HomeMy WebLinkAboutStaff Report 1756City of Palo Alto (ID # 1756)
City Council Staff Report
Report Type: Action ItemsMeeting Date: 6/20/2011
June 20, 2011 Page 1 of 5
(ID # 1756)
Summary Title: Master License Agreement
Title: Adoption of Two Resolutions: (1) Adopting Utility Rate Schedule E-16, as
amended; and (2) Approving the Master License Agreement and Exhibits For Use
of City-controlled Space on Utility Poles and Streetlight Poles and in Conduits
From:City Manager
Lead Department: Utilities
Recommendation
Staff recommends that the City Council:
(1) Adopt a resolution, approving an amended Utility Rate Schedule E-16.
(2) Adopt a resolution, approving a standard form Master License Agreement (the “MLA”) and
Exhibits for third party access to and use of City–controlled spaces on utility poles and
streetlight poles and in conduits for the purpose of providing wireless communications facilities
services in Palo Alto, and delegating to the City Manager the authority to sign the standard
form MLA.
Background
Over the past nine months, the City has been contacted by a handful of personal wireless
communications service providers and distributed antenna system (“DAS”) network operators,
which have expressed strong interest in accessing and using City of Palo Alto-controlled spaces
on utility poles and streetlight poles and in conduits for the purpose of installing wireless
antennas and related infrastructure. Wireless communications companies are experiencing
increasing demand for fourth generation (“4G”) wireless communications services and are
expanding their wireless antenna networks to improve both broadband facilities’ capacity and
coverage in Palo Alto.
Generally, under federal and California law, and subject to certain conditions protecting the
City’s public rights-of-way management and compensation authority and land use authority,
the City cannot prohibit wireline and wireless communications facilities from gaining access to
the public rights-of-way and utilities infrastructure located therein. Although the law is less
clear, federal and California law also generally, and subject to certain conditions, encourage, if
not require, the City to allow wireline and wireless communications facilities to access and use
the utilities infrastructure located in the public rights-of-way. The City can, however, establish
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reasonable rates, terms and conditions of access to utilities infrastructure in the public rights-
of-way, including adopting rules and regulations relating to the time, place and manner of
attachment to that infrastructure.
The City has been supportive of the placement of advanced broadband communications
facilities in Palo Alto since Congress enacted the Telecommunications Act of 1996 (the “1996
Act”). In 1997, the Council approved four Telecommunications Policy Statements (CMR:
369:97), which laid the foundation for bringing advanced broadband services to Palo Alto.
Policy statement number 1 declared the City’s policy to facilitate the competitive delivery of
conventional and advanced telecommunications services in Palo Alto in light of the 1996 Act.
Policy statement number 2 declared the City’s policy to regulate these facilities in accordance
with reasonable and non-discriminatory regulations. Policy statement number 3 declared the
City’s policy to permit the use of the Utilities Department’s infrastructure for advance
broadband communications purposes, provided such use does not unduly interfere with the
City’s primary mission of providing electric utility service to its customers. Policy statement
number 4 declared the City’s policy to permit interested parties to use other City property and
facilities for the siting of telecommunications infrastructure, consistent with the City’s zoning,
environmental, legal and other requirements.
At the time, the City’s Telecommunications Policy was focused on encouraging the deployment
of dark fiber-related broadband services to expand advance broadband services in Palo Alto.
Staff noted that as of August 1997, 48 of the 96 competitive local exchange carriers were
authorized to provide “facilities-based services” that would require the construction of new
wireline and wireless facilities. Today, the telecommunications industry has changed and there
has been a shift in emphasis to wireless communications as the fastest growing form of
telecommunications and broadband services. The City’s Telecommunications Policy Statements
are sufficiently broad that they can be interpreted to encourage the deployment of wireless
communications facilities services today for the same reasons that the policy statements were
drafted in support of wireline communications services a dozen years ago.
In 1997, staff reported that the Telecommunications Policy extended certain goals of the draft
1996-2010 Comprehensive Plan, including the development of technologically-advanced
communications infrastructure (Policy B-13), working with electronic information network
providers to maximize potential benefits for Palo Alto businesses, schools, residences, and
other potential users (Policy B-14), and allowing the creative use of City Utilities Department
infrastructure and public rights-of-way to ensure competition among networks in providing
information systems infrastructure (Policy B-15).
Discussion
Utility Rate Schedule E-16, as amended.
Amended Utility Rate Schedule E-16 incorporates a new license fee that will be charged on an
annual basis for permitting communications service providers to attach wireless antenna
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facilities and communications network equipment on utility poles and streetlight poles and in
conduits.The license fee is intended to recover the City’s actual or reasonable estimated costs,
including, without limitation, the annual pole operation and maintenance costs, engineering
and legal costs incurred to date that are associated with developing a standard form agreement
and engineering specifications relating to providing pole and conduit access to wireless
communications service providers, and general administration and operational expenses
incurred due to the presence of such equipment on City-owned utility poles.
The annual license fees to be charged are contingent on the number of antennas that are
attached by wireless communications service providers. The various service and facilities-based
providers have applied for, or are anticipated to apply for, attachment to approximately 200
out of approximately 6,000 poles in Palo Alto. Assuming all antenna attachments are
processed, the approximate annual revenues will be $300,000 ($1,500 x 200 poles). The annual
pole attachment fee ensures that the City will recover its projected and actual costs now and
over time.
The City’s rates, fees and charges for pole attachments and conduit occupancy to be charged in
accordance with Utility Rate Schedule E-16, as amended, and the MLA are consistent with all of
the Telecommunications Policy statements and the Comprehensive Plan goals. In addition,
these rates, fees and charges are not considered “charges” or “fees” subject to voter approval
under Proposition 218, which does not extend to electric utility charges and fees in any event,
and they are not considered “taxes,” “levies,” “charges” or “exactions” subject to voter
approval under Proposition 26, as they are charges for the rental of local government property.
Master License Agreement and Exhibits.
The terms and conditions of the MLA also further the Telecommunication Policy Statements.
The contract spells out the essential terms and conditions governing the deployment of
wireless antennas that will enable current and new service providers to address coverage and
capacity issues relating to 4G broadband service in Palo Alto. The deployment will be managed
in a manner that allows the Utilities Department’s infrastructure to be used for advanced
broadband communications purposes, without materially affecting the City’s provision of
electric utility service to the community, and in a manner consistent with applicable City
ordinances, rules and regulations.
Among the key terms and conditions are:
Term -The initial term of the MLA is ten (10) years, and there is a right to extend the term for
another ten years. This period of time has been requested by interested parties who desire a
sufficiently long period of time in which to amortize their capital investments.
Changes in law -As the resolution pertaining to the approval of the MLA notes,
telecommunications law relating to pole attachments is in a state of flux, and further changes
are highly likely. For example, at the federal level, the Federal Communications Commission
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recently adopted its Order 11-50 (April 7, 2011), which implements Section 224 of the
Communications Act of 1934 (the “Pole Attachment Act”) in a very different way compared to
past practices. The Order notes the substantial delays allegedly caused by utilities in the
processing of pole attachment applications. The FCC Order 11-50, which does not apply to local
agencies, sets forth detailed requirements that utilities must comply with in regard to pole
attachment requests. At the California state level, there is pending before the California
Legislature a bill, Assembly Bill 1027 (“AB 1027”). This legislation, which contains several
requirements that are similar in some ways to those of FCC Order 11-50, would apply to
California municipal utilities and charter cities. AB 1027 would place limitations on the City in
dealing with parties wishing to attach antennas to poles in regard to fees and roll-out
schedules; the MLA does not contain any of the limitations set forth in the most recent version
of AB 1027. To the extent AB 1027, if enacted, requires the modification of the terms and
conditions of the MLA, a process for the parties to deal with these changes is established in the
MLA.
Application process -The MLA sets forth a detailed time schedule for the processing of pole
attachment and conduit occupancy applications. The attachment of wireless antennas to the
City’s utility poles could occur within six months of the filing of a completed application. To the
extent there are multiple applications for the same set of poles, the licensees are required to
coordinate their activities with their competitors.
Timeline Resource Impact
The MLA represents an increased workload for Utilities, but staff will make the time to review
and administer the installation, inspection and billing associated with these wireless
communication facilities. Assuming all antenna attachments are processed, the estimated
annual revenues will be $300,000 ($1,500 x 200 poles). Staff expects that the revenue will be
deposited in the Electric Fund and the General Fund based on the type of installation. If
approved, staff will monitor the revenue and propose a mid-year 2012 budget adjustment to
reflect the revenue change in the appropriate funds.
Policy Implications
This recommendation is consistent with the Telecommunications Policy adopted by the Council
in 1997, to facilitate the competitive delivery of advanced telecommunications services in Palo
Alto in an environmentally sound manner.
Environmental Review
The California Environmental Quality Act (CEQA) does not apply to the Council’s approval of
legal documents such as the MLA and Exhibits, because approval of these documents does not
constitute a “project” for purposes of CEQA review.In the case of a third party applying to
undertake certain action under the MLA, whether or not CEQA applies will be determined by
Staff on a case-by-case basis with respect to each application, based on location, supporting
structure, and other factors.
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Attachments:
·Attachment A: Resolution Amending Utility Rate Schedule E-16 (PDF)
·Attachment B: E-16 effective Rev July 2011 (PDF)
·Attachment C: Resolution Approving Master License Agreement (PDF)
·Attachment D:MLA Final Draft (PDF)
·Attachment E: MLA Exhibits Final Draft (PDF)
Prepared By:James Fleming, Management Specialist
Department Head:Valerie Fong, Director
City Manager Approval: James Keene, City Manager
CITY OF PALO ALTO UTILITIES
Issued by the City Council
Effective 7-01-20092011
Supersedes Sheet No.E-16-3 dated 7-01-2008 2009 Sheet No. E-16- 1
UNMETERED ELECTRIC SERVICE
UTILITY RATE SCHEDULE E-16
A. APPLICABILITY:
This rate schedule is applicable under the regular terms and conditions of the City of Palo Alto
Utilities Department to Customers who contract with the City for unmetered electric service for
billboards, unmetered telephone services, telephone booths, railroad signals, cathodic protection
units, traffic cameras, WiFi equipment, community antenna systems, cable TV power supplies, and
automatic irrigation systems and also applies to other miscellaneous Electric Utility fees to various
public agencies and private entities.
B. TERRITORY:
Within the incorporated limits of the City of Palo Alto and land owned or leased by the City.
C. NET MONTHLY BILL:
1. Customer Charge: $9.00 per month
2. Energy Charge:
(for all kWh supplied) using Electric Rate Schedule E2 plus all applicable riders
3. Minimum Charge:
Minimum monthly charge will be the Customer Charge.
D. DETERMINATION OF ENERGY REQUIREMENTS:
a. Initial Inventory
Customer shall enter into a contract for service under this Schedule and provide a written
inventory of all equipment at each of service requested, including the type and nameplate
rating for each piece of equipment. The billing energy for each point of service will be
determined by the Utilities Electric Engineering Division estimation of the kWh usage based
on the type, rating and quantity of the equipment provided by the Customer.
Monthly bill will be based on the following calculations:
1. Total Wattage.
2. Total Wattage times estimated annual operating hours as set in the contract equals
annual watt hours.
CITY OF PALO ALTO UTILITIES
Issued by the City Council
Effective 7-01-20092011
Supersedes Sheet No.E-16-3 dated 7-01-2008 2009 Sheet No. E-16- 2
UNMETERED ELECTRIC SERVICE
UTILITY RATE SCHEDULE E-16
3. Annual watt hours divided by 1000 hours equals annual kilowatt hours (kWh)
4. Annual kWh divided by twelve (12) months equal monthly kWh.
5. Monthly kWh times current rate per kWh = monthly bill for each unmetered service
location or equipment.
b. Updating Inventory
Customer will update its inventory by informing the Utilities Electric Engineering Division
in writing of changes in type, rating and/or quantity of equipment as such changes occur, and
billings will be adjusted accordingly. Upon Utilities Electric Engineering Division request,
but no later than the one year anniversary of the date on which Customer first takes service,
Customer shall provide an updated inventory of all equipment at each point of service.
c. Test Metering
The Utilities Electric Engineering Division may, at its discretion, test meter the load at
various types and ratings of the Customer’s equipment to the extent necessary to verify the
estimated kWh usage used for billing purpose and, where dictated by such test metering,
Utilities Electric Engineering Division will make prospective adjustments in estimated usage
for subsequent billing purposes; however, Utilities shall be under no obligation to test meter-
the load of Customer’s equipment. Utilities’ decision not to test meter the load of Customer’s
equipment shall not release Customer from the obligation to provide to Utilities Electric
Engineering Division, and to update, annually as provided in section b, an accurate inventory
of the types, rating and quantities of equipment upon which billing is based.
d. Inspection
The Utilities Electric Engineering Division shall endeavor to inspect the equipment at each
point of service annually as close to the anniversary date of the contract as is practical, and
make prospective adjustments in billing as indicated by such inspections; however, Utilities
shall be under no obligation to conduct such inspections for the purpose of determining
accuracy of billing or otherwise. Utilities decisions not to conduct such inspections shall not
release Customer from the obligation to provide to Utilities Electric Engineering Division,
and to update, an accurate inventory of the types, rating and quantities of equipment upon
which billing is based.
CITY OF PALO ALTO UTILITIES
Issued by the City Council
Effective 7-01-20092011
Supersedes Sheet No.E-16-3 dated 7-01-2008 2009 Sheet No. E-16- 3
UNMETERED ELECTRIC SERVICE
UTILITY RATE SCHEDULE E-16
e. Billing for Service
As the service described in this schedule is unmetered, Customer agrees to pay amounts
billed in accordance with the current inventory, regardless of whether any of the installations
of the Customer’s equipment were electrically operable during the period in question and
regardless of the cause of such equipment failure to operate.
E. MISCELLANEOUS RATES:
Service Description Rate *
1. Traffic Signal maintenance and energy costs
(A) Controller $522.26 ea
(B) 8" Lamp (LED) $1.85 ea
(C) 12" & PVH Lamp (LED) $2.16 ea
(D) Pedestrian Head (LED) $5.58 ea
(E) Vehicle, System and
Bike Sensor Loop $43.22 ea
2. Permit License Fee for Electric Conduit Usage
(A) Exclusive use 1.40/ft/yr
(B) Non-Exclusive use 0.70/ft/yr
3. Processing Fee for Electric Conduit Usage Actual Cost
4. Permit License Fee for Utility Pole Attachments
(A) 1 ft. of usable space $24.41/pole/yr
(B) 2 ft. of usable space $26.86/pole/yr
(C) 3 ft. of usable space $29.32/pole/yr
(D) 4 ft. of usable space $31.77/pole/yr
5. Processing Fee for Utility Pole Attachments $54.00/pole
6. License Fee for mounting communication equipment
including distributed antenna systems on utility poles $1500/pole/yr
* Rates are monthly unless otherwise indicated.
