesting one from the Department of Industrial
Relations. If applicable, all parties to the Master License shall be governed by all
provisions of the California Labor Code — including, but not limited to, the requirement to
pay prevailing wage rates (Sections 1770-7981 inclusive). If applicable, a copy of the
prevailing wage rates shall be posted by the Licensee at the job site.
25.4 Without limitation of any other remedy available hereunder or at law or in
equity, if Licensee fails to repair or refinish any such damage, City may, at its sole
discretion, but not be required to, repair or refinish such damage and Licensee shall
New Cingular Wireless PCS, LLC, Page 17 17-24
reimburse City of all costs and expenses incurred in such repair or refinishing within thirty
(30) calendar days of receipt of invoice from City.
25.5 Prior to the installation of a Telecommunication Facility, Licensee shall
submit to the City and, throughout the Term plus ninety (90) calendar days thereafter,
maintain in effect, a Faithful Performance Bond, in the form attached hereto as Exhibit
"C," letter of credit or other security ("Security"), in the principal amount of ten thousand
dollars ($10,000) per License Area to ensure and secure faithful compliance with the
conditions of this Master License. Alternatively, upon execution of this Master License,
and prior to the entering into any Amendment itemizing Streetlights on a Site List, or
installation of any Telecommunication Facility, the Licensee may submit and maintain one
Faithful Performance Bond, in the form attached hereto as Exhibit "C," letter of credit or
other security, in the principal amount of One Million Dollars ($1,000,000), to ensure and
secure faithful compliance with the conditions of this Master License. The Security shall
be in a form acceptable to the City's Real Property Administrator, and shall remain in
effect throughout the Term of this Master License plus ninety (90) calendar days
thereafter. The purpose of the Security is to provide payment to the City for any and all
expenditures incurred by the City under this Master License, including but not limited to
costs of repairs and cost of removal of the Telecommunication Facilities upon expiration
or termination of this Master License should Licensee fail to do so as required by this
Master License. The Security shall in no way limit the liability or obligations of Licensee
or its insurers under this Master License. If the funds represented by the Security become
exhausted, Licensee shall immediately provide the City with a new security in the amount
necessary to provide full -required Security.
25.6 Upon the installation of each Telecommunication Facility, Licensee shall
promptly furnish to City a current list and map that identifies the exact location of each of
the Telecommunication Facilities. This information shall be provided in a format that is
compatible with City's geographic information system.
26. FACILITY MAINTENANCE
At its sole cost and expense, Licensee shall take good care of the
Telecommunication Facilities and keep the Telecommunication Facilities neat, clean, in
good condition and free from graffiti, dirt and rubbish at all times. City may perform
maintenance in the event Licensee fails to commence required maintenance within the
time provided by City in the notice requesting such maintenance. The cost of any
maintenance by the City pursuant to this Section shall be payable as additional Rent.
27. MULTIPLE COMPANIES
The Parties recognize that this Master License contemplates installation and use
by multiple entities or companies, other than City, seeking to place Telecommunication
Facilities in or about the Streetlights or License Area. Licensee shall use its best efforts
to coordinate its activities with those other entities to reduce the costs of all such parties
and to avoid interference with each such party's realizations of benefits of this and similar
licenses, but in no way shall Licensee sublease or authorize use of the Streetlight or
License Area by another entity/carrier without the City's express written consent. If City
deems reasonably necessary, City shall coordinate any such cooperative efforts. City will
not enter into a subsequent Master License with another entity to place
New Cingular Wireless PCS, LLC, Page 18 17-25
Telecommunication Facilities on the Streetlight or in proximity to the Streetlight if Licensee
has shown to City's satisfaction, after compliance with this Section, that additional
Telecommunication Facilities are technically incompatible with the operation of the
Telecommunication Facilities under this Master License.
28. INDEMNIFICATION
To the fullest extent permitted by law, Licensee shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents, volunteers, and
employees (collectively, the "Indemnified Parties") from and against any and all claims
(including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a "Claim," collectively, "Claims"), which may arise from or in any manner relate (directly
or indirectly) to any breach of the terms and conditions of this Master License, any latent
or patent defects in design and construction of Streetlights, Telecommunication Facilities,
or work thereon conducted under this Master License including, without limitation, defects
in workmanship or materials or Licensee's presence or performance of duties on the
License Area and/or Streetlights (including the negligent and/or willful acts, errors and/or
omissions of Licensee, its principals, officers, agents, employees, vendors, suppliers,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Licensee to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorney's fees in any action on or to enforce
the terms of this Master License. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by the Licensee.
29. INSURANCE
Without limiting Licensee's indemnification of City, and prior to commencement of
work under this Master License or any Amendment to the Master License, Licensee shall
obtain, provide and maintain at its own expense during the term of this Master License,
policies of insurance of the type and amounts described in Exhibit "D," for each Streetlight
and/or License Area.
