HomeMy WebLinkAboutStaff Report 8213
City of Palo Alto (ID # 8213)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 8/14/2017
City of Palo Alto Page 1
Summary Title: Master License Agreement with Mobilitie, LLC
Title: Approval and Authorization for the City Manager to Execute a Master
License Agreement for use of City-Controlled Space on Utility Poles and
Streetlight Poles and in Conduits with Mobilitie, LLC, a Nevada Limited
Liability Corporation
From: City Manager
Lead Department: Utilities
Recommendation
Staff recommends that Council:
1. Approve a Master License Agreement (“MLA”) with Mobilitie, LLC, a Nevada Limited
Liability Company (Attachment A), for a combined initial term and potential extension
term of 20 years to allow Mobilitie to access and use City-controlled spaces on utility
poles, streetlight poles and in conduits for the purpose of providing communication
services; and
2. Delegate to the City Manager or his designee the authority to execute on behalf of the
City any documents necessary to administer the MLA that are consistent with the Palo
Alto Municipal Code and City Council approved policies, including execution of individual
Supplements substantially in the form of Exhibit “B” to the MLA, and non-substantive
modifications to the MLA that may be required and approved by the City Attorney’s
office; and
The approval of the MLA does not authorize any specific installation of facilities by Mobilitie,
LLC, a Nevada Limited Liability Company (“Mobilitie”). Instead, the MLA sets forth the general
terms and conditions applicable to such future installations and establishes the process and
requirements that the City and Mobilitie will follow, including filing an application (Exhibit “G”
to the MLA), executing a Supplement memorializing specific facility requirements and terms
(Exhibit “B” to the MLA), and complying with Palo Alto Municipal Code requirements set forth
in Title 12 (Public Works and Utilities) and Title 18 (Zoning), should Mobilitie elect to pursue an
installation or modification of telecommunications equipment on City utility poles, streetlight
poles or in conduit.
City of Palo Alto Page 2
Background
Generally, under federal 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 communication facilities from gaining access to the public rights-
of-way and utilities infrastructure located therein. Federal and California law encourages, if not
requires, the City to allow wireline and wireless communication facilities to access and use the
utilities infrastructure located in public rights-of-way. The City can, however, establish
reasonable rates, terms and conditions of access to utilities infrastructure in the public rights-
of-way, including adopting rules and regulations relating to time, place and manner of
attachment to that infrastructure.
The City developed a standard MLA to address the interest of wired and wireless
communication service providers accessing and using City of Palo Alto-controlled spaces on
utility poles and streetlight poles and in conduits. On July 25, 2011, Council adopted Resolution
No. 9193 approving the standard MLA and associated 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 wired and wireless communications facilities in the City of Palo Alto (Council Staff
Report ID # 1756): http://www.cityofpaloalto.org/civicax/filebank/documents/28100
In approving a standard MLA, Council authorized the City Manager to execute such standard
agreements.
On June 27, 2016, Council approved a modified version of the MLA and associated Exhibits with
GTE Mobilnet of California Limited Partnership, dba Verizon Wireless (“Verizon”) (Staff Report
ID #7053).
On May 1, 2017, Council approved a modified version of the MLA and associated Exhibits with
Astound Broadband, LLC (dba “Wave”). The modifications to the 2011 approved template,
included: (1) the modifications afforded to Verizon in the 2016 approval of the Verizon MLA;
and (2) a change to “Section 3.5 “Authorized Services” (Staff Report ID #7849).
The City and Mobilitie have agreed to a version of the MLA and Exhibits afforded to Verizon on
June 27, 2016.
Since approval of the standard MLA in 2011, the City has executed standard MLA agreements
with ExteNet Systems, NextG Networks (now Crown Castle), AT&T Mobility, Verizon and Wave.
Under an executed MLA, AT&T Mobility has installed seventy five (75) distributed antenna
systems (DAS) on City-controlled space on utility poles throughout the City, and has plans to
install sixteen (16) small cell sites on City utility poles and streetlight poles. Crown Castle has
installed small cell antennas on City-owned streetlight poles at nineteen (19) sites in the
downtown area for Verizon Wireless and has plans to install an additional sixteen (16) sites for
Verizon in the next year. Additionally, staff is also working directly with Verizon Wireless
City of Palo Alto Page 3
representatives to install 92 small cell sites on utility poles and streetlight poles throughout
Palo Alto. All of these new projects will be applied for, reviewed and processed in accordance
with terms of this MLA and applicable sections of the Palo Alto Municipal Code. In addition to
the MLA, wireless communication and other telecommunications facilities are subject to the
requirements of the Palo Alto Municipal Code. For instance, Verizon must still apply for permits
with the Planning and Public Works departments and comply with Title 12 and Title 18 of the
Palo Alto Municipal Code.
Potential Mobilitie Project
Mobilitie is a privately held utility company regulated by the California Public Utilities
Commission. Mobilitie proposes deploying a hybrid transport network that provides high-
speed, high-capacity bandwidth in order to facilitate the next generation of devices and data-
drive services. This network can support a variety of technologies and services that require
connectivity to the Internet. Staff understands that Mobilitie’s network will support data
transport services for Sprint.
It is staff’s understanding that Mobilitie is considering attaching and installing small cell and
data backhaul equipment to new and existing utility and streetlight poles located within the
City’s public rights-of-way (3 utility poles and 16 streetlight poles).
As noted above, Mobilitie must still apply for permits for any project with the Planning and
Public Works departments and comply with Title 12 and Title 18 of the Municipal Code.
Mobilitie would also need to secure approval from the City for specific installations on utility
poles under the terms of the MLA itself as its project gets more specific. The approval of the
MLA does not authorize any specific installation of facilities, it only sets forth the general terms
and conditions applicable to such future installations and establishes the process and
requirements that the City and Mobilitie will follow, including filing an application (Exhibit “G”),
executing a Supplement memorializing specific facility requirements and terms (Exhibit “B”),
and complying with Palo Alto Municipal Code requirements set forth in Title 12 (Public Works
and Utilities) and Title 18 (Zoning), should Mobilitie elect to pursue an installation or
modification of telecommunications equipment on City utility poles, streetlight poles or in
conduit.
Discussion
As noted above, the MLA sets the essential terms and conditions governing the deployment of
wireless antennas and enables current and new service providers to address coverage and
capacity issues related to high-speed mobile broadband service in Palo Alto. Deployment is
managed in a manner that allows the Utilities Department’s infrastructure to be used for
advanced broadband communication 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.