CITY OF PALO ALTO UTILITIES
Issued by the City Council
Effective 7-01-20092011
Supersedes Sheet No.E-16-3 dated 7-01-2008 2009 Sheet No. E-16- 4
{End}
Contract No. ______________
110520 MLA template
MASTER LICENSE AGREEMENT FOR USE OF
CITY-CONTROLLED SPACE ON UTILITY POLES
AND STREETLIGHT POLES AND IN CONDUITS
BETWEEN THE
CITY OF PALO ALTO
AND
______________________________________________
Contract No. ______________
110520 MLA template
TABLE OF CONTENTS
Section Description Page
1 Definitions 2
2 Terms and Termination 6
3 Grant and Scope of License 8
4 Other Rights and Obligations of Licensee 11
5 Application for Access 13
6 Costs and Fees 17
7 Construction and Installation of the Licensee Facilities 18
8 Moving the Licensee Facilities 20
9 Inspection of the Licensee Facilities 20
10 Unauthorized Attachment or Occupancy 21
11 Installation and Replacement of the Licensee Facilities 21
12 Indemnity; Waiver; Risk of Loss 23
13 Insurance 24
14 Performance Bond; Letter of Credit 26
15 Representations and Warranties 26
16 Default; Remedies for Default 27
17 Dispute Resolution 29
18 Notices 30
19 Miscellaneous Provisions 30
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MASTER LICENSE AGREEMENT FOR USE OF CITY-CONTROLLED
SPACE ON UTILITY POLES AND STREETLIGHT POLES AND
IN CONDUITS BETWEEN THE CITY OF PALO ALTO
AND
______________________________________
THIS MASTER LICENSE AGREEMENT (the “Agreement”), dated as of
_________________, ____ (the “Effective Date”), is entered into by and between the CITY OF
PALO ALTO, a California chartered municipal corporation (the “City”), and
__________________________, a _______________ (the “Licensee”) (individually, a “Party” and,
collectively, the “Parties”), in reference to the following facts and circumstances:
RECITALS
1. The City represents that it owns (or co-owns with Pacific Bell Telephone
Company dba AT&T California or Pacific Gas and Electric Company, or both) or controls, operates
and maintains certain utility poles and streetlight poles located within its jurisdictional boundary.
The City also represents that it owns, controls, operates and maintains certain ducts and conduits
located within its jurisdictional boundary.
2. The Licensee represents that it is either (a) a personal wireless service
provider authorized, certificated or licensed by the FCC or other agency, (b) an operator of a
distributed antenna system network authorized, certificated or licensed by the FCC, the CPUC or
other agency, (c) a wireline provider of Telecommunications Service authorized, certificated or
licensed by the CPUC, or (d) a provider of Multichannel Video Services which is franchised by the
CPUC or other agency.
3. The Licensee represents that it is authorized to provide Communications
Service, is otherwise qualified to do business in California, and has obtained all necessary
authorizations, certifications or licenses from the FCC, the CPUC or other agency. A copy of the
Licensee’s CPCN or WIRN, if applicable, is attached hereto as Exhibit “A.”
4. The Licensee desires access to and use of the City-controlled spaces on
certain Poles and/or in certain Conduits in order to attach and/or install its wireline and/or wireless
communications facilities and equipment for the purpose of providing Communications Service in
Palo Alto. As of the Effective Date, the identity of certain Poles and/or Conduits, which the Licensee
seeks access to and use thereof, and their locations are described in Exhibits “B” (Poles) and “C”
(Conduits). This information may be updated periodically as provided in this Agreement or an
amendment hereto and as the Licensee’s requirements may change during the term of this
Agreement. The Licensee Facilities, which will be attached to certain Poles and/or installed in
certain Conduits, are identified in Exhibit “D.” This information may be updated periodically as
provided in this Agreement or an amendment hereto and as the Licensee’s requirements may change
during the term of this Agreement.
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5. Subject to the terms and conditions of this Agreement and further subject to
the City’s good faith determination that the Licensee Facilities will not unreasonably interfere with
the City’s duty to serve its municipal utility customers (including, without limitation, its electric,
natural gas, dark fiber optics and water utility customers) or will not adversely affect the City’s
obligation to otherwise provide for and protect the public health, safety and general welfare, the City
is willing to grant to the Licensee a non-exclusive license to attach and/or install the Licensee
Facilities on certain Poles and/or in certain Conduits.
NOW, THEREFORE, in consideration of the Recitals and the following agreements,
covenants, and obligations, the value and sufficiency of which are acknowledged, the Parties
mutually agree:
AGREEMENT
1.0 DEFINITIONS
Except as the context otherwise requires, the capitalized terms used in this Agreement
shall have the meanings noted in this Article 1.0.
“Applicant” means any Person who requests the approval and authorization of the
City to access, use and occupy any City-controlled space on Poles and/or in Conduits.
“Application” means the application to access and use Poles and/or Conduits, as set
forth in the Processing Request Form, Exhibit “I,” referred to in Section 5.1. The term does not
extend to an application for a permit that is required by Title 12 or Title 18 of the Palo Alto
Municipal Code, with which the Licensee shall comply.
“Available” means, when used in the context of Conduit Occupancy or Pole
Attachment, any usable space on a Pole or in a Conduit that is not otherwise occupied by the City, a
joint owner of a Pole and/or an existing licensee at the time an Application is submitted and is
available for use by the Licensee.
“Business Day” means any Day, except a Saturday, Sunday, and any Day observed
as a legal holiday by the City.
“City Facilities” mean the Poles, Conduits and any other City and/or CPAU facilities
that are exclusively controlled by the City.
“City Manager” means the individual designated as the City Manager of the City by
Palo Alto Municipal Code section 2.08.140, and any individual who is designated the representative
of the City Manager.
“Communications Service” means a Telecommunications Service, Multichannel
Video Service, Information Service, or any other service involving the transport or transmission of
information electronically by wire or radio.
Contract No. ____________
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110520 MLA template
“Conduit” means any metal, plastic or like-material duct or pipe that is wholly-
owned and/or exclusively controlled by the City.
“Conduit Occupancy” means any attachment and/or installation in Conduit.
“Costs” means the utility rates, fees and charges estimated or incurred by the City to
perform the Preparatory Work and the Make-Ready Work at the Licensee’s request, including,
without limitation, (a) the estimated or actual rates, fees and charges or other expenditures to be
incurred or incurred by the City and/or any general contractor or subcontractor acting on behalf of
the City to perform the Make-Ready Work, and (b) if the City’s employees perform the Make-Ready
Work, the work performed at their labor rates.
“CPAU” means the City’s Department of Utilities, including, without limitation, the
City’s electric utility, fiber optics utility, gas utility and water utility.
“CPCN” means the certificate of public convenience and necessity, issued by the
CPUC to the Licensee.
“CPUC” means the California Public Utilities Commission or successor agency.
“Day” means a calendar day, unless a Business Day is specified.
“Director” means the Public Works Director, the Utilities Director, the Planning
Director or any other Person who exercises the responsibilities of the director of any City
department, identified in Chapter 2.08 of the Palo Alto Municipal Code.
“FCC” means the Federal Communications Commission or successor agency.
“Fee” means any fee, assessment, charge (other than Costs), imposition, or other levy
(but excluding a franchise fee and any tax, including the telephone utility users tax, now or hereafter
in effect), lawfully imposed by the City; provided, however, that “Fee” shall not include “Costs” as
defined herein.
“Force Majeure” means an incident, event or cause, whether or not foreseeable, that
is beyond the reasonable control of a Party, including, without limitation, an act of God, act of a
superior governmental authority, earthquake, fire, flood, labor strike or sabotage, which has an
adverse effect on the design, construction, installation, management, operation, testing, use or
enjoyment of the Facilities.
“Information Service” means “information service,” as defined in 47 U.S.C. §
153(25).
“Law” means any applicable administrative or judicial act, decision, certificate,
charter, code, constitution, opinion, order, ordinance, policy, procedure, rate, regulation, resolution,
rule, schedule, specification, statute, tariff, or other requirement of the City, of any county, state or
federal agency, or of any other agency having joint or separate jurisdiction over the Licensee or the
Contract No. ____________
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110520 MLA template
City, or both, and their separate facilities, now or hereafter in effect during the term of this
Agreement, including, without limitation, any regulation or order of an official entity or body.
“Letter of Credit” means an irrevocable standby letter of credit issued by a U.S.
bank or other financial institution, which has an issuer or other creditworthiness rating of at least
“A” by Standard & Poors and an “A2” by Moody’s Investor Services.
“Licensee Facilities” means, without limitation, aerial, surface or underground
wires, amplifiers, antennas, boxes, cabinets, cables (including fiber optic and coaxial cables),
circuits, conduits, conductors, converters, copper wires, decoders, demodulators, drop wires, ducts,
electronics, encoders, equipment, generators, hubs, inner-ducts, lasers, manholes, microwave,
modulators, multiplexers, networks, nodes, optical fibers, optical repeaters, patch panels, processors,
receivers, splice boxes, switches, tap-offs, terminals, traps, vaults, wires, wire and wireless
transmitters and receivers, and other similar equipment owned, leased, or controlled by the Licensee
that is used for or is useful in the provision of Communications Service, in existence either as of the
Effective Date or at any time during the term of this Agreement and located in or on the City
Facilities.
“Make-Ready Work” means changes to be made to City-owned or –controlled Poles,
its own Pole Attachments, the existing Pole attachments of any joint owner(s) and any existing licensee,
or the existing additional equipment associated with those attachments, that may be needed to
accommodate a proposed additional pole attachment. It also includes Make-Ready Work relating to
access to Conduits by the Licensee Facilities.
“Multichannel Video Services” means “cable service” as defined in Chapter 2.10 of
Title 2 of the Palo Alto Municipal Code and in 47 U.S.C. § 522(6), “video service” as defined in
Cal. Pub. Util. Code § 5820(s), services provided over an open video system certificated by the FCC
pursuant to 47 U.S.C. § 573 or a cable communications system, as defined in Chapter 2.10 of Title 2
of the Palo Alto Municipal Code, and any other form of delivery of multichannel video services to
subscribers in Palo Alto over the Licensee Facilities located in the Public Rights-of-Way or Public
Utilities Easements.
“Person” means any individual, for-profit corporation, nonprofit corporation, general
partnership, limited partnership, limited liability company, limited liability partnership, joint
venture, business trust, sole proprietorship, or other form of business association, but it does not
include the City.
“Pole” means (a) any utility pole, excluding towers, used to support mainly overhead
distribution wires and cables, jointly or separately owned by the City, (b) any Streetlight Pole,
wholly owned by the City, and (c) the anchors and guy strands/guy wires, which are located in the
Public Rights-of-Way and the Public Utility Easements. The term does not include any utility pole
that is wholly owned by a Person other than the City.
“Pole Attachment” means any attachment to a Pole by the Licensee.
Contract No. ____________
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“Preparatory Work” means, except as otherwise provided herein, work of a
preliminary nature undertaken by City staff, including, without limitation, survey and field
inspection work, review of engineering plans and specifications and other related work, that precede,
and are required to establish, the Make-Ready Work in order to facilitate the attachment and/or
installation of the Licensee Facilities in, on or about Poles and/or Conduits.
“Provision” means any agreement, circumstance, clause, condition, covenant, fact,
objective, qualification, restriction, recital, reservation, representation, term, warranty, or other
stipulation in this Agreement or an Exhibit or by Law that defines or otherwise controls, establishes,
or limits the performance required or agreed by any Party hereto. All Provisions, whether covenants
or conditions, shall be deemed to be both covenants and conditions.
“Public Rights-of-Way” means the areas in, upon, above, along, across, under, and
over the public alleys, boulevards, courts, lanes, places, roads, streets, and ways, including, without
limitation, all Public Utility Easements, within the jurisdiction of the City. This term shall not
include any real property, in whole or in part, owned by any Person or agency other than the City
except as provided by Law or pursuant to an agreement between the City and any such Person or
agency, nor shall it include any real property owned and/or controlled by the City that is not
dedicated to utility or public transit use.
“Public Utility Easement” means any privately owned land, in which the City holds
an easement for public utility uses and purposes, without regard to whether any “public utility,” as
defined in California Public Utilities Code section 216(a), has an easement for similar public utility
uses and purposes.
“Schedule” means a site-specific license for the attachment and/or installation of
Licensee Facilities, as identified in Exhibit “E,” commencing with Schedule “E-1.”
“Standard Drawings and Specifications” means the general terms and conditions,
specifications, and requirements of the City which govern the design, construction, installation, and
maintenance of any improvement to be located within the Public Rights-of-Way and Public Utility
Easements. This document is authored by the City’s Department of Public Works, Engineering
Division, and any reference to such document shall include additions, amendments, deletions,
revisions, modifications, and updates to this document. This term shall include documents entitled
“General Conditions” or words of similar import, now or hereafter existing, which directly pertain to
all aspects of general construction work.
“Streetlight Pole” means any standard design concrete, steel or aluminum (or other
metal) or wooden pole, including any decorative streetlight pole, that is used for street lighting
purposes.
“Telecommunications Service” means to the extent not inconsistent with federal
law, the transmission of voice, video or data information in rendering audio, video or data service,
which may be offered by the Licensee pursuant to its FCC, CPUC or other agency approval,
authorization, certification or license. Multichannel Video Service shall not be considered a
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110520 MLA template
Telecommunications Service or an Information Service hereunder, except to the extent required by
Law.
“Utilities Rules and Regulations” means the City’s utilities rules and regulations,
authorized by Chapter 12.20 of the Palo Alto Municipal Code.
“WIRN” means the wireless identification registration number that the Licensee is
required to obtain from the CPUC in order to offer intrastate wireless telecommunications services
in California.
“Work” means and includes both Preparatory Work and Make-Ready Work.
2.0 TERMS AND TERMINATION
2.1 Initial and Extension Terms. The initial term of this Agreement is ten (10)
years (the “Initial Term”), commencing on the Effective Date, unless and until it is earlier terminated
in accordance with this Agreement. The extension term of this Agreement is ten (10) years (the
“Extension Term”), commencing on the expiration of the Initial Term, provided that: (a) the
Licensee shall give the City Manager written notice of its intention to extend this Agreement no less
than sixty (60) Days prior to the expiration of the Initial Term; (b) the Licensee is in substantial
compliance with the Provisions; (c) there has not been any change in Law that may materially affect
the Provisions or their enforceability; and (d) the City has not otherwise terminated this Agreement
in accordance with the Provisions.
2.2 Renewal of Agreement. The Parties may in good faith negotiate the terms and
conditions of a new master license agreement, which negotiations the Parties shall use reasonable
effort to commence by no later than six (6) months before the expiration of the Extension Term;
provided, however, the negotiations shall be based on the terms and conditions of the City’s standard
master license agreement then in effect or in accordance with such other contract rates, terms and
conditions or Law as may be adopted by the City. If the Parties fail to negotiate the renewal of a new
master license agreement, then the Licensee shall be deemed to hold over and shall be otherwise
liable to perform its obligations hereunder, including the payment of all Costs and Fees, in
accordance with the terms and conditions of the standard master license agreement then in effect,
unless there is no such standard master license agreement then in effect, in which event the terms
and conditions of this Agreement shall continue to apply.
