HomeMy WebLinkAbout2009/10/06 Item 19!TY COUNCIL
STATEMENT
~`~~ CtTY OF
CHUtAVISTA
OCTOBER 6, 2009, Item ~`~
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING NETWORK LICENSE AND
ENCROACHMENT PERMIT AGREEMENT WITH NEXTG
NETWORKS, INC., FOR THE INSTALLATION AND
OPERATION OF AS MANY AS 100 WIRELESS MICRO
TELECOMMUNICATIONS FACILITIES OR
SUBSTANTIALLY SIMILAR FACILITIES ON CITY-
OWNED AND CONTROLLED PROPERTY, SUBJECT TO
ALL NECESSARY APPROVALS, FOR A PERIOD OF 10
YEARS WITH AN OPTION TO RENEW FOR TWO
ADDITIONAL FIVE YEAR TERMS
SUBMITTED BY: DIRECTO ONS NATION & ENVIRONMENTAL
SERVIC
CITY MANAGER
REVIEWED BY: ASSISTANT CIT NAGER ~~
4/STNS VOTE: YES ~ NO ^X
SUMMARY
Conservation & Environmental Services Department (CES) is submitting a
Telecommunications Network License and Encroachment Permit Agreement with NextG
Networks Inc. of California, a Delaware Corporation (NextG) for the City Council's
review and consideration. Adoption of the proposed resolution would establish an
Agreement between the City and NextG for the installation of up to 100 total wireless
telecommunication facilities (WTF) on property owned or controlled by the City
substantially as documented in Exhibit A. The City anticipates that NextG may seek up
to 20 additional sites on private property.
The proposed Agreement includes mutually beneficial and agreed upon terms including
timely and cost effective processing options for a number of substantially similar
facilities within the City, $300 per site initial fee, $500 per site annual fee, a 3% per year
CPI adjustment for facilities on property owned or controlled by the City, 5% of gross
revenue for all facilities on public or private property within the City, use of fiber for City
19-1
OCTOBER 6, 2009, Item
Page2of5
communications, and an increased. performance and security bond level and related
provisions that protect the condition of the Right of Way. The NextG facilities establish
a wireless network that addresses two of the Council's historical objectives: provision of
co-location at each site that will support at least two carriers, and extension of the quality
and availability of coverage for emerging wireless telecommunication services to
commercial, residential, and educational customers in a competitive manner.
The Agreement establishes an initial ten-year term with options for two additional five-
year terms that are subject to the City's review and approval. The City retains its
preferred technical conditions and language that supports the collection of related
Franchise Fees and Utility User's Tax from the ultimate carrier.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed activity, approval of
a Master Licensing Agreement, for compliance with the California Environmental
Quality Act (CEQA) and has determined that the activity is not a "Project" as defined
under Section 15378 of the State CEQA Guidelines. Therefore, pursuant to Section
15060 (c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA.
Although environmental review is not necessary at this time, each individual wireless
telecommunication facility will have environmental review once the projects are further
defined and a CEQA determination will be completed prior to installation of any new
facilities.
RECOMMENDATION
That Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Staff has submitted the proposal to the Technology Sub-committee and will be prepared
to verbally present their comments and recommendation at the Council meeting if
requested.
DISCUSSION
The City Council approved Resolution 18601 on March 18, 1997, conceptually
approving the marketing of City properties for use by telecommunications companies.
On September 16, 1999, the City Council approved Master License Agreements (MLA)
with AT&T and Cox PCS, Assets, LLC, for installation and operation of as many as 50
wireless communication sites on property owned or controlled by the City. The City also
approved an MLA with Pacific Bell Wireless, LLC for as many as 25 sites in November
2002, with Cricket for as many as 35 sites in February 2006, and with the New Cingular
(AT&T) for as many as 25 sites in July 2007. In December 2007 the City completed an
MLA with T-mobile for up to 25 sites. There are approximately 2~ sites on property
owned or controlled by the City under those leases generating approximately $400,000 in
annual lease revenue with approximately another 13 sites currently in consideration.
NextG is applying for a license agreement that would cover up to 100 ``micro" sites on
City owned or controlled property and additional sites on private property that serve to
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OCTOBER 6, 2009, Item
Page 3 of 5
fill in the areas of poor signal coverage or high volume for existing carriers. The
proposed facilities are similar in nature and substantially as depicted in Exhibit A.
In 1998, when the City began negotiations, Council originally directed staff to negotiate
rates that would provide wireless carriers an incentive to come to Chula Vista. It was
Council's desire at that time to see Chula Vista commercial and residential consumers
have the opportunity to be early adopters of the technology and benef t from the
competition of multiple carriers. Staff reached out to the industry, held workshops and
invited them to the City to structure "master'' agreements that would provide prompt
entry at below-market rates. Eleven years later; now that the technology is readily
available and provides competitive options, Council has asked staff to ensure that the
City is receiving market rates for its sites.
Additionally, over a relatively short period of time, the technology has evolved from a
unique business tool, used by a few people, primarily in commercial areas, to a common
business and household convenience used .almost everywhere. That has .put tremendous
demand on sites in predominantly residential areas with few site options. The increase in
sites to cover the varied topography of a grov~~ing city increases exponentially by: 1) the
limitations that each site can carry during peak periods, 2) the increased intensity of
bandwidth use for items such as music, video and Internet uses versus the original voice
functions, and 3) the desire to accommodate more carriers with the expectation of
fostering greater consumer choice, competition for price and service quality. The public
demand for these services continues to grow and all of these issues place a greater
demand on sites, particularly in residential neighborhoods. Federal and state law does
not allow cities to deny permits based on health or solely on aesthetics issues, or to deny
permits for which there are no reasonable alternatives. The Council and staff have
worked with industry for many years on a "master license agreement" approach to reduce
the pressure on siting these facilities in less appropriate areas.
The MLAs or in this case the Network License provides the City with an opportunity to
work cooperatively with the carriers to expedite their projects, provide adequate volume
and coverage needed to meet public demand, provide incentives to pursue sites that have
the least impact to residents, and meet the aesthetic and safety goals of the community
while capturing revenue that helps the City fund public services at no additional cost to
the ratepayer. Above all, the wireless industry values rapid deployment, and works with
the City to accommodate the community's objectives based predominantly on our ability
to demonstrate a record of timely zoning and construction approvals that support that
goal. The City Attorney's Office, Finance, Planning, and Risk Management have
provided critical assistance to CES in developing and securing the terms needed to
protect the public interest while meeting the objectives of the communications industry
and consumers.
NextG is an existing network provider operating in San Diego, Carlsbad, Poway and
other cities that is seeking to expand and improve its coverage in a region where it is not
a direct service provider. Staff is recommending that the City execute an Agreement
between the City and NextG Networks Inc, (Attachment 1) which outlines mutually
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OCTOBER 6, 2009, Item
Page4of5
beneficial terms based predominantly on the terms and conditions currently in place with
other City wireless communication partners.
NETWORK LICENSE AND ENCROACHMENT PERMIT AGREEMENT: The proposed
Agreement allows NextG to install as many as 100 total WTF's on property owned
and/or controlled by the City, and to operate within the scope of this Agreement for a
period often years. The Agreement allows for as many as two additional five-year terms,
at the City's discretion. NextG has completed that negotiation on what staff considers to
be mutually beneficial terms.
IMPACTS oN CITY PROPERTY: As depicted in Exhibit A, the sites are micro sites that are
typically attached to City street light standards. NextG has also submitted preliminary
plans for traffic signals standards and the Public Works Department has denied that
request for safety reasons and committed to assisting NextG with installation on adjacent
street light standards or other appropriate locations in the Right-of--Way that appear to be
readily available. NextG has obtained a secondary non-metered energy rate from SDG&E
that does not require a separate meter further reducing the physical and visual impacts to
the right of way (ROW) from an additional meter pedestal. There is no cost to the City
for energy or other utilities related to NextG's installations.
NextG is required to comply with all local, state and federal applicable Iav~~s. The permits
shall be administratively approved for each site and shall contain specific conditions that
must be satisfied and maintained in order to use the wireless facility. The Schedule of
Premises will be submitted to the Zoning Administrator and circulated to the Director of
Conservation & Environmental Services (CES} and all other appropriate departments.
NextG shall continue to pay the apprapriate full staff costs for processing each submittal.
All of NextG's construction, installation, maintenance and removal of the WTF facilities
will be at their sole responsibility and cost. If NextG causes any damage to the public
right of way or City property, they are required to repair it promptly at their sole cost.
NextG will not be allowed to activate their site until the City signs off on final
construction. The original Agreement, the Schedule of Premises for each site, and City
Municipal Code provide for a number of risk mitigation measures for the City including:
indemnity; insurance requirements; limitation on remedies available to Next G in the
event of a City breach; and reservation of the City's emergency and police powers.
All installations will be required to receive all applicable permits, and NextG will work
closely with Development Services; Public Works and CES to assure that they do not
interfere with City operations or facility maintenance. NextG equipment installations
v~Till require some trenching and cabling which employs amicro-trenching system of
approximately one inch and is very similar to the traffic signal control loop installations
commonly seen in City intersections. NextG will fill and seal their trenches to the
satisfaction of the City Engineer. The installations will require maintenance and
administration on a limited basis. All proposed facilities would be required to secure all
necessary land use, building, and engineering permits. NextG will also establish their
own network trunk lines and whenever possible they will lease space and place them in
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OCTOBER 6, 2009, Item ~~
Page 5 of 5
existing conduit, on existing utility poles or when necessary place their own conduit in
the Right-of--Way.
FINANCIAL BENEFITS: NextG will make aone-time Administrative Fee payment to the
City of $300 for each site and will also pay the City 5% of gross revenue from all sites on
property owned or controlled by the City and private property sites within the City
boundary. The annual lease fee for each approved WTF site on property owned or
controlled by the City is $500 per year and is subject to a 3% annual increase. Annual
Fees are due January 1 of each year.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific and consequently the X04-foot rule found in California Code of
Regulations section 18704.2(a)(1) is not applicable to this decision.
CURRENT YEAR FISCAL IMPACT
Staff anticipates that NextG will install up to 20 sites on City property this fiscal year
generating approximately $16,000 in annual lease and Administrative Fee payments.
NextG will also make a deposit of approximately $3,500 for development review per site
to pay the cost of staff processing for each site, which would generate another $70,000 in
potential staff reimbursement costs. Staff estimates the gross revenue fee to be
approximately $10,000 per year in the first years until the 104-site network is built out.
ONGOING FISCAL IMPACT
Staff projects that a minimum of 8~ of the 100 potential sites would be installed on
property owned or controlled by the City generating approximately $24,000 in additional
Administrative Fees, $42,500 in annual lease fees, and 5% in gross revenue or at least an
additional $42,500. The co-location and micro site approach is very beneficial for
managing the aesthetic and physical impacts to the City; however, it is possible that the
network could reduce the growth in new WTF applications, which currently generate an
estimated $28,000 per year per site for the City's general fund and they could eliminate
the need for two carriers to renew their leases for existing sites. Additionally, the City is
reimbursed for staff time spent on review and approval of each site application submitted
for the planning process. The staff time reimbursements for the remaining 80 sites would
be approximately $300,000. There will be some staff time associated with monitoring
and ensuring compliance with the MLA, which is budgeted as part of the CES
Department annual responsibility. The Finance Department also plays a key role in
assisting CES in estimating, tracking and collecting revenues.