City of Palo Alto Page 4
According to Mobilitie, the main purpose of its installations is to fulfill capacity objectives
caused by the rapid increased usage of wireless data and technology in the area surrounding
the project sites. This hybrid transport network provides even, widespread coverage
throughout the neighborhood sites. This allows for network densification without adding
larger, more traditional wireless facilities. As future capacity requirements increase, the
existence of these transport sites will allow for more small-cell sites to be utilized to fill in
additional coverage gaps.
Timeline
Staff has been working with the wireless carriers and companies that build wireless
communications facilities for the carriers (e.g. Crown Castle and Mobilitie) over the next several
years as they continue to upgrade their networks to improve coverage and capacity.
Resource Impact
The MLA represents an increased work load for City staff. As required by law, staff will review
and administer the installation, inspection and billing associated with these wireless
communication facilities as additional work priority. Staff costs are recovered from the
applicant and the general criteria used by CPAU Engineering for make-ready work are
compliance with California Public Utilities Commission (“CPUC”) General Order 95 rules for
construction and maintenance of overhead systems, relocation or addition of equipment and
final inspection/connection fees. The annual License Fees for DAS and small cell attachments to
be charged are contingent on the number of antennas that are attached by wireless
communications service providers.
Policy Implications
These recommendations are 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 (Reference CMR: 369:97).
Environmental Review
The California Environmental Quality Act (“CEQA”) does not apply to the Council’s approval of
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.
Attachments:
Attachment A: Mobilitie Master License Agreement
Contract No. ____________
JM 07-001 Mobilitie MLA
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
MOBILITIE, LLC,
A NEVADA LIMITED LIABILITY COMPANY
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
TABLE OF CONTENTS
JM 07-001 Mobilitie MLA i
Section Description Page
1.0 DEFINITIONS ..................................................................................................3
2.0 TERMS AND TERMINATION .......................................................................7
3.0 GRANT AND SCOPE OF LICENSE ..............................................................8
4.0 OTHER RIGHTS AND OBLIGATIONS OF LICENSEE ..............................12
5.0 APPLICATION FOR ACCESS .......................................................................14
6.0 COSTS AND FEES ..........................................................................................17
7.0 CONSTRUCTION AND INSTALLATION OF THE LICENSEE
FACILITIES .....................................................................................................19
8.0 MOVING THE LICENSEE FACILITIES .......................................................21
9.0 INSPECTION OF THE LICENSEE FACILITIES ..........................................21
10.0 UNAUTHORIZED ATTACHMENT OR OCCUPANCY ..............................22
11.0 INSTALLATION AND REPLACEMENT OF THE LICENSEE
FACILITIES .....................................................................................................23
12.0 INDEMNITY; WAIVER; RISK OF LOSS ......................................................25
13.0 INSURANCE ....................................................................................................26
14.0 PERFORMANCE BOND; LETTER OF CREDIT ..........................................27
15.0 REPRESENTATIONS AND WARRANTIES .................................................28
16.0 DEFAULT; REMEDIES FOR DEFAULT ......................................................29
17.0 DISPUTE RESOLUTION ................................................................................30
18.0 NOTICES ..........................................................................................................31
19.0 MISCELLANEOUS PROVISIONS .................................................................32
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
JM 07-001 Mobilitie MLA 1
MASTER LICENSE AGREEMENT FOR USE OF CITY-CONTROLLED SPACE
ON UTILITY POLES, STREETLIGHT POLES AND IN CONDUITS BETWEEN
THE CITY OF PALO ALTO AND MOBILITIE, LLC, A NEVADA LIMITED
LIABILITY COMPANY
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
MOBILITIE, LLC, A NEVADA LIMITED LIABILITY COMPANY (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 described in the applicable Supplement. The
Licensee Facilities, which will be attached to certain Poles and/or installed in certain
Conduits, will be identified in Exhibit “1” to each Supplement.
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
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JM 07-001 Mobilitie MLA 2
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, subject to conditions and limitations that the City may
impose from time to time as permitted at Law and in this Agreement.
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.
“Additional Costs and Fees” has the meaning set forth in Exhibit “C.”
“Annual Costs and Fees” has the meaning set forth in Exhibit “C.”
“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 Application, Exhibit “G,” 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.
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
JM 07-001 Mobilitie MLA 3
“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.
“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 and Fees” means the utility rates, fees and charges actually incurred
by the City to perform the Preparatory Work and the Make-Ready Work at the Licensee’s
request, including, without limitation, (a) the 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.
Costs and Fees also includes 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.
“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.
“Effective Date” has the meaning set forth in the Preamble to the
Agreement.
“FCC” means the Federal Communications Commission or successor
agency.
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
JM 07-001 Mobilitie MLA 4
“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).
“Initial/One-Time Costs and Fees” has the meaning set forth in Exhibit
“C.”
“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 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 & Poor’s 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 Construction Work” means all construction-related work
associated with Make-Ready Work.
“Make-Ready Construction Work Fees” means Costs and Fees
associated with Make-Ready Construction Work as more particularly described in Exhibit
“C.”
“Make-Ready Engineering Work” means engineering-related work
associated with Make-Ready Work.
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
JM 07-001 Mobilitie MLA 5
“Make-Ready Engineering Work Fees” means Costs and Fees associated
with Make-Ready Engineering Work as more particularly described in Exhibit “C.”
“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.
“Make-Ready Work Fees” means Make-Ready Engineering Work Fees
and Make-Ready Construction Work Fees, including as more particularly described in
Exhibit “C” attached to this Agreement. “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 § 5830(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.
“Payment Commencement Date” means the first day of the month
following the City’s completion of a final electric service connection for the Licensee
Facility under a Supplement.
“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.
“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.
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
JM 07-001 Mobilitie MLA 6
“Preparatory Work Fees” has the meaning set forth in Exhibit “C”
attached to this Agreement. The term does not extend to any fee associated with an
application or permit that is required by Title 12 or Title 18 of the Palo Alto Municipal
Code, which Licensee shall comply.
“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.
“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 pole that is used for streetlighting purposes,
including, without limitation, those using concrete, steel or aluminum (or other metal), or
wood. The term does not include Utility Poles; provided, however, that in the event a pole
is used for both streetlighting purposes and for electrical distribution facilities, the pole
shall be deemed to be a Utility Pole.