30. HAZARDOUS SUBSTANCES
30.1 From the date of execution of this Master License throughout the Term,
Licensee shall not use, store, manufacture or maintain on the Streetlights and License
Area any Hazardous Substances except: (i) in such quantities and types found customary
in construction, repair, maintenance and operations of Telecommunication Facilities
approved by this Master License, or (ii) natural gas, petroleum and petroleum products
contained within regularly operated motor vehicles. Licensee shall handle, store and
dispose of all Hazardous Substances it brings onto the Streetlights and License Area in
accordance with applicable laws.
New Cingular Wireless PCS, LLC, Page 19 17-26
30.2 For purposes of this Master License, the term "Hazardous Substance"
means: (i) any substance, product, waste or other material of any nature whatsoever
which is or becomes listed, regulated, or addressed pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.
("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq.
("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean
Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act,
Health and Safety Code Section 25100 et seq.; the California Hazardous Substance
Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking
Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.;
California Health and Safety Code Sections 25280 et seq. (Underground Storage of
Hazardous Substances); the California Hazardous Waste Management Act, Health and
Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501
et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne
Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -
time may be amended, (the above-cited statutes are here collectively referred to as "the
Hazardous Substances Laws") or any other federal, state or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect; (ii) any substance,
product, waste or other material of any nature whatsoever which may give rise to liability
under any of the above statutes or under any statutory or common law theory, including
but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or
under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and
(iv) asbestos.
30.3 Notwithstanding any contrary provision of this Master License, and in
addition to the indemnification duties of Licensee set forth in Section 28, Licensee agrees
to indemnify, defend with counsel reasonably acceptable to City, protect, and hold
harmless the City, its officials, officers, employees, agents, and assigns from and against
any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including,
but not limited to, any repair, cleanup, detoxification, or preparation and implementation
of any remedial, response, closure or other plan of any kind or nature which the City, its
officials, officers, employees, agents, or assigns may sustain or incur or which may be
imposed upon them in connection with the use of the License Area provided under this
Master License, arising from or attributable to the storage or deposit of Hazardous
Substances on or under the License Area by Licensee or its agents, employees, or
contractors. This Section 30 is intended to operate as an agreement pursuant to Section
107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code
Section 25364, to insure, protect, hold harmless, and indemnify City for any claim
pursuant to the Hazardous Substance Laws or the common law.
30.4 City agrees that City will not, and will not authorize any third party to use,
generate, store, or dispose of any Hazardous Substances on, under, about or within the
License Area in violation of any law or regulation. City and Licensee each agree to defend,
indemnify and hold harmless the other and the other's partners, affiliates, agents and
employees against any and all losses, liabilities, claims and/or costs arising from any
breach of any representation, warranty or Master License contained in this Section 30.
This Section 30 shall survive the termination of this Master License. Upon expiration or
New Cingular Wireless PCS, LLC, Page 20 17-27
earlier termination of this Master License, Licensee shall surrender and vacate the
Streetlights and License Area and deliver possession thereof to City, in accordance with
the terms of this Agreement, free of any Hazardous Substances released into the
environment at, on or under the License Area that are directly attributable to Licensee.
31. COMPLIANCE WITH LAWS
Licensee, at its sole cost, shall observe, perform, and comply with all laws,
statutes, ordinances, rules, and regulations promulgated by any governmental agency
and applicable to the License Area, or the use thereof, including all radio frequency safety
standards, Americans with Disability Act requirements, applicable zoning ordinances,
building codes and environmental laws. Licensee shall not occupy or use the Streetlight
and License Area or permit any portion of the Streetlight and License Area to be occupied
or used for any use or purpose that is unlawful in part or in whole, or deemed by City to
be disreputable in any manner or extra hazardous on account of fire.
32. NOT SUBJECT TO CEQA
This Master License is not subject to the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the
activity is not a project as defined in Section 15378) of the CEQA Guidelines, California
Code of Regulations, Title 14, Chapter 3. Further, this Master License is exempt from the
provisions of CEQA under Class 3, section 15303. Class 3 exempts the construction and
location of limited numbers of new, small facilities or structures; installation of small new
equipment and facilities in small structures; and the conversion of existing small
structures from one use to another where only minor modifications are made in the
exterior of the structure.
33. NOT AGENT OF CITY
Neither anything in this Master License nor any acts of Licensee shall authorize
Licensee or any of its employees, agents or contractors to act as agent, contractor, joint
venturer or employee of City for any purpose.
34. NO THIRD PARTY BENEFICIARIES
City and Licensee do not intend, by a provision of this Master License, to create in
any third party, any benefit or right owed by one Party, under the terms and conditions of
this Master License, to the other Party.
