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HomeMy WebLinkAboutFor reference only - AT&T Fully Executed MLA 3-11-19 CITY OF NEWPORT BEACH WPO/4 100 Civic Center Drive 0� Newport Beach,California 92660 . �(n 949 644-3005 1 949 644-3039 FAX newportbeachca.gov/cityclerk C,9L'FO RN�P March 11, 2019 New Cingular Wireless PCS, LLC Attn: Mr. James Stickney 575 Morosgo Drive NE Atlanta, GA 30324 Re: Contract No. C-8584-1 Dear Mr. Stickney: Enclosed please find your executed copy of the master License Agreement for the Use of City-Owned Streetlights for Telecommunication Facilities. If you have any questions or need additional information, please contact Real Property Administrator Lauren Wooding Whitlinger at (949) 644-3236. Sincerely, a A� Leilani I. Brown, MMC City Clerk Enclosure cc: Lauren Whitlinger, Community Development MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS PCS, LLC FOR THE USE OF CITY-OWNED STREETLIGHTS FOR TELECOMMUNICATION FACILITIES This MASTER LICENSE AGREEMENT("Master License") is entered into between the City of Newport Beach, a California municipal corporation and charter city ("City"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Licensee") on this 12t" day of February, 2019 ("Effective Date"). City and Licensee are each a "Party" and together the "Parties" to this Master License. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the City Charter; B. City is the fee title owner of certain Streetlight(s) located within the Public Right-of- Way in the City of Newport Beach, California; C. Licensee desires to license from City, on a non-exclusive basis, the right to attach, install, operate, maintain, and remove certain Telecommunication Facilities on certain City-owned Streetlights located within certain areas of the Public Right-of- Way (collectively, the "License Area"); D. The Parties anticipate amending this Master License from time-to-time by attaching and incorporating herein the specific License Area(s) to this Master License to include additional City-owned Streetlights to allow for the attachment, installation, operation, maintenance, and removal of additional Telecommunication Facilities as permits are obtained from the City; E. Pursuant to the Newport Beach Municipal Code ("NBMC") and City Council Policy L-23, City sought the assistance of an appraiser to determine the maximum or fair market value rent for the License Area; and F. City is willing to make the License Area available to Licensee, subject to the covenants and conditions set forth in this Master License on a non-exclusive basis, to facilitate the efficient and orderly deployment of communications facilities in the City of Newport Beach. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS 1.1 "Amendment" means that document prepared by City in substantially the form attached hereto as Exhibit "A" itemizing the City-owned Streetlight(s) and describing and depicting the License Area(s) on which Licensee is authorized to install a Telecommunication Facility. New Cingular Wireless PCS, LLC, Page 1 1.2 "FCC" means the Federal Communications Commission or successor entity. 1.3 "License Year" refers to successive twelve (12) month periods, commencing with the Effective Date of this Master License. 1.4 "Public Right-of-Way" means the improved or unimproved surface or subsurface of any public street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and/or pedestrian related use. Public Right-of-Way includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. The Public Right-of-Way does not include private streets. 1.5 "Replacement Streetlight" means a streetlight furnished by Licensee, in accordance with Section 8 of this Master License. A Replacement Streetlight shall be in accordance with the current City specifications for streetlights, subject to approval by the City. 1.6 "Streetlight" or "City-owned Streetlight" means the streetlights owned and operated by the City within the Public Right-of-Way, including any Replacement Streetlight approved and accepted by the City, for which the Parties have executed an Amendment to this Master License. The Streetlight shall include the pole, light fixture, photocell and all structures associated with the operation of the Streetlight. 1.7 "Telecommunication Facility" or "Telecommunication Facilities" means Licensee owned and operated antennas, equipment cabinets, utilities and fiber optic cables, wires, brackets, conduit, screening elements, and all and related equipment for providing wireless telecommunication services from the License Area, as further described and depicted on in the applicable Amendment(s) to this Master License. Telecommunication Facilities under this Master License shall be limited to "small cell" facilities attached to existing or Streetlights or Replacement Streetlights. Antennas and all related equipment consists of three (3) or fewer antennas and four (4) or fewer radio units, with a small broadcast radius, and shall include screening elements to the maximum extent feasible so a facility blends into the area, does not create visual clutter, and does not negatively affect public views. Each Telecommunication Facility installed pursuant to this Master License shall match the designs shown on Exhibit "B" ("Approved Design"), attached hereto and incorporated herein by this reference. Licensee shall seek prior written approval from City for any Telecommunication Facility where installation of the Approved Design is not feasible. Support equipment for the Telecommunication Facility must be placed on the Streetlight or underground within the Public Right-of-Way or otherwise be located on private property. If support equipment is placed on private property, a separate agreement may be required by the private property owner and written authorization from the property owner shall be secured by Licensee and provided to City. 1.8 "Telecommunication Services" means the transmission and reception of wireless, cellular telephone, and/or data communications. 1.9 "Temporary Streetlight" means a standard design streetlight of equal version to surrounding Streetlights that is temporary in nature. New Cingular Wireless PCS, LLC, Page 2 2. LICENSE 2.1 City grants a non-exclusive license to Licensee for the term of this Master License, to install, operate, maintain, and remove Telecommunication Facilities in the License Area(s). City further grants to Licensee a non-exclusive license to access the License Area(s), subject to the conditions of the permits issued by the Public Works Department and the Community Development Department, and to the terms of all governmental licenses, permits and approvals required by federal, state or local governmental agencies, for construction, installation, operation, maintenance and removal of the Telecommunication Facilities. All construction, installation, operation, maintenance and removal activities shall be at Licensee's sole cost and expense, including but not limited to the fees and costs associated with the installation and government approvals described in this Master License, and pursuant to plans approved in advance in writing by the City. The Master License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this Master License, to keep and perform each and every term, covenant and condition of this Master License. 2.2 Licensee shall be responsible for all maintenance associated with the Telecommunication Facilities, including all costs and expenses associated therewith. Except in connection with an outage or emergency, Licensee shall provide five (5) calendar days' written notice to the Municipal Operations Director or his/her designee at 949 West 16t" Street, Newport Beach, CA 92663 prior to performing any maintenance on Telecommunication Facilities that are located on Streetlights. 2.3 City shall be responsible for all maintenance associated with the Streetlights, including but not limited to, the working Streetlights themselves, and the wires and equipment necessary to operate the Streetlights. In the interest of the safety of its employees, City shall have the right to temporarily turn off the power to any and all Telecommunications Facilities if any required maintenance for the Streetlights requires City employees to be within ten (10) feet of the transmitting antennas, provided however, City provides no less than twenty-four (24) hours' notice of same by calling the phone number identified in Section 35 (except in an emergency, in which case, no notice shall be required). City shall not be required to notify Licensee when maintenance does not interfere with operation of Licensee's Telecommunication Facilities. 