“Supplement” means that document in substantially the form attached
hereto as Exhibit “B” and incorporated by reference containing information related to
Licensee Facilities attachments to Poles. A Supplement shall be effective on the
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
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JM 07-001 Mobilitie MLA 7
Supplement Effective Date, and upon such execution, shall be deemed incorporated into
this Agreement.
“Supplement Effective Date” has the meaning set forth in the Preamble to
the Supplement.
“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 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.
“Utility Pole” means any standard design wooden or metal pole that is used
for electrical distribution facilities. The term does not include Streetlight Poles; provided,
however, that in the event a pole is used for both streetlighting purposes and for electrical
distribution facilities, the pole shall be deemed to be a Utility Pole.
“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 TERM AND TERMINATION
2.1 Term.
2.1.1 Initial and Extension Terms of Agreement. 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. This
Agreement shall extend for an additional ten (10) years (the “Extension Term”),
commencing on the expiration of the Initial Term, provided that: (i) Licensee shall give
written notice in accordance with to section 18 of its intention to extend this
Agreement no less than sixty (60) Days prior to the expiration of the Initial Term; (ii)
the Licensee is in substantial compliance with the Provisions; (iii) there has not been
any change in Law that may materially affect the Provisions or their enforceability;
and (iv) neither the City nor Licensee have otherwise terminated this Agreement in
accordance with the Provisions.
2.1.2 Renewal of Agreement. The Parties may in good faith negotiate
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Contract No. ____________
JM 07-001 Mobilitie MLA 8
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
Annual Costs and Fees or for any other Costs and Fees due and payable under this
Agreement, 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.
(i) 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 the City’s option provided in writing no later
than ninety (90) days prior to the expiration of the Extension Term, 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 (and in such
case the City shall accept the Licensee Facilities in its then existing “as is” condition);
(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. The City’s failure to provide notice or
exercise its options pursuant to this section shall not relieve Licensee of its obligation
to remove Licensee Facilities pursuant to section 7.5 of this Agreement.
2.1.3 Term of Supplement. The term for each particular Supplement
begins on the Supplement Effective Date, and ends upon the expiration of the Initial
Term, or the Extension Term, if validly exercised, under this Agreement, unless such
individual Supplement is earlier terminated, or this Agreement is extended pursuant to
section 2.1.2, as provided for in this Agreement.
2.1.4 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
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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.
2.2 Termination
2.2.1 By City. Except as otherwise provided herein, the City may
terminate this Agreement, or at City’s election, any Supplement, for cause (as defined
in subsection 2.2.1(i)) 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 Costs and 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.
(i) 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.
(ii) Upon the establishment of termination of the Agreement or any
Supplement for cause, the right to attach to any Pole and/or to occupy any Conduit
affected thereby 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 affected 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.
2.2.2 By Licensee. Except as otherwise provided herein, Licensee
may terminate this Agreement or any individual Supplement hereunder, upon sixty
(60) Days’ prior written notice sent by the Licensee to the City. Termination of the
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Agreement or any Supplement by Licensee pursuant to this section shall not relieve the
Licensee of its obligation to pay any Initial/One-Time Costs and Fees, Annual Costs
and Fees, Additional Costs and Fees, or for any other Costs and Fees due and payable
under this Agreement as of the effective date of the termination to the City under the
Agreement or applicable Supplement, including the uncollected Annual Costs and
Fees that would be due and payable by the Licensee to the City as of the effective date
of the termination if the Agreement or Supplement had not been terminated; provided,
however, that Licensee shall not be entitled to a refund for any Costs and Fees already
paid to City. Provisions of this Agreement related to removal of Licensee Facilities
shall also apply. Upon termination of any Supplement, no further annual Costs and
Fees shall be due.
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 described in the Supplement, provided, however,
that Licensee may not place ground facilities, such as cabinets, in Public Utility
Easements located on private property without separate written City consent or
approval. 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. The rights of Licensee under this Agreement are subject to conditions in this
Agreement and to the conditions that the City may from time to time lawfully impose
on the use of such Poles and/or Conduits. This grant of license to access and use certain
Poles and/or Conduits does not permit the Licensee to access and use other Poles
and/or Conduits not specifically listed in the Supplement.
3.2 Scope of License. The grant of license to the Licensee is subject
to:
3.2.1 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,
3.2.2 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;
3.2.3 any restrictions on permissible uses of City Public Utility
Easements under applicable law, and
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3.2.4 any restrictions that the City imposes on Poles, including,
without limitation, limits on the height of certain Poles or attachments to certain Poles,
provided the same do not conflict with any laws or decisions of the California Public
Utilities Commission (CPUC).
3.3 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.
3.3.1 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.
3.3.2 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, or requested
to be 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.
3.3.3 The City may for consideration of the public health, safety, or
welfare, including, without limitation, safety, reliability, consistency with surrounding
area, security or engineering, historic or environmental preservation, or other legally
permitted land use reasons, terminate or otherwise modify the scope of the Licensee’s
non-exclusive license granted pursuant to 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.
3.3.4 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
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municipal property or facilities without the express written approval of the City and/or
the other owner(s) of the affected property or properties.
3.3.5 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.
3.3.6 Nothing in this Agreement shall be deemed to create an
entitlement of Licensee access to any particular Pole or Conduit, except as set forth in
the applicable Supplement.
3.4 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.
3.4.1 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. Notwithstanding anything to the
contrary in this Agreement, but in compliance with all laws and any CPUC decision,
the City reserves the right to prohibit and/or condition initial installations or
modifications of Licensee Facilities on Poles, including, but not limited to, increases in
height or width of Poles.
3.4.2 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.
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3.4.3 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.
3.5 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 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.
3.5.1 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.
3.5.2 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.
3.6 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.
3.6.1 If the existence of the Licensee Facilities in, on or about such
Poles and/or Conduits would result in a forfeiture of any 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
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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.
3.6.2 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.
3.6.3 During the Initial Term and the Extension Term, if any, the
Licensee may voluntarily remove any 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 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 Costs and 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(i) and (iii).
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.
3.7 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 3.7
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shall not apply to any Costs or Fees or any other cost or fee referred to herein that the
Licensee owes to the City.