35. NOTICES AND EMERGENCY NUMBERS
All notices and other communications required or permitted to be given under this
Master License, including any notice of change of address, shall be in writing and given
by personal delivery, or deposited with the United States Postal Service, postage prepaid,
addressed to the Party intended to be notified. Notice shall be deemed given as of the
date of personal delivery, or if mailed, upon the date of deposit with the United States
Postal Service. Notice shall be given as follows:
New Cingular Wireless PCS, LLC, Page 21 17-28
To City:
City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
With a copy to:
Real Property Administrator
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
City's emergency contact:
City of Newport Beach
Municipal Operations Department
Phone: 949-644-3011
To Licensee:
New Cingular Wireless PCS, LLC
Attn: Tower Asset Group — Lease Administration
Re: Wireless Installation on Public Structures
(City of Newport Beach) (CA)
575 Morosgo Drive NE
Atlanta, GA 30324
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept — Network Operations
Re: Wireless Installation on Public Structures
(City of Newport Beach) (CA)
208 S. Akard Street
Dallas, TX 75202-4206
Licensee's emergency contact:
Email: nocnoc@att.com
Phone: 1-800-638-2822, Option 9, 1
36. CITY BUSINESS LICENSE
Licensee shall obtain and maintain during the duration of this Master License, a
City business license as required by the NBMC.
37. TIME IS OF THE ESSENCE
Time is of the essence for this Master License.
38. STANDARD PROVISIONS
38.1 Waiver. The waiver by either Party of any breach or violation of any term,
covenant or condition of this Master License, or of any ordinance, law or regulation, shall
New Cingular Wireless PCS, LLC, Page 22 17-29
not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or
regulation, or of any subsequent breach or violation of the same or other term, covenant,
condition, ordinance, law or regulation. The subsequent acceptance by either party of
any Rent, performance, or other consideration which may become due or owing under
this Master License, shall not be deemed to be a waiver of any preceding breach or
violation by the other Party of any term, condition, covenant of this Master License or any
applicable law, ordinance or regulation.
38.2 Integrated Contract. This Master License represents the full and complete
understanding of every kind or nature whatsoever between the Parties hereto related to
the subject matter herein, and all preliminary negotiations and licenses of whatsoever
kind or nature are merged herein. No verbal license or implied covenant shall be held to
vary the provisions herein.
38.3 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Master License and the exhibits attached hereto, the terms
of this Master License shall govern.
38.4 Interpretation. The terms of this Master License shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either Party by reason of the authorship of the Master License or any other rule
of construction which might otherwise apply.
38.5 Amendments. This Master License may be modified or amended only by a
written document executed by both Licensee and City and approved as to form by the
City Attorney.
38.6 Severability. If any term or portion of this Master License is held to be
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Master License shall continue in full force and effect.
38.7 Controlling Law and Venue. The laws of the State of California shall govern
this Master License and all matters relating to it and any action brought relating to this
Master License shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
38.8 Exhibits. All exhibits referenced and attached to this Master License are
incorporated by reference.
38.9 Egual Opportunity Employment. Licensee represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
38.10 No Attorney's Fees. In the event of any dispute or legal action arising under
this Master License, the prevailing Party shall not be entitled to attorney's fees.
38.11 Claims and Damages.
38.11.1 Waiver of Claims. Licensee waives any and all claims,
demands, causes of action, and rights it may assert against the City on account of
New Cingular Wireless PCS, LLC, Page 23 17-30
any loss, damage, liability or injury to any Telecommunication Facilities or any loss
or degradation of the Telecommunication Services as a result of any event or
occurrence which is beyond the reasonable control of the City. Licensee also
waives any claims, demands, causes of action and rights related in any way to the
calculation of Rent.
38.11.2 Limitation of Damages. Neither Party shall be liable to the
other, or any of their respective agents, representatives, or employees for any loss
of revenue, loss of profits, loss of business opportunity, loss of goodwill, loss of
use, loss of technology, rights or services, incidental, punitive, indirect, special or
consequential damages, loss of data, or interruption or loss of use of service, even
if advised of the possibility of such damages, whether under theory of contract, tort
(including negligence), strict liability or otherwise. The parties expressly agree that
nothing in Subsection 38.11.2 limits Licensee's liability for any express monetary
obligations set forth herein, including, but not limited to, Licensee's obligation to
pay Rent, fees, penalties, delinquent charges, costs incurred by City, taxes and
interest.
38.11.3 Notice Requirement. No lawsuit shall be filed against the City
for any alleged breach of this Master License unless Licensee has first provided
the City with ninety (90) calendar days' notice of the alleged breach and provided
the City with an opportunity to cure the alleged breach. If the alleged breach under
this Master License is such that more than ninety (90) calendar days are
reasonably required for its cure, then City shall not be deemed to be in breach if
City commences such cure within such ninety (90) calendar day period and
diligently proceeds with such cure to completion.
38.12 Counterparts. This Master License may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
38.13 Powers to Enter Into Master License. The individuals executing this Master
License represent and warrant that they have the right, power, legal capacity and
authority to enter into and to execute this Master License on behalf of the respective legal
entities of the Licensee and the City.