3. USES 3.1 Licensee shall use the License Area for the sole purpose of constructing, installing, operating, and maintaining, securing and operating Telecommunication Facilities to transmit and receive radio communication signals on various frequencies as authorized by the FCC, all in compliance with the approved site plans and related drawings on file with the City Community Development Department, the conditions of approval contained in the permit issued by the Community Development Department in accordance with Chapter 20.49 and Chapter 21.49 of the Newport Beach Municipal Code, as may be amended from time to time, and any permit issued by the Public Works Department. The Telecommunication Facilities may not be expanded or modified except upon prior written approval by the City as well as issuance of any permits or approvals that may be required under federal, state and local laws and regulations. Notwithstanding the foregoing, but with prior written notice to the City describing and depicting the New Cingular Wireless PCS, LLC, Page 3 change(s), Licensee shall not be required to obtain a new building permit for modification of equipment for a Telecommunication Facility within a License Area, so long as such modification does not alter the appearance of the Approved Design, increase pole loading beyond the approved specifications, or involve placement of Telecommunication Facilities outside of the License Area and Approved Design. Construction, installation, operation, maintenance, repair, replacement, and removal of the Telecommunication Facilities shall be at Licensee's sole expense. Licensee shall keep the Telecommunication Facilities free from hazards or risk to the public health, safety or welfare. 3.2 Except as provided under this Master License, Licensee shall not make or permit to be made any alterations, additions or improvements to the Streetlights, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the Streetlights without the prior written consent of the City Manager or his/her designee and any necessary permits. Notwithstanding the foregoing, Licensee shall place warning signs on or about the Telecommunication Facilities in the manner required by federal, state or local law, which signs shall be shown as to type, size, and location on the permit set of plans. 4. PERMITS, APPROVALS AND PUBLIC NOTIFICATION 4.1 This Master License is expressly made contingent upon Licensee obtaining all applicable certificates, permits, entitlements, environmental review, studies, and other approvals that any federal, state, or local authority may require to enable Licensee to construct, install, operate, maintain, repair and remove the Telecommunication Facilities. Licensee shall bear the sole cost and expense related to the procurement of these approvals. Licensee shall obtain any required permits and approvals as set forth in the NBMC and City Council Policies, and Licensee agrees to comply with the City's ordinances and policies regarding such installations and removals, including public notification when required, as well as any future regulations that may be adopted by the City respecting such installations that are consistent with the City's rights under applicable law. 4.2 For an Amendment(s) to the Master License to be prepared and executed to include a new License Area(s), Licensee shall provide the City's Real Property Administrator with a copy of all required permits, licenses and approvals that are required to enable Licensee to install and operate the Telecommunication Facilities. Licensee shall submit all required items along with the processing fee, as outlined in Section 7.1, below. 5. AMENDMENT TO MASTER LICENSE 5.1 The City may approve, approve with conditions, or disapprove the installation of a Telecommunication Facility or a Replacement Streetlight, at its sole discretion to the extent consistent with applicable laws. 5.2 Upon receipt of the necessary approvals and permits, Licensee shall prepare a list of sites ("Site List") to identify the location of City-owned Streetlights to be licensed to Licensee as well as a description and depiction of the License Area(s) ("License Area Depiction") to be licensed under an Amendment(s) to this Master License. The Amendment(s) will grant Licensee an exclusive right to install Telecommunication New Cingular Wireless PCS, LLC, Page 4 Facilities on the License Area(s) as described and depicted in the Amendment(s) to this Master License from the date of execution of the Amendment until the expiration of this Master License. Should the Licensee determine a location on the Site List is no longer necessary, or wish to obtain a License Area for a location not on the Site List, Licensee shall be responsible for obtaining the necessary approvals and permits for any site where they wish to install Telecommunication Facilities, and execute an Amendment to the Master License adding the new Streetlight location(s) or removing the existing location(s). 5.3 Approval of the Site List and the License Area Depiction shall be at the sole and absolute discretion of the City Manager. City reserves the right to require Licensee to exchange locations on the Site List to allow for appropriate spacing throughout a neighborhood and the City. 5.4 The Parties shall execute an Amendment to this Master License updating the Site List and License Area Depiction once the installation of a Telecommunication Facility on a Streetlight is approved by City. The Amendment shall be effective and incorporated into this Master License once the Amendment is fully executed by the Parties. A sample form of the Amendment is attached hereto as Exhibit A. 5.5 The City Manager is authorized to execute Amendments on the City's behalf with the approval as to form by the City Attorney. 5.6 Licensee shall only install Telecommunication Facilities within the License Areas identified on the Site List, incorporated into this Master License by a fully executed Amendment to Master License. 6. TERM 6.1 The initial term of the license granted hereunder ("Initial Term") shall commence on the Effective Date and continue for a period of ten (10) years. After the Effective Date, this Master License shall not be revoked or terminated except as expressly provided in this Master License. 6.2 This Master License shall automatically be extended on the same terms and conditions as set forth in this Master License, for up to two (2) successive terms of five (5) years (each, a "Renewal Term"), unless at least thirty (30) calendar days prior to the expiration of the Initial Term or the applicable Renewal Term, either Party notifies the other Party in writing of their intention not to extend this Master License. Notwithstanding the above, this Master License shall not be automatically extended if Licensee has defaulted in the performance of any term or condition of the Master License and has failed to cure such default after notice as provided in this Master License. "Term" shall refer to the Initial Term and all Renewal Terms (if applicable), unless expressly stated elsewhere within this Master License. 7. RENT AND FEES 7.1 Processing Fee. For each Amendment, Licensee shall pay City a non- refundable document preparation fee in the amount of Two Hundred Sixty-Six Dollars and 00/100 ($266.00), as adjusted from time-to-time in accordance with the City's then current fee schedule. This amount shall be paid upon request to prepare an Amendment and prior to execution of the Amendment by the Parties. New Cingular Wireless PCS, LLC, Page 5 7.2 Rent. Licensee shall pay the City rent ("Rent") as follows: 7.2.1 For the period of time from the Effective Date until the end of the second calendar year, Licensee shall pay to City, commencing forty-five (45) calendar days after execution of any Amendment, the amounts listed in the most current published rents schedule approved by the City Manager and available on the City's website, for each Streetlight, per month, based upon the License Year at the time of Amendment to the Master License, and the number of License Areas. 7.2.2 After the time period set forth in Section 7.2.1, the Rent for each Streetlight, shall either be: (1) Twenty-Two Dollars and Fifty Cents ($22.50) per month (i.e. Two Hundred and Seventy Dollars ($270) per year); or (2) any higher amount allowed to be charged by the City pursuant to Federal Communications Commission's Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018 ("FCC 2018 Order"), or any FCC subsequent order or ruling related to small wireless facilities use of the Public Right-of Way. 7.2.3 In the event the FCC 2018 Order provisions related charges for small wireless facilities use of the Public Right-of-Way, are determined to be invalid, removed, stayed, or altered in a significant manner by the FCC or a court of competent jurisdiction ("Subsequent Significant Action"), either Party to this Agreement may request that the Parties meet and confer as to whether the Rent provisions in this Master License should be modified. If after good faith negotiation the Parties are unable to reach an agreement regarding the Rent to be paid hereunder, the Rent for each Streetlight, per month, shall revert to the most current published rents schedule approved by.the City Manager and available on the City's website. 7.2.4 Rent shall be calculated per Streetlight, and includes all Telecommunications Facilities and appurtenant equipment and facilities. 7.2.5 During the period commencing two (2) calendar years after the Effective Date of this Master License, through the end of the Initial Term, the City shall not offer rental rates in an amount less than the Rent under this Master License, pursuant to the terms of this Section 7.2, to a licensee under the same type of master license agreement for the installation of small cell Telecommunication Facilities on City-owned Streetlights, unless, in any such case, Licensee is provided with the same rental rates for installation of new Telecommunication Facilities incorporated into this Master License by Amendment from and after the date such rental rates are agreed to by City, as evidenced by a fully executed agreement. The Parties expressly agree that this provision will not apply to agreements that have a non-monetary component, such as, but not limited to, the agreement between Los Angeles SMSA Limited Partnership (doing business as Verizon Wireless) and the City, which has an effective date of February 13, 2018, and is incorporated herein. 