2.2.1 If a new master license agreement has not been executed by the Parties by the
expiration of the Extension Term and the Parties do not otherwise agree, in writing, to renew, then
the Licensee at its option shall either: (a) sell the Licensee Facilities to the City at fair market value,
if the Licensee desires to sell and the City desires to purchase the Licensee Facilities or any part
thereof; (b) at the Licensee’s sole cost and expense, remove the Licensee Facilities from the City
Facilities if the City does not intend to purchase the Licensee Facilities; (c) without cost or charge to
the City, abandon the Licensee Facilities on Poles and/or in Conduits, provided the City first
approves, in writing, the proposed abandonment of the Licensee Facilities and the terms and
conditions applicable to that abandonment, whereupon in the absence of any agreement by the
Parties to the contrary, such facilities shall become the property of the City; or (d) sell or transfer the
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Licensee Facilities to a third party subject to the City’s prior written approval, which will not be
unreasonably withheld. Upon the occurrence of subsection 2.2.1(d), this Agreement shall be deemed
terminated, and the Licensee shall not be deemed to have made an assignment pursuant to Section
19.2.
2.3 Termination. Except as otherwise provided herein, the City may terminate
this Agreement for cause (as defined in subsection 2.3.1) upon ten (10) Days’ prior written notice
sent by the City to the Licensee; in that event, the City may exercise its legal rights and/or equitable
remedies hereby reserved under this Agreement or by Law at any time, including, without limitation,
the right to recover any uncollected Annual Fees that would be due and payable by the Licensee to
the City if this Agreement had not been terminated during the Initial Term or the Extension Term, if
any.
2.3.1 A termination for cause means: (a) the Licensee has failed to cure a material
default of this Agreement within thirty (30) Days after it receives the City’s notice of default, or, if
the default can be cured and such cure reasonably requires more than thirty (30) Days to achieve,
fails to commence such cure within the specified period but, thereafter, diligently continues such
cure until completion thereof; (b) the CPUC, the FCC or other agency exercising jurisdiction over
the Licensee has, by final order or action that is no longer subject to appeal, terminated or otherwise
revoked the Licensee’s approval, authorization, certification or license to operate the Licensee
Facilities, to provide Communications Service, or to transact business referred to in Recital numbers
2 and 3; or (c) the Licensee’s authority to do business in California has expired or is rescinded or
terminated by final order or action that is no longer subject to appeal.
2.3.2 Upon the establishment of termination for cause, the right to attach to any
Pole and/or occupy any Conduit will immediately terminate after the City delivers thirty (30) Days’
prior written notice to the Licensee. In that event, the Licensee shall, within six (6) months of the
effective date of termination of this Agreement, remove or cause the removal of the Licensee
Facilities from the Poles and/or Conduits, or, if the Licensee fails to remove or cause such removal
within such six-month period, the City may remove the same for the account of and at the sole cost
and expense of the Licensee. The preceding sentence notwithstanding, the Parties by mutual
agreement may exercise any option made available under subsection 2.2.1.
2.4 Changes in Law. The Parties acknowledge that the subject of wireline and
wireless communications facilities in the context of utility pole attachments has been addressed and
continues to be addressed by federal and California authorities. If, during the Initial Term or the
Extension Term, a Law is adopted, amended or repealed and is made binding upon the City and is
applicable to this Agreement, then the Parties shall agree to negotiate in good faith an amendment to
this Agreement (or a new agreement, as the case may be) to the extent necessary to comply with
such Law. If the Parties cannot mutually agree to an amendment to this Agreement (or a new
agreement)
within three (3) months after a Party receives the other Party’s request to negotiate an amendment to
this Agreement (or a new agreement, as the case may be) pursuant to this section 2.4, then the
Parties will agree to submit the dispute to mediation and non-binding arbitration under mutually
acceptable terms and conditions.
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3.0 GRANT AND SCOPE OF LICENSE
3.1 Grant of License. The City grants to the Licensee, and the Licensee accepts
from the City, subject to the Provisions, a non-exclusive license to access and use certain Poles
and/or Conduits and attach, install, operate, maintain, repair, remove, reattach, relocate and replace
the Licensee Facilities in, on or about those certain Poles and/or Conduits. The rights and obligations
of the Licensee under this Agreement will be exercised at the Licensee’s sole cost and expense,
unless otherwise agreed to by the Parties.
3.2 Scope of License. The grant of license to the Licensee is subject to (a) the
prior use and existing and continuing rights, consents and approvals of the City, including CPAU
and other City departments, the joint owner(s) and any existing licensee of certain Poles and/or
Conduits, and (b) existing and future recorded and unrecorded deeds, easements, dedications,
agreements, conditions, covenants, restrictions, encumbrances and claims of title which may affect
any right, title and interest in and to the Public Rights-of-Way, Public Utility Easements, and any
City-owned or -controlled facility located in the Public Rights-of-Way or Public Utility Easements.
3.2.1 Nothing in this Agreement shall be deemed to grant, convey, create, or vest in
the Licensee a perpetual interest in land or the Public Rights-of-Way or Public Utility Easements,
including, without limitation, any fee, leasehold interest, easement, or franchise rights. Neither the
City, nor the joint owner(s) of certain Poles, nor any existing licensee shall be liable to the Licensee
for the failure of the City, the joint owner(s) of certain Poles, and/or any existing licensee to secure
the proper legal authority from a grantor of an easement affecting any Pole or Conduit.
3.2.2 The Licensee, as a condition precedent to its right to access, use, and attach
and/or install the Licensee Facilities in, on or about any Pole or Conduit, shall obtain from the City
other necessary approvals, authorizations, and/or permits to access and use the Public Rights-of-Way
and the Public Utility Easements controlled by the City.
3.2.3 The Licensee’s right to access, use, and attach to and/or install in, on or about
any Poles and/or Conduits is subject to the City’s prior right to use or remove from use at a future
date any Pole or Conduit space occupied by the Licensee in the reasonable exercise of its
governmental or proprietary powers. The Licensee acknowledges and agrees that its right to attach
and/or install is also subject to the prior rights of the joint owner(s) of certain Poles and/or any
existing licensee. If the Licensee’s right under this subsection 3.2.3 is affected by such City action,
then the City will use reasonable efforts to find one or more alternative locations for the Licensee to
attach the Licensee Facilities in accordance with the facilities relocation procedure set forth in
Section 7.2.
3.2.4 The City may for consideration of the public health, safety, or welfare,
including, without limitation, safety, reliability, security or engineering reasons, terminate or
otherwise modify the scope of the Licensee’s non-exclusive license granted by this Agreement, upon
sixty (60) Days’ prior written notice to the Licensee. If the City exercises its rights under this
subsection 3.2.4, then it will use reasonable efforts to find one or more alternative locations for the
Licensee to attach the Licensee Facilities.
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3.2.5 Except as authorized by Law or this Agreement, the Licensee in the
performance and exercise of its rights and obligations, shall not obstruct or interfere in any manner
with the Public Rights-of-Way, Public Utility Easements, private rights-of-way, sanitary sewers,
sewer laterals, water mains, storm drains, gas mains, poles, aerial and underground electric and
telephone wires, electroliers, Multichannel Video Service facilities, and other telecommunications,
utility, and municipal property or facilities without the express written approval of the City and/or
the other owner(s) of the affected property or properties.
3.2.6 The City reserves to itself the right to attach, install, maintain, replace and
enlarge the City Facilities and to operate the same from time to time in such manner as will best
enable it to meet the needs of CPAU’s utility customers and fulfill its service requirements. Except
as provided in subsection 12.1.1, the City shall not be liable to the Licensee or its customers for any
interruption of service of the Licensee or for interference with the Licensee Facilities arising in any
manner relating to the City’s, the joint owner(s)’or any existing licensee’s use of the City Facilities
under this Agreement, or arising in any manner out of the condition or character of the City
Facilities or their manner of operation.
3.3 Compliance with Laws. The Licensee shall comply with all Laws, including,
without limitation, the CPUC’s General Orders (“GO”) that are applicable to the Licensee, in the
exercise and performance of its rights and obligations under this Agreement. The preceding sentence
notwithstanding, the Licensee shall furnish a copy of the notification letter required by GO 159A,
Section IV.C.2 to the Planning Director, to the extent GO 159A applies to the Licensee.
3.3.1 The Licensee shall obtain the City’s review and approval of the proposed
siting and design and the construction methods to be used with respect to the Licensee Facilities, as
may be required by Law. The Licensee shall obtain architectural review of the Licensee Facilities by
the City’s Planning Department staff and by the City’s Architectural Review Board, which review
will be dependent on the characteristics of the Licensee’s proposed project, as may be required by
Law. The Licensee acknowledges that additional review by any other City board or commission or
the City Council may be required by Law. The reviews referred to in this subsection 3.3.1 shall be
conducted in conformance with the City’s land use approval process, to the extent applicable to the
Licensee Facilities.
3.3.2 The City may require the Licensee to file one or more written reports with any
of the Directors within the time(s) requested. The Licensee shall file with the Utilities Director a
copy of the radio frequency propagation study of any Licensee Facilities within thirty (30) Days of
the completion of the first authorized attachment and/or installation of the Licensee Facilities
occurring during the Initial Term and the Extension Term, if any.
3.3.3 The City may require the Licensee to obtain a conditional use permit, if the
City determines that the Licensee Facilities are subject to the requirements of Title 18 of the Palo
Alto Municipal Code or other Law.
3.4 Authorized Services. The Licensee shall use the Licensee Facilities for the
sole purpose of providing Communications Service that is subject to any FCC, CPUC or other
agency approval, authorization, certification, or license. If the Licensee is authorized to offer new
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and/or additional Communications Service not now approved, authorized, certified, or licensed
under its current FCC, CPUC or other agency approval, authorization, certification, or license, then
the Licensee shall furnish the City Manager and the City Attorney with a copy of its application(s)
for any such additional approval, authorization, certification, or license and a copy of any additional
authorization, certification, grant, license within thirty (30) Days of its filing and its issuance.
3.4.1 The Licensee shall not allow any other Person to control the Licensee
Facilities, or any portion thereof, for compensation, whether in cash or cash equivalent, for any
purpose not directly related to the Licensee’s provision of Communications Service or other services
approved, authorized, certified or licensed by the FCC, CPUC or other agency, unless the Licensee
first gives thirty (30) Days’ prior written notice to the City Manager and the City Attorney of such
intended use.
3.4.2 The Licensee acknowledges and agrees that (a) this Agreement is not a
“franchise” within the meaning of 47 U.S.C. § 522(9), California Government Code § 53066, or
California Public Utilities Code § 5800 et seq., and (b) this Agreement does not authorize, certify,
grant or license the Licensee to use the Public Rights-of-Way and the Public Utility Easements to
provide Multichannel Video Services or any other comparable services to subscribers in Palo Alto.
3.5 Location of Licensee Facilities. The non-exclusive license granted hereby
shall not extend to any Pole and/or Conduit to which the attachment and/or installation of the
Licensee Facilities thereon or therein would result in a forfeiture of rights by the City or the
imposition of additional obligations or liabilities upon the City, the joint owner(s) of certain Poles,
and/or any existing licensee to occupy the Public Rights-of-Way or Public Utility Easements.
3.5.1 If the existence of the Licensee Facilities in, on or about such Poles and/or
Conduits would result in a forfeiture of the rights of the City, the joint owner(s) of certain Poles
and/or any existing licensee, then the Licensee, at its sole cost and expense, shall promptly remove
the Licensee Facilities within ninety (90) Days after receipt of written notice from the City. If the
Licensee Facilities are not timely removed, the City may at the Licensee’s sole cost and expense
remove them or cause their removal after the expiration of the notice period without liability on the
part of the City or any third party hired or directed by the City to remove the same or parts thereof.
In that event, the Licensee shall pay the City, upon demand, for the City’s actual costs of removal
and for all losses and damages that are incurred by the City by such undertaking. This obligation
shall survive the early termination or expiration of this Agreement.
3.5.2 The Licensee shall relocate the Licensee Facilities within ninety (90) Days or
other period of time established by Law after the Licensee's receipt of written notice by the City that
the Licensee must remove or relocate those facilities to another designated location within the City's
jurisdictional boundary pursuant to the City’s exercise of its police powers, including, without
limitation, in accordance with the establishment of an underground utility district.
3.5.3 During the Initial Term and the Extension Term, if any, the Licensee may
voluntarily remove the Licensee Facilities or part thereof from the City Facilities or part thereof on a
permanent basis, provided that the Licensee first gives the City and any affected joint owner(s) of
certain Poles and/or any existing licensee at least sixty (60) Days' prior written notice of its intention
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to remove the Licensee Facilities. The voluntary removal of the Licensee Facilities prior to the
expiration of the Initial Term or Extension Term, if any, shall not relieve the Licensee of its
obligation to pay any Costs and Fees associated with the removal then due and payable to the City,
including the uncollected Annual Fees that would be due and payable by the Licensee to the City if
this Agreement had not been terminated. The Licensee shall obtain from the City any other
approvals, authorizations, and permits required by Law prior to the commencement of such removal
work. Upon removal, the Licensee may transfer the Licensee Facilities to the City, provided that the
City first agrees, in writing, to accept title thereto, consistent with subsections 2.2.1(a) and (c).
Within six (6) months after the Licensee voluntarily abandons its License Facilities, or parts thereof,
and fails to remove them upon the earlier of the date of voluntary abandonment or the date of early
termination or expiration of this Agreement, the City shall arrange for the removal of the Licensee
Facilities at the Licensee's sole cost and expense if the City does not approve or otherwise accept the
abandoned Licensee Facilities. Prior to the effective date of abandonment, the Licensee shall post
security with the City to assure the City will recover the reasonable costs of removal of the Licensee
Facilities; at the City’s election, the security may take the form of a Performance Bond, described in
Article 14.0, or a Letter of Credit in the amount specified therein, as may be established by the City.
3.6 Disclaimer; Waiver. In no event shall either Party or its successors and
assigns, elected officials, officers, employees, agents or representatives be liable for any lost profits,
consequential, special, exemplary, indirect, punitive or incidental losses or damages, including loss
of use, loss of goodwill, lost revenues, loss of profits or loss of contracts even if such Party has been
advised of the possibility of such damages, and the Parties each waive such claims and releases
each other and each of such Persons from any such liability. This Section 3.6 shall not apply to any
Costs or Fees or any other cost or fee referred to herein that the Licensee owes to the City.
3.6.1 The Parties acknowledge that California Civil Code Section 1542 provides
that: “A general release does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.” The Parties waive the provisions of
Section 1542, or other similar provisions of Law, and intend that the waiver and release provided by
this subsection shall be fully enforceable despite its reference to future or unknown claims.