3.7.1 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, modify, 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 property, or
the facilities or property of the joint owner(s) of certain Poles and Conduits and/or any
other licensees using the Poles and/or Conduits, including, without limitation, the joint
owner(s)’ or other licensee(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. Licensee shall use due care, and ensure that no
damage, beyond reasonable wear and tear, is caused to the property of any property
owner adjoining the Public Rights-of-Way or easements used by Licensee. Any
damage or destruction which is caused by any Party or its agent or representative shall
be reported within forty-eight (48) hours to the other Party, the joint owner(s) of
certain Poles and Conduits, and/or other licensee(s) or property owner(s) 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 “D,” “E,” and “F.”
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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, Public Utility
Easements and Private Property. The Licensee, at no liability, cost or expense to the
City or the affected property owner, 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, or any damage to any private 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.
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.
4.7 Maintenance. The Licensee at its sole cost and expense, shall be
responsible for all maintenance of the Licensee Facilities.
4.8 Notice to Affected Property Owners.
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4.8.1 Excepting emergencies which may require the restoration of
functionality of the Licensee Facilities within twenty-four (24) hours of loss of
functionality, Licensee shall give ten (10) Business Days’ prior written notice to
private property owners near the site of the work whenever the Licensee will perform
any approved or authorized Make-Ready Work in regard to the Licensee Facilities that
will affect or is likely to affect the private property. The City may, in its reasonable
discretion, waive the ten (10) Business Day advance notice requirement where City
permits (including, without limitation, a Street Work or Encroachment Permit) issued
for the same Make-Ready Work provide alternative notification requirements. With
respect to maintenance and repairs of the Licensee Facilities, the Licensee shall
provide affected private property owners or likely affected private property owners
with reasonable prior notice.
4.8.2 Notwithstanding the foregoing, where installation, maintenance,
or repair of Licensee Facilities has the potential to be complex, unusual, or have a
significant effect on the City, other licensee(s) and/or private property owners,
Licensee agrees to submit for City review and approval a coordination and public
notification and outreach plan upon City request prior to commencement of any such
work.
5.0 APPLICATION FOR ACCESS
5.1 Processing Request Application. The Licensee shall complete
and file a Processing Request Application 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. The form of the Application is attached hereto as
Exhibit “G.” 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 Utility Poles and/or occupancy of
Conduits within the time period specified in Section 5.2, and with the City Manager or
his/her designee in making attachment to Streetlight Poles within the time period
specified in Section 5.3. Licensee acknowledges that its Applications, including all
required attachments, must be submitted and complete in all respects in order for the
City to deem the Application complete. To the extent not inconsistent with Law, the
City reserves the right to reject any incomplete Application or any completed
Application in accordance with this Agreement.
5.2 Access to Utility Poles and/or Conduit. The City, in acting upon
an Application, will use reasonable efforts to process and accept or reject the
Application for access to Utility Poles and/or Conduit, within the parameters and time
periods set forth below:
5.2.1 Upon the City’s receipt of a complete Application, the City will
invoice the Licensee for a non-refundable Preparatory Work Fee. Licensee will pay the
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Preparatory Work Fee within thirty (30) Days of receipt of the City’s invoice.
5.2.2 Within twenty (20) Days of the City’s receipt of the Preparatory
Work Fee, the City will complete Preparatory Work for the Application to determine
whether and where the Licensee Facilities are feasible and what Make-Ready
Engineering Work will be required.
5.2.3 Within seven (7) Days of the City’s completion of the
Preparatory Work, the City will notify the Licensee of the Make-Ready Engineering
Work necessary for Licensee Facilities and invoice Licensee for a non-refundable
Make-Ready Engineering Work Fee.
5.2.4 If Licensee elects to proceed with Licensee Facilities, within
thirty (30) Days of receipt of City’s notice and invoice for Make-Ready Engineering
Work Fees, Licensee will pay the Make-Ready Engineering Work Fee. Licensee’s
payment of such Make-Ready Engineering Work Fees will serve as notification to City
that Licensee intends to proceed with Make-Ready Engineering Work.
5.2.5 Within thirty (30) Days of City’s completion of the Make-Ready
Engineering Work, the City will provide the Licensee with a description of the
necessary Make-Ready Construction Work for the Licensee Facilities and the
Make-Ready Construction Work Fees applicable to the Licensee
Facilities. Preparatory Work Fees and Make-Ready Engineering Work Fees paid by
Licensee will be credited against Make-Ready Construction Work Fees.
5.2.6 If the Parties mutually agree to proceed with Make-Ready
Construction Work, the Parties will execute a Supplement, substantially in the form of
Exhibit “B” to this Agreement. The Supplement will:
(i) Set forth the non-refundable Make-Ready Construction Work Fee
and due date therefore; provided, however, that the Make-Ready Construction Work
Fee will be paid prior to the start of Make-Ready Construction Work; and
(ii) Specify whether the Make-Ready Construction Work for Licensee
Facilities, 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.
5.2.7 The City will complete the Make-Ready Work for the Licensee
Facilities, as needed, within one hundred five (105) Days of execution of the
Supplement.
5.3 Access to Streetlight Poles. Attachments to Streetlight Poles will
be made on a case-by-case basis. To the extent not inconsistent with Law, the City
reserves the right to deny access to any particular Streetlight Pole in accordance with
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this Agreement. Any such denial shall be accompanied by a description of any
modifications Licensee may make, or alternative locations Licensee may use, to obtain
approval and an explanation of the reasons for the rejection of Licensee’s application.
5.4 Tolling. Notwithstanding Sections 5.2.1 through 5.2.7, and 5.3,
the City may toll or stop the clock on any of the timelines mentioned in Sections 5.2.1,
5.2.2, 5.2.4 or 5.2.6 and 5.3 in the event of an emergency as determined by the City or
for other good and sufficient cause.
5.4.1 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 5.2(A), (D) and/or (F)
or 5.3 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.
5.4.2 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.
5.4.3 The City Manager or his/her designee may approve the
modification of the limitations set forth in subsection 5.4.2, 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.
5.4.4 If the City Manager or his/her designee rejects or otherwise
disapproves of the Application, then the City will provide the Licensee with a written
detailed explanation of the basis of disapproval.
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5.5 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 later of the
Supplement Effective Date or 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 5.2.1 through 5.2.4, or 5.3, as
applicable, inclusive.