7.2.6 In exchange for City's agreement to the provisions outlined in Section 7.2, Licensee, in furtherance of its intent to improve wireless telecommunication signals in the City, hereby agrees to submit use and construction permit applications for installation of new Telecommunication New Cingular Wireless PCS, LLC, Page 6 Facilities on no fewer than twenty (20) Streetlights, pursuant to this Master License, within ninety (90) calendar days of the Effective Date of this Master License. Licensee further agrees to submit all documents and information necessary to enter into an Amendment for no fewer than twenty (20) Streetlights within ten (10) business days of obtaining said permits. Licensee shall execute and return said Amendment to City, approved as to form by the City Attorney, within ten (10) business days of receipt of the Amendment. 7.3 Time and Place of Payment. Commencing forty-five (45) calendar days following the execution of an Amendment to this Master License, and on the first (1st) day of each month during the Term, Licensee shall pay to City, Rent for each Streetlight. Rent for any partial month shall be prorated in accordance with the actual number of days in that month. All payments of Rent shall be made in lawful money of the United States of America and shall be paid to City in person or by United States mail, or overnight service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Licensee. If requested by City, Licensee shall make payments electronically (at www.newportbeachca.g ov) or by wire transfer(at Licensee's cost). Licensee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. 7.4 Delinquent Payments. A ten percent (10%) penalty shall be added to the Rent if not received by City within five (5) calendar days after the due date. In addition, all unpaid Rent shall accrue interest on the amount due at the rate of ten percent (10%) interest per annum from the date due and payable by the terms of this Master License until paid in full. All late charges and interest payments hereunder, shall, as incurred, become Rent due under this Master License. 7.5 Adjustment of Rent Upon Modification of Use. The City and Licensee intend this Master License and any Amendment to cover only "small cell" installations, as those terms are commonly understood to mean small, low-power, low-elevation, unobtrusive wireless facilities intended to cover relatively small geographic areas. Licensee expressly acknowledges and agrees that the permitted uses under this Master License does not include the right to use any Streetlight for any other purpose. Rental rates, as set out in Section 7.2, are based upon the scope of the project outlined. Changes to the Telecommunication Facility, Telecommunication Facilities, Telecommunications Services, the Streetlight, or License Area may increase the value of the Master License. To the degree that a change in the Telecommunication Facility(ies) requires amendment or modification to the permit beyond what is outlined in Section 1.7 and 3.1, City and Licensee understand and mutually agree that a corresponding increase in the market rate of the Telecommunications Facilities shall be commensurate with the additional License Area being used to reflect an adjustment to the Rent. Such an adjustment may be defined at the time at which Licensee seeks City's approval for modifications in the Telecommunications Facility, and shall be mutually agreed to by the Parties as a condition of the City's approval of such expanded service by the Licensee. New Cingular Wireless PCS, LLC, Page 7 8. REPLACEMENT OF STREETLIGHTS 8.1 If the Telecommunication Facilities require replacement of a City-owned Streetlight, Licensee shall be responsible for all costs to remove the existing Streetlight and design, procure, and install a Replacement Streetlight. The Replacement Streetlight shall be subject to the review and approval of City. Upon completion of the installation of the Replacement Streetlight and acceptance by City Manager, or his/her designee, the Replacement Streetlight shall become the City's property, in its then existing "as-is" condition, with no payment owed to Licensee. Licensee shall execute any documents required by City to cause the Replacement Streetlight to transfer ownership to City, including transfer of manufacturer's warranty, or provide copy of manufacturer's warranty to City and assist City in processing a claim against such manufacturer's warranty. Alternatively, Licensee may self-warranty the Replacement Streetlight to the City, in a scope and value equal to or greater than that provided by the manufacturer to the Licensee. 8.2 Upon approval of the installation of a Replacement Streetlight, Licensee shall have one hundred eighty (180) calendar days to install the Replacement Streetlight. The existing Streetlight shall remain in operating condition until such time the Replacement Streetlight is installed. Licensee shall have seventy-two (72) hours to complete the installation of the Replacement Streetlight once the existing Streetlight is removed. 8.3 In the event Licensee removes a Streetlight or Temporary Streetlight, Licensee shall use its best efforts to remove the Streetlight or Temporary Streetlight in a manner whereby the Streetlight or Temporary Streetlight can be reused. Licensee shall contact the Municipal Operations Director or his/her designee at (949) 644-3011 at least five (5) working days prior to removal for instructions on where to deliver the Streetlight upon removal. 8.4 In the event a Streetlight has been removed and a Replacement Streetlight for that Streetlight has not been accepted by City prior to removal of the License Area from the Site List, Licensee shall be responsible for all costs and expenses associated with making such adjustments to the Replacement Streetlight so that it is consistent with City standards. Such Streetlight shall be subject to the review and approval process set forth in Section 8.1. 9. INTERFERENCE WITH CITY TELECOMMUNICATION FACILITIES 9.1 Licensee agrees that its operation of the Telecommunication Facilities shall at all times comply with all FCC requirements and shall not cause any direct or indirect interference with the operation of the Streetlights as streetlights or City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time-to-time hereafter exist ("City's Facilities"). 9.2 In the event of any interference with City Police or Fire Department public safety communications, Licensee shall work with the affected department(s) to correct the interference within twenty-four (24) hours of City's written or telephone notice to New Cingular Wireless PCS, LLC, Page 8 Licensee. In the event of interference with City's Streetlight or own wireless communications system or external radio signals and communications other than Police or Fire Department, Licensee shall work with City to correct the interference within seventy-two (72) hours of City's written or telephone notice to Licensee. If it is determined the interference is caused by the Telecommunication Facilities and if Licensee is unable to correct interference to City's satisfaction, Licensee shall cease its operation of the interfering Telecommunication Facilities immediately, until the cause of the interference is corrected to City's satisfaction. If Licensee fails to correct any interference, City may, in addition to and without compromising any other available remedy, cut off power to the Telecommunication Facilities in the manner set forth in this License. 9.3 Should Licensee make any changes to the frequency or operating conditions approved by any permit issued by the City, which interferes with City's Facilities, then Licensee shall submit plans for the changes to City for its review and approval. Licensee agrees to fund any studies required to ensure that any contemplated changes to the frequency or operating conditions will be compatible with the City's Facilities. No further changes to the interfering frequency or Telecommunications Facility shall be made, pursuant to this Section 9.3, prior to the City's written approval. 10. EMERGENCY 10.1 Licensee understands that the Telecommunication Facilities are located on a public structure or on public property and emergency situations may develop from time- to-time that require power to the Telecommunication Facilities to be immediately shut off and thereby interfere or temporarily terminate the Licensee's use of its Telecommunication Facilities on the Streetlights and License Area. Notwithstanding any other provision in this Master License, Licensee agrees that if such a situation occurs, and/or there are frequency interferences of any nature between City's Police or Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Licensee in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Telecommunication Facilities and any equipment of Licensee's located on the Streetlights or License Area for the duration of the emergency. However, City agrees to use reasonable efforts to provide notice to Licensee prior to shutting-off power to the Telecommunications Facilities. Licensee agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Telecommunication Facilities or other communication facilities by the shutoff of power, as permitted hereunder. 