ATTACHMENTS
1. Proposed License Agreement
Prepared b~~: Michael Meacham, Director, Conse~wation & Environmental Services
19-5
RESOLUTION NO. 2009-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING NETWORK LICENSE AND
ENCROACHMENT PERMIT AGREEMENT WITH NEXTG
NETWORKS, INC., FOR THE INSTALLATION AND
OPERATION OF AS MANY AS 100 WIRELESS MICRO
TELECOMMUNICATIONS FACILITIES OR
SUBSTANTIALLY SIMILAR FACILITIES ON CITY-OWNED
OR CONTROLLED PROPERTY, SUBJECT TO ALL
NECESSARY APPROVALS, FOR A PERIOD OF 10 YEARS
WITH AN OPTION TO RENEW FOR TWO ADDITIONAL
FIVE YEAR TERMS
WHEREAS, the City Council approved Resolution 18601 on March 18, 1997,
conceptually approving the marketing of City properties for use by telecommunications
companies; and
WHEREAS, on September 16, 1999, the City Council approved Master License
Agreements (MLA) with AT&T and Cox PCS, Assets, LLC for installation and operation of as
many as 50 wireless communication sires on property owned or controlled by the City; and
WHEREAS, the City also approved an MLA with Pacific Bell Wireless, LLC for as
many as 25 sites in November 2002, with Cricket for as many as 35 sites in February 2006, and
with the New Cingular (AT&T) for as many as 25 sites in July 2007; and
WHEREAS, in December 2007, the City completed an MLA with T-mobile for up to 25
sites; and
WHEREAS, there are approximately 25 sites on property owned or controlled by the City
under those leases generating approximately $400,000 in annual lease revenue with
approximately another 13 sites currently in consideration; and
WHEREAS, NextG is applying for a license agreement that would cover up to 100
"micro" sites on City owned or controlled property that serve to fill in the areas of poor signal
coverage or high volume for existing carriers; and
WHEREAS, in 1998, when the City began negotiations, Council originally directed staff
to negotiate rates that would provide wireless carriers an incentive to come to Chula Vista; and
WHEREAS, it was Council's desire at that time to see that Chula Vista commercial and
residential consumers have the opportunity to be early adopters of the technology and benefit
from the competition of multiple carriers; and
C:\Documents and Settings\joycem\Local Settings\Temporary Internet Files\OLK12\NextG Reso for 9-01-09 Agenda Item.doc
19-6
Resolution No. 2009-
Page 2
WHEREAS, staff reached out to the industry, held workshops and invited them to the
City to structure "master" agreements that would provide prompt entry at below-market rates;
and
WHEREAS, eleven years later, now that the technology is readily available and provides
competitive options, Council has asked staff to ensure that the City is receiving market rates for
its sites; and
WHEREAS, over a relatively short period of time, the technology has evolved from a
unique business tool, used by a few people, primarily in commercial areas, to a common business
and household convenience used almost everywhere; and
WHEREAS, the increase in usage has put tremendous demand on sites in predominantly
residential areas with few site options; and
WHEREAS, the increase in sites to cover the varied topography of a growing city
increases exponentially by: 1) the limitations that each site can carry during peak periods, 2) the
increased intensity of bandwidth use for items such as music, video, and Internet uses versus the
original voice functions, and 3) the desire to accommodate more carriers with the expectation of
fostering greater consumer choice, competition for price and service quality; and
WHEREAS, the public demand for these services continues to grow and all of these
issues place a greater demand on sites, particularly in residential neighborhoods; and
WHEREAS, Federal and state law does not allow cities to deny permits based on health
or solely on aesthetics issues, or to deny permits for which there are no reasonable alternatives;
and
WHEREAS, the Council and staff have worked with industry for many years on "master
license agreement" approach to reduce the pressure on siting these facilities in less appropriate
areas; and
WHEREAS, the MLAs or in this case the Network License provides the City with an
opportunity to work cooperatively with the carriers to expedite their projects, provide adequate
volume and coverage needed to meet public demand, provide incentives to pursue sites that have
the least impact to residents, and meet the aesthetic and safety goals of the community while
capturing revenue that helps the City fund public services at no additional costs to the ratepayer;
and
WHEREAS, above all, the wireless industry values rapid deployment and works with the
City to accommodate the community's objectives based predominantly on our ability to
demonstrate a record of timely zoning and construction approvals that support that goal; and
WHEREAS, NextG is an existing network provider operating in San Diego, Carlsbad,
Poway and other cities that is seeking to expand and improve its coverage in a region where it is
not a direct service provider; and
G\Documents and Settings\j oycemV.ocal Settings\Temporary Internet Eles\OLK12\NextG Reso for 9-O1-09 Agenda Item.doc
19-7
Resolution No. 2009-
Page 3
WHEREAS, staff is recommending that the City execute an Agreement between the City
and NextG Networks, Inc. that outlines mutually beneficial terms and conditions currently in
place with other City wireless communication partners; and
WHEREAS, the proposed Agreement allows NextG to install as many as 100 total
WTF's on property owned or controlled by the City and to operate within the scope of this
Agreement for a period often years; and
WHEREAS, the Agreement allows for the original ten year term to be extended for two
additional five-year terms, subject to the written approval of both Parties; and
WHEREAS, NextG and the City have completed negotiations on what staff considers to
be mutually beneficial terms; and
WHEREAS, the sites are micro sites that are typically attached to City street light
standards; and
WHEREAS, NextG has obtained a secondary non-metered energy rate from SDG&E that
does not require a separate meter further reducing the physical and visual impacts to the right-of-
way (ROW) from an additional meter pedestal; and
WHEREAS, there is no cost to the City for energy or other utilities related to NextG's
installations; and
WHEREAS, NextG is required to comply with all applicable local, state and federal
laws; and
WHEREAS, the permits shall be administratively approved for each site and shall
contain specific conditions that must be satisfied and maintained in order to use the wireless
facility; and
WHEREAS, the Schedule of Premises will be submitted to the Zoning Administrator and
circulated to the Director of Conservation & Environmental Services (CES) and all other
appropriate departments; and
WHEREAS, NextG shall continue to pay the appropriate full staff costs for processing
each submittal; and
WHEREAS, all of NextG's construction, installation, maintenance and removal of the
WTF facilities will be at their sole responsibility and cost; and
WHEREAS, if NextG causes any damage to the public right-of--way or City property,
they are required to repair it promptly at their sole cost; and
WHEREAS, NextG will not be allowed to activate their site until the City signs off on
final construction; and
J'\Attomey\FINAL RESOS\2009U0 06 09WextG Reso.doc
19-8
Resolution No. 2009-
Page 4
WHEREAS, the original Agreement, the Schedule of Premises for each site, and City
Municipal Code provide for a number of risk mitigation measures for the City including:
indemnity, insurance, assumption of risk, and security in the form of a performance bond; and
Wt-IEREAS, all installations will be required to receive all applicable permits, and NextG
will work closely with Development Services, Public Works, and CES to assure that they do not
interfere with City operations or facility maintenance; and
WHEREAS, NextG equipment installations will require some trenching and cabling
which employs amicro-trenching system of approximately one inch and is very similar to the
traffic signal control loop installations commonly seen in City intersections; and
WHEREAS, NextG will fill and seal their trenches to the satisfaction of the City
Engineer; and
WHEREAS, the installations will require maintenance and administration on a limited
basis; and
WHEREAS, all proposed facilities would be required to secure all necessary land use,
building, and engineering permits.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista
does hereby:
1. Approve a Telecommunications Network License and Encroachment Permit
Agreement with NextG Networks, Inc., for the installation and operation of as many as 100
wireless micro telecommunications facilities or substantially similar facilities on City-owned or
controlled property, subject to all necessary approvals, for a period of 10 years with the option to
extend the contract for two additional five year term;
Presented by
Michael Meacham
Director of Conservation and
Environmental Services
C:\Documents and Settings\j oycem\Local Settings\Temporary Internet Files\OLKI2\NextG Reso for 9-01-09 Agenda Item.doc
19-9
City Attorney
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY' S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAT, BY
THE CITY C(7~L~ATC
Bart C. Miesfeld
City Attorney
Dated: ~ j
NETWORK LICENSE AND ENCROACHMENT PERMIT AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND
NEXTG NETWORKS, INC.
19-10
TELECOMMUNICATION NETWORK
LICENSE AND ENCROAC~IMENT AGREEMENT
This License and. Encroaclunent Agreement ("Agreement) is entered into this
day of October, ?009, by and between the City of Chula Vista, a California. municipal
corporation, hereinafter referred to as the ("City") and NextG Networks of California, Inc.
hereinafter referred to as ("NextG" or "Licensee") (collectively, the "Parties"). The effective
date shall be the date this Agreement is approved by the Chula Vista City Council, as evidenced
by the date indicated hereinabove (the "Effective Date").
RECITALS
WHEREAS, City is responsible for management of the public right of way and performs
a wide range of vital tasks necessary to preserve the physical integrity of public streets and ways,
to control the orderly flow of vehicles, to promote the safe movement of pedestrians, and to
manage a number of Qas, water, sewer, electric, cable television, telephone and
telecommunications facilities that are located in, under and over the streets and public right of
ways; and
WHEREAS, Licensee builds, owns, and leases fiber optic distributed antenna systems to
improve wireless coverage and capacity for telecommunications carriers; and
WHEREAS, Licensee balances the needs of communities and consumers vTith the needs
of wireless service providers by using apatented i ber-optic architecture, low-impact, low-
emission equipment without the need for tall cellular towers; and
WHEREAS, Licensee's networks are protocol and frequency agnostic. they can camp
cellular, PCS, WiFi, or any combination of wireless frequencies and standards; and
WHEREAS, Licensee's networks can serve a variety of wireless. service providers .
thereby promoting collocation with aesthetic pleasing designs; and
WHEREAS, Licensee does not own or manage Federal Communications Commission
regulated and licensed frequencies but owns, maintains, operates and controls, in accordance
with regulations promulgated by the Federal Communications Commission and the California
Public Utilities Commission, a telecommunications Network or Networks (as defined below)
serving Licensee's established wireless carrier customers and utilizing microcellular optical
repeater equipment (referred to herein as "Licensee's Facilities" or ``Nodes''} certified by the
Federal Communications Commission; and
WHEREAS, for purpose of operating the Network, Licensee wishes to locate. place.
attach, install, operate, control. and maintain Licensee's Facilities in the Public Rights-of--Way,
on facilities owned by the City, as well as on facilities owned by third parties therein; and
NEXTG AGREEMENT
07!30/2009
19-11
WHEREAS, in addition to normal published right-of--way and/or encroachment-related
permitting fees, Licensee is willing to compensate the City for (1) processing fees on a per Node
basis, (2) a grant of location and the right to use and physically occupy portions of the Public
Rights-of--Way, and (3) access to Municipal Facilities located in the rights-of--way owned by the
City; and
WHEREAS, Licensee has submitted a request to enter into an Agreement with the City
to encroach upon and occupy portions of the public right of way in certain streets, easements,
and upon certain public improvements for the purposes of installing Licensee's facilities; and
WHEREAS, in consideration of Licensee's request, City is willing to approve
Licensee's use and occupation of certain public right of way and certain public improvements
upon the terms, conditions and other considerations set forth herein.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree to the following covenants, terms, and
conditions:
Section 1. Definitions. The following definitions shall apply generally to the
provisions of this Agreement:
- - - 'City. "City" means the City of Chula Vista. ~ '
Decorative Streetlight Pole. "Decorative Streetlight Pole" shall mean any streetlight pole that
incorporates artistic design elements not typically found in standard steel or aluminum streetlight
poles and does not have a mast arm for electrolier support. Decorative Streetlight Poles may not
be used for the Network without prior written approval by City. The term Decorative Streetlight
Pole includes any historically or architecturally significant or designated light poles ov~~~ed by
the City located on Public Rights-of--Way.
Fee. "Fee" means any assessment, license, charge; fee, imposition, tax, or levy of general
application to entities doing business in the City lawfully imposed by any governmental body
(excluding utility users' tax, franchise fees, communications tax, or similar tax or fee}.
Grc-ss Revenue Fee. "Gross Revenue Fee" shall mean and include any and all income and other
consideration collected, received, or in any manner gained or derived by Licensee from or in
connection with, the provision of Services, either directly by Licensee or indirectly through a
reseller, if any, to customers of such services within the City of Chula Vista, including any
imputed revenue derived from commercial trades and barters equivalent to the full retail value of
services provided by Licensee. Gross Revenue shall not include: (a) sales, ad valorem, or other
types of "add-on'' taxes, levies. or fees calculated by gross receipts or gross revenues which
might have to be paid to or collected for federal, state, or Iocal government (exclusive of the
Municipal Facilities Annual Fee paid to the City provided herein); (b) retail discounts or other
promotions; (c) non-collectable amounts due Licensee or its customers; (d) refunds or rebates;
and (e) non-operating revenues such as interest income or gain from the sale of an asset.
NEXTG AGREEMENT
07!30/2009
19-12
Installatio~z Date. "Installation Date" shall mean the date that the first Licensee Facility is
installed by Licensee pursuant to this Agreement.