[SIGNATURES ON NEXT PAGE]
New Cingular Wireless PCS, LLC, Page 24 17-31
IN WITNESS WHEREOF, the Parties hereto have caused this Master License to be
executed in duplicate on the dates indicated below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATT EY'S OFFICE a California municipal corporation
Date: 30 Date:
By: �� By:
AafoA C. Harp Grace K. Leung
City Attorney City Manager
ATTEST: LICENSEE: NEW CINGULAR WIRELESS
PCS, LLC, a Delaware limited liability
Date:
company
By: By:
Leilani I. Brown ames Stickney
City Clerk Director Construction & Engineering
Date:
[END OF SIGNATURES]
Attachments: Exhibit A: Form of Amendment to Master License with Site List
Exhibit B: Approved Telecommunications Facility Design
Exhibit C: Faithful Performance Bond
Exhibit D: Insurance Requirements
New Cingular Wireless PGS, LLC,
Page 25
17-32
Exhibit "A"
FORM OF AMENDMENT TO MASTER LICENSE WITH SITE LIST
New Cingular Wireless PCS, LLC,
Page A-1
17-33
AMENDMENT NO. TO MASTER LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
FOR THE USE OF CITY -OWNED STREETLIGHTS
FOR TELECOMMUNICATIONS FACILITIES
THIS AMENDMENT NO. TO MASTER LICENSE AGREEMENT
("Amendment No. ") is made and entered into as of this day of ,
20_ ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and , a
("Licensee"), and is made with reference to the following:
RECITALS
A. On , 20_, City and Licensee entered into a Master License
Agreement ("Master License") allowing Licensee to attach, install, operate,
maintain, and remove Telecommunication Facilities as permits are obtained from
the City.
B. The parties desire to enter into this Amendment No. _, pursuant to Section 5 of
the Master License, to itemize specific Streetlight locations on the Site List,
attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis
under the terms and conditions of the Master License.
C. The parties further desire to enter into this Amendment No. _, pursuant to Section
5 of the Master License, to identify the specific License Area(s) in the License Area
Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed
to Licensee for installation of its Telecommunication Facilities under the terms and
conditions of the Master License.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. EXCLUSIVE SITE LIST
This Amendment, the Site List attached hereto as Exhibit 1 and the License
Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section
5 of the Master License, shall be effective and incorporated into the Master License
once fully executed by the parties.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and
covenants set forth in the Agreement shall remain unchanged and shall be in full
force and effect.
[SIGNATURES ON NEXT PAGE]
New Cingular Wireless PCS, LLC, Page A-2
17-34
IN WITNESS WHEREOF, the parties have caused this Amendment No. _ to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
City Attorney
ATTEST:
Date:
By:
City Clerk
Attachments
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
City Manager
LICENSEE:
a
Date:
By:
Date:
By:
[END OF SIGNATURES]
Exhibit 1 — Site List
Exhibit 2 — License Area Description & Depiction
New Cingular Wireless PCS, LLC,
Page A-3
17-35
Exhibit 1
SITE LIST
New Cingular Wireless PCS, LLC, Page A-4 17-36
Exhibit 2
LICENSE AREA DESCRIPTION & DEPICTION
New Cingular Wireless PCS, LLC, Page A-5 17-37
Exhibit "B"
APPROVED TELECOMMUNICATION FACILITY DESIGN
New Cingular Wireless PCS, LLC, Page B-1 17-38
Exhibit "C"
FAITHFUL PERFORMANCE BOND
New Cingular Wireless PCS, LLC, Page C-1 17-39
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
WHEREAS, the City of Newport Beach, State of California, has entered into a
Master License Agreement with hereinafter designated as the
"Principal," a license to install the Telecommunication Facility described and depicted in
Attachment 1 at the designated Streetlight and area as further described and depicted in
Attachment 2 (the "License Area"), in the City of Newport Beach, in strict conformity with
the Master License and any Amendment thereto on file with the office of the City Clerk of
the City of Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Master License
Agreement or any Amendment thereto and the terms thereof require the furnishing of a
Bond for the faithful performance of the Master License Agreement.