10.2 Licensee agrees to install a clearly marked and accessible master power "cut-off' switch on the Telecommunication Facilities for the purpose of assisting City in such an emergency. 10.3 Unless otherwise specifically provided in a notice of termination of this Master License, City's exercise of the right to shut off any power to the Telecommunication Facilities pursuant to this Master License is not intended to constitute a termination of this Master License by either Party and such event is a risk accepted by the Licensee. Licensee and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. New Cingular Wireless PCS, LLC, Page 9 10.4 City shall have the right to determine what constitutes an "emergency situation" pursuant to this Section. 11. ACCEPTANCE OF CONDITION OF LICENSE AREA Licensee accepts use of the Streetlights and License Area in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the Streetlights and License Area, including their suitability for the use intended by Licensee. To the best of City's knowledge, the Streetlights and the License Area have not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in this Master License. The Licensee has conducted its own appropriate due diligence investigation of the Streetlights and License Area prior to its execution of this Master License or any Amendment hereto, or will do so prior to its installation of Telecommunications Facilities within the License Area(s). 12. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the Streetlights, License Area, or any Public Right-of-Way, other than a real property license to use and access the Streetlights and License Area, revocable and for a term as set forth in this Master License. 13. RESERVATION OF RIGHTS Licensee understands, acknowledges and agrees that any and all authorizations granted to Licensee under this Master License are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 14. UTILITIES Licensee shall not do anything, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the Streetlights, or utility, heating, air conditioning or ventilation systems located in the License Area, except as may be specifically permitted by any permit issued by the City. The Telecommunication Facilities shall be separately metered. In addition to the Rent, Licensee shall be responsible for the cost of all utility services necessary for the operation of the Telecommunication Facilities, and if required by City, shall have such utilities installed underground and/or connected if already installed, and maintained at Licensee's sole cost and expense (along with all ongoing use charges). Subject to City's approval, Licensee shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. Alternatively, Licensee may tap into City's power source within each License Area. Licensee shall pay to City a monthly fee as outlined in the Rate Sheet for Telecommunications Facilities, approved by the City Manager and available on the City's website, for estimated utility costs based on Licensee's equipment and consumption history, to pay for the use of the City's Utility services ("Utility Use Fee"). City, upon not less than thirty (30) days' notice to Licensee, may increase or decrease the Utility Use Fee commensurate with costs incurred by City for Licensee's use of City New Cingular Wireless PCS, LLC, Page 10 provided utilities. City's costs incurred for Licensee's use of City provided utilities shall be determined in City's sole and absolute discretion, and Licensee agrees not to dispute the accuracy of any fee charged hereunder, either during the Term of the Agreement or at any time thereafter, on the basis that it exceeds the cost(s) actually incurred by City for Licensee's use of City provided utilities. 15. INSPECTION 15.1 City shall be entitled, at any time, to inspect the Streetlights and Telecommunication Facilities for compliance with the terms of this Master License, and with all applicable federal, state and local (including those of the City) government regulations, provided any changes to such regulations shall not apply retroactively unless required by applicable laws 15.2 The Telecommunication Facilities shall be structurally and aesthetically compatible with the NBMC and in accordance with this Master License. If Telecommunication Facilities are not compliant with this foregoing requirement, Licensee, at Licensee's sole cost and expense, shall remove any such non-compliant Telecommunication Facilities or make Telecommunication Facilities compliant upon the request of the City. Licensee shall remove non-compliant Telecommunication Facilities or make Telecommunication Facilities compliant within the timeframes required by the City in writing. In the event Licensee fails to complete the foregoing within the timeframes required by the City, the City may terminate Licensee's use of the affected Streetlight in accordance with Section 23.3. Any termination is subject to the Licensee complying with the surrender obligations in this Master License. 16. CITY RETENTION RIGHTS Licensee's right to use the Streetlights and License Area during the term of this Master License shall be subordinate and junior to the rights of City to use and occupy the Streetlights and License Area for any purpose that does not interfere with Licensee's use of the Streetlights and License Area as provided herein. 17. LICENSEE'S RETENTION OF TITLE Title to the Telecommunication Facilities placed on the Streetlights and License Area by Licensee shall be held by Licensee or its equipment lessors, successors, or assigns. The Telecommunication Facilities shall not be considered fixtures. Licensee has the right to remove any or all of the Telecommunications Facilities at its sole expense from time-to-time during the term of the Master License. Licensee shall remove all of the Telecommunications Facilities, at its sole cost and expense, within ninety (90) calendar days of expiration or termination of this Master License. 18. SURRENDER Within ninety(90) calendar days of expiration or termination of this Master License, or relocation or termination of a specific Streetlight or License Area, Licensee at its sole cost and expense, shall remove the Telecommunication Facilities, restore the Streetlights and License Area to a condition satisfactory to and approved in writing by City, and vacate the Streetlights and License Area. Should Licensee fail to restore the Streetlights and License Area to a condition satisfactory to City, City may perform such work or have such New Cingular Wireless PCS, LLC, Page 11 work performed by others and Licensee shall reimburse City within thirty (30) calendar days for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Any Telecommunication Facility that is not removed by Licensee within the time frames set forth in this Section may be declared by the City to have become its sole and exclusive property, after which the City may utilize or dispose of the Telecommunication Facility as it sees fit. Licensee shall continue to pay the Rent until the Telecommunications Facilities have been removed, and the Streetlights and License Area are restored as required by this Master License. Licensee shall be liable for and pay any Rent owed until such time as the Telecommunications Facilities have been removed from the License Area. 19. ASSIGNMENT 19.1 All of the terms and provisions of this Master License shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Master License and the rights and obligations of Licensee shall not be assigned, transferred, or hypothecated (collectively, "transferred"), in whole or in part, without the express written consent of the City Manager or his/her designee. Any attempted transfer in violation of this Section shall be null and void. Except as provided below, the transfer of the rights and obligations of Licensee to any successor in interest or entity acquiring fifty-one percent (51%) or more of Licensee's stock or assets, shall be deemed an assignment requiring consent. Licensee shall provide City at least thirty (30) calendar days advance written notice of any proposed transfer. 19.2 If Licensee desires at anytime to effect a transfer, it shall first deliver to City: (a) a written request for approval; (b) the name, address and most recent financial statements of the proposed transferee; (c) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Master License arising from and after the effective date of assignment; and (d) any other reasonable information requested by the City Manager to assist him/her in making their decision. 