5.6 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 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:
5.6.1 one or more Applications have been received for some or all of
the same Poles and/or Conduits; and
5.6.2 the name, email address and telephone number of each Applicant
who has submitted such Application.
5.7 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.
5.8 Performance of Work.
5.8.1 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
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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:
(i) 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
(ii) 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.
5.8.2 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.
5.8.3 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 5.2.1 through 5.2.6 or 5.3. 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 5.2.1 through 5.2.6 or 5.3 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
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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.
5.8.4 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.
5.8.5 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 Annual Costs and Fees, and any Additional Costs
and Fees, all of which are described with more particularity in Exhibit “C,” and will be
set forth in a City invoice or the applicable Supplement.
6.1.1 Invoices. Unless an alternate process is specified in this
Agreement, the City will prepare and deliver to the Licensee an invoice for all Costs
and Fees for the privilege of accessing and using the City-controlled spaces on the
Poles and/or in the Conduits, including for Initial/One-Time Costs and Fees, Annual
Costs and Fees, Additional Costs and Fees, or for any other Costs and Fees due and
payable under this Agreement. At a minimum, the City will invoice for Costs and Fees
thirty (30) days in advance of the due date for such payments.
(i) The amounts shall be due and payable on the date specified in such
invoice, or where not specified on such invoice or elsewhere in this Agreement within
thirty (30) 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.
(ii) 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.
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6.1.2 Delivery of Payment. Unless otherwise specified, 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.
6.2 Failure to Pay. The Licensee’s failure to pay any Costs and Fees
under this Agreement, including the Initial/One-Time Cost and Fees, the Annual Costs
and Fees, and any Additional Costs and Fees, or any costs associated with termination
or abandonment of Licensee Facilities as provided for in this Agreement 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 Costs or Fees in
accordance with Article 17.0. The Licensee’s obligation to pay Costs and Fees due to
City, including the Annual Costs and Fees and any 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.
6.3 Timing of Payment.
6.3.1 Initial/One Time Costs and Fees. Payment for Initial/One Time
Costs and Fees will be submitted as provided for in section 5 of this Agreement,
Exhibit “G” and the applicable invoice and Supplement, a summary of which is
provided below:
(i) Preparatory Work Fee: Within thirty (30) Days of date of City
invoice.
(ii) Make-Ready Engineering Work Fee: Within thirty (30) Days of date
of City invoice.
(iii) Make-Ready Construction Work Fee: On the date set forth in the
applicable Supplement; provided, however, that the Make-Ready Construction Work
Fee will be paid prior to the start of Make-Ready Construction Work;
6.3.2 Annual Costs and Fees.
(i) Year one: The Annual Costs and Fees for the first year shall be due
and payable to the City within sixty (60) Days of the Payment Commencement Date
specified in the applicable Supplement. For the first year, the Annual Costs and Fees
shall be prorated, as of the Payment Commencement Date through December 31st of
the first year.
(ii) Subsequent years. Unless otherwise provided by the applicable
Supplement or by Law or mutually agreed to by the Parties, the Annual Costs and Fees
for subsequent years shall be payable thereafter annually, in advance, by January 1st of
each year (however, if the Payment Commencement Date is in November or
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December, Licensee shall have sixty (60) Days from the Payment Commencement
Date to pay the 2nd year’s Annual Costs and Fees) so long as the Supplement remains in
effect during the Initial Term and the Extension Term, if any. The City will invoice
Licensee for Annual Costs and Fees in accordance with section 6.1.1.
(iii) Except as expressly provided in the Supplements, the Annual Costs
and Fees shall not be adjusted during the calendar year 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 Supplements or by Law. Such increased
costs shall be documented in an amendment to the applicable Supplement.
(iv) In addition to the Costs and Fees referred to in this section, the
Licensee shall be obligated to pay the City for any uncollected Annual Costs and Fees
which may be otherwise due and payable by the Licensee thru the current calendar year
on account of its early termination without cause of this Agreement.
6.3.3 Additional Costs and Fees. Payment for Additional Costs and
Fees (if any) will be submitted as provided for in accordance with applicable invoices,
Supplements, the Provisions and Law.
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 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 Licensee’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
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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
(G). The terms and conditions under which the Licensee or the Person representing the
Licensee may be permitted, in writing, to work within the electric utility space of a
Pole and a Conduit are set forth in Exhibits “D” and “E,” 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.
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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 “F.”
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 Supplement 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 Notices 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
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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 Supplement was executed 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
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, or access to
particular Poles and/or Conduits in an Application, for any of the reasons set forth in
Sections 3.2, 3.3 or 3.5, or 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
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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 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
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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 in the exercise of its right
to provide utility service to its customers, or to provide street lights or traffic lights,
need to attach additional facilities to any Pole and/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 if such rearrangement cannot be accomplished, transfer
them to replacement Pole(s) and/or Conduit(s), as determined by the City, so that the
additional facilities of the City shall be accommodated. The costs and expenses of
such rearrangement and/or transfer will be borne by and at the sole expense of the
Licensee.
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,
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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.
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, any
existing licensee, and/or any adjoining property owner, 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
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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. Licensee will
make best efforts to notify the City within 30 days of receipt of notice from its insurer
regarding any cancellation or termination of any insurance policies. 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 blanket additional insured 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 and address of
insured; project name and address; policy expiration date; and specific required
coverage amounts;
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 in respect to
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.
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13.3 Notice. The certificate(s) of insurance with blanket additional
insured 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. Notwithstanding the foregoing, the immediately preceding
sentence shall not apply to Licensee so long as Licensee maintains a net worth of no
less than $100 million, as currently evidenced by the net worth letter attached hereto as
Exhibit “H” and made a part hereof. “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 current. A failure by the Licensee to bring current the Bond
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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:
15.1.1 It is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation;
15.1.2 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;
15.1.3 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;
15.1.4 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;
15.1.5 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
15.1.6 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:
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15.2.1 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;
15.2.2 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;
15.2.3 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
15.2.4 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:
(i) A representation or warranty made by a Party is false or misleading
in any material respect when made;
(ii) 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;
(iii) 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
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they fall due;
(iv) Subject to the cure provisions set forth in this Agreement, including
in section 6, 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
(v) 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 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:
16.2.1 The right to terminate this Agreement, or in City’s discretion, an
applicable Supplement thereunder, 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
16.2.2 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
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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:
17.1.1 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
17.1.2 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.