NOW, THEREFORE, we, the Principal, and
, duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of
Dollars and _/100 ($ ) lawful money of the United
States of America, said sum being equal to 100% of the estimated cost of repairs and
removal of the Telecommunication Facilities under the Master License and any
Amendment thereto, to be paid to the City of Newport Beach, its successors, and assigns;
for which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the covenants, conditions, and agreements in
the Master License and any Amendment thereto and any alteration thereof made as
therein provided on its part, to be kept and performed at the time and in the manner
therein specified, and in all respects according to its true intent and meaning, or fails to
indemnify, defend, and save harmless the City of Newport Beach, its officers, employees
and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall
become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Master License and any Amendment thereto
or to the covenants, conditions, and agreements to be performed thereunder shall in any
New Cingular Wireless PCS, LLC, Page C-2 17-40
way affect its obligations on this Bond, and it does hereby waive notice of any such
change, extension of time, alterations or additions of the Master License Agreement and
any Amendment thereto.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for the Term of the Master License plus ninety (90) calendar days
thereafter.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Attachments: Attachment 1 — Description & Depiction of Telecommunication Facility
Attachment 2 — Description & Depiction of License Area
New Cingular Wireless PCS, LLC, Page C-3 17-41
Attachment 1
DESCRIPTION & DEPICTION OF TELECOMMUNICATION FACILITY
New Cingular Wireless PCS, LLC, Page C-4 17-42
Attachment 2
DESCRIPTION & DEPICTION OF LICENSE AREA
New Cingular Wireless PCS, LLC, Page C-5 17-43
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of } ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
New Cingular Wireless PCS, LLC, Page C-6 17-44
Exhibit "D"
Insurance Requirements
Provision of Insurance. Without limiting Licensee's indemnification of City, and
prior to commencement of work on License Area by Licensee or Licensee's
agents, representatives, consultants, contractors and/or subcontractors, Licensee
shall obtain, provide and maintain at its own expense during the term of this Master
License policies of insurance of the type and amounts described below and in a
form satisfactory to City. Licensee agrees to provide insurance in accordance with
requirements set forth here. If Licensee uses existing coverage to comply and that
coverage does not meet these requirements, Licensee agrees to amend,
supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the insurance commissioner to transact business
of insurance in the State of California, with an assigned policyholders' rating of A -
(or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's
Risk Manager.
3. Self -Insurance. Notwithstanding the above, Licensee shall have the right to self -
insure pursuant to the coverages required in this Exhibit D. In the event Licensee
elects to self -insure, Licensee shall be obligated to include City as an additional
insured, and in addition to the provisions set forth in Sections 4-6 of this Exhibit D,
the following provisions shall apply:
A. City shall promptly provide Licensee written notice of any claim, demand, or
lawsuit, for which it seeks coverage pursuant to this Section, and provide
Licensee with copies of any demands, notices, summonses, or legal papers
received in connection with such claim, demand, or lawsuit;
B. City shall not settle any such claim, demand, or lawsuit without prior written
notice to Licensee; and
C. City shall fully cooperate with Licensee in the defense of such claim,
demand, or lawsuit.
4. Coverage Requirements.
A. Workers' Compensation Insurance. Licensee and Licensee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance, statutory limits, and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each employee
for bodily injury by disease in accordance with the laws of the State of
California, Section 3700 of the Labor Code.
Licensee and Licensee's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to City, along with the certificate of
New Cingular Wireless PCS, LLC, Page D-1 17-45
insurance, a Waiver of Subrogation endorsement in favor of City, its officers,
agents, employees and volunteers.
B. General Liability Insurance. Licensee and Licensee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain commercial general liability insurance with coverage at least as
broad as provided by Insurance Services Office form CG 00 01, in an
amount of one million dollars and 00/100 ($1,000,000) per occurrence, two
million dollars and 00/100 ($2,000,000) general aggregate. The policy shall
cover liability arising from License Area, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of
coverage for liability assumed under a contract per coverage under ISO
CGL form 00 01 or equivalent.
C. Automobile Liability Insurance. Licensee and Licensee's consultants,
contractors and/or subcontractors shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 01 covering bodily
injury and property damage for all activities of Licensee or all activities of
Licensee's consultants, contractors and/or subcontractors arising out of or
in connection with work to be performed on the License Area, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars and 00/100 ($1,000,000) combined single
limit each accident.
D. Builder's Risk Insurance. During construction, Licensee shall require that
Licensee's construction contractors and subcontractors maintain Builders
Risk insurance or an installation floater as directed by City, covering
damages to the work for "all risk" or special causes of loss form with limits
equal to one hundred percent (100%) of the completed value of the work,
with coverage to continue until final acceptance of the work by Licensee
and City. City shall be included as an insured on such policy. Licensee may
self -insure this risk.
5. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability policies with respect to liability arising out
of Licensee's ongoing and completed operations related to this Master
License and with respect to use or occupancy of the License Area. City, its
elected or appointed officers, officials, employees, agents and volunteers
shall be named as an additional insured on any of Licensee's contractor's
and subcontractor's policies.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses, or
New Cingular Wireless PCS, LLC, Page D-2 17-46
liability arising directly or indirectly from Licensee's operations. Any
insurance maintained by City, including any self-insured retention City may
have, shall be considered excess insurance only and not contributory with
the insurance provided hereunder.
C. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Master License shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Licensee or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Licensee hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its consultants, contractors or subcontractors.
E. Reporting Provisions. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
F. Notice of Cancellation. The insurance required by this Master License shall
not be cancelled or non -renewed, or reduced in coverage or in limits except
after thirty (30) calendar days written notice has been sent to City. It is
Licensee's obligation to ensure that provisions for such notice have been
established.