19.3 Notwithstanding Section 19.1 above, Licensee may, without prior approval from time-to-time, do any of the following: 19.3.1 Grant to any person or entity a security interest in some or all of Licensee's Telecommunication Facilities which lien shall be subordinate and junior to this Master License. A security interest shall not include the Streetlights or other City property, and does not imply approval of any other use of the Telecommunication Facilities or License Area; and 19.3.2 Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30%) or greater interest in Licensee (a "Parent") or in which Licensee or a Parent has a thirty percent (30%) or greater interest (an "Affiliate"); (ii) to any entity with which Licensee and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of Licensee or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Telecommunication Facilities is operated, upon FCC and, if applicable, California Public Utilities Commission approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until Licensee New Cingular Wireless PCS, LLC, Page 12 cures any defaults under this Master License and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of Licensee's post, current and future obligations under the Master License. 19.4 No assignment by the Licensee shall release Licensee from continuing liability under this Master License with the exception of a buyout of the Licensee by another entity that formally assumes all past, current and future obligations of the Licensee under this Master License. 19.5 Telecommunication Facilities shall be mounted by Licensee and shall not be otherwise assigned, transferred, contracted, or subcontracted out without the prior written approval of City. 20. TAXES Licensee shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable directly or indirectly to the Telecommunication Facilities authorized herein. City hereby gives notice to Licensee, pursuant to California Revenue and Tax Code Section 107.6 that this Master License may create a possessory interest, which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Licensee. 21. RELOCATION Licensee agrees that whenever any City improvements may be required (for example, the widening of a street or replacement of a bridge or City utility), the City may require the removal or relocation of any such Telecommunication Facility at the Licensee's expense, without Licensee making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Telecommunication Facilities, City shall provide Licensee with not less than ninety (90) calendar days written notice of removal or relocation specifying a date by which the relocation is to take place. When a removal or relocation is required by the City, the City shall take reasonable steps to provide a suitable alternative for Licensee to relocate its affected Telecommunication Facility. If, however, a suitable alternative location is not available, City or Licensee, at their sole discretion, may terminate use of the Streetlight and require removal of the Telecommunication Facilities. Any relocation or removal of a Streetlight from Site List shall require a new Amendment to be executed by the Parties. If Licensee fails to remove the Telecommunication Facilities to a condition satisfactory to City within the ninety (90) calendar day period, City may perform such work or have such work performed by others and Licensee shall reimburse City within thirty(30) calendar days for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. 22. DAMAGE AND DESTRUCTION OF STREETLIGHT 22.1 In the event of(a) partial or total destruction of a Streetlight during the term of this Master License which requires repairs to the Streetlight, or(b) the Streetlight being declared unsafe by any authorized public authority for any reason other than Licensee's act, use or occupation, which declaration requires repairs to the Streetlight, City shall use reasonable efforts to make said repairs or remove the Streetlight within one hundred New Cingular Wireless PCS, LLC, Page 13 eighty (180) calendar days of the date of destruction or the date the declaration was served on City. If the City determines it is necessary for the Telecommunication Facility to be removed in order to make said repair to or remove the Streetlight, Licensee shall do so within forty-eight (48) hours of written notice from the City. Licensee shall have the right to either (a) use reasonable efforts to repair or replace the Streetlight that needs repair or replacement, or (b) remove the Telecommunications Facility from the Streetlight and from the Site List by Amendment to the Master License by providing written notice to the City within sixty (60) calendar days following the date of such destruction or the date the declaration was served on Licensee. Licensee shall be responsible for installing a Replacement Streetlight within ninety (90) calendar days of notice from the City. The City has the option to install a Temporary Streetlight, until a Replacement Streetlight is installed. Licensee shall be responsible for removing the Temporary Streetlight and in the Replacement Streetlight as set forth in Section 8. 22.2 If Licensee elects not to terminate their use of the Streetlight pursuant to this Section, the Rent shall remain in full force and effect. If Licensee elects to terminate their use of the Streetlight pursuant to this Section, Rent shall remain in full force and effect until the date of removal of a Telecommunication Facility from a Streetlight and execution of an Amendment by the Parties to remove the Telecommunication Facility from the Site List. 22.3 Any termination is subject to the Licensee complying with the surrender obligations in this Master License. 23. DEFAULT 23.1 Default by Licensee. The occurrence of any one or more of the following events shall constitute a default and material breach of this Master License by Licensee: 23.1.1 Failure of Licensee to pay Rent due hereunder within ten (10) calendar days after written notice from City; 23.1.2 Any failure by Licensee to perform any of the other terms, conditions or covenants of this Master License to be observed or performed by Licensee after thirty (30) calendar days written notice from City; 23.1.3 Licensee becoming insolvent or filing any debtor proceedings, or should any adjudications in bankruptcy be rendered against Licensee, or should Licensee take or have taken against it, in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Licensee's property, and should the same not be discharged within one hundred twenty (120) calendar days thereafter; 23.1.4 Licensee permitting the License Area to become vacant or unoccupied for thirty (30) consecutive calendar days after written notice to Licensee (except for vacancies caused by any force majeure or by remodeling, reconstruction, alteration or repairs permitted under this Master License); or 23.1.5 The appointment of a trustee or receiver to take possession of substantially all of the assets of Licensee located at the License Area or Licensee's New Cingular Wireless PCS, LLC, Page 14 interest in this Master License or the License Area, where possession is not restored within thirty (30) calendar days. 23.2 Cure Period. Except for the payment of Rent and unless explicitly stated elsewhere in this Agreement, if the nature of Licensee's default or breach under this Master License is such that more than thirty (30) calendar days are reasonably required for its cure, then Licensee shall not be deemed to be in default or breach if Licensee commences such cure within such thirty (30) calendar day period and diligently proceeds with such cure to completion. 23.3 Remedies. In the event of a default or breach by Licensee and Licensee's failure to cure such default or breach, City may at any time and with or without notice, except as expressly required below, do any or more of the following: 23.3.1 If Licensee is in default of: (i) its obligation to pay Rent for twenty percent (20%), or more, Streetlights of the total number of Streetlights set forth on the most recent Site List; (ii) its maintenance obligations, as set forth in this Master License, or other conditions set forth in an applicable permit, and the default relates in any way to twenty percent (20%), or more, of the Streetlights set forth on the most recent Site List, or(iii) Licensee's other monetary obligations, set forth herein, in an amount of One Hundred Thousand Dollars ($100,000), or more, the City may exercise the remedies set forth in Subsection 23.3.4. 23.3.2 If Licensee is in default of: (i) its obligation to pay Rent for less than twenty percent (20%) of the Streetlights set forth on the most recent Site List, (ii) its maintenance obligations, set forth in this Master License, or other conditions set forth in an applicable permit, and the default relates in any way to less than twenty percent (20%) of the Streetlights set forth on the most recent Site List, or (iii) Licensee's other monetary obligations, set forth herein, in amount less than One Hundred Thousand Dollars, ($100,000), the City may exercise any remedy set forth in Subsection 23.3.4, except the City hall not have the right to terminate the Master License under Subsection 23.3.4.2. 