4.0 OTHER RIGHTS AND OBLIGATIONS OF LICENSEE
4.1 General. During the Initial Term and the Extension Term, if any, the Licensee
shall request, in writing, the City's approvals and authorizations to add, attach, install, move,
remove, repair, replace, or otherwise alter or change the Licensee Facilities, except as may be
otherwise provided in this Agreement. The Licensee shall file the applicable requests for approvals
and authorizations with the appropriate Director(s).
4.1.1 Each Party will use due care, and shall ensure that no damage, beyond
reasonable wear and tear, is caused to the other Party’s facilities or the facilities of the joint owner(s)
of certain Poles and Conduits and/or any other licensees, including, without limitation, the joint
owner(s)’ fibers, wires, cables, poles and/or conduits lawfully located in, on or about the Poles or
Conduits to which the License intends to attach and/or install the Licensee Facilities. Any damage
or destruction which is caused by any Party or its agent or representative shall be reported within
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forty-eight (48) hours to the other Party, the joint owner(s) of certain Poles and Conduits, and/or
other licensees who could be directly affected by such damage. The Party causing such damage shall
reimburse the other Party and/or any other affected Person, upon demand, for any damage caused the
Party or its employees, contractors, subcontractors, agents, and representatives.
4.2 Identification of Facilities. The Licensee shall identify its Licensee Facilities,
including, without limitation, its fibers, wires and cables, and wireless facilities with appropriate
durable, visible identification tags that describe the Licensee’s name, number, color, identification
code, size, and manufacture of the Licensee Facilities, including the fibers, wires and cables and
wireless facilities, the type of service, and any other criteria as may be established or agreed to by
the Utilities Director. Such information may be provided to the Utilities Director in accordance with
the requirements set forth in Exhibits “F,” “G,” and “I.”
4.3 Notices to City, Joint Owners and Licensees. Excepting emergencies which
may require the restoration of functionality of the Licensee Facilities within twenty-four (24) hours
of loss of functionality, the Licensee shall give not less than ten (10) Business Days' prior written
notice to the Utilities Director, the joint owner(s) of certain Poles, and/or any existing licensee,
whenever the Licensee will perform any approved or authorized Make-Ready Work in regard to the
Licensee Facilities that will concurrently occupy any portion of the Poles and/or Conduits with the
City, the joint owner(s) of certain Poles, and/or any existing licensee. Any Make-Ready Work
required of the Licensee by the City shall be performed with due care by the Licensee or any Person
acting on behalf of the Licensee, including its employees, agents, contractors, subcontractors and
representatives. With respect to maintenance and repairs of the Licensee Facilities, the Licensee
shall provide the City with reasonable prior notice in order that the City may determine whether to
assign appropriate staff to be present during any such work.
4.4 Compliance with Technical Specifications. Subsection 3.3 notwithstanding,
the Licensee Facilities shall be attached, installed, maintained, removed and repaired in accordance
with the applicable requirements and specifications, including, without limitation, the Standard
Drawings and Specifications, the specifications of the National Electrical Safety Code and National
Electric Code and amendments thereto, and the applicable rules and regulations of the CPUC, the
FCC and any other agency exercising jurisdiction over the Licensee. The Licensee may use the
pathways inside the Streetlight Poles only if the attachment and installation work is conducted in
accordance with the Standard Drawings and Specifications and the Utilities Rules and Regulations.
Use of the Poles and Conduits shall be subject to any security plan now or hereafter approved by the
City.
4.5 Repair of City Facilities, Public Rights-of-Way and Public Utility Easements.
The Licensee, at no liability, cost or expense to the City, shall repair, replace, or restore, or shall
cause the repair, replacement, or restoration, reasonable wear and tear excepted, of any damage to
the City's streets, sidewalks, underground facilities, Poles, Conduits, curbs, gutters and other City
property caused by or resulting from the performance of any Make-Ready Work by the Licensee, its
employees, agents, contractor, subcontractors or representatives, or by the Licensee and others, if the
Work is performed jointly by such parties.
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4.6 Removal of Markings. The Licensee, at its sole cost and expense, shall
remove all Underground Service Alert markings from the streets and sidewalks as may be required
by Law or by the City.
5.0 APPLICATION FOR ACCESS
5.1 Processing Request Form. The Licensee shall complete and file a Processing
Request Form to request access to and use of Poles and/or Conduits (the “Application”) with CPAU
and apply for and receive from the Public Works Director, Planning Director and/or the Utilities
Director any other necessary authorizations and approvals. Upon receipt of approval of the
Application and other authorizations and approvals and the payment of all required Costs and Fees,
the Licensee shall coordinate with CPAU in making attachment to Poles and/or occupancy of
Conduits within the time period specified in Section 5.2. To the extent not inconsistent with Law, the
City reserves the right to reject any completed Application in accordance with Section 3.2 and
subsections 3.2.1 through 3.2.6 or any incomplete Application. The City, in acting upon an
Application, will use reasonable efforts to process and accept or reject the Application, within the
parameters and time periods set forth below:
A. The City will complete its Preparatory Work to determine whether and where
the Pole Attachments and/or Conduit Occupancy are feasible and what Make-Ready Work will be
required, within twenty (20) Days of receipt of the processing fee that shall be due and payable
following CPAU’s review and acceptance of the Processing Request Form and all attachments
thereto, which the Licensee acknowledges shall be complete in all respects in order for the City to
deem the Application validly submitted;
B. The City will notify the Licensee within seven (7) Days of completion of the
Preparatory Work (1) whether the Poles and/or Conduits identified in the Processing Request Form
can be subject to a detailed engineering analysis to be conducted during the Make-Ready Work
phase of the Application and (2) whether the Make-Ready Work, including the required replacement
of any deteriorated Pole, will be performed by the City or the Licensee or its City-approved,
qualified and licensed contractor;
C. Within seven (7) Days of the Licensee’s receipt of the City’s notice to the
Licensee referred to in (B) above, the Licensee will give written notice to the City to proceed to the
Make-Ready Work phase and the Licensee will proceed to hire qualified and licensed contractor(s)
if the City authorizes the Licensee to perform the Make-Ready Work;
D. The City will provide the Licensee with the City’s estimate of Costs of Pole
Attachments and/or Conduit Occupancy, including the Costs of any Make-Ready Work to be
performed by CPAU, within thirty (30) Days of the Licensee’s notice to the City to proceed with the
Make-Ready Work phase referred to in (C) above;
E. The Licensee shall accept or reject the City’s estimate of Costs and make
payment of the estimated Costs within seven (7) Days of receipt of the City’s estimate of Costs
referred to in (D) above; and
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F. The City will complete the Make-Ready Work for the Licensee Facilities, as
needed, within one hundred five (105) Days of the receipt of the Licensee’s written acceptance of
the City’s estimate of the Costs and the payment of such Costs.
Notwithstanding Sections 5.1(A) through (F), the City may toll or stop the clock on any of the
timelines mentioned in Sections 5.1(A), (B), (D) or (F) in the event of an emergency as determined
by the City or for other good and sufficient cause. The City will provide written notice to the
Licensee of the City’s determination regarding the emergency or other good and sufficient cause. If
the City is unable to complete any of the Work contemplated in Sections 5.1(A), (D) and/or (F)
within the specified time periods, then the Licensee may request the City’s approval to undertake
and complete such Work, provided that (i) the Licensee gives to the City not less than 72 hours’
prior notice of its desire to complete such Work, (ii) the Licensee certifies, in writing, to the City
that the Person(s) who will complete such Work on behalf of the Licensee is/are duly qualified and
licensed to perform the Work in the electric utility space of the Pole and/or or Conduits, and (iii) the
Person(s) is /are pre-authorized by the Utilities Director to complete such Work on behalf of the
Licensee. As a condition precedent to the City’s obligation to approve any Person(s) who will
perform such Work on behalf of the Licensee, the Licensee shall provide the name(s), copy of their
license(s), and a statement of qualifications of the Person(s) designated to perform the Work on the
Licensee’s behalf in the electric space on the Poles or in the Conduits at the time the Application is
submitted.
5.1.1 Except as otherwise approved by the City, the Licensee shall limit the filing of
an Application for Pole Attachment to not more than the number of Poles per Applications
established by the City by Utility Rule and Regulation or, if no such requirement or specification
exists, fifteen (15) poles per Application.
5.1.2 The Utilities Director may approve the modification of the limitations set
forth in subsection 5.1.1, if the Licensee requests, in writing. The Licensee shall specify a desired
priority of completion of the Work for each Application in the event that the Licensee submits
multiple Applications to the City within a rolling thirty-Day period.
5.1.3 If the Utilities Director rejects or otherwise disapproves of the Application,
then the City will provide the Licensee with a written detailed explanation of the basis of
disapproval.
5.2 Lapse of Application. Authorization or approval to the Licensee to attach to
Poles and/or install in Conduits shall terminate without further notice to the Licensee as to any Poles
or Conduits covered thereby, to which the Licensee has not attached or occupied within one hundred
eighty (180) Days from the date of the City’s notice to the Licensee that such Pole(s) and/or
Conduits are Available. The preceding sentence notwithstanding, the Licensee may re-submit the
Application and, subject to subsection 7.5.2 hereof, the City will use reasonable efforts to expedite
the City’s review and approval in accordance with the process set forth in Sections 5.1(A) through
(D), inclusive.
5.3 Multiple Applications for Same City Facilities. Applications received by the
City regarding the same Pole or Conduit will be processed by the City on a first-come, first-served
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basis. First-come, first-served priority shall be determined according to the Applicant who is
determined to have first submitted a complete Application. Whenever two or more Applications are
filed with the City pertaining to the same Poles and/or Conduits, the City, within thirty (30) Days of
receipt of the later filed Application, will notify all affected Applicants of the following: (a) one or
more Applications have been received for some or all of the same Poles and/or Conduits; and (b) the
name, email address and telephone number of each Applicant who has submitted such Application.
5.4 Cost Sharing Arrangements. In the event that one or more other Applicants
may wish to share the costs of attachment and/or installation with the Licensee, unless otherwise
agreed to by the Applicants, the Licensee, if it is the “first-in-time” Applicant, will endeavor in good
faith to coordinate efforts relating to the sharing of all Make-Ready Work. Unless the Applicants
otherwise agree, the Licensee, if it is the “first-in-time” Applicant, will endeavor to transmit to the
City any mutually agreed to Make-Ready Work costs on behalf of the Applicants affected by such
arrangement. The City shall bill the Licensee, if it is the “first-in-time” Applicant, for the entire cost
of all Make-Ready Work necessary to accommodate the Applicants, including the Licensee. The
City shall not be responsible, and it expressly disclaims any obligation or responsibility, for assisting
the Licensee, if it is the “first-in-time” Applicant, in collecting the prorated costs of Make-Ready
Work from any additional Applicant.
5.5 Performance of Work.
5.5.1 Prior to the commencement of the Make-Ready Work relating to CPAU
facilities which the City may authorize the Licensee to perform, the Licensee shall post or shall
cause the posting of notices of its proposed Make-Ready Work in accordance with the Public Works
and the Utilities Departments’ rules and regulations. Absent such rules and regulations, the Licensee
shall at least ten (10) Days before the commencement of its Make-Ready Work deliver or shall cause
to be delivered a written schedule for each portion of Work to: (a) those residents and businesses
whose properties abut and are within 300 feet of the proposed Work sites or such other distance as
set forth in any City-issued approval or authorization; and (b) other Persons whose facilities will be
directly impacted by such Work. In addition, the Licensee shall be required to post “No Parking”
notices at least seventy-two (72) hours prior to the commencement of each portion of the Work in
the absence of any time period as set forth in the approvals or authorizations.
5.5.2 The Licensee upon the completion of its Make-Ready Work shall promptly
furnish to the City accurate plans and record drawings or as-built drawings depicting, in detail, the
locations and dimensions of the Licensee Facilities, including, without limitation, the Pole and/or
Conduit numbers, if available, notwithstanding that such information may have been initially
provided with the Application(s). These plans and drawings shall be incorporated in any form as
may be reasonably specified by the City Manager. The Licensee shall furnish its plans and drawings
to the City in an electronic storage medium (which utilize AutoCAD or Geographic Data Systems
software or equivalent), containing the full set of plans and record drawings or as-built drawings,
whenever such information may be required by the City Manager or any Director. Unless the City
requires the Licensee to submit the final load calculations prior to the issuance of any authorization,
approvals or permits, such information shall include, without limitation, the load calculations for
each proposed Pole Attachment, including any Streetlight Pole attachment, as may be required by
CPAU, as set forth in Exhibit “I.”
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5.5.3 In the event that the City determines any Pole to which the Licensee seeks
access for attachment purposes is inadequate to support the Licensee Facilities in accordance with
Law, following the receipt of the Licensee’s load calculations as requested by the City, the City will
inform the Licensee of any required changes and the estimated costs thereof in order for the City to
consider making provision for adequate load-bearing Poles in accordance with the timelines set forth
in Sections 5.1(A) through (F). If, after the receipt of the City’s information, the Licensee desires to
proceed with the Pole Attachments by submitting to the City the Licensee’s acceptance of the City’s
estimate of Work and payment, in advance, in accordance with the timelines set forth in Sections
5.1(A) through (F) to reimburse the City for the total estimated Pole modification or replacement
costs and expenses, including, without limitation, the costs of installing new Poles, plus the expenses
of replacing or transferring the City’s electric and/or fiber optics utility facilities from the old Poles
to the new Poles, the City may, at its option, replace the Poles with suitable Poles. The Licensee will
reimburse the joint owner(s) of certain Poles and/or any existing licensee for any expense incurred
by each of them in relocating their facilities from the existing Poles to the new Poles. Upon the
completion of Make-Ready Work, the City will prepare and submit a final billing for reimbursement
by the Licensee to the City for the final Pole replacement costs, including, without limitation, the
costs of the new Pole, the labor associated with the transfer or rearrangement of the facilities of the
joint owner(s) of Poles and/or other license holders, the cost of removing the old Poles, and other
matters itemized on the bill. In the alternative, the City may permit the Licensee to replace any Pole
in accordance with terms and conditions mutually agreed to by the City, the joint owner(s) of certain
Poles and any existing licensee thereof.
5.5.4 The City shall determine or otherwise specify the point of attachment on each
Pole and/or the point of entry in each Conduit to be occupied by the Licensee Facilities after
consultation with the Licensee. Information regarding the Licensee’s preferred point(s) of
attachment or entry will be included on each Application.
5.5.5 The Licensee shall notify the City in the Application at least thirty (30) Days
before the Licensee will add to, relocate, replace or otherwise modify the Licensee Facilities
attached to a Pole or occupying a Conduit, where additional space or holding capacity shall be
required on either a temporary or permanent basis.