G. Reserved.
6. Additional Requirements.
A. In the event City determines that (i) the Licensee's activities on the License
Area creates an increased or decreased risk of loss to the City, (ii) greater
insurance coverage is required due to the passage of time, or (iii) changes
in the industry require different coverage be obtained, Licensee agrees that
the minimum limits of any insurance policy required to be obtained by
Licensee or Licensee's consultants, contractors or subcontractors, may be
changed accordingly upon receipt of written notice from City. With respect
to changes in insurance requirements that are available from Licensee's
then -existing insurance carrier, Licensee shall deposit certificates
evidencing acceptable insurance policies with City incorporating such
changes within thirty (30) calendar days of receipt of such notice. With
respect to changes in insurance requirements that are not available from
Licensee's then- existing insurance carrier, Licensee shall deposit
certificates evidencing acceptable insurance policies with City,
incorporating such changes, within ninety (90) calendar days of receipt of
such notice.
New Cingular Wireless PCS, LLC, Page D-3 17-47
B. Reserved.
C. Licensee and Licensee's consultants, contractors and/or subcontractors
shall be subject to the insurance requirements contained herein unless
otherwise specified in the provisions above or written approval is granted
by the City. Licensee shall verify that all consultants, contractors and/or
subcontractors maintain insurance meeting all the requirements stated
herein, and Licensee shall ensure that City is an additional insured on
insurance required from contractors, consultants and/or subcontractors.
D. For General Liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 20 38 04 13 and CG 20 37.
E. If Licensee maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for the higher limits
maintained by the Licensee.
F. To the extent allowed by law, Licensee shall give City prompt and timely
notice of any claim made or suit instituted arising out of or resulting from
Licensee or Licensee's agents, representatives, consultants, contractors or
subcontractors performance under this Master License.
G. Licensee shall provide certificates of insurance, with original endorsements
as required above, to City as evidence of the insurance coverage required
herein. Insurance certificates must be approved by City prior to
commencement of work or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this
Master License.
H. All required insurance shall be in force on the Effective Date, and shall be
maintained continuously in force throughout the term of this Master License.
In addition, the cost of all required insurance shall be borne by Licensee or
by Licensee's consultants, contractors or subcontractors.
If Licensee or Licensee's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Master License, or fail to
provide proof of insurance, City has the right to declare this Master License
in default without further notice to Licensee, and City shall be entitled to
exercise all available remedies.
J. Licensee agrees not to use the License Area in any manner, even if use is
for purposes stated herein, that will result in the cancellation of any
insurance City may have on the License Area or on adjacent premises, or
that will cause cancellation of any other insurance coverage for the License
Area or adjoining premises. Licensee further agrees not to keep on the
License Area or permit to be kept, used, or sold thereon, anything prohibited
by any fire or other insurance policy covering the License Area. Licensee
shall, at its sole expense, comply with all reasonable requirements for
maintaining fire and other insurance coverage on the License Area.
New Cingular Wireless PCS, LLC, Page D-4 17-48
Attachment B
City Council Policy L-23 — Siting of Wireless Telecommunications Equipment on City -
Owned Property
17-49
THE SITING OF WIRELESS TELECOMMUNICATIONS EQUIPMENT
ON CITY -OWNED PROPERTY
Purpose
To describe the manner in which specific city -owned or city Trust properties may be used
as locations for wireless telecommunications devices that transmit voice or data.
Policy
It is the policy of the City to effectively balance the needs of its residents, visitors, and
businesses to use and have access to state-of-the-art wireless telecommunication systems
(such as wireless Internet, voice, and other data communications) with the needs of
residents to safely and effectively enjoy their property. This Policy shall be used when
considering applications to install wireless communications devices on City -owned or
City -held property by any wireless telecommunications provider or siting company.
Agreement Required
All telecom facilities located on City -owned property or City -held Trust property must
have an agreement approved as to form by the City Attorney and approved as to
substance (including, but not limited to, compensation, term, insurance requirements,
bonding requirements, and hold harmless provisions) by the City Manager or their
designee prior to the submittal of an application for the necessary permits pursuant to
Section IV of this policy. The agreement shall be executed prior to the issuance of a street
construction permit (encroachment permit).
Permit Required
A. Unless otherwise exempt, all telecom facilities proposed to be located on City -
owned or City -held trust property must apply for and receive a permit under the
provisions of Chapter 20.49, or any successor chapter prior to the issuance of an
encroachment permit.
B. Unless otherwise exempt, all proposals affecting City -owned or City -held trust
property shall be processed via this Policy through the Community Development
Department and Public Works Department pursuant to the Municipal Code
requirements.
City Sites Eligible or Ineligible for Facility Placement
A. Sites Eligible for Use. The City Council has determined that the following City
locations are acceptable for placement of wireless devices:
17-50
1. Fire Stations
2. Newport Beach City Hall
3. Parks
4. Police Headquarters
5. Lifeguard Headquarters
6. The Community Centers
7. Medians and parkways along public streets
8. The Central Library and Branch Libraries
9. The Corporate Yards
10. Qualifying City -held easements
11. Streetlights (following certification and acceptance by the Utilities
Department of an effective test of the facility's impacts to the light standard
under various environmental conditions), which may be located upon the
right-of-way, City -trust held property.