17.1.3 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.
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:
17.4.1 the authority to do so is granted to the City by this Agreement or
by Law or conferred by a court of competent jurisdiction;
17.4.2 this Agreement has been validly terminated in accordance with
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this Agreement; or
17.4.3 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
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: Attn: Legal Department
660 Newport Center Drive
Suite 200
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Newport Beach, CA 92660
legal@mobilitie.com
Copy to:
Attn: Asset Management
660 Newport Center Drive
Suite 200
Newport Beach, CA 92660
assetmgmt@mobilitie.com
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
or any Supplement 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, Supplement(s) 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.
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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 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.
[Signature page follows]
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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
___________________________________
Senior Deputy City Attorney
CITY OF PALO ALTO
___________________________________
City Manager
ATTEST:
___________________________________
Director of Utilities
___________________________________
Director of Public Works
Mobilitie, LLC, a Nevada limited liability
company
By: _______________________________
Name: Christos Karmis
Title: President
Date: ______________________________
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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 H, inclusive, any new exhibits hereinafter
existing and any amendments thereto, are hereby incorporated in and made a part of the
Agreement.
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JM 07-001Mobilitie MLA Exhibits A-1
Exhibit “A”
Licensee Certificate of Public Convenience and Necessity
Certificate of Public Convenience and Necessity: U-7203-C
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JM 07-001 Mobilitie MLA Exhibits B-1
Exhibit “B”
Form of Supplement
This ____________Supplement (“Supplement No. ____”), made this _____ day of
____________, 20____ (“Supplement Effective Date”) between the City of Palo Alto, a
California chartered municipal corporation (“City”) and Mobilitie, LLC, a Nevada limited
liability company, with its principal offices at 660 Newport Center Drive, Suite 200,
Newport Beach, CA 92660 (“Licensee”). This Supplement is governed by the provisions
of the that certain Master License Agreement for Use of City Controlled Space on Utility
Poles, Streetlight Poles and Conduits between the City and Licensee dated
______________, 20____ ("Agreement"), and this Supplement is incorporated into the
Agreement.
1. Description and Location of Licensee Facilities. A description of the Licensee
Facilities and locations of such Licensee Facilities is attached hereto as Exhibit “1”.
Unless the City elects to accept alternative documentation, the Description and Location of
Licensee Facilities in Exhibit “1” shall include City-approved versions of the attachments
to the Processing Request Application (in substantially the form of Exhibit “G” to the
Agreement) submitted by Licensee.
2. Term. The term of this Supplement shall be as set forth in Section 2.1.3 of the
Agreement.
3. Fees and Costs. The Fees and Costs paid by Licensee and those that remain due
and payable are outlined in Exhibit 2 attached to this Supplement. Exhibit 2 includes all
Initial/One Time Costs and Fees, Annual Costs and Fees and Additional Costs and Fees
associated with Licensee Facitlies identified pursuant to Section 1 of this Supplement.
4. [RESERVED for Supplement-Specific Provisions]
[Signature page follows]
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Contract No. ______________
JM 07-001 Mobilitie MLA Exhibits B-2
IN WITNESS THEREOF, the Parties hereto have caused this Supplement to be
legally executed in duplicate as of the Supplement Effective Date.
CITY:
CITY OF PALO ALTO
By: _____________________________
Name: _____________________________
Title: _____________________________
APPROVED AS TO FORM
CITY ATTORNEY’S OFFICE
BY: ____________________________________
Senior Deputy City Attorney
LICENSEE:
Mobilitie, LLC, a Nevada limited liability
company
By: _____________________________
Name: _____________________________
Time: ______________________________
Exhibits:
Exhibit “1” – Description and Location of Licensee Facilities
Exhibit “2” – Description of Fees and Costs
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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits B-3
Form of Exhibit “1” to Supplement No. ____
Description and Location of Licensee Facilities
[to be Attached To City-spaces on Poles
and/or Installed in City Conduits]
Pursant to the terms of the Agreement, Licensee is authorized to install the Licensee
Facilities described, at the locations in the documentation attached to this Exhibit 1.
[Documentation required by section 1 of the Supplement to be attached]
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JM 07-001 Mobilitie MLA Exhibits B-4
Form of Exhibit “2” to Supplement No. ____
Costs and Fees
INITIAL/ONE-TIME COSTS AND FEES
CHARGE DESCRIPTION AMOUNT STATUS
Preparatory Work Fee [to be specified by City] PAID
Make-Ready Engineering Work Fee [to be specified by City] PAID
Make-Ready Construction Work
Fee
(less credit for Preparatory Work
Fee, Make-Ready Engineering
Work Fee paid to City)
[to be specified by City]
Due 60 days following the Supplement
Effective Date, and prior to start of any
construction
TOTAL: Initial/One Time Costs and Fees:
ANNUAL COST AND FEES
Payment Commencement Date: _______________________
CHARGE DESCRIPTION ANNUAL AMOUNT DUE DATE
Wires Facilities Attachment Fee
[to be specified by City]
Due 60 days following the Payment
Commencement Date in Year 1,
January 1st each year thereafter.
Wireless Facilities Attachment Fee
[to be specified by City]
Due 60 days following the Payment
Commencement Date in Year 1,
January 1st each year thereafter.
Conduit Occupancy Fees
[to be specified by City]
Due 60 days following the Payment
Commencement Date in Year 1,
January 1st each year thereafter.
Other Licensee Facility
[to be specified by City]
Due 60 days following the Payment
Commencement Date in Year 1,
January 1st each year thereafter.
TOTAL: Annual Costs and Fees:
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JM 07-001Mobilitie MLA Exhibits B-5
ADDITIONAL COSTS AND FEES (if applicable)
CHARGE DESCRIPTION AMOUNT DUE DATE
Other City Service Fees (if
applicable) [to be specified by City] 60 days following the Payment
Commencement Date
Electric Service Charges (if
applicable) [to be specified by City] 60 days following the Payment
Commencement Date
TOTAL: Additional Costs and Fees:
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JM 07-001Mobilitie MLA Exhibits C-1
Exhibit “C”
Fees and Costs
A. INITIAL/ONE-TIME COSTS AND FEES.
1. The Licensee shall pay the City for its 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 as specified in this Exhibit “C”.