Laws. "Laws" meads any and all statutes. constitutions, ordinances, resolutions, regulations,
judicial decisions, rules, tariffs, administrative orders, certificates, orders, or other requirements
of the City or other governmental agency having joint or several jurisdictions over the parties to
this Agreement.
Licensee's Facilities. "Licensee's Facilities" or "Node(s)" means the optical repeaters, D«JDM
and CWDM multiplexers, antennae, fiber optic cables, wires, and related equipment, v~~hether
referred to singly or collectively, to be installed and operated by Licensee hereunder. Only the
installation design configurations of Licensee's Facilities that are shown in the drawings and
photographs, attached hereto as Exhibit A and incorporated herein by reference, may be used on
City Municipal Facilities. Any Licensee Facility installation or configuration not contained
within Exhibit A or as the parties shall agree is not substantially similar thereto must receive
written City approval before it may be used on any City Municipal Facility or placed on or in the
Public Rights-of--Way.
Mu~ri.eipal Facilities. `'Municipal Facilities" means City-awned Streetlight Poles, Decorative
Streetlight Poles, lighting fixtures, electroliers, or comparable facility located within the Public
Way and may refer to such facilities in the singular or plural, as appropriate to the context in
which used.
Network. '`Network" or collectively "Networks" means one or more of the neutral-host,
protocol-agnostic, fiber-based optical repeater. networks operated by Licensee to serve its
wireless carrier customers in the City.
Node. "Node" is the portion of NextG Networks facilities that are attached to street lights and/or
utility poles including the remote electronics box, antenna and associated coax, and fiber and
power cables connecting this equipment.
Notice of Reduction. "Notice of Reduction" shall mean a written notice delivered to the City in
the manner required under Section 3, herein, which contains the reason for removal of the
Node(s), documentation supporting the justification for removal that meets one of the categories
identified in Section 6(e), and an approximate timeframe for removal of the Node(s).
Public Way, Right-of--Way, or Public Rights-of--Way. "Public Way," "Right-af--Way, or "Public
Rights-of--Way" means the space in, upon, above, along, across, and over the public streets,
roads, lanes, courts, ways, alleys, boulevards, and places, including all public utility easements
and public service easements as the same now or may hereafter exist, that are under the
jurisdiction of the City. This term shall not include any other property owned by the City or any
property owned by any person or entity (e.g. county, state, or federal rights-of--way) other than
the City, except as provided by applicable Laws or pursuant to an agreement between the City
and any such person or entity.
PUC. "PUC" means the California Public Utilities Commission.
Reduction Date. "Reduction Date" shall mean the date on which the later of the receipt by the
City of a valid Notice of Reduction or the removal of the Node(s) from the City right-of--way
and/or facilities occurs.
NEXTG AGREEMENT 3
07/30/2009
19-13
Services. "Services" means the services provided through the Network by Licensee to its
wireless carrier customers pursuant to one or more tariffs filed with and regulated by the PUC.
Str^eetlight Pole. "Streetlight Pole" shall mean any non-Decorative, standard-design concrete,
fiberglass, or metal pole that has a mast arm for electrolier support and is used for streetlighting
purposes.
Ti~affrc Ligl2t Pole. "Traffic Light Pole" means the pole and mast arm, which supports the signal
head.
Section 2. Authorization. Subject to the terms and conditions contained herein,
City hereby authorizes Licensee to encroach upon and occupy a portion of the Public Rights-of-
Way for the limited purpose of constructing, installing, operating and maintaining Licensee's
Facilities upon Municipal Facilities, more particularly described in Exhibit A, to provide service
to wireless carriers.
Licensee may have the right to draw compatible electricit}% for the operation of the Licensee's
Facilities from the power source associated with the Municipal Facility so long as Licensee's
Facilities are installed to all applicable codes and standards, do not interfere in the operation of
the host Municipal Facility, and/or do not damage the host Municipal Facility. City shall not be
responsible to provide any specified voltage or wattage. of electricity that is compatible with any
Licensee's Facilities. Licensee shall be solely responsible for the payment of all electrical utility
charges to the applicable utility compan}~ based upon the Licensee's Facilities usage of
electricity and applicable tariffs. Licensee's Facilities shall not draw compatibles electricity from
Municipal Facility until such time as Licensee has secured all required electrical approvals and
the electricity charging/payment agreement with the electrical utility company is in place.
In addition to authorization to attach to Municipal Facilities, subject to obtaining the written
permission of the owner(s) of the affected property. the City hereby authorizes and permits
Licensee, to enter upon the Public Rights-of--Way and to attach, install, operate, maintain,
remove, reattach; reinstall, relocate, and replace such number of Licensee's Facilities in or on
poles or other third-party structures o~med by public utility companies or other property owners
located within the Public Way as may be permitted by the public utility company or property
owner, as the case may be. At City's request, Licensee shall furnish to the City documentation
of such permission from the individual utility or property owner responsible. Exhibit A
represents agood-faith description of Licensee's Facilities, and a denial of an application for the
attachment of Licensee's Facilities equipment to third-party-owned poles or structures in the
Public Way shall not be based upon the size. quantity, shape. color, weight. configuration, or
other physical properties of Licensee's Facilities equipment if the Licensee's Facilities
equipment proposed for such application substantially conforms to one of the design
configurations and Node specifications set fortl-i in Exhibit A. Ln the event that the Parties
disagree as to whether the proposed Licensee's Facilities equipment or Node substantially
conforms to one of the design configurations and Node specifications set forth in Exhibit A, the
parties shall meet in good faith in an effort to resolve this dispute with the City Engineer, whose
decision shall be final.
NEXTG AGREEfv1ENT
07/30/2009
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Section 3. Term. The commencement date ("Commencement Date") shall be the
I st day of the month following the Effective Date. This Agreement shall be effective for a period
often (10} years starting on the Commencement Date. ,
a. Extension of Term. The term of this Agreement may be extended for two
additional five-year terms (for a maximum often additional years) upon the mutual written
consent of the Parties.
Section 4. Permitting and Location of Nodes. City agrees to permit Licensee to
place up to one hundred (100) telecommunications Nodes in the City's Right-of--Way. NextG
shall apply for encroachment permits and pay any standard and customary permit fees. City
shall use its best efforts to respond to NextG's requests for permits within 30 days and shall
otherwise cooperate with NextG in facilitating the deployment of the Network in the Public
Rights-of--Way in a reasonable and timely manner. The Parties agree that Exhibit A represents a
good-faith representation of the equipment that Licensee plans to attach to Municipal Facilities,
thatauch design configurations and Node specifications may be attached to Municipal Facilities
and to third-party facilities. Licensee shall present any deviation to the design configurations
and Node specifications described in Exhibit A to the City, which shall use its best efforts to
review and either approve or deny within thirty (30) days. Any change to the design
configurations and Node specifications in Exhibit A may be approved by the City so long as the
equipment is substantially similar in size, weight. shape; color; configuration or other physical
properties. In the event that the Parties disagree as to whether the proposed Licensee's Facilities
equipment or Node.-substantially conforms to one of the design configurations and Node
specifications set-forth in~Exhibit A, the Parties shall meet in good faith in an effort to resolve
this dispute with the City Engineer, whose determination shall be final.
Node antenna. and supporting Node equipment at its lowest point, on the Streetlight pole
or comparable facility located in the Public VJay, must be placed at a minimum height of eight
feet (8') above the ground.
In addition to the City permitting process, Licensee agrees to seek any and all additional
local, state and federal approvals that may be required fo-r its deployments, such as approvals that
might be required from the California Coastal Corrunission (to the extent that the City does not
have California Coastal Commission permitting authority).
For Licensee's initial deployment. City shall make available to Licensee approximately
9,027 streetlight poles or comparable facility located within the City's Right-of--Way for the
placement of Licensee's Nodes, substantially in the locations described in the Network Plan
provided to the City, attached hereto as Exhibit B. Notwithstanding, the use of any particular
Municipal Facility Right-of--Way structure, comparable facility, or pole shall be subject to the
City Engineer's sole discretion and approval in advance of the placement of the Licensee's
telecommunications infrastructure.
Section ~. ScoAe of Agreement. To the extent permitted by law and with respect to
fees established and the manner calculated pursuant to this Agreement, the Licensee, by entering
into this Agreement; waives any current or future rights reserved under California Government
Code Section 50030, California Public Utility Code or the Telecommunications Act of 1996 (the
NEXTG AGREEMENT
07(30/2009
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"Act") including, but not limited to, those rights set forth in Section 253 (c}.. In the event a court
finds the Licensee may not waive such rights, the Licensee agrees that the amount of all such
fees reflect the reasonable cost of providing all services. Furthermore, Licensee ~~aives any and
all claims or actions it may have against the City with respect to the amount of such fees. In the
event that any action by the Court or otherwise reduces the amount of consideration provided by
Licensee to the City under this Agreement, the parties shall modify this Agreement in a manner
that will keep the City whole regarding the amount of the consideration flowing to the City under
this Agreement.
Licensee hereby acknowledges, agrees and covenants that this Agreement only allows
for the occupation of the Right of Way and Municipal Facilities by Licensee's Facilities
identified in Exhibit A and does not authorize or bestow any interest in real property including
any fee, leasehold interest or easement.
a. Limitations on Licence. Nothing in this Agreement is intended to create an
interest or .estate of any-kind or extent in the property or premises. Licensee further
acknowledges and agrees that this Agreement does not create alandlord-tenant relationship and
Licensee is not entitled to avail itself of any rights afforded to tenants under the laws of the State
of California.
b. Preference for Municipal Facilities. In any situation where Licensee has a
choice of attaching its Equipment to either Municipal Facilities. Licensee's own vertical element,
or third-party-ov<med property in the Public Way; Licensee shall attach.its Equipment to the City
Municipal Facilities, provided that (i) the City requests such a~tachirent ~`~ithin thirty (30) days
of Licensee's written notice to City of an intent to use facilities other than City Municipal
Facilities, (ii) such City Municipal Facilities are at least equally suitable functionally for the
operation of the Network, (iii) the fee and installation costs associated with such attachment over
the length of the term are equal to or less than the fee or cost to Licensee of attaching to the
alternative third-party-owned property. If the Lessee Facility is to be placed on a utility pole with
a street light, the Licensee shall submit an alternative design to establish a new light pole
adjacent to the utility pole and place its Facilities on that element which shall be selected at the
City's discretion.
c. No Warranty. City makes no warranty, express or implied, or representation that
the premises are suitable for Licensee's use. Licensee has inspected the premises and accepts the
same "AS IS". City is under no obligation to perform any work or provide any materials to
prepare the Premises for Licensee.
NEXTG AGREEMENT
07!30/2009
19-16
Section 6. Compensation.
a. Administration Fee. In addition to normal published encroachment-related-
permitting fees and as additional consideration for the processing of Licensee's permit
applications, Licensee shall pay an additional one-time fee ("Processing Fee") for each
deployment of Three Hundred Dollars ($300) per Node prior to the Effective Date of this
Agreement and/or prior to the Effective Date of any amendment.
b. Compensation for Use of City Infrastructure. Licensee will compensate City
for the use of City infrastructure a fee of Five Hundred Dollars ($500.00) per year (the
"Infrastructure Use Fee") for each streetlight pole or comparable facility located within the City's
Right-of--Way used by Licensee.
c. Gross Revenue Payments. In addition to the Infrastrucrare Use Fee, Licensee
waives any .claim that it is_not obligated. to pay for the use of the Right-of--Way and shall
compensate City for such use by providing the City a five percent (5%) of Gross Revenue Fee or
Five Hundred Dollars ($500.00) per Node per year, whichever is greater ("Right-of--Way Use
Fee"). In the event a court determines that Licensee is not obligated to pay for use of the Public
Right-of--Way, the Parties agree that the Infrastructure Use Fee shall be automatically amended
to be equal to Five Hundred Dollars ($500.00) per year for each streetlight pole or comparable
facility plus five percent (5%) of the Gross Revenue Fee or Five Hundred Dollars ($500.00) per
-.Node psr_year, whichever is greater and agree that such fee does not exceed the reasonable costs
of providing such services. .. ..