12. Leased City property, subject to the lease provisions.
B. Sites Ineligible for Use. The City Council has determined that the
following City locations are unacceptable for placement of wireless
devices in accordance with the entirety of this Policy:
1. Open space areas owned by the City where placement of facilities
in these areas would aesthetically impair the pristine nature of the area.
2. Other properties owned by the City where the placement of facilities
would conflict with existing structures, including utilities, or impede
views, or otherwise impact use of the facility or property for its
designated purpose.
3. Traffic Signal Poles
Compensation and Term
The City Manager shall follow these rules when developing any Agreement for the
placement of any wireless device on City property:
A. Compensation shall be equal to fair market value, taking into account rent charged
by owners of public or private properties within Newport Beach or neighboring
cities for a similar type of facility and location. Such compensation shall be
determined via a Rent Survey conducted by the City every five (5) years, as
adjusted by the Consumer Price Index (CPI) each calendar year during non -survey
years.
17-51
B. The Agreement shall provide for a specific term to be determined by the City
Manager. Where the term exceeds five (5) years, at the fifth year and every five
years thereafter, rent shall be adjusted to fair market value using the Rent Survey
("Market -Based Adjustment"), or the adjusted rate as prescribed by the lease terms,
whichever is greater.
C. The Agreement shall provide for the following rent adjustments:
1. Rent shall be adjusted annually by the Consumer Price Index (CPI) for All
Urban Consumers, Anaheim -Riverside -Los Angeles or a similar index; and
2. At the end of five (5) years of the Agreement term and every five (5) years
thereafter, the Market -Based Adjustment described above; or
3. Optionally, the License Fee shall automatically increase four percent (4%)
each year, and adjust to market rate upon the first renewal term, or the
License Fee shall automatically increase five percent (5%) each year, and
adjust to market rate upon the second renewal term.
4. The Agreement shall require the applicant to post a bond, letter of credit, or
other financial security/ securities ("Financial Security") in an amount that
equals or exceeds the anticipated cost of removing the facility or facilities
and repairing any damage to City property at the completion of the
Agreement term or in the event that the applicant ceases use of or abandons
the facility or otherwise does not remove the facility including any
equipment or cabinet whether underground, in the public right-of-way, or
on City or private property. The Financial Security shall name the City as
eligible for receipt of the Financial Security's proceeds in the event that the
applicant ceases use of or abandons the facility.
5. If the facility is located upon park property, the City may require as a
component of the rent a one (1) time upfront payment in addition to the
annual/monthly rent. The amount shall be at the recommendation of the
City Manager and the Director of Recreation and Senior Services, or their
designee(s).
Effective Date and Council Non -Consent
A. The City Manager shall notify (via memorandum or similar correspondence) the
City Council as to a pending Agreement for telecommunications facilities on
public land. The Agreement shall take effect forty-five (45) days after the City
Manager's notification of the City Council unless called up by a City Council
member within thirty (30) days of the City Manager's notification of City Council
of a pending Agreement per this section.
B. A City Council member reserves the right to, at any time and for any purpose, not
consent to the City Manager's issuance of an Agreement under this Policy. The
17-52
City Council may do so by notifying the City Manager of the Council member's
intent to bring the Agreement before City Council. The Council member must
express this intent in writing or at a formal Council meeting not more than thirty
(30) days after the City Manager has notified the City Council of a pending
Agreement. Should the City Council not consent to the issuance of an Agreement,
the Agreement shall not become effective.
Proposals for Equipment in the City Right -Of -Way
This policy shall not apply to Encroachment Permits (Telecom) for the use of right-of-
way. Newport Beach Municipal Code Title 13, or any successor statute, shall govern
consideration of Encroachment Permits (Telecom).
City Communications Systems Exempt
This policy shall not apply to any communications system used by City personnel for
communications deemed necessary for City operations.
History
(2002, 09/24) - L-23 - Adopted
(2006,10/10) - L-23 - Amended
(2018,08/14) - L-23 - Amended
17-53
Attachment C
City Council Policy F-7 — Income Property
17-54
INCOME PROPERTY
The City owns and manages an extensive and valuable assortment of property
including streets, parks, beaches, public buildings and service facilities. The City also
owns and operates a yacht basin, a mobile home park, a luxury residential development
and various other income properties. Most of the income property is tidelands, filled
tidelands or waterfront. Unencumbered fee value of income property is estimated at
upwards of one hundred million dollars, and income typically contributes ten percent
of all City revenues.
As owner/manager of property, the City is the steward of a public trust, and state law
requires the City to maximize its returns on state -managed property or be subject to a
charge of making a gift of public funds. Nevertheless, the City Council recognizes the
importance of this property not only as a revenue generator, but also as a means to
provide otherwise unfeasible uses and facilities to benefit the community.
In managing its property, the City will continually evaluate the potential of all City
owned property to produce revenue. This may include leasing unused land, renting
vacant space, and establishing concessions in recreation areas or other similar
techniques. The City Council will evaluate the appropriateness of establishing new
income properties using sound business principles and after receiving input from
neighbors and users.