2. Initial/One-Time Costs and Fees include Preparatory Work Fees,
Make-Ready Engineering Work Fees and Make-Ready Construction Work Fees and are a
one-time charge for each Licensee Facility, as provided for below and in the City’s Rules
and Regulations.
(a) PREPARATORY WORK FEES. Licensee will pay City a
non-refundable Preparatory Work Fee. The Preparatory Work Fee will depend on the
specific nature of the Licensee Facilities, but may include, without limitation, the
following:
Charge: Processing Charge
Description: The actual cost incurred for performing preliminary field
investigation to review pole attachment or conduit usage
submittal.
Price: Total Cost
(b) MAKE-READY WORK FEES. If Licensee elects to proceed with
installation of Licensee Facilities, Licensee will pay City non-refundable Make-Ready
Work Fees, which include the Make-Ready Engineering Work Fees and the Make-Ready
Construction Work Fees set forth below.
(i) MAKE-READY ENGINEERING WORK FEES. Make-Ready Work
Engineering Fees depend on the specific nature of the Licensee Facilities, but may include,
without limitation, Costs and Fess associated with engineering Make-Ready Work and the
following:
Charge: Engineering Charge
Description: The actual costs incurred by the City for reviewing contact
design, designing City modifications and updating operation
records.
Price: Total Cost
(ii) MAKE-READY CONSTRUCTION WORK FEES. Should Licensee
elect to move forward with design, installation and construction of Licensee Facilities after
completion of Make-Ready Engineering Work, Licensee will pay City a Make-Ready
Work Construction Fee. Preparatory Work Fees and Make-Ready Work Engineering Fees
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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits C-2
that are paid in full to City will be credited against Make-Ready Work Construction Fees.
Make-Ready Work Fees depend on the specific nature of the Licensee Facilities, but may
include, without limitation, Costs and Fees associated with construction-related
Make-Ready Work and the following:
Charge: Cable Attachment Charges
Description: The actual costs incurred by the City for making space
available and other modifications necessary to
accommodate each line attachment.
Price: Total Cost
Charge: Anchor Attachment Charges
Description: The actual costs incurred by the City for making provisions
for guying the structure at the communications level.
Price: Total Cost
Charge: Equipment Mounting Charges
Description: The actual costs incurred by the City for making space
available and other modifications necessary to
accommodate equipment (amplifiers, nodes, battery backup)
mounting.
Price: Total Cost
Charge: Electric Service Connection Charges
Description: The costs incurred by the City for providing electric service
connection to provide power to equipment attached to the
pole shall be payable in accordance with Utility Rate
Schedule E-15.
Price: Total Cost
Charge: Inspection Charge
Description: The actual costs incurred by the City for providing
inspection services upon completion of Make-Ready Work
and the Licensee’s equipment – typically 3 hours per pole.
Price: Total Cost
B. ANNUAL FEES.
The Fees applicable to Licensee Facilities attached to Poles or installed in conduit
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. The City reserves the right to
impose and collect different fees for the exclusive and nonexclusive occupation of the
Conduits in accordance with Laws.
C. ADDITIONAL COSTS AND FEES
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JM 07-001Mobilitie MLA Exhibits C-3
1. Other City Service Fees. Where Licensee’s Facilities require City to
render services beyond those identified in Sections A or B of this Exhibit C, the Fees for
the City’s rendering of services in regard to the attachment or installation of the Licensee’s
Facilities on Poles or in Conduits shall either be established in accordance with applicable
CPAU utility rate schedules or be based on cost recovery by City.
2. 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.
D. ADDITONAL PAYMENT TERMS AND CONDITIONS
1. 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 the greater of a late fee established by Law or the an amount equal to five percent
(5%) of those amounts then due and payable.
2. Utility Rate Schedules. The utility rate schedules referred to in this
Exhibit and any amendments hereto 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.
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JM 07-001Mobilitie MLA Exhibits D-1
Exhibit “D”
Terms and Conditions Regarding Use of Pole Spaces
1. The Licensee shall be responsible for performing its own engineering analysis,
which shall be submitted with the Processing Request Application – Exhibit “G”, 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 with the
operation of the Licensee Facilities arising in any manner from the use of the City
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JM 07-001Mobilitie MLA Exhibits D-2
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 those 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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JM 07-001Mobilitie MLA Exhibits D-3
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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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits E-1
Exhibit “E”
Terms and Conditions Regarding Use of City Conduit
1. The Licensee shall submit a Processing Request Application – Exhibit “G” 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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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits F-1
Exhibit “F”
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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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits G-1
Exhibit “G”
Form of Processing Request Application
Licensee Facility No. ______
(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 within the City of Palo Alto with Pole number and/or 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: __/____/__
I am submitting this Processing Request Application with the full understanding of the
following conditions, including the Costs and Fees applicable to Licensee Facilities
described in Exhibit “C” attached to the Agreement:
1. Upon the City’s receipt of a complete Application, the City will invoice the
Licensee for a non-refundable Preparatory Work Fee. Licensee will pay the
Preparatory Work Fee within thirty (30) days of receipt of the City’s invoice.
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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits G-2
2. Within twenty (20) days of the City’s receipt of the Preparatory Work Fee, the City
will complete Preparatory Work for the Application to determine whether and
where the Licensee Facilities are feasible and what Make-Ready Engineering Work
will be required.
3. Within seven (7) Days of the City’s completion of the Preparatory Work, the City
will notify the Licensee of the Make-Ready Engineering Work necessary for
Licensee Facilities and invoice Licensee for a non-refundable Make-Ready
Engineering Work Fee.
4. If Licensee elects to proceed with Licensee Facilities, within thirty (30) Days of
receipt of City’s notice and invoice for Make-Ready Engineering Work Fees,
Licensee will pay the Make-Ready Engineering Work Fee. Licensee’s payment of
such Make-Ready Engineering Work Fees will serve as notification to City that
Licensee intends to proceed with Make-Ready Engineering Work.
5. Within thirty (30) days of City’s completion of the Make-Ready Engineering
Work, the City will provide the Licensee with a description of the necessary
Make-Ready Construction Work for the Licensee Facilities and the Make-Ready
Construction Work Fees applicable to the Licensee Facilities. Preparatory Work
Fees and Make-Ready Engineering Work Fees paid by Licensee will be credited
against Make-Ready Construction Work Fees.