1. Identify Sources and Amounts. With each Gross Revenue Payment, Licensee
shall provide City with a detailed written report containing the following:
i. Categories/components of the sources of Gross Revenue Fees.
ii. Total dollar amounts associated with each category/component of Gross Revenue
Fees.
iii. Reconciliation of Gross Revenue Payment and the sum of the dollar amounts
associated with each category/component of Gross Revenue Fees.
d. Payment Terms and Audit. Licensee shall pre-pay the fees specified in
subsections (a) and (b), above, for the period from issuance of necessary permits through the end
of 2009; subsequent payments in connection with subsections (a) and (b) shall be made annually
in advance commencing on January 1, 2010. The Right-of--Way Use Fee specified in subsection
(c), above, shall be computed and paid annually in arrears ("Annual Payment"). Each Amiual
Payment shall be calculated for the calendar year, and such Annual Payment shall be due and
payable no later than February 1St of each year. For the period from issuance of necessary
permits tluough the end of 2009, any additional funds owing based upon the "whichever is
greater" provision is subsection (c} above, shall be paid with the first Annual Payment.
In the event that a court of competent jurisdiction determines that the Licensee is not
obligated to pay for use of the Public Right-of--Way and if the amendment to the Infrastructure
Use Fee referred to in Section 6(c), above, results in the use of the Gross Revenue Fee for the
NEXTG AGREEMENT
07/30!2009
19-17
calculation of the amendment to the Infrastructure Use Fee, then that portion of the amended
Infrastructure Use Fee shall be computed, paid annually, and due no later than February lst of
each year.
Any annual fees shall be pro-rated for the calendar year. Licensee shall keep accurate
books of account at its principal office in San Jose or such other location of its choosing for the
purpose of determining the amounts due to the City hereunder. The City may inspect Licensee's
books of account, at a mutually convenient location of all relevant books and records, relative to
the City at any time during regular business hours on thirty (30) days' prior written notice and
may audit the books from time to time at the City's sole expense, but in each case only to the
extent necessary to confirm the accuracy of payments due under this Agreement. In the event
that the City discovers that Licensee's payments are in error in an amount greater than two
percent (2%); all costs, including travel related to the audit shall be borne and reimbursed by
Licensee. The dollar amount of such error shall be treated as a delinquent payment in
accordance with the provisions of Section 6(g).
No acceptance of any payment to the City shall be construed as a release or as an accord
and satisfaction of any claim the City may have for further or additional sums payable or for the
performance of any other obligation under this Agreement. The City agrees to hold in confidence
any non-public information it learns from Licensee to the fullest extent permitted by Law.
e. Reduction in Number of Nodes. If the number of Nodes is reduced based on (i)
the cancellation, expiration, lapse, v~~ithdraw~l, or_terminaxion of any required certificate, permit,
license, easement, approval or agreement at no fault of Licensee or (ii) the discovery or location
of any Hazardous Materials on the Public Rights-of--Way and Municipal Facilities, other than as
direct result of Licensee's activities, then the compensation under this Section 6 shall be reduced
in the amount directly associated with the removal of the Node(s) from the City right-v~~ay and/or
facilities in the manner provided in Section 6(e)(3) and following the required actions in Sections
6(e)(a) and (2).
Notice of Reduction. Licensee delivers the Notice of Reduction to the City.
2. Removal of Node(s). Licensee removes the Node(s) from the city Public Rights-
of-Way and Municipal Facilities by that time.
3. Method of Calculating Reduction. Compensation shall be reduced by an amount
equal to the remainder of the then current one-year term divided twelve (12)
months. If the Reduction Date falls on a day whereby the dividend in the
equation is not a whole number, the dividend shall be reduced to the next whole
number.
f. Minimum Annual Fee Adjustment Date. The Infrastructure Use Fee will be
adjusted annually on the anniversary of the Commencement Date by the percentage increase in
the most recently published Consumer Price Index -All Urban Consumers for the San Diego
Metropolitan Statistical Area -- over the rate in effect on the Commencement Date of the prior
year. This increase shall not be less than the three percent (3%).
NEXTG AGREEMENT
07!30/2009
19-18
g. Delinquent Payment. Payments not received within five days of the due dates
as specified above shall accrue interest at a rate of 7% per annum from the due date. In addition,
a late fee in the amount often percent (10%} of the amount due shall be imposed in the event a
payment is not received within 30 days of the due date. Notwithstandinj tine provisions of this
subparagraph, failure to make payments when they are due is considered a default of the terms of
the Agreement, subject to the terms stated in Section 33, "Termination." Licensee assumes all
risk of loss and responsibility for delinquent payments.
h. Services to City. Licensee agrees that at all times during the term of this Use
Agreement it shall reserve one (1) strand of fiber owned or operated by Licensee in the City for
the City's exclusive use in operating a noncommercial, City-owned Wi-Fi network or for any
other noncommercial, City-operated data network or communications function. NextG shall
provide access to the fiber strand at manhole Iocations with a splice box. NextG will work with
city to determine the exact location of access during the permit process.
i. Payment Location.. Licensee agrees to make checks payable to the City of Chula
Vista and to deliver them to: City of Chula Vista Finance Department, 276 Fourth Avenue,
Chula Vista, CA 91910. The City reserves the right to change the place and time of payment at
any time upon 60 days u,~ritten notice pursuant to Section 32.
j. Most Favored Jurisdiction. The parties anticipate that, following the effective
date of this Agreement, NextG will enter into similar right-of--way use agreements with other
jurisdictions. If NextG enters into a similar agreement with another jurisdiction within San.._
Diego County, then the parties will modify this Agreement if the following conditions are rnet:
The right-of--way use agreement confers financial, service, or inkind benefits upon
the jurisdiction that, taken as a whole and balanced with other terms of that
agreement, are deemed by the City to be more beneficial than the benefits
provided for in this Agreement; and
City notifies NextG of its desire to modify this Agreement to substitute the same
or substantially similar benefits and/or related terms and conditions of that right-
of-way use agreement in order to achieve parity. Upon request by the City,
NextG shall provide a copy of such License from any San Diego County
jurisdiction so that the City may determine the parity of the agreements. To the
extent practicable, such modification will be retroactive to the effective date of
the similar right-of--way use agreement with the other San Diego County
jurisdiction.
Section 7. Assignment or Transfer of Authorization. This Agreement shall not be
assigned by Licensee without the express written consent of the City; which consent shall not be
uiu-easonably withheld, conditioned, or delayed. A determination by the City that the assignee is
not financially sound or does not have the experience or technical qualifications to perform the
obligations of this Agreement in a manner satisfactory to the City; shall be a valid reason to
withhold consent, except that a determination by the PUC of these items with regard to any
assignee shall be binding to City, unless such potential assignee has not faithfully performed
local financial or service obligations. Notwithstanding the foregoing, the transfer of the rights
NEXTG AGREEMENT
07/30/2009
19-19
and obligations of Licensee to a parent; subsidiary, or other affiliate of Licensee or to any
successor in interest or entity acquiring fifty-one percent (51%) or more of Licensee's stock or
assets (collectively ``Exempted Transfers") shall not be deemed an assignment for the purposes
of this Agreement and therefore shall not require the consent of the City, provided that Licensee
reasonably demonstrates to the City's lawfully empowered designee the following criteria
(collectively the "Exempted Transfer Criteria"): (i) such transferee will have a financial strength
after the proposed transfer at least equal to that of Licensee immediate)}~ prior to the transfer; (ii)
any such transferee assumes all of Licensee's obligations hereunder; (iii) the corporate parent of
the transferee guarantees the performance obligations of the transferee; and (iv) the experience
and technical qualifications of the proposed transferee, either alone or together with Licensee's
management team, in the provision of telecommunications or similar services., evidences an
ability to operate the Licensee Network. Licensee shall give at least sixty (60) days' prior
written notice (the "Exempted Transfer Notice") to the City of any such proposed Exempted
Transfer and shall set forth with specificity in such Exempted Transfer Notice the reasons why
Licensee believes the Exempted Transfer Criteria have been satisfied. The -City shall have a
period of sixty (60) days (the "Exempted Transfer Evaluation Period") from the date that
Licensee gives the City its Exempted Transfer Notice to object in writing to the adequacy of the
evidence contained therein. Notwithstanding the foregoing, the Exempted Transfer Evaluation
Period shall not be deemed to have commenced until the City has received from Licensee any
and all additional information the City may reasonably require in connection with its evaluation
of the Exempted Transfer Criteria as set forth in the Exempted Transfer Notice; so long as the
City gives Licensee notice in ~~riting of the additional information the City requires within thirty
(30) days after the City''s. receipt of the original Exempted Transfer Notice. If the City fails to
act upon Licensee's Exempted Transfer Notice within the Exempted Transfer Evaluation Period
(as the same may be extended in accordance with the foregoing provisions}, such failure shall be
deemed an affirmation by the City that Licensee has in fact established compliance with the
Exempted Transfer Criteria to the City's satisfaction.
Section 8. Responsibility of Licensee/Maintenance. The Licensee, on the
Licensee's own behalf and on behalf of any successor or assign, hereby acknowledges and
assumes all responsibility, financial or otherwise, for the permitted use of the Public Rights-of-
Way property and City Municipal Facilities and the planning, design, installation, construction.
maintenance, repair, operation and removal of the Licensee`s Facilities, which shall be
undertaken without risk or liability on the part of the City. All of Licensee's constructions,
installation, removal, repair and maintenance work shall be performed at Licensee's sole cost and
expense in accordance with applicable law, using generally accepted construction standards.
Licensee shall ensure that Licensee's Facilities are maintained in a clean and safe
condition, in good repair and free of any defects. Licensee shall employ reasonable care at all
times in installing and maintaining Licensee's Facilities and will install and maintain in use
commonly accepted methods and/or devices to reduce the likelihood of damage, injury or
nuisance to the public. The construction, operation; and maintenance of Licensee's Facilities
shall be performed by experienced and properly trained. and if required, licensed maintenance
and construction persomlel. Removal, repair, and maintenance shall not require a permit if there
is no change in equipment size, volume color, or projected weight of the final co-located Facility
from the originally permitted Licensee Facility.
NEXTG AGREEMENT 16
07/30!2009
19-20
Section 9. Relocation/Removal. Licensee shall, at its sole expense, protect,
support, temporarily disconnect, relocate, modify or remove all or any portion of Licensee's
Facilities at the time and in the mamler required by the City for any governmental purpose.
Except in an emergency, the City shall give written notice pursuant to Section 32 describing
where the work is to be performed at least thirty (30) days before the date the work is to be
commenced. Should the public health, safety or welfare require that the City undertake
immediate maintenance, repair or other action, Licensee shall take the measures required under
this Section 9 within 72 hours of receiving notice from the City.
If Licensee does not protect, temporarily disconnect, relocate, or remove Licensee' s
Facilities ~~ithin the time period specified above, City may remove the equipment, facilities, anal
property and charge Licensee for the cost of removal and storage. Alternatively, upon
Licensee's request. City may approve the abandonment of Licensee's Facilities in place. Upon
approval, Licensee shall execute, acknowledge and deliver any necessary documents to transfer
ownership of the Licensee's Facilities to City.
In an emergency, where there is an imminent danger to the public health, safety or
property, the City may take the measures required by Licensee under this Section 9 without prior
notice to Licensee: however, the City will make reasonable efforts to provide prior notice.
In situations where other utilities are being undergrounded as part of a Public Utilities
Commission Rule 20(a) program, Licensee shall have the opportunity to request the relocation of
its facilities into the joint trench and benefit from the costs savings associated. with using a joint
trench. Costs associated with the relocation of Licensee's facilities into-the joint trench shall be,
to the extent required by Rule 20(a}, paid for in accordance with the formula established under a
joint trench offer. Any failure on the part of Licensee to request relocation of their facilities prior
to initiating the associated undergrounding project or any delays by Licensee, which increase the
cost of the project, shall. be the obligation of and paid for by Licensee. Any subsequent
relocation required by the City, not part of a Rule 20(a) program, shall be the obligation of and
paid for by the Licensee.