The policy of the City Council is that income property be managed in accordance with
the following:
A. Whenever a lease, management contract, concession, sale or similar action
regarding income property is considered by the City, an analysis shall be
conducted to determine the maximum or open market value of the property.
This analysis shall be conducted using appraisals or other techniques to
determine the highest and best use of the property and the highest value of the
property.
B. All negotiations regarding the lease, management contract, concession, sale or
similar action regarding income property shall include review of an appraisal or
analysis of the use being considered for the property conducted by a reputable
and independent professional appraiser, real estate consultant or business
consultant.
C. The City shall seek, whenever practical and financially advantageous, to operate
or manage all property and facilities directly with City staff or contractors.
D. In all negotiations regarding the lease, management contract, concession, sale or
similar action regarding a non-residential income property, the City shall seek
17-55
revenue equivalent to the open market value of the highest and best use; and,
whenever possible the City shall conduct an open bid or proposal process to
insure the highest financial return.
E. Whenever less than the open market or appraised value is received or when an
open bid process is not conducted, the City shall make specific findings setting
forth the reasons thereof.
Such findings may include but need not be limited to the following:
1. The City is prevented by tideland grants, Coastal Commission guidelines or
other restrictions from selling the property or converting it to another use.
2. Redevelopment of the property would require excessive time, resources and
costs which would outweigh other financial benefits.
3. Converting the property to another use or changing the manager,
concessionaire or lessee of the property would result in excessive vacancy,
relocation or severance costs, which would outweigh other financial benefits.
4. Converting residential property to another use or opening residential leases
to competitive bid would create recompensable liabilities and other inequities
for long-term residents.
5. The property provides an essential or unique service to the community that
might not otherwise be provided were full market value of the property be
required.
6. The property serves to promote other goals of the City such as affordable
housing, preservation of open space or marine related services.
F. Generally, lengths of leases, management contracts, concessions or similar
agreements will be limited to the minimum necessary to meet market standards
and will contain appropriate reappraisal and inflation protection provisions.
Also, all agreements shall contain provisions to assure complete audits
periodically through their terms.
G. All negotiations regarding the lease, management contract, concession, sale or
similar action regarding income property shall be conducted by the City
Manager or his/her designee under the direction of any appropriate City
committees.
H. To provide an accurate accounting of actual net revenues generated by the City's
income property, all costs and charges directly attributable to the management of
17-56
a specific income property shall be debited against the gross revenues collected
on that property in the fiscal year the costs are incurred. Costs and charges
include property repairs and maintenance, property appraisals, and consultant
fees, as authorized by the City Council, City Manager or by this Income Property
Policy.
I. The City Manager or his/her designee is authorized to sign a lease, management
contract, concession or similar agreement or any amendment thereto, on behalf
of the City. Notwithstanding the foregoing, the City Manager or his/her
designee, or a City Council member, may refer any lease, management contract,
concession or similar agreement or any amendment thereto, to the City Council
for its consideration and/or action.
Adopted - July 27,1992
Amended - January 24,1994
Amended - February 27,1995
Amended - February 24,1997
Amended - May 26,1998
Amended - August 11, 2009
Amended - May 14, 2013
Formerly F-24
17-57
Attachment D
Small Cell Telecom Rates, September 2018
17-58
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
100 CIVIC CENTER DRIVE
NEWPORT BEACH, CA 92660
(949) 644-3200
SMALL CELL TELECOM RATES
September 2018
The following is the rate structure for placement of antennas and corresponding equipment on City property, as
approved by the City Manager's office.
Under a Master License Agreement (MLA) for a small cell telecom facility on a City streetlight(s), without
equipment cabinetry, the following rates apply:
Pole #
Annual Rate
Per Streetlight
Monthly Rate
Per Streetlight
1 or more
$ 2,316.001
$193.00
Other Requirements:
■ The License Fee shall automatically increase each year by the percentage change in the Consumer Price
Index, and adjust to market rate upon the first renewal term; or the License Fee shall automatically increase
by 5% each year, and adjust to market rate upon the second renewal term.
■ Additional fees may be applicable pursuant to City's fee schedule.
■ Utilities fee of $100 per month, per pole, charged in addition to rent listed above.
For more information about these rates, contact Lauren Wooding Whitlinger, Real Property Administrator, by e-
mail at Iwooding@newportbeachca.gov or by telephone at (949) 644-3236.
' Rates based on fair market value appraisal prepared by Colliers International, Small -Cell Rent Survey, dated July 20, 2018,
Colliers File #: SAN180341.
17-59
Attachment E
AT&T Small Cell Designs
17-60
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17-64
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Concealment Enclosure for up to six SW Ericsson metro cell radios
Intrcduction
Tt&Aa<ument Wsodbesthe CbmmSeDpe paletop
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• Mutllple calor optiara available.
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available when using less than (5} radios.
CNwall Dimensions and Weight
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• Indudes integrated grounding bar, pale
maunti�g and RRI.I mounting hardware.
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17-65
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