23.3.3 If Licensee is in default of any maintenance obligations, set forth in this Master License, or other conditions set forth in an applicable permit, and if the default does not cause a risk of harm to the public, as determined by the City in its sole discretion, prior to exercising the remedies authorized under this Subsections 23.3.1, or 23.3.2, , the City shall send Licensee a notice stating that the City intends to exercise its rights pursuant to Subsection 23.3.4, if Licensee does not comply with the applicable maintenance obligation or permit condition and cure the default within one hundred and twenty (120) calendar days. 23.3.4 As provided herein and for all other breaches and defaults, the City may do any of the following: 23.3.4.1 Re-enter the portion of the License Area giving rise to the default, remove all persons and property, and repossess and enjoy such License Area. 23.3.4.2 Terminate the entire Master License and Licensee's right of possession of the License Area. Such termination shall be effective upon New Cingular Wireless PCS, LLC, Page 15 City's giving written notice and upon receipt of such notice, Licensee shall immediately surrender possession of the License Area to City. 23.3.4.3 Terminate Licensee's right of possession of the portion of the License Area giving rise to the default, by entering into an Amendment to modify the Site List and remove the Streetlight(s) in default. Licensee agrees to execute said Amendment at the request of the City within ten (10) calendar days. 23.3.4.4 Exercise any other right or remedy, which City may have at law or equity. 23.4 City's Right to Cure Licensee's Default. Upon continuance of any material default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Licensee's cost. If City pays any money or performs any act required of, but not paid or performed by, Licensee after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than thirty (30) days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance. 23.5 Waiver of Rights. Licensee waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any other present or future law, in the event Licensee is evicted or City takes possession of the License Area by reason of any default by Licensee. 24. TERMINATION 24.1 This Master License is not a lease; it is a license to use City-owned property. As such, the Parties hereby acknowledge and agree that City, as the licensor, may revoke this Master License at will and at any time during the Term, for any reason, with or without cause, by giving thirty (30) calendar days' written notice to the Licensee. However, City agrees that City will not exercise its right to revoke this Master License at will unless City determines, in its sole discretion, that Licensee is in default of this Master License, the events of default being set forth in Section 23. The decision of whether to revoke the Master License when the basis of the revocation is an event of default as set forth in Section 23 shall be in the City's sole and absolute discretion. 24.2 In the event of City's material breach of any material obligation contained in this Master License and City's failure to cure such material breach within thirty (30) calendar days of receiving Licensee's written notice thereof, Licensee may terminate this Master License or license to use a specific License Area upon thirty (30) calendar days' prior written notice to City. Notwithstanding the above, if the nature of City's material breach under this Master License is such that more than thirty (30) calendar days are reasonably required for its cure, then City shall not be deemed to be in material breach if City commences such cure within such thirty (30) calendar day period and diligently proceeds with such cure to completion. Notwithstanding the foregoing, during a Renewal Term and upon one hundred eighty (180) days' written notice to City, Licensee may terminate this Master License or license to use a specific License Area for any reason; provided, however, if Licensee terminates this Master License or license to use a specific New Cingular Wireless PCS, LLC, Page 16 License Area under this subsection for any reason other than City's uncured material breach, Licensee shall pay to the City, concurrently with the delivery of its written termination notice, a termination fee equal to twelve (12) months' Rent in effect as of the date of such termination for the specific License Area(s) affected thereby. 24.3 Termination of use of a specific Streetlight or License Area must be effected by amending the Master License and removing the location from the Site List and/or License Area Depiction. Upon Licensee's termination of this Master License or removal of any Streetlight and/or License Area from the Site List or License Area Depiction during the Term or any exercised Renewal Term, pursuant to the terms of Section 24.2 above, Licensee shall pay to the City that pro-rated portion of Rent and/or fees specified in this Master License that is unpaid prior to the effective date of termination. Licensee shall be liable for and pay any Rent owed for the Streetlight until such time as the Telecommunications Facilities have been removed from the License Area and the Master License has been amended to remove the location, whichever is later. 24.4 Any termination is subject to the Licensee complying with the surrender obligations of this Master License. 25. CONSTRUCTION 25.1 Licensee agrees to take all prudent action to protect the Telecommunication Facilities and City facilities from any damage or injury caused by any work performed by or on behalf of Licensee regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of its Telecommunication Facilities or the failure, deterioration or collapse of such Telecommunication Facilities. 25.2 Licensee shall, at its sole cost and expense, continually maintain in a first- class manner, and repair any damage to the Streetlights and License Area to the extent such damage is caused by Licensee or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Licensee shall immediately notify the City's emergency contact listed in Section 35 of this Master License and the appropriate public safety agency (e.g., police and fire department) of any damage or injury caused by work authorized pursuant to this Master License. 25.3 In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages, if applicable, in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the work under this Master License. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. If applicable, all parties to the Master License shall be governed by all provisions of the California Labor Code — including, but not limited to, the requirement to pay prevailing wage rates (Sections 1770-7981 inclusive). If applicable, a copy of the prevailing wage rates shall be posted by the Licensee at the job site. 25.4 Without limitation of any other remedy available hereunder or at law or in equity, if Licensee fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Licensee shall New Cingular Wireless PCS, LLC, Page 17 reimburse City of all costs and expenses incurred in such repair or refinishing within thirty (30) calendar days of receipt of invoice from City. 25.5 Prior to the installation of a Telecommunication Facility, Licensee shall submit to the City and, throughout the Term plus ninety (90) calendar days thereafter, maintain in effect, a Faithful Performance Bond, in the form attached hereto as Exhibit "C," letter of credit or other security ("Security"), in the principal amount of ten thousand dollars ($10,000) per License Area to ensure and secure faithful compliance with the conditions of this Master License. Alternatively, upon execution of this Master License, and prior to the entering into any Amendment itemizing Streetlights on a Site List, or installation of any Telecommunication Facility, the Licensee may submit and maintain one Faithful Performance Bond, in the form attached hereto as Exhibit "C," letter of credit or other security, in the principal amount of One Million Dollars ($1,000,000), to ensure and secure faithful compliance with the conditions of this Master License. The Security shall be in a form acceptable to the City's Real Property Administrator, and shall remain in effect throughout the Term of this Master License plus ninety (90) calendar days thereafter. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Master License, including but not limited to costs of repairs and cost of removal of the Telecommunication Facilities upon expiration or termination of this Master License should Licensee fail to do so as required by this Master License. The Security shall in no way limit the liability or obligations of Licensee or its insurers under this Master License. If the funds represented by the Security become exhausted, Licensee shall immediately provide the City with a new security in the amount necessary to provide full-required Security. 25.6 Upon the installation of each Telecommunication Facility, Licensee shall promptly furnish to City a current list and map that identifies the exact location of each of the Telecommunication Facilities. This information shall be provided in a format that is compatible with City's geographic information system. 