6.0 COSTS AND FEES
6.1 Payment of Costs and Fees. In consideration of the City’s grant of a non-
exclusive license to the Licensee under this Agreement, during the Initial Term and the Extension
Term, if any, the Licensee shall pay to the City the initial/one-time Costs and Fees (the “Initial/One-
Time Costs and Fees”) and the annual Costs and Fees (the “Annual Costs and Fees”) referred to in
the Schedules, as set forth in Exhibit “E.” Payments shall be due and payable upon the specified
date(s) for the Work relating to any Pole Attachment and/or Conduit Occupancy through the end of
the calendar year of the attachments and/or occupancies, unless otherwise provided by Exhibit “E”
or by Law. All other payments set forth in the Schedules will be payable on a calendar year basis.
All payments shall be made payable by check, draft or other negotiable instrument to the “City of
Palo Alto” and delivered to the address set forth in Article 18.0.
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6.1.1 Unless otherwise provided by Exhibit “E” or by Law or mutually agreed to by
the Parties, the Annual Costs and Fees shall be payable thereafter annually, in advance, by the
January 1st of each year during the Initial Term and the Extension Term, if any. Except as expressly
provided in the Schedules, the Annual Costs and Fees shall not be adjusted in the event that the
Licensee removes or reduce the fibers, wires, cables or wireless facilities, or removes the wireless
facilities attachments during any calendar year, whenever the adjustment or removal is effected and
the Annual Costs and Fees have been paid. The City shall increase the sum total of all Annual Costs
and Fees payable to the City, whenever the Licensee installs additional fibers, wires, cables or
wireless facilities, in accordance with the adjustment formula specified in the Schedules or by Law.
6.1.2 In addition to the Initial/One Time Costs and Fees and the Annual Costs and
Fees payable hereunder, the Licensee shall pay as additional consideration other Fees and Costs for
services rendered by the City (the “Additional Costs and Fees”). The Additional Annual Costs and
Fees shall be due and payable in accordance with the Schedules, the Provisions and Law.
6.1.3 In addition to the Costs and Fees referred to in subsections 6.1.1 and 6.1.2
above, the Licensee shall be obligated to pay the City for any uncollected Annual Fees which may
be otherwise due and payable by the Licensee on account of its early termination without cause of
this Agreement.
6.1.4 The City will prepare and deliver to the Licensee an invoice for Costs and
Fees and Additional Costs and Fees estimated or incurred by the City or due and payable by the
Licensee for the privilege of accessing and using the City-controlled spaces on the Poles and/or in
the Conduits. The amounts shall be due and payable within forty-five (45) Days of the invoice date.
Any invoice that is not paid in a timely manner shall be assessed a late fee with respect to the
overdue sum, which shall be due and payable with the invoice. The Licensee shall pay amounts not
then in dispute. As to any amount subsequently determined to be due and payable, the Licensee shall
promptly pay such amount and the applicable late fee with the invoice.
6.2 Failure to Pay. The Licensee’s failure to pay the Initial/One-Time and Annual
Costs and Fees any Additional Costs and Fees, and any early termination Fee as and when they shall
become due, shall constitute a default by the Licensee under this Agreement; provided, however, the
Licensee shall have the right to cure a monetary default in accordance with Article 16.0 and the right
to dispute the amount of any Cost or Fee in accordance with Article 17.0. The Licensee’s obligation
to pay the Costs and Fees and Additional Costs and Fees existing as of the effective date of early
termination or expiration of this Agreement shall survive the expiration or earlier termination of this
Agreement.
7.0 CONSTRUCTION AND INSTALLATION OF THE LICENSEE
FACILITIES
7.1 Make-Ready Work by City. The City shall perform its Make-Ready Work in
regard to the City Facilities before the City or the Licensee can perform the Make-Ready Work in
regard to the Licensee Facilities, unless the Parties otherwise agree. Nothing herein shall prohibit
the City from authorizing the Licensee to perform the City’s Make-Ready Work in accordance with
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City requirements. The Licensee will pay the City’s Costs for the services rendered by the City
and/or CPAU to the Licensee in accordance with this Article 7.0.
7.1.1 The City may install or add electrical switches in order to accommodate the
Licensee Facilities within or above the electric utility space on the Poles at the License’s sole cost
and expense.
7.1.2 The City will trim and cut trees, shrubbery and other vegetation necessary for
the proper operation of its utility infrastructure.
7.1.3 Whenever the City deems it necessary to remove or relocate the Licensee
Facilities, or any part thereof, pursuant to the lawful exercise of its governmental or proprietary
rights and powers, the City will issue timely notice to the Licensee to permit the Licensee to secure
the necessary approvals or authorizations, before the removal or relocation may commence.
7.1.4 Within the periods of time reasonably established by the City, the Licensee, at
its sole cost and expense, shall construct, install, maintain, remove and relocate the Licensee
Facilities in the manner authorized by this Agreement or by Law and in a safe manner, as not to
physically or electrically interfere with the City Facilities or the facilities of the joint owner(s) of
certain Poles and/or any existing licensee.
7.2 Facilities Relocation. At the request of the City, acting in accordance with
Law, including the provisions of Chapter 12.16 of the Palo Alto Municipal Code, the Licensee shall
relocate the Licensee Facilities in aerial locations to underground locations in accordance with Law,
including, without limitation, any Law which applies to any dominant or non-dominant telephone
corporation, as such term is defined in Section 234 of the California Public Utilities Code. In such
event and to the extent permitted by the City, the Licensee may elect to relocate the Licensee
Facilities, which are wireless facilities, affected thereby to any other available Pole, including a
Streetlight Pole, as practicable, subject to the Provisions. If there is not available any other utility
pole or a Streetlight Pole, then the City will endeavor to accommodate the Licensee’s request to
either relocate, at the Licensee’s sole cost and expense, the Licensee Facilities, which are wireless
facilities, or part thereof, to the nearest available utility pole or a Streetlight Pole or to a new utility
pole or a Streetlight Pole to the extent the City can accommodate the Licensee’s requirements, which
will be located in the Public Rights-of-Way or Public Utility Easements outside of the underground
utility district in question.
7.3 Work in Electric Utility Space. Notwithstanding any other Provision in this
Agreement to the contrary, no approval or authorization issued to the Licensee, that would allow the
attachment of the Licensee Facilities to any Pole, shall allow the Licensee to encroach upon, perform
any work, or attach and/or install the Licensee Facilities to the electric utility space on any Pole or in
any Conduit, unless it is expressly permitted, in writing, by the Utilities Director. Any attachment
and/or installation within the City’s electric utility space on a Pole or in a Conduit shall be
performed by the City, at the Licensee’s cost and expense, unless the Licensee is otherwise
permitted, in writing, by the Utilities Director to perform such work in accordance with the timelines
set forth in this Agreement and Sections 5.1(A) through (F). The terms and conditions under which
the Licensee or the Person representing the Licensee may be permitted, in writing, to work within
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the electric utility space of a Pole and a Conduit are set forth in Exhibits “F” and “G,” respectively.
The Licensee will be permitted to place one or more additional Licensee Facilities onto an existing
cable or strand that constitutes a part of the City Facilities subject only to availability as determined
by the City and in compliance with prevailing industry safety standards.
7.3.1 In the event that a Pole must be replaced to accommodate the Licensee
Facilities, to the extent that the Licensee is authorized to perform such work, the Licensee shall
conform to the Pole replacement requirements of the City, as set forth in Exhibit “H.”
7.4 Coordination of Work. In the event of a service outage affecting both the City
Facilities and the Licensee Facilities, subject to the City’s reasonable exercise of discretion, the
Licensee shall be entitled to maintain and repair the Licensee Facilities concurrently with the City’s
maintenance and repair of the City Facilities. The Parties agree to work cooperatively with each
other while effecting the maintenance and repairs of their respective facilities.
7.5 Facilities Removal. The Licensee, at its sole cost and expense, will
permanently remove the Licensee Facilities from any Pole and/or Conduit within ninety (90) Days
of the expiration or termination of the respective Schedule or this Agreement, as applicable, unless
the Parties otherwise agree, in writing. The Licensee shall be liable to the City for the payment of
all Costs and Fees and any Additional Costs and Fees until all of the Licensee Facilities are
permanently removed. This Provision shall survive the expiration or earlier termination of this
Agreement.
7.5.1 No proration or refund of any Annual Cost or Fee will be due and payable by
the City to the Licensee on account of such removal on a permanent basis; provided, however, the
City will not charge any Annual Cost or Fee attributable to the Licensee Facilities for the first
calendar year commencing after their proper removal. Should the Licensee thereafter wish to make
attachments or placements to such Poles and/or occupancy of such Conduits, it shall apply for and
obtain the required authorizations and approvals.
7.5.2 Whenever the Licensee Facilities are removed from the City Facilities, no
reattachment to the same Pole or insertion in the same Conduit may be made until: (a) the Licensee
has first complied with the Provisions as though no such Pole Attachment and/or Conduit
Occupancy had previously been made; and (b) all undisputed Costs and Fees and Additional Costs
and Fees due and payable to the City for such previous Pole Attachment and/or Conduit Occupancy
have been paid in full.
7.6 Notice to City. The Licensee shall inform the City, in writing, of the dates on
which the removal of the Licensee Facilities has been completed. The City reserves the right to
inspect each new attachment and/or installation, as conditions may warrant, and the Licensee shall
reimburse the City for the Costs of such inspections at the rate per worker-hour then in effect. The
surveys and inspections, whether or not made, shall not operate to relieve the Licensee of any
responsibility, obligation or liability assumed under this Agreement or imposed by Law. Nothing in
this Agreement shall be construed to obligate the Licensee to pay for inspections by the City of the
City Facilities, made in the ordinary course of business.
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8.0 MOVING THE LICENSEE FACILITIES
8.1 Temporary Removal of Facilities. The Licensee will move or transfer or cause
the removal or transfer of the Licensee Facilities on a temporary, non-permanent basis, whenever the
City will move or replace the City Facilities. Except as otherwise required by the City, within the
time required by Law or, if no such Law exists, thirty (30) Days of receipt of written notification by
the City, the Licensee shall move or transfer or cause the removal or transfer of the Licensee
Facilities in a workmanlike manner in accordance with the Licensee’s specifications, if those
specifications are timely furnished to and subsequently approved by the City, in advance, and, if not,
then in accordance with Law and the Provisions. Such movement or transfer by or for the Licensee
will be performed only in the common operating areas served by the Parties. If the Licensee
Facilities are not moved or transferred within the required period of time, the City may remove or
transfer or cause the removal or transfer of the Licensee Facilities on behalf of the Licensee at the
Licensee’s sole cost and expense. The Licensee shall pay the City, upon demand, the City’s actual
Costs of removal or transfer, and this obligation shall survive the termination or revocation hereof.
9.0 INSPECTION OF THE LICENSEE FACILITIES
9.1 Inspection by City. The City reserves the right to inspect the Licensee
Facilities at the time of Pole Attachment and/or Conduit Occupancy and to thereafter make
reasonable periodic inspections of any part of the Licensee Facilities that are attached to Poles or
installed in Conduits. The frequency and extent of such inspections by the City shall be reasonably
established by the City. The Licensee shall reimburse the City for the Costs of any inspections
performed by the City that may be made necessary by the Licensee’s actions or as reasonably
determined by the City. The obligation to pay shall survive the expiration or earlier termination of
this Agreement.
9.1.1 The City shall provide the Licensee with not less than ten (10) Business Days’
prior written notice before conducting the periodic inspections. The preceding sentence
notwithstanding, where, in the sole judgment of the City Manager, the public health, safety and
welfare considerations warrant an immediate or prompt inspection, the City may conduct such
inspection without furnishing any prior written notice to the Licensee.
9.1.2 The City’s conduct of periodic inspections, or the failure to so conduct, shall
not operate to impose upon the City any liability of any kind whatsoever, nor relieve the Licensee of
any responsibility, obligations or liability assigned to the Licensee by this Agreement or by Law.
10.0 UNAUTHORIZED ATTACHMENT OR OCCUPANCY
10.1 Unauthorized Access. If, during the Initial Term or the Extension Term, if
any, the City determines that the Licensee Facilities have been attached to or occupy the City
Facilities, for which no Application was submitted to the City and no authorization or approval by
the City was issued to the Licensee, the City may audit the Licensee’s records regarding such
attachments and occupancies. Without prejudice to its legal rights or equitable remedies made
available by this Agreement or by Law, the City may impose Costs and other financial requirements
not otherwise prohibited by Law, which Costs for each unauthorized Pole Attachment or Conduit
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Occupancy will not exceed the lesser of an amount equal to five (5) times the Annual Costs and Fees
referred to in Section 6.1, for the type of Licensee Facilities that are attached without authorization,
or the sum of ten thousand dollars ($10,000) or such other sum established by Law. The failure to
pay any such Costs shall be subject to the same Provisions set forth in Article 6.0 pertaining to
unpaid amounts then due and payable to the City.
10.1.1 The Licensee shall submit, in writing, to the City within ten (10) Days after
receipt of the City’s written notice of the unauthorized attachment or occupancy, a statement
concerning the unauthorized action purportedly taken by the Licensee and shall promptly submit an
Application pertaining to the unauthorized Pole Attachment or Conduit Occupancy. If the
completed Application is not received by the City within the time period specified in the notice of
unauthorized attachment or occupancy, the City may require the Licensee to remove its unauthorized
attachment or occupancy within ten (10) Days of the date on which such Application shall be due, or
the City may remove the Licensee Facilities or portion thereof without liability, and the cost and
expense of such removal shall be borne by the Licensee. The obligation to pay shall survive the
expiration or earlier termination of this Agreement.
10.2 No Implied Ratification. No action or inaction by the City with respect to the
unauthorized use of any Pole or Conduit by the Licensee shall be deemed to be a ratification of the
unauthorized use.
11.0 INSTALLATION AND REPLACEMENT OF THE LICENSEE
FACILITIES
11.1 Lack of Access. Except as otherwise provided by Law, the City reserves the
right to refuse to approve or authorize an Application, whenever the City determines that the
available City-controlled spaces on Poles or in Conduits are required for the reasons set forth in
Section 3.2. The City Facilities, at the City’s discretion, may be rearranged or replaced to
accommodate the Licensee Facilities, as practicable. If the City denies the Licensee access to and
use of the City Facilities in question pursuant to this Section 11.1, the City will use reasonable
efforts to identify one or more alternative locations at which the Licensee may attach and/or occupy
the Licensee Facilities, including, without limitation, at the Licensee’s sole cost and expense the
placement of a new Pole or Conduit.
11.2 Preparatory Work. The Licensee acknowledges that Preparatory Work,
consisting of an engineering survey and other related review and analysis, by the City will be
required to determine the load adequacy of the existing Poles and/or the capacity of the Conduits to
accommodate the Licensee Facilities, unless the City authorizes, in writing, the Licensee to perform
the engineering survey and related work. The City may require the Licensee to provide its
preliminary load calculations. The City also will take into account all engineering and other safety-
related considerations in determining the utilization of the existing available capacity of an anchor or
ability to accommodate an extension, when such utilization does not result in a reduction of the
holding capacity below the level normally required by the City for safety or other purposes.