Section 10. Chance in Equipment. If Licensee proposes to install Equipment,
which is different in any material way from the specifications or design configurations attached
hereto as Exhibit A, then Licensee shall first obtain the approval for the use and installation of
the equipment from the City. In addition to any other submittal requirements, at City's request,
Licensee shall provide "load" calculations for all Streetlight Poles it intends to install in the
Public Rights-of--Way. The City shall use its best efforts to approve or disapprove of the use of
the different equipment from the specifications set forth in Exhibit A within 30 days and such
approval shall not be unreasonably withheld.
Section 11. Repair of Facility. Licensee shall repair or refinish, to the satisfaction of
the City Engineer, at Licensee's sole cost and expense, any surface or other portion of the Public
Rights-of-VVay property or City Municipal Facilities that are disturbed or damaged during the
construction, installation, maintenance, or operation of Licensee Facilities. Without limiting any
other available remedies, if Licensee fails to repair or refinish such damage, City may, in its sole
discretion, but without any obligation to do so, repair or refinish the disturbance or damage and
Licensee shall reimburse City all costs and expenses incurred in the repair or refinishing.
NEXTG AGREEMENT 11
07/30/2009
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Section 12. Relocation of Facilities. Licensee understands and acknowledges that
City may require Licensee to relocate one or more of its Node installations. Licensee shall at
City's direction relocate such Node equipment at Licensee's sole cost and expense, whenever
City reasonably determines that the relocation is needed for any of the following purposes: (a) if
required for the construction, completion, repair, relocation, or maintenance of a City project; (b)
because the Node equipment is interfering with or adversely affecting proper operation of City
owned streetlight poles, communications, or other Municipal Facilities; or (c) to protect or
preserve the public health or safety. h~ any such case, City shall use its best efforts to afford
Licensee a reasonably equivalent alternate location. If Licensee shall fail to relocate any Node
equipment as requested by the City within a reasonable time under the circumstances in
accordance with the foregoing provision, City shall be entitled to relocate the Node equipment at
Licensee's sole cost and expense, without further notice to Licensee. To the extent the City has
actual knowledge thereof, the City will attempt promptly to inform Licensee of the displacement
or removal of any streetlight pole or other Municipal Facility on which any Node equipment is
located.
Section 13. Licensee to Bear Alt Costs. The Licensee, or any successor or
authorized assign, shall bear all costs incurred in connection with the planning, design,
installation, construction, maintenance, repair, operation, modification, disconnection, relocation
and removal of the Licensee Facilities. The Licensee shall be responsible and must bear all cost
of any movement to, damage to or repair of Licensee's Facilities due to repair, maintenance
and/or -failure/callaps.e of any existing gas, water and sewer lines or any other improvements or
woks ap~rroximat~ to Licensee's Facilities. Licensee agrees to bear this cost regardless of
whether or not such damage may be directly or indirectly attributable to the installation,
operation, maintenance, repair or upgrade. work on the Licensee's Facilities, unless the damage
results from the active negligence or willful misconduct of the City; its officers, agents or
employees. These costs include electrical utility charges to the applicable utilit}~ company based
upon the Licensee Facilities usage of electricity and applicable tariffs.
Section 14. Under6rounding. Licensee has been advised and understands that the
utilities in the area of Licensee's planned facilities are subject to future under-grounding
requirements. In the event of an under-grounding project. Licensee and City agree to cooperate
with each other in order to relocate or replace Licensee's facilities in such a way so that Licensee
may continue to operate its network for the Term of this Agreement.
Section 15. Future Rules or Orders. The Licensee, or any successor or authorized
assign, shall abide by any agreements, rules, regulations, orders, or directives governing the use
of the Public Rights-of--Way property or City Municipal Facilities as the City may find necessary
and appropriate in executing its responsibilities for public right-of--way management and wireless
site regulation.
Section 16. Licensee to Submit Acceptable Plans. Prior to the Commencement
Date and prior to construction and installation of Licensee's Facilities, Licensee shall, at its sole
cost and expense, prepare and submit, together with payment of all related fees, any and all
reasonable plans and specifications required by the City Engineer, which shall include detailed
maps showing the planned construction, the size and the location and number, and any other
NEXTG AGREEMENT 12
07/30/2009
19-22
details regarding the placement of appurtenant above-ground equipment to be located in the
Public Rights-of--Way and on City Municipal Facilities or existing third-party infrastructure. The
City Engineer shall be authorized to review the plans and specifications and to impose such
requirements as are necessary to protect the public health and safety and to minimize any
negative impact on aesthetics in the case of the above-ground improvements. The City Engineer
shall be authorized to require an alternate location for the Licensee's Facilities on Streetlight
Poles or comparable facilities to avoid conflict with public safety as v~~ell as other permitted uses
in or future public needs of the Public Rights-of--Way identified in this Agreement. Licensee
shall, at its sole cost and expense, submit traffic control plans for approval by City Engineer.
The City reserves the right to inspect the installation and maintenance of Licensee's Facilities at
any time. Licensee shall pay all plan check, inspection and other related fees prior to the
issuance of any permit for the installation and construction of Licensee's Facilities. All work
within the Public Rights-of--Way and Municipal Facilities or existing third-party infrastructure
shall be performed in strict compliance with plans and permits approved by the City Engineer.
Section 17. Licensee to Seeure AUproval and Permits. In addition to obtaining and
maintaining the permits, Licensee understands and agrees that Licensee's ability to use the
Public Rights-of--Way and Municipal Facilities and any third-party infrastructure for the
purposes contemplated by this Agreement is dependent upon Licensee obtaining and maintaining
all of the certificates, permits and other approvals v~~hich may be required from other federal,
state or local authorities, and any easements which are required from any third parties. City shall
cooperate with Licensee in its efforts to obtain such approvals and/or easements, as may be
required for Licensee's Facilities as approved ir. the permits..., .... _ ,-.....
Section 18. As Built Drawings to be Provided. The Licensee shall provide as-built
drawings, in any format acceptable to the City Engineer, detailing the location of Licensee's
Facilities installed pursuant to this Agreement within sixty (60) days after facilities are installed.
Section 19. Liability Insurance. Licensee shall obtain and maintain for the duration
of this Agreement and any amendments hereto, adequate insurance against claims for injuries to
persons or damage to property which in any way relate to, arise out of or are connected to the use
of the Public Rights-of--Way and Municipal Facilities by Licensee or to the construction,
operation or repair of Licensee's Facilities by Licensee or Licensee's agents, representatives,
employees or contractors. The insurance ~Ti11 be obtained from an insurance carrier admitted and
authorized to do business in the State of California. The insurance carrier is required to have a
current Best's Key Rating of not less than "A-:V".
a. T3rpes of Insurance. Licensee shall maintain the types of coverage's and
minimum limits indicated below, unless the City Attorney or City Manager approves a lower
amount. The City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Licensee pursuant to this Agreement are adequate to
protect Licensee. If Licensee believes that any required insurance coverage is inadequate,
Licensee will obtain such additional insurance coverage, as Licensee deems adequate; at
Licensee's sole expense.
Commercial General Liability 117surance. $1.000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the
NEXTG AGREEMENT 13
07/30/2009
19-23
submitted policies contain aggregate limits, the general aggregate will be twice
the required per occurrence limit.
2. Automobile Liability. $1,000,000 combined single-limit per accident for bodily
injury and property damage.
3. Workers Compensation and Employer's Liability. Worker's Compensation limits
as required by the California Labor Code and Employer's Liability limits of
$1,000,000 per accident for bodily injury.
b. Endorsements. The general liability, automobile liability, and where
appropriate, the worker's compensation policies are to contain, or are endorsed to contain, the
following provisions:
Additional Insureds. The City of Chula Vista, its officers, officials, employees,
agents, and volunteers are to be named as additional insureds with respect all
policies of insurance, including those with respect to liability arising out of
automobiles owned, leased, hired or borrowed by or on behalf of the Licensee,
where applicable, and, with respect to liability arising out of work, installation,
repair, replacement, operations or placement of Licensee's Facilities with the
Rights-of--Way.
__._...._... __ 2. Claims Made. Licensee will obtain occurrence covera e excludin Professional
g , g ._ --
- - ~ Liability, which will be written as claims-made coverage.
Cancellation. This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) day's prior written
notice to City sent by certified mail pursuant to the Notice endorsements to City.
4. Primary Insurance. The insurance coverage provided under this agreement must
be primary insurance as it pertains to the City, its officers, officials, employees,
agents, and volunteers. Any insurance or self-insurance maintained by the City, its
officers, officials, employees, or volunteers shall be excess, not contributing,
wholly separate from the insurance of the Licensee and in no way relieves the
Licensee from its responsibility to provide insurance.
5. Waiver of Subrogation. Licensee's insurer will provide a Waiver of Subrogation
in favor of the City for each required policy providing coverage for the term
required by this Agreement.
c. Prior to City's execution of this Agreement and annually thereafter, Licensee will
furnish certificates of insurance and endorsements to City.
d. Failure to maintain any of these insurance coverage's, shall be deemed a material
default for purposes of Section 33.
NEXTG AGREEMENT 14
07/30/2009
19-24
e. City reserves the right to require at anytime, complete and certified copies of any
or all required insurance policies and endorsements.
f. All insurance companies affording coverage to the Licensee shall be required to
add the City of Chula Vista as "additional insured" under the insurance policy(s) required in
accordance with this Agreement. Insurance coverage provided to the City as an additional
insured shall be primary insurance and other insurance maintained by the City, its officers,
agents and employees shall be excess only and not contributing with the insurance provided
pursuant to this Agreement.
g. All insurance companies affording coverage to the Licensee shall be insurance
organizations authorized by the Insurance Commissioner of the State Department of Insurance to
transact business of insurance in the State of California and are required to have a current Best's
Ke.y Rating of not less than "A-:V"
h. City may require the. revision of amounts and coverage at any time during the
term of this Agreement by giving Licensee 60 day's prior written notice. City's requirements
shall be designed to assure protection from and against the kind and extent of risk existing on the
Public Rights-of--Way and Municipal Facilities. Licensee also agrees to obtain any additional
insurance required by City for new improvements, in order to meet the requirements of this
Agreement.
i. Insurance provisions under_this ~~ction shall not be construed to limit the
Licensee's obligations under this Agreement;-including Indemnity.
Section Z0. Performance Bond. Prior to construction of Licensee's Facilities.
Licensee shall post a bond with the City (in the form of a Letter of Credit issued by a reputable
institution) in the amount of Fifty Thousand Dollars ($50,000) ("Performance Bond") in a form
acceptable to the City Attorney. This Performance Bond shall remain in place for the term of the
Agreement, and shall cover the first Fifty (50) Nodes installed in the City. Any additional Nodes
beyond 50 shall require increasing the amount of the Performance Bond at rate of Ten Thousand
Dollars ($10,000) per ten (10) Nodes attached to a Municipal Facility or Licensee owned vertical
element in the Right-of--Way.
Section 21. Accident Reports. Licensee shall, within 48 hours after occurrence,
report to City any accident causing property damage or any serious injury to persons resulting
.from any of Licensee's activities under this Agreement. This report shall contain the names and
addresses of the parties involved, a statement of the circumstances, the date and hour, the names
and addresses of any witnesses, and other pertinent information.