26. FACILITY MAINTENANCE At its sole cost and expense, Licensee shall take good care of the Telecommunication Facilities and keep the Telecommunication Facilities neat, clean, in good condition and free from graffiti, dirt and rubbish at all times. City may perform maintenance in the event Licensee fails to commence required maintenance within the time provided by City in the notice requesting such maintenance. The cost of any maintenance by the City pursuant to this Section shall be payable as additional Rent. 27. MULTIPLE COMPANIES The Parties recognize that this Master License contemplates installation and use by multiple entities or companies, other than City, seeking to place Telecommunication Facilities in or about the Streetlights or License Area. Licensee shall use its best efforts to coordinate its activities with those other entities to reduce the costs of all such parties and to avoid interference with each such party's realizations of benefits of this and similar licenses, but in no way shall Licensee sublease or authorize use of the Streetlight or License Area by another entity/carrier without the City's express written consent. If City deems reasonably necessary, City shall coordinate any such cooperative efforts. City will not enter into a subsequent Master License with another entity to place New Cingular Wireless PCS, LLC, Page 18 Telecommunication Facilities on the Streetlight or in proximity to the Streetlight if Licensee has shown to City's satisfaction, after compliance with this Section, that additional Telecommunication Facilities are technically incompatible with the operation of the Telecommunication Facilities under this Master License. 28. INDEMNIFICATION To the fullest extent permitted by law, Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Master License, any latent or patent defects in design and construction of Streetlights, Telecommunication Facilities, or work thereon conducted under this Master License including, without limitation, defects in workmanship or materials or Licensee's presence or performance of duties on the License Area and/or Streetlights (including the negligent and/or willful acts, errors and/or omissions of Licensee, its principals, officers, agents, employees, vendors, suppliers, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence orwillful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Master License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 29. INSURANCE Without limiting Licensee's indemnification of City, and prior to commencement of work under this Master License or any Amendment to the Master License, Licensee shall obtain, provide and maintain at its own expense during the term of this Master License, policies of insurance of the type and amounts described in Exhibit"D,"for each Streetlight and/or License Area. 30. HAZARDOUS SUBSTANCES 30.1 From the date of execution of this Master License throughout the Term, Licensee shall not use, store, manufacture or maintain on the Streetlights and License Area any Hazardous Substances except: (i) in such quantities and types found customary in construction, repair, maintenance and operations of Telecommunication Facilities approved by this Master License, or (ii) natural gas, petroleum and petroleum products contained within regularly operated motor vehicles. Licensee shall handle, store and dispose of all Hazardous Substances it brings onto the Streetlights and License Area in accordance with applicable laws. New Cingular Wireless PCS, LLC, Page 19 30.2 For purposes of this Master License, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 etseq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time-to- time may be amended, (the above-cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 30.3 Notwithstanding any contrary provision of this Master License, and in addition to the indemnification duties of Licensee set forth in Section 28, Licensee agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the License Area provided under this Master License, arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area by Licensee or its agents, employees, or contractors. This Section 30 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. 30.4 City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the License Area in violation of any law or regulation. City and Licensee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or Master License contained in this Section 30. This Section 30 shall survive the termination of this Master License. Upon expiration or New Cingular Wireless PCS, LLC, Page 20 earlier termination of this Master License, Licensee shall surrender and vacate the Streetlights and License Area and deliver possession thereof to City, in accordance with the terms of this Agreement, free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Licensee. 31. COMPLIANCE WITH LAWS Licensee, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations, promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all radio frequency safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Licensee shall not occupy or use the Streetlight and License Area or permit any portion of the Streetlight and License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 32. NOT SUBJECT TO CEQA This Master License is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. Further, this Master License is exempt from the provisions of CEQA under Class 3, section 15303. Class 3 exempts the construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. 33. NOT AGENT OF CITY Neither anything in this Master License nor any acts of Licensee shall authorize Licensee or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 34. NO THIRD PARTY BENEFICIARIES City and Licensee do not intend, by a provision of this Master License, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Master License, to the other Party. 35. NOTICES AND EMERGENCY NUMBERS All notices and other communications required or permitted to be given under this Master License, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the Party intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: New Cingular Wireless PCS, LLC, Page 21 To City: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 With a copy to: Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 City's emergency contact: City of Newport Beach Municipal Operations Department Phone: 949-644-3011 To Licensee: New Cingular Wireless PCS, LLC Attn: Tower Asset Group — Lease Administration Re: Wireless Installation on Public Structures (City of Newport Beach) (CA) 575 Morosgo Drive NE Atlanta, GA 30324 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept— Network Operations Re: Wireless Installation on Public Structures (City of Newport Beach) (CA) 208 S. Akard Street Dallas, TX 75202-4206 Licensee's emergency contact: Email: nocnoc@att.com Phone: 1-800-638-2822, Option 9, 1 36. CITY BUSINESS LICENSE Licensee shall obtain and maintain during the duration of this Master License, a City business license as required by the NBMC. 37. TIME IS OF THE ESSENCE Time is of the essence for this Master License. 38. STANDARD PROVISIONS 38.1 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Master License, or of any ordinance, law or regulation, shall New Cingular Wireless PCS, LLC, Page 22 not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any Rent, performance, or other consideration which may become due or owing under this Master License, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Master License or any applicable law, ordinance or regulation. 38.2 Integrated Contract. This Master License represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto related to the subject matter herein, and all preliminary negotiations and licenses of whatsoever kind or nature are merged herein. No verbal license or implied covenant shall be held to vary the provisions herein. 38.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Master License and the exhibits attached hereto, the terms of this Master License shall govern. 38.4 Interpretation. The terms of this Master License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the Master License or any other rule of construction which might otherwise apply. 38.5 Amendments. This Master License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 38.6 Severability. If any term or portion of this Master License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Master License shall continue in full force and effect. 38.7 Controlling Law and Venue. The laws of the State of California shall govern this Master License and all matters relating to it and any action brought relating to this Master License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 38.8 Exhibits. All exhibits referenced and attached to this Master License are incorporated by reference. 38.9 Equal Opportunity Employ. Licensee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 38.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Master License, the prevailing Party shall not be entitled to attorney's fees. 38.11 Claims and Damages. 38.11.1 Waiver of Claims. Licensee waives any and all claims, demands, causes of action, and rights it may assert against the City on account of New Cingular Wireless PCS, LLC, Page 23 any loss, damage, liability or injury to any Telecommunication Facilities or any loss or degradation of the Telecommunication Services as a result of any event or occurrence which is beyond the reasonable control of the City. Licensee also waives any claims, demands, causes of action and rights related in any way to the calculation of Rent. 38.11.2 Limitation of Damages. Neither Party shall be liable to the other, or any of their respective agents, representatives, or employees for any loss of revenue, loss of profits, loss of business opportunity, loss of goodwill, loss of use, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. The parties expressly agree that nothing in Subsection 38.11.2 limits Licensee's liability for any express monetary obligations set forth herein, including, but not limited to, Licensee's obligation to pay Rent, fees, penalties, delinquent charges, costs incurred by City, taxes and interest. 