11.2.1 Except as otherwise determined by the City, the field inspection portion of the
Preparatory Work will be performed by the Licensee, at its sole cost and expense, as may be
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reasonably required by the City. The City, the joint owner(s) of certain Poles, or any existing
licensee may participate in the field inspection at its own cost and expense. The administrative
processing portion of the Preparatory Work’s work order, the coordination of the Work
requirements, and the schedule with the joint owner(s) of certain Poles and/or any existing licensee
will be performed by the Licensee, at its sole cost and expense, as may be reasonably required by the
City.
11.2.2 Before the Licensee may perform any portion of the Preparatory Work and
before the City will be required to review any Application, the Licensee shall submit the required
Costs and Fees with the Application or at such other time as may be established by the City. If a
nonrefundable deposit is required by the City in order for the Licensee to conduct the Preparatory
Work, this deposit will be applied to the cost of the Preparatory Work and/or the total cost of the job
to the extent of the City’s participation or to future payments that the Licensee shall owe to the City.
Upon receipt of the Application and the deposit, the City will notify the Licensee, in writing, of the
estimated charges that will apply, should the City’s participation be required. The Licensee’s failure
to respond within the specified period will be a ground for canceling the applicable Application and
forfeiting the non-refundable deposit.
11.3 Make-Ready Work. The City, acting by the Utilities Director, will perform the
Make-Ready Work for the Licensee Facilities, unless the City authorizes the Licensee to perform
such Work under terms and conditions established by the City. If the City performs the Make-Ready
Work, the Licensee shall pay the City for the Costs of such Make-Ready Work, and shall also
reimburse the City for any other Cost that the City may incur for transferring or rearranging the
facilities of the joint owner(s) of certain Poles and/or any existing licensee that are attached to the
City Facilities, or part thereof, and for any such Costs incurred by the City, the joint owner(s) of
certain Poles, and/or any existing licensee, in transferring or rearranging their facilities to
accommodate the Licensee’s requests. The Licensee shall not be entitled to any monies paid to the
City for Pole Attachments and/or Conduit Occupancies by reason of the use by the City, the joint
owner(s) of certain Poles and/or other licensee, of any additional capacity on such Pole or in such
Conduit resulting from such replacement or rearrangement. The City may require the Licensee to
obtain the services of a City-pre-approved, pre-authorized and pre-qualified contractor to perform
the transfers, rearrangements and/or replacements of facilities. If the City authorizes the Licensee to
do the Work, the City reserves the right to inspect such performance of Work. The performance of
such Work shall not commence in the absence of the City’s inspectors, who will be made available
on a timely basis. All materials, equipment and/or work methods and practices shall be approved by
the City prior to the commencement of the Work. Notwithstanding Section 3.6, the Licensee shall be
responsible for liability, losses and damages suffered by the City that may result from the Licensee’s
failure to comply with the Provisions or otherwise resulting from the Licensee’s attachment,
installation, operation, repair or maintenance of the Licensee Facilities.
11.4 Project Collaboration. Should the City, the joint owner(s) of certain Poles,
and/or any existing licensee have Pole or Conduit accommodation rights for its own service
requirements, or needs to attach additional facilities to any Pole or Conduit to which Licensee is
attached or has occupied, and wishes to avail itself of the holding capacity of an anchor being
utilized by the Licensee, or needs to use the Conduits occupied by the Licensee, the Licensee will
either rearrange the Licensee Facilities in, on or about the designated Pole(s) and/or Conduit(s), or
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transfer them to replacement Pole(s) and/or Conduit(s), as determined by the City, so that the
additional facilities of the City, the joint owner(s) of certain Poles and/or any existing licensee may
be accommodated. The costs and expenses of such rearrangement and/or transfer will be at the sole
expense of the Person seeking an additional attachment and/or the modification of an existing Pole
Attachment, or additional Conduit capacity.
11.5 City Obligations. Subject to Section 7.1, in performing Make-Ready Work to
accommodate the Licensee Facilities, the City will use reasonable efforts to include such work in its
normal work load schedule to the extent that its actions exercised in its governmental and propriety
capacities are not adversely affected.
11.6 Cost Sharing. Except as otherwise provided herein, all Costs and capital
investments subject to reimbursement shall be determined in accordance with the regular and
customary methods of determining costs, expenses, and capital investments on the books and records
of the City, the joint owner(s) of certain Poles and/or any existing licensees in their respective
businesses.
11.6.1 The invoices for replacement, rearrangement, engineering, inspections,
expenses and other charges levied or collected under this Agreement, other than rentals for Pole
Attachment or Conduit Occupancy, shall be payable within forty-five (45) Days after the date of
receipt of such invoices by the Licensee.
12.0 INDEMNITY; WAIVER; RISK OF LOSS
12.1 Indemnity. The Licensee shall indemnify, protect, defend and hold harmless
the City, its council members, officers, employees, and agents, from and against claims, demands,
losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and
orders, judgments, remedial actions of any kind, including the costs of any “hazardous material” (as
such term is defined in Section 17.04.040(e) of the Palo Alto Municipal Code, as amended),
remedial actions of any kind and all other related costs and expenses incurred in connection
therewith, including, without limitation, reasonable attorneys’ fees and costs of defense, to the extent
caused directly, in whole or in part, by the negligence or willful misconduct of the Licensee, its
directors, officers, employees, agents, contractors, subcontractors and representatives, or arising, in
whole or in part, from the Licensee’s construction, installation, operation, maintenance or repair of
the Licensee Facilities, but not to the extent arising out of the negligence or willful misconduct of
the City.
12.1.1 The City shall be liable only for the costs of repair to the damaged Licensee
Facilities arising from the City's sole negligence or willful misconduct, and the City shall not be
otherwise responsible for any damage, loss, or liability of any kind occurring by reason of anything
done or omitted to be done by the City or by any third party, including, without limitation, damages,
losses, or liability arising from the City’s approval of an Application.
12.2 Waiver. The waiver by a Party of any breach or default or violation of any
Provision by the other Party shall not be deemed to be a waiver or a continuing waiver by that Party
of any subsequent breach or default or violation of the same or any other Provision.
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12.3 Risk of Loss. The Licensee shall assume all responsibility for, and shall
promptly reimburse, in full, the City, the joint owner(s) of certain Poles and/or any existing licensee,
for any of their losses and expenses associated with damages caused, directly or indirectly, by the
Licensee, its employees, agents and/or contractors to the City Facilities, including, without
limitation, any Poles and Conduits or damage caused by the presence of the Licensee Facilities. The
Licensee shall provide immediate notification to the other Party upon the occurrence of any such
damage.
12.4 Notice to City. The Licensee shall promptly advise the City of all known
claims relating to damage of property or injury to or death of persons, arising or alleged to have
arisen in any manner, directly or indirectly, from the erection, maintenance, repair, replacement,
operation, presence, use or removal of the Licensee Facilities. The Licensee shall promptly notify
the City, in writing, of any known suits or causes of action which involve the City and, upon request
of the City, provide to the City’s insurer copies of all relevant accident reports and statements made
to the Licensee or others.
13.0 INSURANCE
13.1 General. Unless the City’s insurance risk manager agrees, in writing, to accept
the Licensee’s self-insurance in fulfillment of these insurance requirements, the Licensee shall
obtain and maintain at all times during the Initial Term and the Extension Term, if any, commercial
general liability insurance and commercial automotive liability insurance protecting the Licensee in
an amount of two million dollars ($2,000,000) per occurrence (combined single limit), including
death, bodily injury and property damage, and not less than two million dollars ($2,000,000)
aggregate, for each personal injury or death liability, products-completed operations, and each
accident. Such insurance, pursuant to ISO Form No. GC2010 or equivalent or other commercially
reasonable form acceptable to the City’s insurance risk manager, shall include the City, its council
members, officers, employees, and agents as an additional insured as respects liability arising out of
the Licensee's negligent performance of any Work that it performs or may be authorized to perform
under this Agreement. Coverage shall be provided in accordance with the limits specified and the
Provisions indicated herein. Claims-made policies are not acceptable. Such limits may be satisfied
by a combination of primary and umbrella policies. Such insurance shall not be canceled or non-
renewed until the City has received at least thirty (30) Days’ prior written notice of such cancellation
or non-renewal. The Licensee shall be responsible for notifying the City of such change or
cancellation.
13.2 Certificates. The Licensee shall file the required original certificate(s) of
insurance with endorsements with the City's insurance risk manager, with a copy to the Utilities
Director, subject to the City's prior approval. The certificate(s) shall clearly state or provide:
13.2.1 Policy number; name of insurance company; name, address and telephone
number of the agent or authorized representative; name, address and telephone number of insured;
project name and address; policy expiration date; and specific required coverage amounts;
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13.2.2 With the certificate(s), the Licensee shall provide prior written notice of
cancellation to the City that is unqualified as to the acceptance of liability for failure to notify the
City; and
13.2.3 That the Licensee's required insurance is primary as respects any other valid
or collectible insurance that the City may possess, including any self-insured retentions the City may
have, and any other insurance the City does possess shall be considered excess insurance only and
shall not be required to contribute with this insurance.
13.3 Notice. The certificate(s) of insurance with all endorsements and notices shall
be mailed to: (a) City of Palo Alto, Utilities Department, P.O. Box 10250, Palo Alto, CA 94303,
Attn.: Electrical Engineering Manager; and (b) City of Palo Alto, Public Works Department, P.O.
Box 10250, Palo Alto, CA 94303, Attn.: Supervising Project Engineer.
13.4 Other Coverage. Unless the City permits the Licensee to self-insure, the
Licensee shall obtain and maintain at all times during the Initial Term and the Extension Term, if
any, statutory workers' compensation and employer's liability insurance or qualify as a self-insurer in
an amount not less than one hundred thousand dollars ($100,000) or such other amounts as required
by Law, and furnish the City with a certificate showing proof of such coverage.
13.5 Insurance Rating. Any insurance provider of the Licensee shall be admitted
and authorized to do business in California and shall be rated at least A-:VII in Best's Key Rating
Guide. Insurance certificates issued by non-admitted insurance companies will not be acceptable to
the City.
13.6 Deductibles. Prior to the execution of this Agreement, any self-insured
retentions must be stated on the certificate(s) of insurance, which shall be sent to the City, and any
deductibles shall be reported, in writing, to the City’s insurance risk manager. "Cross liability",
"severability of interest" or "separation of insureds" clauses shall be made a part of the commercial
general liability and commercial automobile liability policies.
14.0 PERFORMANCE BOND; LETTER OF CREDIT
14.1 Posting Security. The City may require the Licensee to procure and provide
the City with a surety bond (the “Bond”), naming the City as the obligee in the amount of not less
than one hundred percent of the estimated cost of the Work or one hundred fifty thousand dollars
($150,000), whichever sum is greater (or such other amount as may be required by Law), to
guarantee and assure the faithful performance of the Licensee's obligations under this Agreement.
The City will notify the Licensee of the date by which such Bond shall be posted. The City shall
have the right to draw against the Bond in the event of a default by the Licensee or in the event that
the Licensee fails to meet and fully perform any of its obligations hereunder or in accordance with
the City’s exercise of its rights upon the Licensee’s abandonment of the Licensee Facilities and
failure to remove them as required by this Agreement.
14.2 Replenishing Bond. Within fifteen (15) Days of receipt of written notice
from the City, the Licensee shall renew or replace such sums of money as shall bring the Bond
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current. A failure by the Licensee to bring current the Bond within the specified time and give the
City notice thereof shall constitute a default under this Agreement. Any Bond may be canceled by
the Licensee at the end of the applicable construction or installation project. The Licensee shall
provide thirty (30) Days’ prior written notice of cancellation to the City.
14.3 Letter of Credit. The Licensee may provide the City with a Letter of Credit in
the amount set forth in Section 14.1 and in accordance with other terms and conditions as may be
agreed to by the City, if the City Manager agrees to accept the Letter of Credit in lieu of the Bond to
secure the Licensee’s performance under this Agreement.
15.0 REPRESENTATIONS AND WARRANTIES
15.1 Representations and Warranties of the Parties. As of the Effective Date, each
Party represents and warrants to the other Party that:
A. It is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its formation;
B. The execution, delivery and performance of this Agreement and the Exhibits
are within its powers, have been duly authorized by all necessary action and do not violate any of its
governing documents, any contracts with any joint owners to which it is a party or any Law;
C. The Agreement and the Exhibits and any other document executed and/or
delivered in accordance with this Agreement constitute its legally valid and binding obligation,
enforceable against it in accordance with its covenants, terms, conditions and provisions;
D. It has not filed and it is not now contemplating the filing for bankruptcy
protection or, to its knowledge, any action is threatened against it which would result in it being or
becoming bankrupt;
E. There is not pending or, to its knowledge, threatened against it or any of its
affiliates any legal or administrative proceedings that could materially adversely affect its ability to
perform its obligations under this Agreement and the Exhibits; and
F. No “event of default” or potential “event of default” with respect to it has
occurred and is continuing and no such event or circumstance would occur as a result of its entering
into or performing its obligations under this Agreement and the Exhibits.
15.2 Representations and Warranties of the Licensee. The Licensee represents and
warrants to the City that:
A. The Licensee has all approvals, authorizations, certifications, licenses and
franchises required by the CPUC, the FCC and/or any other agency to provide the Communications
Service;
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B. The Licensee is not aware of any facts or circumstances that would call into
doubt the continuing validity of any such approvals, authorizations, certifications, licenses or
franchises;
C. There is not pending or, to the Licensee’s knowledge, threatened against the
Licensee or its parent corporation or any of its subsidiaries or affiliates, any legal or administrative
proceedings that could materially adversely affect the validity of such licenses, authorizations or
franchises; and
D. All Work to be performed by the Licensee pursuant to this Agreement will be
(i) performed in a good and workmanlike manner, consistent with any specifications and with any
prevailing industry standards, applicable Laws, and the Provisions hereof, and (ii) will be free from
defects.
16.0 DEFAULT; REMEDIES FOR DEFAULT
16.1 Event of Default. This Agreement may be terminated upon the occurrence of
an “event of default” by a Party (the “Defaulting Party”).
16.1.1 An “event of default,” which will constitute a material breach of this
Agreement if it is not cured in a timely manner as described below, means the occurrence of any of
the following:
A. A representation or warranty made by a Party is false or misleading in any
material respect when made;
B. The failure to perform any material covenant, or obligation set forth in this
Agreement, if such failure is not remedied within thirty (30) Days after written notice of default is
given or, if such cure reasonably requires more than thirty (30) Days, fails to commence such cure
within the specified period or, thereafter, fails to continue diligently such cure until completion
thereof;
C. A Party files a petition or otherwise commences or acquiesces in the
commencement of a proceeding under any bankruptcy, insolvency, reorganization or similar Law,
makes an assignment for the benefit of its creditors, has an administrator, receiver, trustee,
conservator or similar official appointed with respect to it or any substantial portion of its property
or assets, or is generally unable to pay its debts as they fall due;
D. The failure to make, when due, any undisputed payment required by this
Agreement if such failure is not remedied within ten (10) Business Days after written notice of
default is given; and
E. The revocation, expiration or denial of renewal, by final order or action that
is no longer subject to appeal, of any license, authorization or franchise that is required by the FCC,
the CPUC, and/or any other agency for the Licensee to provide Communications Service by means
of the Licensee Facilities or to install or maintain or operate the Licensee Facilities in Palo Alto, if
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such expiration or denial prohibits the Licensee from operating the Licensee Facilities or providing
Communications Service.