Section 22. Indemnification of City.
a. Licensee shall waive all claims against City for any damages to the personal
property and equipment of Licensee or City in, upon or about the Public Rights-of--Way and
Municipal Facilities and for injuries to any employees of Licensee or their agents in, upon, or
about the Public Rights-of--Way and Municipal Facilities from any cause arising at any time, unless
the damages and/or injuries arise out of the City's gross negligence or sole willful misconduct. In
NEXTG AGREEMENT ~ 5
07/30/2009
19-25
addition, Licensee will fully indemnify, hold harmless; and faithfully defend, the City, including
its elected and appointed officials, officers, employees, contractors and agents ("Indemnified
Parties"), from any damage or injury to any person, or any property, arising from the use of the
Public Rights-of--Way and Municipal Facilities by Licensee or Licensee's officers, employees,
contractors, or agents, or from the failure of Licensee to keep Licensee's Facilities and equipment
in good condition and repair, as provided for in this Agreement, unless the damages and/or injuries
arise out of the City's gross negligence or sole willful misconduct.
b. Costs of Defense and Award. Included in the obligations in Section 22(a} is the
Licensee's obligation to defend, at Licensee's own cost, expense and risk, any and all aforesaid
suits, actions or other legal proceedings of every kind that may be brought or instituted against
the City, its directors, officials, officers, employees, agents and/or volunteers, regardless of
whether a judgment is rendered in such suit, legal proceeding, or other action. Licensee shall
pay and satisfy any judgment, award or decree that may be rendered against City or its directors,
officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost
incurred by -each of them in .connection therewith.
c. Insurance Proceeds. Licensee's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials, officers, employees,
agents, and/or volunteers.
d. Enforcement Costs. Licensee agrees to pay any and all costs City incurs
enforcing the indemnity and defense provisions set forth herein. _ _~. __
e. Survival. Licensee's obligations under Section 22 shall survive the termination
of this Agreement.
f. Conflicts. Should a conflict of interest arise, Licensee shall bear the cost of
retaining independent counsel to represent the City, which counsel shall be chosen by the City
and Licensee.
g. Risk of Loss. Licensee acknowledges and agrees that Licensee bears all risks of
loss or damage of its Nodes and materials installed in the Public.Rights-of--Way and on
Municipal Facilities pursuant to this Agreement from any cause, and the City shall not be liable
for any cost of repair to damaged Node(s), including, without limitation, damage caused by the
City's removal of the Node(s), except to the extent that such loss or damage was solely caused
by the willful misconduct or sole negligence of the City, including, without limitation, each of its
elected officials, department directors, managers, officers, agents, employees, and contractors.
Section 23. Revocation of Authorization. If the Licensee fails to comply with any
of the material terms and conditions of this Agreement and/or any applicable law, the City may
revoke the authorization granted herein, subject to the terms and conditions stated in Section 33,
"Termination".
Section 24. Terms and Conditions Specific to this Agreement. The terms and
conditions of this Agreement shall apply solely to the Licensee's Facilities and the Public Rights-
of-Way and Municipal Facilities described in Exhibit A, and shall not apply to, nor establish any
NEXTG AGREEMENT 16
07/30/2009
19-26
precedent for, the conditions the City may impose upon Licensee in the event Licensee seeks to
provide other telecommunications services or cable services to the public for hire within the
City.
Section 25 Reservation of Rights. The rights granted by this Agreement are granted
based upon representations by Licensee that its federal and state grants or certificates authorize
construction and operation of activities in relation to this Agreement.
Section 26. Governing Law; Jurisdiction. This Agreement shall be governed and
construed by and in accordance with the laws of the United States and the State of California
without reference to general conflicts of law principles. If suit is brought by a party to this
Agreement, the parties agree that trial of such action shall be vested exclusively in the State
courts of San Diego County, California or in the United States District Court, Southern District
of California. Nothing in this section shall be interpreted to preclude either party's right to seek
redress from the Federal Communications Commission.
Section 27. Amendment of Agreement. This Agreement shall not be modified or
amended except by a writing signed by authorized representatives of the parties.
Section 28. Entire Agreement. This Agreement contains the entire understanding
between the parties with respect to the subject matter herein. There are no representations,
agreements, or understandings, whether, oral or written, between or among the parties relating to
the subject matter of this Agreement, which are not fully expressed herein. Each party has relied
on advice from. its own attorneys, and the warranties, representations, and covenants expressly
contained in this Agreement.
Section 29. Severability. If any part of any provision of this Agreement or any other
agreement, document, or writing given pursuant to or in connection with this Agreement is
finally determined to be invalid or unenforceable under applicable law, that part or provision
shall be ineffective to the extent of such invalidity only, and the remaining terms and condition
shall be interpreted so as to give the greatest effect to them.
Section 30. Taxes. Licensee shall pay, before delinquency, all taxes, assessments,
and fees assessed or levied upon Licensee or the Licensee's Facilities, including, any buildings,
structures, machines, equipment, appliances, or other improvements or property of any nature
whatsoever erected, installed, or maintained by Licensee or levied by reason of the business or
other Licensee activities related to this Agreement, including any licenses or permits. Licensee
specifically acknowledges that the grant of this license may subject Licensee to certain taxes
under California Revenue and Taxation Code Section 107.6 and agrees it is solely responsible
for the payment of these taxes.
Licensee shall be responsible for all utilities and any property taxes imposed as a result of
the use of the Property by Licensee. Licensee specifically acknowledges that the grant of this
license may subject Licensee to certain taxes under California Revenue and Taxation Code
section 107.6 and agrees it is solely responsible for the payment of these taxes. The Licensee
recognizes that the carriers they contract with may be subject to certain taxes under the
NEXTG AGREEMENT 17
07/30/2009
19-27
California Revenue and Taxation Code and the Chula Vista Municipal Code and their failure to
pay those taxes or fees may exclude them from utilizing City property.
Section 31. Non-exclusivity. Neither this Agreement nor the permit granted
hereunder is exclusive. The City reserves the right to enter into co-location agreements with
other parties, including but not limited to telecommunications and information services providers
(hereinafter "Carriers"), for use of the Public Rights-of--Way or Municipal Facilities.
Section 32. Notices. AlI notices under this Permit Agreement shall be in writing and,
unless otherwise provided in this Agreement, shall be deemed validly given if sent by certified
mail, return receipt requested, or via recognized overnight courier service, addressed as follows
(or to any other mailing address which the party to be notified may designate to the other party
by such notice).
Should City or Licensee have a change of address, the other party shall immediately be notified
as provided in this section of such change..
LISENSEE: CITY:
NextG Networks of California, Inc. CITY OF CHLTI_A VISTA
2216 O'Toole Ave. 276 Fourth Avenue
San Jose, CA 95131 Chula Vista, CA 91910
Attn: Contracts Administration Attn: City Manager
Either party may change its address by notice to the other party`as5prowided herein.
Communications shall be deemed to have been given and received on the first to occur of (i)
actual receipt at the offices of the party to whom the communication is to be sent, as designated
above, or (ii) three working days following the deposit in the United States Mail of registered or
certified mail, postage prepaid, return receipt requested, addressed to the offices of the party to
whom the communication is to be sent, as designated above.
Section 33. Termination.
a. Termination for Cause. The Parties to this Agreement shall have the right, but
not the obligation to terminate this Agreement for breach by other Party ("Breaching Party") of a
material covenant, term, or condition ("Material Breach") if the breaching party fails to cure such
breach within the timeframe provided for cure. A Material Breach shall include the use of
Licensee's Facilities for a purpose that requires additional City approvals that have not been
obtained.
Opportunity to Cure. Prior to terminating this Agreement, The Party not in
breach shall provide the Breaching Party with a written notice of the breach
("Notice to Cure"). Breaching Party shall cure such breach within forty-five (45)
days of receipt of the Notice to Cure (or if such breach cannot be cured within
forty-five (45) days, Breaching Party shall commence such cure within forty-five
(45) days and diligently prosecute such cure to completion). Notwithstanding the
foregoing, with respect to a monetary default, Licensee shall remit payment
within ten (10) days from receipit of the Notice to Cure.
NEXTG AGREEMENT ~$
07/30!2009
19-28
Section 34. Other Regulations. All Licensee's use of the Public Rights-of--Way and
Municipal Facilities under this Agreement shall be in accordance with the laws of the United
States of America, the State of California and in accordance with all applicable rules and
regulations and ordinances of the City of Chula Vista now in force, or hereinafter prescribed or
promulgated by resolution or ordinance or by State or Federal law.
Section 35. Related Actions. By the granting of this Agreement, neither City nor the
Council of the City is obligating itself to any other governmental agent, board, commission, or
agency with regard to any other discretionary action relating to the use of the Public Rights-of-
Way and Municipal Facilities. Discretionary action includes, but is not limited to, permits,
environmental clearances or any other governmental agency approvals, which may be required
for the development and operation of the Licensee's Facilities within the Public Rights-of--Way
and Municipal Facilities.
Section 36. Use of the Public Rights-of--Way. Licensee acknowledges that the
paramount use of Public Rights-of--Way Property or Municipal Facilities is for the public.
Licensee agrees to coordinate use of the Public Rights-of--Way Property or Municipal Facilities
with City so as not to conflict with City's programs and activities.
Section 37. Headings. All article headings are for convenience only and shall not
affect the-interpretation of this Agreement.
Section 38. Gender & Number. Whenever the context requires, the use herein of (i)
the neuter gender includes the masculine and the feminine genders and (ii) the singular number
includes the plural number.
Section 39. Reference to Paragraphs. Each reference in this Agreement to a section
refers, unless otherwise stated, to a section this Agreement.
Section 40 Incorporation of Recitals and Exhibits. All recitals herein and exhibits
attached hereto are incorporated into this Agreement and are made a part hereof.
Section 41. Administrative Claims Requirements and Procedures. No suit or
arbitration shall be brought arising out of this agreement, against the City unless a claim has first
been presented in writing and filed with the City and acted upon by the City in accordance with
the procedures set forth in Chapter 1.34 of the Chula Vista Municipal. Code, as same may from
time to time be amended, the provisions of which are incorporated by this reference as if fully set
forth herein, and such policies and procedures used by the City in the implementation of same.
Upon request by City. Licensee shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
Section 42. No Waiver. No failure of either Party to insist upon the strict
performance by the other Party of any covenant, term or condition of this Agreement; nor any
failure to exercise airy right or remedy consequent upon a breach of any covenant, term, or
condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term
NEXTG AGREEMENT 19
07!3012009
19-29
or condition. No waiver of any default hereunder shall be implied from any omission to take any
action on account of such default. The consent or approval to or of any act requiring consent or
approval shall not be deemed to waive or render unnecessary future consent or approval for any
subsequent similar acts. No waiver of any breach shall affect or alter this Agreement, and each
and every covenant, condition, and term hereof shall continue in full force and effect to any
existing or subsequent breach.
Section 43. Cumulative Remedies. A11 rights, options, and remedies of City
contained in this Agreement shall be construed and held to be cumulative, and no one of them
shall be exclusive of the other, and City shall have the right to pursue any one or all of such
remedies or to seek damages or specific performance in the event of any breach of the terms
hereof or to pursue any other remedy or relief which may be provided by law or equity, whether
or not stated in this Agreement.
Section 44. Powers to Enter into Agreement. The individuals executing this
Agreement represent and warrant that they have the right, power, legal capacity ..and authority to
enter into and to execute this Agreement on behalf of the respective legal entities of the Licensee
and the City.
[NEXT PAGE IS SIGNATURE PAGE]
NEXTG AGREEMENT 20
07(30/2009
19-30
IN WITNESS WHEREOF the parties hereto for themselves; their heirs, executors,
administrators, successors, and assigns do hereby agree to the full performance of the covenants
herein contained and have caused this Agreement to be executed by setting hereunto their
signatures on the day and year respectively written herein below.
CITY:
DATE:
LICENSEE:
DATE: Septeti~Ler ~0, 2009
TAE CITY OF CAULA VISTA
By:
Jim Sandoval, City Manager
NEXTG NETWORKS OF CALIFORNIA, INC.
,Y
~.
~...
By:~~
Robert Delsman, General Counsel
Notary Acknowledgement of Licensee signatures must be attached
Exhibits:
Exhibit A: Equipment Configurations
Exhibit B: Application Forms
APPROVED AS TO FORM:
BART MIESFELD, City Attorney
By:
Title:
NEXTG AGREEMENT 21
07/30/2009
19-31
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EXHIBIT
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19-36
Exhibit B
~~~~~
~r
Gm' OF
CtiUCA VISTA
Wireless Telecommunication Facilities Permit (WTF) on Public Property
Policies & Procedures
Submittal Requirements
Applicant/Agent shall submit the following to Engineering Staff at the Counter in the
Public Services Building, located at 276 Fourth Avenue. Chula Vista, CA 91910. The form
will be processed administratively and routed to other affected City Departments and
services by Conservation & Environmental Services:
WTF Public Propert}- Permit Application
^ A letter. on the. Wireless Telecommunication Company stationary from an authorized
person authorizing the agent and its company to represent the Wireless Telecommunication
Company in the WTF process. The letter may establish authorization for up to one year so
that it can be re-used for multiple sites for the same carrier during that time frame.