6. If the Parties mutually agree to proceed with Make-Ready Construction Work, the
Parties will execute a Supplement, substantially in the form of Exhibit “B” to this
Agreement. The Supplement will:
a. Set forth the non-refundable Make-Ready Construction Work Fee and due
date therefore; provided, however, that the Make-Ready Construction Work
Fee will be paid prior to the start of Make-Ready Construction Work; and
b. Specify whether the Make-Ready Construction Work for Licensee
Facilities, 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.
7. The City will complete the Make-Ready Work for the Licensee Facilities, as
needed, within one hundred five (105) Days of execution of the Supplement.
For Preparatory Work Fee and Make-Ready Engineering Work Fee 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:
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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits G-3
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 in accordance with section 18 of the
Agreement, including to to the Office of the City Attorney, 8th Floor City Hall, 250
Hamilton Avenue, P.O. Box 10250, Palo Alto, CA 94303, Attention of Senior Deputy City
Attorney, Utilities.
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Contract No. ______________
JM 07-001Mobilitie MLA Exhibits H-1
Exhibit “H”
Net Worth Letter
See attached.
DocuSign Envelope ID: 5617E40C-B0AB-4E3C-9656-27E82CCA2370
Certificate Of Completion
Envelope Id: 5617E40CB0AB4E3C965627E82CCA2370 Status: Sent
Subject: Please DocuSign: Mobilitie Master License Agreement FINAL.pdf, Mobilitie Palo Alto MLA Exhibits...
Source Envelope:
Document Pages: 63 Signatures: 1 Envelope Originator:
Supplemental Document Pages: 0 Initials: 0 Rachel Chiu
Certificate Pages: 5
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Time Zone: (UTC-08:00) Pacific Time (US &
Canada)
Payments: 0 250 Hamilton Ave
Palo Alto , CA 94301
rachel.chiu@cityofpaloalto.org
IP Address: 12.220.157.20
Record Tracking
Status: Original
6/15/2017 1:51:38 PM
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rachel.chiu@cityofpaloalto.org
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Christos Karmis
christos@mobilitie.com
President
President
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Jessica.Mullan@CityofPaloAlto.org
City of Palo Alto
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electronically is described below.
Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the
speed at which we can complete certain steps in transactions with you and delivering services to
you because we will need first to send the required notices or disclosures to you in paper format,
and then wait until we receive back from you your acknowledgment of your receipt of such
paper notices or disclosures. To indicate to us that you are changing your mind, you must
withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your
DocuSign account. This will indicate to us that you have withdrawn your consent to receive
required notices and disclosures electronically from us and you will no longer be able to use your
DocuSign Express user account to receive required notices and consents electronically from us
or to sign electronically documents from us.
All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein, we will provide
electronically to you through your DocuSign user account all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or
made available to you during the course of our relationship with you. To reduce the chance of
you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
notices and disclosures to you by the same method and to the same address that you have given
us. Thus, you can receive all the disclosures and notices electronically or in paper format through
the paper mail delivery system. If you do not agree with this process, please let us know as
described below. Please also see the paragraph immediately above that describes the
consequences of your electing not to receive delivery of the notices and disclosures
electronically from us.
Electronic Record and Signature Disclosure created on: 10/1/2013 8:33:53 AM
Parties agreed to: James Keene
How to contact City of Palo Alto:
You may contact us to let us know of your changes as to how we may contact you electronically,
to request paper copies of certain information from us, and to withdraw your prior consent to
receive notices and disclosures electronically as follows:
To contact us by email send messages to: david.ramberg@cityofpaloalto.org
To advise City of Palo Alto of your new e-mail address
To let us know of a change in your e-mail address where we should send notices and disclosures
electronically to you, you must send an email message to us at
david.ramberg@cityofpaloalto.org and in the body of such request you must state: your previous
e-mail address, your new e-mail address. We do not require any other information from you to
change your email address..
In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected
in your DocuSign account by following the process for changing e-mail in DocuSign.
To request paper copies from City of Palo Alto
To request delivery from us of paper copies of the notices and disclosures previously provided
by us to you electronically, you must send us an e-mail to david.ramberg@cityofpaloalto.org and
in the body of such request you must state your e-mail address, full name, US Postal address, and
telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with City of Palo Alto
To inform us that you no longer want to receive future notices and disclosures in electronic
format you may:
i. decline to sign a document from within your DocuSign account, and on the subsequent
page, select the check-box indicating you wish to withdraw your consent, or you may;
ii. send us an e-mail to david.ramberg@cityofpaloalto.org and in the body of such request
you must state your e-mail, full name, IS Postal Address, telephone number, and account
number. We do not need any other information from you to withdraw consent.. The
consequences of your withdrawing consent for online documents will be that transactions
may take a longer time to process..
Required hardware and software
Operating Systems: Windows2000? or WindowsXP?
Browsers (for SENDERS): Internet Explorer 6.0? or above
Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0,
NetScape 7.2 (or above)
Email: Access to a valid email account
Screen Resolution: 800 x 600 minimum
Enabled Security Settings:
•Allow per session cookies
•Users accessing the internet behind a Proxy
Server must enable HTTP 1.1 settings via
proxy connection
** These minimum requirements are subject to change. If these requirements change, we will
provide you with an email message at the email address we have on file for you at that time
providing you with the revised hardware and software requirements, at which time you will
have the right to withdraw your consent.
Acknowledging your access and consent to receive materials electronically
To confirm to us that you can access this information electronically, which will be similar to
other electronic notices and disclosures that we will provide to you, please verify that you
were able to read this electronic disclosure and that you also were able to print on paper or
electronically save this page for your future reference and access or that you were able to
e-mail this disclosure and consent to an address where you will be able to print on paper or
save it for your future reference and access. Further, if you consent to receiving notices and
disclosures exclusively in electronic format on the terms and conditions described above,
please let us know by clicking the 'I agree' button below.
By checking the 'I Agree' box, I confirm that:
• I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF
ELECTRONIC CONSUMER DISCLOSURES document; and
• I can print on paper the disclosure or save or send the disclosure to a place where I can
print it, for future reference and access; and
• Until or unless I notify City of Palo Alto as described above, I consent to receive from
exclusively through electronic means all notices, disclosures, authorizations,
acknowledgements, and other documents that are required to be provided or made
available to me by City of Palo Alto during the course of my relationship with you.