16.2 Remedies for Default. If an event of default occurs and is continuing with
respect to the Defaulting Party, the other Party (the “Non-Defaulting Party”) will have an election of
rights and remedies, in addition to all other legal rights and equitable remedies or as otherwise
provided in this Agreement, to which the Non-Defaulting Party may resort cumulatively, or in the
alternative:
A. The right to terminate this Agreement by giving to the Defaulting Party thirty
(30) Days’ prior written notice of termination, in which event this Agreement will terminate on the
date set forth in the notice of termination; and
B. Any other right that is made available under applicable Laws.
16.3 Excusing Performance. A Party will be temporarily excused from the
performance or further performance of any of its covenants or agreements hereunder, excepting only
the obligation to pay Costs and Fees, and such Party’s nonperformance shall not be deemed an event
of default under this Agreement for any period, to the extent, but only to the extent, that such Party
is prevented, hindered or delayed for any period of time not in excess of thirty (30) Days from
performing any of its covenants or agreements, in whole or in part, as a result of a Force Majeure
event, including, without limitation, any denial of access to the City Facilities in order to engage in
the Work. The Parties hereby agree to use reasonable efforts to remedy the effects caused by the
occurrence of the Force Majeure event giving rise to a Party’s temporary nonperformance of its
obligations, covenants or agreements under this Agreement. A Party will provide notice promptly to
the other Party to the extent that Party relies on the provisions of this Section to temporarily excuse
its failure to perform any of its covenants or agreements hereunder.
17.0 DISPUTE RESOLUTION
17.1 Informal Process. If a dispute between the Parties arises in regard to this
Agreement or any Exhibit (the “Dispute”), the following procedure will govern the resolution of the
Dispute: (a) the Parties will nominate their respective representatives to be responsible for and
exercise the appropriate authority to resolve all Disputes hereunder for the fourteen-day resolution
period of time set forth below; and (b) if the Dispute remains unresolved within such fourteen-day
period, before either Party may resort to the process described in Sections 17.3 and 17.4, either Party
may refer the Dispute, in writing, for final settlement to a senior principal, vice-president or other
officer of the Licensee and the City Manager, who will jointly convene within ten (10) Days of
receipt of a referral request and use reasonable efforts to consider and resolve the Dispute. The
Parties will ensure that their respective representatives confer for a period of fourteen (14) days from
the date of referral by either Party. If final resolution cannot be achieved, the Parties may resort to
the procedures described in Sections 17.3 and 17.4 hereunder.
17.2 No Bar to Other Relief. Nothing contained in this Agreement will prevent or
otherwise restrict either Party from pursuing its rights at law or in equity, including injunctive relief
and specific performance, in the event of a default and a material breach by the other Party.
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17.3 Mediation. In the event of a Dispute, either Party may, by notice to the other
Party (the “Mediation Notice”), request that such Dispute be submitted to non-binding mediation in
Palo Alto, California, with a mediator acceptable to the Parties. If such mediation does not result in
a settlement of the Dispute within one hundred eighty (180) Days from the date of the Mediation
Notice, either Party may request that such matter be submitted to non-binding arbitration in Palo
Alto, California, under the rules of the American Arbitration Association. Action of any kind by
either Party arising out of this Agreement must be commenced within one (1) year from the date the
right, claim, demand or cause of action first arises.
17.4 Continuation of Rights. Notwithstanding anything to the contrary set forth
herein, in no event will the City interrupt or suspend or terminate the Licensee’s rights granted
under this Agreement or perform any action that prevents, impedes, or reduces in any way the
Licensee’s rights to conduct its authorized, certificated or licensed services, unless: (a) the authority
to do so is granted to the City by this Agreement or by Law or conferred by a court of competent
jurisdiction; (b) this Agreement has been validly terminated in accordance with this Agreement; or
(c) the Licensee has failed to pay the City any undisputed invoice that is past due in excess of thirty
(30) Days after receiving a delinquency notice from the City.
17.5 Immediate Relief. Nothing in this Agreement shall be deemed or construed to
prohibit a Party from obtaining judicial, regulatory or other relief necessary in order to preserve the
status quo or prevent the loss or violation of that Party’s rights.
18.0 NOTICES
All notices which shall or may be given pursuant to this Agreement shall be given, in
writing, and shall be deemed validly given if delivered or sent by certified mail, return receipt
request or by commercial courier, provided the commercial courier’s regular business is delivery
service, and addressed, as follows:
CITY: City of Palo Alto
Department of Utilities
P. O. Box 10250
Palo Alto, CA 94303
Attn.: Director of Utilities
CITY: City of Palo Alto
Department of Public Works
P. O. Box 10250
Palo Alto, CA 94303
Attn.: Director of Public Works
Copy to: City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
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Attn.: City Clerk
Copy to: City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
Attn.: City Attorney
Any notice to be sent to the City Manager or City Attorney shall be sent to the same post office box
referred to above.
LICENSEE: Name
Address
Phone:
Fax:
Attn.:
19.0 MISCELLANEOUS PROVISIONS
19.1 Amendments. This Agreement may not be amended except pursuant to a
written instrument signed by the Parties.
19.2 Assignment. This Agreement is personal to only the Licensee and no other
Person. The Licensee may not directly or indirectly assign, transfer or convey to another Person this
license or any of the rights and obligations of the Licensee established by this Agreement. Any
assignment or transfer of this Agreement shall be void, and the City may terminate this Agreement if
the Licensee attempts to assign or transfer this Agreement without compliance hereof. The preceding
sentences of this Section 19.2 notwithstanding, the Licensee may assign or transfer this Agreement
to its parent corporation or any subsidiary corporation or affiliate or successor in interest, provided
that such parent corporation, subsidiary corporation or affiliate or successor in interest first agrees, in
writing, to be fully bound by this Agreement and the Exhibits and to assume all of the Licensee’s
obligations and liabilities hereunder, whether arising before or after the date of such assignment or
transfer.
19.3 Attorneys’ Fees. Each Party in any litigation, including mediation, regarding
this Agreement will bear its own costs and expenses of suit, including, without limitation, reasonable
attorneys’ fees.
19.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute one and the
same instrument.
19.5 Entire Agreement. This Agreement contains the entire understanding between
the Parties with respect to the subject matter herein. There are no representations, warranties,
agreements or understandings (whether oral or written) between the Parties relating to the subject
matter hereof which are not fully expressed herein.
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19.6 Exhibits. As of the Effective Date, all exhibits referred to in this Agreement
and any addenda, attachments, and schedules which may, from time to time, be referred to in any
duly executed amendment to this Agreement are by such reference incorporated in this Agreement
and shall be deemed a part hereof.
19.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of California without regard to its conflicts of laws rules or
principles.
19.8 Headings. The headings hereof are inserted for convenience of reference
only, are not a part hereof and shall have no effect on the construction or interpretation hereof.
19.9 Independent Contractor. Each Party acts as an independent contractor and not
as an employee of the other Party. Nothing in this Agreement shall be construed to establish a
partnership, joint venture, group, pool, syndicate or agency relationship between the City and the
Licensee.
19.10 Resolving Conflicting Provisions. To the extent the Provisions and any other
authorizations and approvals required to be obtained by the Licensee from the City are in conflict,
the Provisions of the Agreement, authorizations and approvals which impose(s) the higher or greater
legal duty or obligation upon the Licensee shall take precedence.
19.11 Rules of Construction. Each Party and its counsel have reviewed this
Agreement. Accordingly, the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the construction and interpretation
hereof.
19.12 Severability. If a court of competent jurisdiction finds or rules that a
Provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected
Provisions of this Agreement and any amendments thereto will remain in full force and effect.
19.13 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the lawful successors and permitted assignees of the Parties.
19.14 Time of Action. For the purposes hereof, the time in which an act is to be
performed shall be computed by excluding the first Day and including the last. If the time in which
an act is to be performed falls on a Saturday, Sunday, or any Day observed as an official holiday by
the City, the time for performance shall be extended to the following Business Day.
19.15 Venue. In the event that suit is brought by a Party, the Parties agree that trial
of such action shall be vested exclusively in the state courts of California, County of Santa Clara, or,
assuming jurisdiction is otherwise proper, in the United States District Court, Northern District of
California, in the County of Santa Clara.
19.16 Waiver of Lien Rights. The City waives any lien rights that it may have in the
Licensee Facilities, which shall be deemed personal property for purposes of this Agreement
regardless of whether or not the same is deemed real property, fixtures or attachments thereto, or
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personal property by Law. Subject to and as limited by the Provisions, the City grants the Licensee
and the Licensee’s mortgagee the right to remove or cause the removal of the Licensee Facilities
from time to time, whether before or after a default by the Licensee under this Agreement, in the
discretion of the Licensee or the Licensee’s mortgagee.
//
//
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IN WITNESS WHEREOF, this Agreement shall be deemed duly executed by the
Parties in Palo Alto, County of Santa Clara, State of California, as of the Effective Date.
APPROVED AS TO FORM CITY OF PALO ALTO
_____________________________ ______________________________
Senior Asst. City Attorney City Manager
ATTEST: LICENSEE
_____________________________ ______________________________
Director of Utilities Title: _________________________
_____________________________ ______________________________
Director of Public Works General Counsel
Contract No. ____________
EXHIBITS
In accordance with Section 19.6 of the Master License Agreement between the City and
the Licensee (the “Agreement”), Exhibits A through I, inclusive, any new exhibits
hereinafter existing and any amendments thereto, are hereby incorporated in and made a
part of the Agreement.
110520 MLA Exhibits template
Contract No. ______________
A-1
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Exhibit “A”
The Licensee shall submit one of the following documents (or documents), as
applicable, which shall be attached hereto:
[a] Certificate of Public Convenience and Necessity or [b] Wireless Identification
Registration Number.
Contract No. ______________
Exhibit “B”
List of Poles Rented by Licensee
No. of Poles: ______________________
City of Palo Alto Pole Number Nearest Street Address
B-1
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Contract No. ______________
Exhibit “C”
List and Location of Conduit Footage Rented by Licensee
Total Conduit footage: _____________________
Location
Number
From Street
Address
To Street
Address
Footage (Ft) Number and size of
cables to be installed
1
2
3
Etc
C-1
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Contract No. ______________
Exhibit “D”
Description of Licensee Facilities
[to be Attached To City-spaces on Poles and/or Streetlight Poles
And/or Installed in City Conduits]
The Licensee shall provide the City with a detailed description of the Licensee Facilities
that the Licensee proposes to attach to and/or install in the City Facilities.
The following information shall be included: [1] Typical Installation drawing; and [2]
Power requirements for the Licensee Facilities to be attached and/or installed.
D-1
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Contract No. ______________
Exhibit “E”
Schedule E-1, dated as of ____________
Description of Licensee Facilities to be Attached and/or Installed, Duration of
Attachment and/or Installation, and Fees and Costs
A. Licensee Facilities:
1. Number of Pole Attachments: ______________________
2. Total Conduit footage : ______________________
B. Duration of Pole Attachment/Conduit Occupancy:
1. For Poles: ___________________________
2. For Conduits: __________________________
C. Initial/One-Time Costs and Fees
1. The Licensee shall reimburse the City for its actual or estimated Costs and
Fees of preparing the City Facilities (the City’s overhead and underground facilities) for
each new or modified Pole Attachment or Conduit Occupancy. This reimbursement is a
one-time charge for each attachment to Poles and/or installation in Conduits. The charges
shall be due upon the City’s receipt of the Licensee’s written approval to attach, install or
modify any Pole contact or Conduit usage, and they shall be paid before the City’s
construction shall commence.
Charge: Processing Charge
Description: The actual or estimated cost for performing preliminary
field investigation to review pole attachment or conduit
usage submittal.
Price: Total Cost
Charge: Engineering Charge
Description: The costs estimated by the City for reviewing contact
design, designing City modifications and updating
operation records.
Price: Total Cost
Charge: Cable Attachment Charges
Description: The costs estimated by the City for making space available
and other modifications necessary to accommodate each
line attachment.
E-1-1
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Contract No. ______________
Price: Total Cost
Charge: Anchor Attachment Charges
Description: The costs estimated by the City for making provisions for
guying the structure at the communications level.
Price: Total Cost
Charge: Equipment Mounting Charges
Description: The costs estimated by the City for making space available
and other modifications necessary to accommodate
equipment (amplifiers, nodes, battery backup) mounting.
Price: Total Cost
Charge: Electric Services Connection Charges
Description: The costs estimated by the City for providing electric
service connection to provide power to equipment attached
to the pole.
Price: Total Cost
Charge: Inspection Charge
Description: The costs estimated by the City for providing inspection
services upon completion of make-ready work and
Licensee’s equipment – typically 3 hours per pole.
Price: Total Cost
Total Initial/One-Time Costs and Fees for Schedule E-1: $ _______________________.
D. Annual Costs and Fees:
1. Wire facilities attachment fees. The Fees for wire communications facilities
attachments to Poles shall be as set forth in the City’s Utility Rate Schedule E-16 or, if
such rate schedule is not applicable, any other applicable CPAU utility rate schedules.
2. Wireless facilities attachment fees. The Fees for wireless communications
facilities attachments to Poles shall be as set forth in the City’s Utility Rate Schedule E-
16 or, if such rate schedule is not applicable, equal to the rental rate of one thousand five
hundred dollars ($1,500.00) per Pole per year.
3. Conduit occupancy fees. The Fees for occupancy of Conduits shall be as set
forth in the City’s Utility Rate Schedule E-16 or, if such rate schedule is not applicable,
other applicable CPAU utility rate schedule(s). The City reserves the right to impose and
collect different fees for the exclusive and nonexclusive occupation of the Conduits.
4. Other City service fees. The Fees for the City’s rendering of services in regard
to the attachment or installation of the Licensee’s wire and/or wireless facilities on Poles
E-1-2
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Contract No. ______________
E-1-3
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or in Conduits shall be established in accordance with applicable CPAU utility rate
schedules.
5. Electric Service charges. The Fees, rates and charges for electric utility service
consumed or used annually by the Licensee shall be as set forth in the City’s Utility Rate
Schedule E-16 or, if such rate schedule is not applicable, other applicable CPAU utility
rate schedules.
6. Late Payment fee. If the Licensee fails to pay the amounts of Costs and Fees
due and payable within the time period required by this Agreement, then the License
shall pay a late fee established by Law or the lesser of an amount equal to five percent
(5%) of those amounts then due and payable as set forth in the invoices or five hundred
dollars ($500).