An initial permit processing deposit of $x,000.00
Completed Project Description & 3ustification Sheet (APPENDIX A)
Development Permit Processing Agreement .(APPENDIX B)
Proof of approved Master License Agreement-with City (established for the duration of
the agreement)
~ 10 sets of Site Plan 11 "X 1 %" minimum; and 24"X36" maximum
'~ If, at the City's discretion. it determines that this particular site warrants notice, the
Applicant shall prepare the following items and submit to the City:
• Fill in the blank notice form. (Obtain CitS~ prior approval each site may be slightly
different)
• Self addressed and stamped envelopes for all private properties within 300 feet of
the site
• Data list of recipients
• An 8-1/2" x 11"plat clearly showing the subject project relative to adjacent
streets
• One elevation, depicting the vertical element(s) from its most prominent view
(Will be part of Appendix A)
The Applicant or its authorized Agent shall provide a Surety Bond or alternative
acceptable to the City to cover the faithful performance pursuant to Section 4.2 of the MLA
1 Prior to the commencement of any work and pursuant to Section 4.4 of the MLA, the
Wireless Telecommunication Company shall file with the City the required original
Certificate of Insurance.
19-37
(WTF on Public Prroper~l}~
Policies c~: Procedures)
Conditions and Requirements
Exhibit B
Page 2 of 6
1. WTFs shall be stealth facilities
2. WTFs shall be co-located and/or developed for future co-location to the extent
practicable.
3. Equipment facilities should be the smallest dimensions that technology allows.
4. WTFs on City Property are subject to the height limitation and required setbacks
stipulated in CVMC Title 19 for the applicable zone, unless the additional height and/or
encroachment into the required building setbacks is approved by the Zoning
Administrator.
5. When allowed, freestanding facilities shall be designed to the minimum functional
height and width.
6. Colors and materials shall be chosen to minimize visibility from the surrounding areas.
7. The location, design and required screening shall be compatible with the character of
the surrounding neighborhood and shall be compatible with potential/planned future
improvements by the City for the specific area per applicable City planning documents
and/or current Cit}r standards.
8. Graffiti resistant surfaces shall be used. ,411 graffiti noted by or reported to a
responsible .Carrier must be removed in accordance with the City's Property
DefacementJGraffiti Ordinance.
9. Sidewalks, pavements, landscaping, irrigation. drainage and other improvements
damaged or disturbed during installation, maintenance or removal of a ~.'TF shoal .be
restored to original condition or new standard established by the City Engineer ~fiy the -
responsible Carrier.
10. At no time shall WTFs affect, impede nor negatively impact the normal functions or
duties of City Property, City employees or the public's routine enjoyment of parks,
libraries or other public spaces, which may host a WTF.
A. Determination of Applicability and Feasibility
Determination of applicability and feasibility is at the sole discretion of the City.
When reviewing WTFs on City Property, City staff shall determine whether the proposed
WTF would:
(i) Be detrimental to the City's property interest;
(ii) Preclude other appropriate uses;
(iii) Change or interfere with the use or purpose of the property, park or open space;
or
(iv) Violate any deed restrictions related to City Property, map requirements or other
land-use regulations.
City determinations may only be overturned on appeal.
All environmental determinations shall be done on aproject-by-project basis.
B. Placement of WTFs
All proposals shall be evaluated on a case-by-case basis and are not necessarily limited to
the general criteria listed below. The WTF should relate to the natural and/or existing
surroundings in design, scale, form, color and materials.
19-38
(T~TF on Public Property
Policies & Pr•ocedur-es)
Exhibii B
Page 3 of 6
The requirements and process for placement of WTFs vary by the type of location
(Category 1 or Category 2) as described below. When questions arise, the appropriate City
departments, have the authority to determine appropriateness of a location and what
category a particular location falls in.
C. Categories:
CateQory 1
Applicants are strongly encouraged to site a WTF in one of these locations before
pursuing a Category 2 Location.
1. City Buildings, such as the Civic Center. Fire Stations, Libraries, Public Works
Facilities (excluding park facilities), in any event so long as the WTF does not
interfere with City operations.
2. City parks and other properties not adjacent to an elementary school site.
3. Public ROW contiguous and/or immediately adjacent (on the same side of the
street) to non-residential uses.
Category Z
Applications for sites in Category 2 Locations should include documentation from the
Applicant substantiating ~~hy a Category 1 Location was not utilized. Documentation
must include but may not be limited to: a narrative justification and search ring map(s),
showing how the, facility addresses dropped calls or other service issues and will fill
coverage gaps vei=siis ~altei-native locations.
1. Public ROW adjacent to or in City parks or Open Space.
2. Open Space areas
3. ublic ROW contiguous and immediately adjacent to residential use.
4. City properties (including parks) adjacent to an elementary school site or child
care facility.
D The following are general criteria for placement of WTFs on City Property (not
including ROW)
1. WTFs shall be integrated into existing structures if at all possible.
2. Colors and materials of the WTF shall match the existing structures on the site.
3. The architecture of the WTF and/or associated equipment buildings shall be
compatible with the rest of the site and surrounding area. All structures should be
harmonious in style, form, and size.
E The following are eeneral criteria for placement of WTFs within the Right of Wav Sites
Locations:
1. All equipment associated with a Public ROW VJTF should be placed underground, or
flush mounted, (including vents) unless a small above ground service connection box is
19-39
(1%VTF on Public Property
Policies & Procedures)
Exhibit B
Page 4 of 6
required by the utilit~~ provider (maximum of 3 feet high by 3 feet wide) Whenever
possible the meter should be connected to any existing or required vertical element.
2. Where space permits, equipment or components of a Public ROW WTF shall be
located behind the edge of the sidewalk. In no case shall any location or placement of
any component or associated equipment of a WTF located ~~ithin the public ROW
obstruct or impede access, travel or the normal use of the public ROW subject to
approval by the City Engineer. Vaults or associated equipment must be in compliance
with all ADA requirements. Vaults or associated equipment that encroach into the
sidewalk must be set flush with the sidewalk or a four foot wide clear sidewalk path
must be accommodated from the edge of the vault/equipment to the back of the curb.
3. When it is technologically infeasible for the equipment associated with an antenna
located within the public ROW to fit into the public ROW, the equipment may be
placed above ground on adjacent private or other non-City property subject to Cite
review/approval (pursuant to the Chapter 19.89) and provided that: 1) the applicant has
obtained permission from the property owner; 2) the placement of the equipment is
consistent with existing laws and regulations. including sight distance requirements and
all that all applicable discretionary approvals are acquired subject to Chula Vista
Municipal Code 19.89 for Wireless Facilities on private property (3) the equipment
enclosure is integrated into the architecture or surrounding environment through
architectural enhancement (scale, texture, color. and style), unique design solutions,
enhanced landscape architecture; and complementary siting .,,solutions to minimize
visual and pedestrian impacts. - ~ ~• -~~ - -
4. Panel Antennas shall be vertically mounted to the structure in compliance with any
applicable separation requirements and shall not exceed six-inches in distance from the
structure.
5. No more than four panel Antennas, or two omni-directional Antennas, shall be mounted
on any City Street Light Standard by any one provider.
6. Antennas shall be colored and textured to match the support structure (pole; building,
etc.) on which they are attached. City will consider similar stealth options proposed by
the applicant at its sole discretion.
7. At the City's discretion, when necessary, equipment attached to the pole shall be
located to minimize pedestrian impacts and shall match the color of the pole, the City
may approve other stealth and aesthetically appropriate applications at its discretion.
8. The applicant is responsible for minimizing any potential damage to hard and soft
landscapes and is sole responsible for the, restoration and/or replacement of landscape
material shall be provided by the applicant, subject to the appropriate City approval(s)
prior to operating the WTF. In addition, the City shall require a maintenance plan
and/or agreement sufficient to allow plant material to reach self-sustaining status
pursuant to the City landscape architect (approximately 1 year for shrubs and 3 years
for trees)..
19-40
(GT~'TF on Public Property
Policies & Procedures)
Exhibit B
Page .i of 6
9. When screening is proposed the plants shall be ''water smart'' and self-sustaining (i.e.
not require irrigation systems where there are none)
10. If a street light supporting an Antenna is damaged or becomes non-functional, the City
shall have the right to erect a temporary light in the licensed area. The applicant shall
be responsible for permanent replacement and/or repair of the light within a reasonable
amount of time pursuant to Section 2.4 of the Master Communications
Site License Agreement.
11. Functional appurtenances shall be pursued
12. Non-functional light standards and/or poles are discouraged subject to the discretion of
the City.
13. Replacement Light standards or new light standards must be designed to match the
existing lights in the area.
14. All above-ground structures must be constructed in break-away design to ensure traffic
safety.
15. Proper visual sight distance must be maintained in accordance with all City standards at
X11 intersections and driveways.
16. All energy costs for new light standards must be paid for by the applicant.
F. The following are general criteria for placement of WTF's within City Parks(City staff
shall determine whether the proposed WTF is consistent with the context and setting of the
Park Site
1. The proposed WTF shall be integrated with existing park facilities or open space, shall
not disturb the environmental integrity of the park or open space, and shall be distruised
such that it does not significantly detract from the recreational or natural character of
the site.
2, Whenever possible, Antennas shall be concealed within existing appurtenances such as:
sports field light poles, security light poles, scoreboards, buildings and other similar
posts/structures within the park site, with no aesthetic/functional impact to the intended
effect.
No WTF or Equipment Facilities shall be placed on existing or proposed active
recreational areas, or in a location identified by Park staff that will hinder or interfere
with the future development of the park.
19-41
Exhibit B
(WTF on Public Property Page 6 of 6
0
Policies & Procedures)
4. Above-ground equipment enclosures, when allowed, shall be designed similarly to
existing park structures, shall be the smallest size that technology allows, and shall be
integrated into the existing architecture of surrounding enviromnent through
architectural enhancement. All equipment shall be located inside the equipment
enclosure and the building shall be enclosed on all four sides and above. Landscaping,
which complements the existing park landscaping, shall be used to screen and enhance
the WTF enclosure.
5. The City reserves the option to require the applicant to incorporate complementary uses
on the exterior of enclosures such as; storage, drinking fountains, concrete pads and
.electrical outlets for vending machines, clocks, score boards or other features that may
allow the structure to blend into and complement park uses.
6. An applicant may be limited to one WTF Facility and/or Equipment Facility in any
park. Exceptions may be made for WTF Facilities in large regional parks or at the
discretion of the City.
J: IengineerlpERMITShvireless FaciZitiesLSubmittal Requirements3-17-08.doc
19-42
Exhibit B
~~~(~ ENGINEERING & CONSERVATION ANQ ENVIRONMENTAL SERVICES
~~
APPLICATION ^ WTF PUBLIC PROPERTY PERMIT
Cm' of Wireless Telecommunication Facilities ^
CHULA VISTA
Applicant Information
Applicant/Carrier Name:
Applicant/Carrier Address:
Contact:
Fax: ~
Agent
(Company Name)
Agent Address:
Phone No.: l
Phone No.:
(Person Name),
(Person Title)
Fax: ( )
General Proiect Description
Project Name: Carrier Ref #.:
General Description of Proposed Project. See attached APPENDIX A
Subject Property Information
' Location/Street Address (Closest intersection): . -,,..: , ,. ,
Assessor's Parcel #:
_. - -
Total Acreage:
Redevelopment Area (if applicable)
General Plan Designation: Zone Designation:
Are there any WTFs existing or proposed on this site? (If yes, please describe.)
If so is this proposed as a co-location? ^ Yes ^ No
Proiect Details
Will antenna go on ^ new (OR) ^ existing structure?
Height of structure where the antenna will be placed
Dimensions of the antennas:
Will there be other devices (i.e. EPS or microwave antenna)?
Square footage of the equipment area/shelter:
Will any of the facilities be underground? ^ YeS ^ NO
How often will the site require maintenance visits? _
Print Applicant's Name:
Applicant Signature: _
Date:
276 Fourth Avenue ~ Chula Vista i ~al~~rnia ~ 91910 ~ (619) 691-5024
`l` // Exhibit B
~~~ Engineering & Conservation and Environmental Services
,___._-_
_._._._
_._.__
CITY OF
CHUtA VISTA
APPLICATION APPENDIX A
Proiect Description & Justification
Project Name:
Applicant Name:
1) Please fully describe the proposed project, any and all construction that may be accomplished as a
result of approval of this project, and the project's benefits to you, the property, the neighborhood, and
the City of Chula Vista.
2) Provide a brief narrative about why is this being pursued, new system, additional topographical
coverage, additional demand based on x number of reported dropped calls etc over the past time
period.
3) Include a basic preliminary plot plan showing closest cross streets and elevations for pre-application
site visit. (Sample attached}
4) Provide Search ring(s) and alternate locations reviewed within that search rings} for pre-application
site visit.
5) Demonstrate how you are addressing the MLA and issues summarized in Property Policies and
Procedures; Conditions and Requirements. Include any details necessary to adequately explain the
scope and/or operation of the proposed project. You may include any background information and
supporting statements regarding the reasons for, or appropriateness of, the application. Use an
addendum sheet if necessary
19-44 Page No. 2 of 5
~~~ ~~
r:Arr:
___._-_
_._.__
CriY OF
CHUTA VISTA
Exhibit B
Engineering & Conservation and Environmental Services
APPLICATION APPENDIX B
Permit Applicant:
Applicant's Address:
Type of Permit:
Agreement Date:
Deposit Amount:
This Agreement ("Agreement") between the City of Chula Vista, a chartered municipal corporation ("City") and the
forenamed applicant for a development permit ("Applicant"), effective as of the Agreement Date set forth above, is made
with reference to the following facts:
Whereas, Applicant has applied to the City for a Wireless Telecommunications Facility Public Property permit of
the type afore-referenced ("Permit") which the City has required to be obtained as a condition to permitting Applicant to
develop a parcel of property; and,,
Whereas, the City will incur expenses in order to process said permit through the various departments of the City
("Processing Services"); and,
Whereas the purpose of this agreement is to reimburse the City for all expenses it will incur in connection with
providing the Processing Services;
Now, therefore, the parties do hereby agree, in exchange for the mutual promises herein contained, aS fdllows:
1. Applicant's Duty to Pay.
Applicant shall pay all of City's expenses incurred in providing Processing Services related to Applicant's Permit, including
all of City's direct and overhead costs related thereto. This duty of Applicant shall be referred to herein as "Applicant's
Duty to Pay."
1.1. Applicant's Deposit Duty.
As partial performance of Applicant's Duty to Pay, Applicant shall deposit the amount afore-referenced ("Deposit").
1.1.1. City shall charge its lawful expenses incurred in providing Processing Services against
Applicant's Deposit. If, after the final inspection as outlined in section 15 and 18 of the WTF
Public Property Permif and conclusion of processing Applicant's Permit and, any portion of the
Deposit remains, and the Carrier/Applicant has no other outstanding processing debts for WTF
public property permits within the City, the City shall return said balance to Applicant within 60
days without interest thereon. If, during the processing of Applicant's Permit, the amount of the
Deposit becomes exhausted, or is imminently likely to become exhausted in the opinion of the e
City, upon notice of same by City, Applicant shall forthwith provide such additional deposit as City
shall calculate as reasonably necessary to continue Processing Services. The duty of Applicant
to initially deposit and to supplement said deposit as herein required shall be known as
"Applicant's Deposit Duty".
2. City's Duty.
City shall, upon the condition that Applicant is no in breach of Applicant's Duty to Pay or Applicant's Deposit Duty,
use good faith to provide processing services in relation to Applicant's Permit application.
2.1. City shall have no liability hereunder to Applicant for the failure to process Applicant's Permit application, or
for failure to process Applicant's Permit within the time frame requested by Applicant or estimated by City.
19-45 Page No. 3 of 5
`\r // Exhibit B
~_... Engineering & Conservation and Environmental Services
crrv of
CHUtA VISTA
2.2. By execution of this agreement Applicant shall have no right to the Permit for which Applicant has applied.
City shall use its discretion in valuating Applicant's Permit Application without regard to Applicant's promise to pay for the
Processing Services, or the execution of the Agreement.
2.3. By execution of this agreement Applicant shall have no right to the Permit for which Applicant has applied.
City shall use its discretion in valuating Applicant's Permit Application without regard to Applicant's promise to pay for the
Processing Services, or the execution of the Agreement.
3. Remedies
3.1. Suspension of Processing
In addition to all other rights and remedies which the City shall otherwise have at law or equity, the City has
the right to suspend and/or withhold the processing of the Permit which is the subject matter of this Agreement, as well as
the Permit which may be the subject matter of any other Permit which Applicant has before the City.
3.2. Civil Collection
In addition to all other rights and remedies which the City shall otherwise have at law or equity, the City has
the right to collect all sums which are or may become due hereunder by civil action, and upon instituting litigation to collect
same, the prevailing party shall be entitled to reasonable attorney's fees and costs.
4. Miscellaneous.
4.1 Notices.
All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in
writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served
if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or
certified, with return receipt,[equesfed et the addresses identified adjacent to the signatures of the parties represented.
4.2 Governing LawNenue.
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San
Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this
Agreement, and performance hereunder, shall be the City of Chula Vista.
4.3. Multiple Signatories.
If there are multiple signatories to this agreement on behalf of Applicant, each of such signatories shall be
jointly and severally liable for the performance of Applicant's duties herein set forth.
4.4. Signatory Authority.
This signatory to this agreement hereby warrants and represents that he is the duly designated agent for the
Applicant and has been duly authorized by the Applicant to execute this Agreement on behalf of the Applicant. Signatory
shall be personally liable for Applicant's Duty to Pay and Applicant's Duty to Deposit in the event he has not been
authorized to execute this Agreement by Applicant.
4.5 Hold Harmless.
Applicant shall defend, indemnify and hold harmless the City, its elected and appointed officers and
employees, from and against any claims, suits, actions or proceedings, judicial or administrative, for writs, orders,
injunction or other relief, damages, liability, cost and expense (including without limitation attorneys' fees) arising out of
City's actions in processing or issuing Applicant's Permit, or in exercising any discretion related thereto including but not
limited to the giving of proper environmental review, the holding of public hearings, the extension of due process rights,
except only for those claims, suits, actions or proceedings arising from the sole negligence or sole willful conduct of the
City, its officers, or employees known to, but not objected to, by the Applicant. Applicant's indemnification shall include
any and all costs, expenses, attorney's fees and liability incurred by the City, its officers, agents, or employees in
defending against such claims, whether the same proceed to judgment or not. Further, Applicant, at its own expense,
shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or
employees. Applicant's indemnification of City shall not be limited by any prior or subsequent declaration by the
Applicant. At its sole discretion, the City may participate at its own expense in the defense of any such action, but such
participation shall not relieve the applicant of any obligation imposed by this condition.
19-4 6 Page No. 4 of 5
~`~ ~~ Exhibit B
~~` Engineering & Conservation and Environmental Services
,....~.
~~__._
CITY OF
CHULA VISTA
4.6 Administrative Claims Requirements and Procedures.
No suit or arbitration shall be brought arising out of this agreement against the City unless a claim has first been
presented in writing and filed with the City of Chula Vista and acted upon by the City of Chula Vista in accordance with the
procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the
provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used
by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City
for the purpose of resolving any dispute over the terms of this Agreement.
Now therefore, the parties hereto, having read and understood the terms and conditions of this agreement, do
hereby express their consent to the terms hereof by setting their hand hereto on the date set forth adjacent thereto.
Dated
City of Chula Vista
276 Fourth Avenue
Chula Vista. CA 91910
By
Dated
By:
19-47 Page No. 5 of 5
Exhibit B
PROPOSED (PN6}
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SITE# 4344 T.G. 1311- J7
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(This simulation can be a simple elevation for the Preliminary Site Visit)
Preliminary Plot Plan (App Item 3)
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Exhibit B
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~~.
C[lY OF
CHUlA V[STA
SCHEDULE OF PREMISES/
WIRELESS TELECOMMUNICATIONS FACILITY
SITE LICENSE /PERMIT
FOR <Carrier name>
PERMIT NUMBER WTF- <Catz•ier initial> -##
SITE NUMBER: (will be pro~~ided by carrier for each site}
DECISION DATE: <.gpprc>val Date>
LOCATION: The site i located at <address>, APN xxx-xxa-xx
ANNUAL FEE: $ beginning (provided by hlicha.et 1~~leacham for each
site.)
INITIAL FEE: covers prorated annual fee from 1St month following
approval date to December 31St of that year (completed SOP
shall not be provided until the initial fee is paid).
Subject to the City receiving the Initial Fee, Permission is hereby granted pursuant to the Master .License' ''
Agreement, dated ,between the City of Chula Vista (hereinafter "City") and <Carrier nazne>
(hereinafter "Permittee") whose mailing address is <carrier address> to do work within a portion of City's
Right-of--Way, Open Space, and Public Utilities area ("City Property") adjacent to and for the direct benefit of the
following described property:
Legal Description: See Exhibits "A" and "B", attached hereto and by reference made a part hereof.
Description of Installation: See Exhibit "C", Site Plan, attached hereto and by reference made a part
hereof. (The E~-lzibit shall include detailed location & description of equip~nerrts, condzait, antennas, etc.)
(Legal Description and Description of Installation, hereinafter-Wireless Telecommunications Facilities, "WTF")
Now, therefore, in consideration of their mutual promises, and other good and valuable consideration, the parties
hereto agree as follows:
Permission is hereby granted to Permittee by City to install WTF on the City Property at the location specified in
accordance with the following terms and conditions:
All terms and conditions of this permit as to the Permittee shall be a burden upon Permittee. All
conditions apply to Permittee and all their heirs. assigns, successors or transferees.
WTF shall be installed and maintained in a safe and sanitary manner by Permittee as determined by City
Engineer and Public Worts Director.
3. Submit WTF plans for Building Permit from the Chula Vista Building Division and comply with the all
regulations to the satisfaction of the City Building Official prior to the issuance of Building Permits.
WTF-<insert carrier initials> -xx
Page 1 of 3
19-50
Exhibit B
4. Any concrete pads or vault cover doors in or adjacent to side~~~alks must be flush with and back a
minimum of 18 inches from sidewalk.
5. Disruption of existing site improvements and facilities, including site landscaping improvements,
resulting from the installation of the WTF shall be replaced and/or repaired in kind, subject to the
appropriate City approval(s).
6. Electrical power to the WTF shall not be enabled prior to issuance of a certificate of occupancy, unless
such power is needed to test the WTF's operation during construction and installation. If enabled for
testing purposes, electrical power shall be disabled once testing is complete.
7. Before using the WTF, a final inspection shall be scheduled and conducted by the City and the Public
Works department to ensure that all conditions of approval have been met and all necessary permits have
been obtained. You may contact Don Brown, Building Project Manager, in Engineering at (619}
397-6074 for assistance.
8. Permittee shall be responsible for maintaining the project area in a safe and secure condition to the public
and shall also provide a temporary chain lint: fence to be installed around the perimeter of the project area
during construction of the WTF.
9. In addition, construction of the WTF shall be scheduled in advance and coordinated with the City to
minimize the potential for conflicts with vehicle traffic and City operations occurring on or near the WTF
site. Contact Don Brown in Engineering for coordination. Permittee agrees that the site will not be
activated until the City, Public Works and the Building Inspector has signed off on final construction.
10. <Add any additional Project~s~ev%f~c coridi;~tions>
IMPORTANT NOTE: Pursuant to the Master License Agreement between the City and <insert name of
Carrier>, violations of these conditions may result in the termination of the right to use this site. Furthermore, the
City may add to, delete, or modify this permit's Conditions at any time during the term of the Master License
Agreement to advance a legitimate governmental interest.
(End of page. Next page is signature page.)
WTF-<insert carrier initials> -xx
Page 2 of 3
19-51
Exhibit B
APPROVALS:
City Engineer
SIGNATURE PAGE FOR
SCHEDULE OF PREMISES/
WIRELESS FACILITI' SITE LICENSE /PERMIT
FOR <Carrier name>
Host Department if different IE library, fire, etc
Michael Meacham
Director of Conservation
and Environmental Services
ACCEPTANCE
By signature below, the Wireless Carrier acknowledges they have read, understood and agreed to the
conditions contained herein, the Public Property Policies & Procedures and the Master Communications
Site License Agreement, and will implement same. ,
Authorized Signature of Wireless Carrier Date
Print Name and Title
WTF-<insert carrier initials> -xx
Page 3 of 3
19-52