7. Utility Rate Schedules. The utility rate schedules referred to in this Exhibit
“E” and any amendments thereto now or hereafter in effect shall be deemed incorporated
herein by reference. The rates may be amended and adopted by the City in the ordinary
course and scope of business. The Fees shall be subject to annual cost-of-living increases.
The Fees upon commencement of the Extension Term shall be calculated in accordance
with the utility rate, fees and charges applicable to Pole Attachments and Conduit
Occupancy then in effect.
Total Annual Costs and Fees for Schedule E-1: $ _______________________.
E. Other Terms and Conditions:
F. Attachments:
Contract No. ______________
Exhibit “E”
Schedule E-2, dated as of ____________
Description of Licensee Facilities to be Attached and/or Installed, Duration of
Attachment and/or Installation, and Fees and Costs
A. Licensee Facilities:
1. Number of Pole Attachments: ______________________
2. Total Conduit footage : ______________________
B. Duration of Pole Attachment/Conduit Occupancy:
1. For Poles: ___________________________
2. For Conduits: __________________________
C. Initial/One-Time Costs and Fees
1. The Licensee shall reimburse the City for its actual or estimated Costs and
Fees of preparing the City Facilities (the City’s overhead and underground facilities) for
each new or modified Pole Attachment or Conduit Occupancy. This reimbursement is a
one-time charge for each attachment to Poles or installation in Conduit usage. The
charges shall be due upon the City’s receipt of the Licensee’s written approval to attach,
install or modify any Pole contact or Conduit usage, and they shall be paid before the
City’s construction shall commence.
Charge: Processing Charge
Description: The actual or estimated cost for performing preliminary
field investigation to review pole attachment or conduit
usage submittal.
Price: Total Cost
Charge: Engineering Charge
Description: The costs estimated by the City for reviewing contact
design, designing City modifications and updating
operation records.
Price: Total Cost
Charge: Cable Attachment Charges
Description: The costs estimated by the City for making space available
and other modifications necessary to accommodate each
line attachment.
E-2-1
110520 MLA Exhibits template
Contract No. ______________
Price: Total Cost
Charge: Anchor Attachment Charges
Description: The costs estimated by the City for making provisions for
guying the structure at the communications level.
Price: Total Cost
Charge: Equipment Mounting Charges
Description: The costs estimated by the City for making space available
and other modifications necessary to accommodate
equipment (amplifiers, nodes, battery backup) mounting.
Price: Total Cost
Charge: Electric Services Connection Charges
Description: The costs estimated by the City for providing electric
service connection to provide power to equipment attached
to the pole.
Price: Total Cost
Charge: Inspection Charge
Description: The costs estimated by the City for providing inspection
services upon completion of make-ready work and
Licensee’s equipment – typically 3 hours per pole.
Price: Total Cost
Total Initial/One-Time Costs and Fees for Schedule E-2: $ _______________________.
D. Annual Costs and Fees:
1. Wire facilities attachment fees. The Fees for wire communications facilities
attachments to Poles shall be as set forth in the City’s Utility Rate Schedule E-16 or, if
such rate schedule is not applicable, any other applicable CPAU utility rate schedules.
2. Wireless facilities attachment fees. The Fees for wireless communications
facilities attachments to Poles shall be as set forth in the City’s Utility Rate Schedule E-
16 or, if such rate schedule is not applicable, equal to the rental rate of one thousand five
hundred dollars ($1,500.00) per Pole per year.
3. Conduit occupancy fees. The Fees for occupancy of Conduits shall be as set
forth in the City’s Utility Rate Schedule E-16 or, if such rate schedule is not applicable,
other applicable CPAU utility rate schedules. The City reserves the right to impose and
collect different fees for the exclusive and nonexclusive occupation of the Conduits.
4. Other City service fees. The Fees for the City’s rendering of services in regard
to the attachment or installation of the Licensee’s wire and/or wireless facilities on Poles
E-2-2
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Contract No. ______________
E-2-3
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or in Conduits shall be established in accordance with applicable CPAU utility rate
schedule(s).
5. Electric Service charges. The Fees, rates and charges for electric utility service
consumed or used annually by the Licensee shall be as set forth in the City’s Utility Rate
Schedule E-16 or, if such rate schedule is not applicable, other applicable CPAU utility
rate schedules.
6. Late Payment fee. If the Licensee fails to pay the amounts of Costs and Fees
due and payable within the time period required by this Agreement, then the License
shall pay a late fee established by Law or the lesser of an amount equal to five percent
(5%) of those amounts then due and payable as set forth in the invoices or five hundred
dollars ($500).
7. Utility Rate Schedules. The utility rate schedules referred to in this Exhibit
“E” and any amendments thereto now or hereafter in effect shall be deemed incorporated
herein by reference. The rates may be amended and adopted by the City in the ordinary
course and scope of business. The Fees shall be subject to annual cost-of-living increases.
The Fees upon commencement of the Extension Term shall be calculated in accordance
with the utility rate, fees and charges applicable to Pole Attachments and Conduit
Occupancy then in effect.
Total Annual Costs and Fees for Schedule E-2: $ _______________________.
E. Other Terms and Conditions:
F. Attachments:
Contract No. ______________
Exhibit “F”
Terms and Conditions Regarding Use of Pole Spaces
1. The Licensee shall be responsible to performing its own engineering analysis,
which shall be submitted with the Processing Request Form – Exhibit “I”, in order
to enable the City to determine where on the Pole the Licensee Facilities will be
attached in compliance with CPUC GO 95 Rule 94 clearance and construction
requirements. CPAU in its Make-Ready Work inspection will evaluate the Pole
for its ability to accommodate all of the existing and new attachments from a
clearance- and pole-loading perspective.
2. Subject to the City’s express written consent, the Licensee shall perform all
attachments and installations; only qualified contractors reasonably approved by
the City will be allowed to work in the Electric Utility space subject to any
monitoring by City staff.
3. As there may be Make-Ready Work that needs to be performed by other parties
attached to the Pole, the Licensee shall make arrangements with those other
parties to move/transfer their facilities.
4. The Licensee shall remove existing “out of service” communications
cable/devices to facilitate the new attachments and installations.
5. The City will approve the Licensee’s Pole Attachment and Conduit Occupancy
requests over two phases. The first phase will entail ensuring the Make-Ready
Work is completed in accordance with CPAU specifications. The second phase
will entail permitting the Licensee to attach the Licensee Facilities to the Poles
and/or installation in the Conduits. The City’s personnel will perform a final
inspection after all Work is completed.
6. The Licensee shall identify the Licensee Facilities newly installed or serviced at
each contact point by means of a marking method mutually agreed to by the
Parties. Such identification shall be visible from ground level. The Licensee shall
provide the City with a 24/7 contact phone number to enable the City to promptly
report any concerns regarding the Licensee Facilities. In the event that the City
should report any such concerns to the Licensee, the Licensee shall promptly
respond to such call(s) and perform the required repair or correct any adverse
impact to the City’s electric utility operations caused by such Licensee Facilities
at no cost to the City unless the same shall be caused by the City or a party under
the City’s control.
7. The City reserves the right to operate and maintain its electric utility City
Facilities in order to fulfill its utility service requirements to its electric utility
ratepayers or dark fiber/communications customers. The City shall not be liable to
the Licensee for any interruption to the Licensee’s service or for any interference
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with the operation of the Licensee Facilities arising in any manner from the use of
the City Facilities, including the electric utility overhead facilities, by the City in
accordance with this Agreement, provided that the City shall give the Licensee
fifteen (15) Days’ advance notice of any non-emergency work which affects the
Licensee Facilities.
8. The Licensee Facilities shall not be installed, placed, or maintained on any of the
City Facilities which carries voltage of 60,000 volts or greater between the
conductors.
9. If, at any time, the City deems it necessary to intentionally increase its voltage to
60,000 volts between conductors, on the Poles jointly occupied under this
Agreement, the City shall give the Licensee ninety (90) Days’ prior written
notice, as provided herein, of its intention to increase said voltages.
10. In the event any City Facilities occupied by the Licensee under this Agreement
are to be replaced, repaired or altered, the Licensee shall, at its own sole risk and
expense (except in the case of rearrangements required by third parties or City-
owned commercial communications facilities), upon reasonable notice from the
City, relocate or replace its Licensee Facilities or transfer them to the replacement
City Facilities, as available, or perform any other work in connection with those
facilities that may be required by City.
11. In the event of an emergency or other event or condition that the City determines
presents an imminent danger or threat to the public health, safety or welfare, the
City may remove a Pole and shall in such case immediately notify the Licensee of
the action taken. The City shall make commercially reasonable efforts to notify
the Licensee of the removal of its Licensee Facilities, prior to the emergency
removal of those facilities.
12. The Licensee shall use due care to avoid causing damage to the City Facilities,
including its electric utility overhead facilities, and the Licensee shall assume
responsibility for any loss arising from such damage caused by the Licensee. The
Licensee shall make an immediate report of the occurrence of any such damage to
the City and shall, on demand, reimburse the City for its total cost that are
incurred in making any repairs.
13. The City shall have the right to inspect each new installation of the Licensee
Facilities attached to or installed in the City Facilities and to make periodic
inspections at the City’s discretion as conditions may warrant. Such inspections
shall not relieve the Licensee of any responsibility, obligation or liability assumed
under this Agreement.
14. The Licensee, at its sole risk and expense, shall install and maintain guys and
anchors as required where the Licensee’s anchorage requirements are not
coincident with the City’s or the City Facilities’ existing anchorage requirements.
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15. Where the anchorage requirements of the City Facilities used by the Licensee and
the City are coincident, the existing guys and anchors shall be used.
16. If the City, in accordance with accepted electric utility standards, determines that
separate guys and/or anchors are necessary, the Licensee, at its sole risk and
expense, shall install the new guys and/or anchors.
17. If the City, in accordance with accepted electric utility standards, determines at
the time of installation of the Licensee Facilities that the existing guys and/or
anchors need to be replaced on account of and due to the weight of the License
Facilities to be installed, the City, at the Licensee’s sole cost and expense, shall
install the new guys and/or anchors.
18. If the Licensee Facilities cause to displace or pull any reasonably serviceable
Poles or anchors out of line, or damage any City Facilities or such other facilities,
equipment or installations owned by the City or any other third party in any
manner, the Licensee shall pay the cost of any replacements, repairs or restoration
of such Poles, anchors, facilities, equipment or installations.
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Exhibit “G”
Terms and Conditions Regarding Use of City Conduit
1. The Licensee shall submit a Processing Request Form – Exhibit “I” to the City,
which will perform a preliminary site investigation jointly with the Licensee to
determine the feasibility of the Licensee’s occupancy or use of any available
Conduits.
2. No Licensee Facilities, including any cables, shall be permitted to be installed in
electric pull boxes, electric vaults or Conduit that contains the City’s electric or
dark fiber cables.
3. The Licensee Facilities or other cables shall be identified with durable and clearly
visible tag when they are installed in Conduits.
4. For all installations, inner-duct shall be used prior to installing the Licensee
Facilities or other cables. When, in the opinion of the Utilities Director, it is
necessary to facilitate maintenance or the additional use of the Conduit, the City
will require the Licensee to also install a divide-a-duct prior to installing the
inner-duct.
5. Any pull box replacement or enlargement will be made at the Licensee’s sole cost
and expense.
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Exhibit “H”
Pole Replacement Requirements
1. All Poles identified by the City’s records as being deteriorated and scheduled or
planned for replacement within the next twelve (12) months will be addressed as
follows:
The City will advise the Applicant or the Licensee to seek another
good Pole.
The Pole will be replaced by the City, but the City will not make
any guarantee to complete the replacement to meet the Applicant’s
or the Licensee’s desired schedule.
2. Whenever a Pole top extension will be used to mount the Licensee Facilities and
whenever the Pole top is deteriorated, then the Pole shall be replaced at the
Applicant’s sole cost and expense in order to accommodate the Licensee
Facilities’ attachment or installation.
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Exhibit “I”
Processing Request Form
(for Pole Attachment/Conduit Usage)
REQUEST SUBMITTED BY: FIELD INVESTIGATION CONTACT:
Name: Name:
Title: Title:
Company: Company:
Street Address: Street Address:
City, State, Zip: City, State, Zip:
Telephone Number: Cell Phone:
Email Address: Email Address:
Today’s Date: ____/____/____
Project Description: Attach the following:
1. A list of Poles with City of Palo Alto Pole number and nearest street address;
2. Size and Conduit Occupancy details;
3. Size and number of pull boxes;
4. A map showing the Pole/Conduit locations;
5. Pole loading calculations;
6. Typical Installation details of equipment to be attached on the Pole;
7. Completed Electric Service Request Application (one per wireless pole
attachment location; application shall include all power and attachment requests);
and
8. Other:
Desired completion date: __/____/__
NOTE: Please budget 8-12 weeks from make ready and service connection payment
(not this processing payment) to completion.
POLE ATTACHEMNT/CONDUIT USAGE PROCESSING CONDITIONS:
I am submitting this processing request with the full understanding of the following
conditions:
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1. The Licensee shall pay the fee to be submitted with this Processing Request
Form within seven (7) Days of receipt of the City’s invoice for the processing
fee.
2. The processing fee is a non-refundable fee required to cover the cost of
completing the Preparatory Work, that is, work of a preliminary nature to be
undertaken by CPAU staff, including, without limitation, survey and field
inspection work, review of engineering plans and specifications and other
related work, that precede or are required to establish the Make-Ready Work
in order to facilitate the attachment and/or installation of the Licensee
Facilities in, on or about Poles and/or Conduits.
3. Upon the City’s completion of the Preparatory Work, the City will notify the
Licensee whether the proposed Pole Attachments and/or Conduit Occupancies
will be approved for the preparation of detailed engineering drawings and
other specifications.
4. If the Parties mutually agree to proceed to the Make-Ready Work phase, then
the City will prepare detailed construction plans and a cost estimate that will
include (a) the Costs for any Make-Ready Work that may be performed by
CPAU staff and (b) an electric service connection fee, both of which must be
paid in full prior to the start of construction.
5. The processing fee will be credited against any Make-Ready Work and the
electric service connection fee.
Please Note: You will be invoiced for established standard processing fees or by
estimate for special conditions, per Utilities Rate Schedule E-16. Please do not remit
any fee until you receive an invoice.
Signature: ____________________________________ Date:___/______/____
Please submit the completed form with authorized signature and direct questions to:
Utilities Electric Engineering
City of Palo Alto Utilities
1007 Elwell Ct
Palo Alto, CA 94303
Phone: (650) 566-4500
Fax: (650) 566-4536
Electric.Engineering@CityofPaloAlto.org
Note that all inquires of a legal nature must be directed to the Office of the City Attorney, 7th Floor
City Hall, 250 Hamilton Avenue, P.O. Box 10250, Palo Alto, CA 94303, Attention of Senior
Assistant City Attorney, Utilities.