38.11.3 Notice Requirement. No lawsuit shall be filed against the City for any alleged breach of this Master License unless Licensee has first provided the City with ninety (90) calendar days' notice of the alleged breach and provided the City with an opportunity to cure the alleged breach. If the alleged breach under this Master License is such that more than ninety (90) calendar days are reasonably required for its cure, then City shall not be deemed to be in breach if City commences such cure within such ninety (90) calendar day period and diligently proceeds with such cure to completion. 38.12 Counterparts. This Master License may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 38.13 Powers to Enter Into Master License. The individuals executing this Master License represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Master License on behalf of the respective legal entities of the Licensee and the City. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC, Page 24 IN.WITNESS WHEREOF, the Parties hereto have caused this Master License to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATT EY'S OFFICE a California municipal corporation Date: 3 Date: By: 7 By: AafoA C. Harp Grac Leung City Attorney Citytganager ATTEST: LICENSEE: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability Dater 3101 company. N y w By. - By: -- Leilani I. Brown ames Stickney City Cler PD Director Constructio Engineering Date: [END OF SIGNATURES Attachments: Exhibit A: Form of Amendment to Master License with Site List Exhibit B: Approved Telecommunications Facility Design Exhibit C: Faithful Performance Bond Exhibit D: Insurance Requirements New Cingular Wireless PCS, LLC, Page 25 Exhibit "A" FORM OF AMENDMENT TO MASTER LICENSE WITH SITE LIST New Cingular Wireless PCS, LLC, Page A-1 AMENDMENT NO. TO MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND FOR THE USE OF CITY-OWNED STREETLIGHTS FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. TO MASTER LICENSE AGREEMENT ("Amendment No. ") is made and entered into as of this day of , 20_ ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and a ("Licensee"), and is made with reference to the following: RECITALS A. On , 20_, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove Telecommunication Facilities as permits are obtained from the City. B. The parties desire to enter into this Amendment No. pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. C. The parties further desire to enter into this Amendment No. pursuant to Section 5 of the Master License, to identify the specific License Area(s) in the License Area Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed to Licensee for installation of its Telecommunication Facilities under the terms and conditions of the Master License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1 EXCLUSIVE SITE LIST This Amendment, the Site List attached hereto as Exhibit 1 and the License Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC, Page A-2 IN WITNESS WHEREOF, the parties have caused this Amendment No. _ to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date: Date: By: By: City Attorney City Manager ATTEST: LICENSEE: Date: a Date: By: By: City Clerk Date: By: [END OF SIGNATURES] Attachments: Exhibit 1 — Site List Exhibit 2 — License Area Description & Depiction New Cingular Wireless PCS, LLC, Page A-3 Exhibit 1 SITE LIST New Cingular Wireless PCS, LLC, Page A-4 Exhibit 2 LICENSE AREA DESCRIPTION & DEPICTION New Cingular Wireless PCS, LLC, Page A-5 Exhibit "B" APPROVED TELECOMMUNICATION FACILITY DESIGN New Cingular Wireless PCS, LLC, Page B-1 it \ r "L 4 t z rL..� r t� F Y U 4 1 Si j ;4 rtz 4,4, , s I i �it x F 3Z x r ap , AP AK WE, . ram'_ _w �., V 0 i'' •t- .r +M`� ',fly 0 N a, p OR � pt r ova th 0 vLn BOB �2yy c�� ; E zu� �L+ 0 lx � in i tj tn F V C 0 } 1 d aj 5tk 1"f j4� fry ^ =d rn k 44 orq .1314 h9 hS N ]1 rn n �[i tx [o = m �. 0 9 rnm� f� 4 � i y - 1 Fsk J' •'�„"f'f ,(j+"-4 1 1 4�y"t- ,C' G�-e�^•� ts+"'.'1'yi..�>'--+.`i� `.., t l•_v hiC]. 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FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ WHEREAS, the City of Newport Beach, State of California, has entered into a Master License Agreement with hereinafter designated as the "Principal," a license to install the Telecommunication Facility described and depicted in Attachment 1 at the designated Streetlight and area as further described and depicted in Attachment 2 (the "License Area"), in the City of Newport Beach, in strict conformity with the Master License and any Amendment thereto on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Master License Agreement or any Amendment thereto and the terms thereof require the furnishing of a Bond for the faithful performance of the Master License Agreement. NOW, THEREFORE, we, the Principal, and , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Dollars and _/100 ($ ) lawful money of the United States of America, said sum being equal to 100% of the estimated cost of repairs and removal of the Telecommunication Facilities under the Master License and any Amendment thereto, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the covenants, conditions, and agreements in the Master License and any Amendment thereto and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Master License and any Amendment thereto or to the covenants, conditions, and agreements to be performed thereunder shall in any New Cingular Wireless PCS, LLC, Page C-2 way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Master License Agreement and any Amendment thereto. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for the Term of the Master License plus ninety (90) calendar days thereafter. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 Name of Contractor (Principal) Authorized Signature/Title Name of Surety Authorized Agent Signature Address of Surety Print Name and Title Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp City Attorney NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Attachments: Attachment 1 — Description & Depiction of Telecommunication Facility Attachment 2 — Description & Depiction of License Area New Cingular Wireless PCS, LLC, Page C-3 Attachment 1 DESCRIPTION & DEPICTION OF TELECOMMUNICATION FACILITY New Cingular Wireless PCS, LLC, Page C-4 Attachment 2 DESCRIPTION & DEPICTION OF LICENSE AREA New Cingular Wireless PCS, LLC, Page C-5 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } ss. On , 20 before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } SS. On , 20 before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) New Cingular Wireless PCS, LLC, Page C-6 Exhibit "D" Insurance Requirements 1. Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work on License Area by Licensee or Licensee's agents, representatives, consultants, contractors and/or subcontractors, Licensee shall obtain, provide and maintain at its own expense during the term of this Master License policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Self-Insurance. Notwithstanding the above, Licensee shall have the right to self- insure pursuant to the coverages required in this Exhibit D. In the event Licensee elects to self-insure, Licensee shall be obligated to include City as an additional insured, and in addition to the provisions set forth in Sections 4-6 of this Exhibit D, the following provisions shall apply: A. City shall promptly provide Licensee written notice of any claim, demand, or lawsuit, for which it seeks coverage pursuant to this Section, and provide Licensee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, or lawsuit; B. City shall not settle any such claim, demand, or lawsuit without prior written notice to Licensee; and C. City shall fully cooperate with Licensee in the defense of such claim, demand, or lawsuit. 4. Coverage Requirements. A. Workers' Compensation Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to City, along with the certificate of New Cingular Wireless PCS, LLC, Page D-1 insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount of one million dollars and 00/100 ($1,000,000) per occurrence, two million dollars and 00/100 ($2,000,000) general aggregate. The policy shall cover liability arising from License Area, operations, products-completed operations, personal and advertising injury, and liability assumed under an insured contract(including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract per coverage under ISO CGL form 00 01 or equivalent. C. Automobile Liability Insurance. Licensee and Licensee's consultants, contractors and/or subcontractors shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Licensee or all activities of Licensee's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the License Area, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than one million dollars and 00/100 ($1,000,000) combined single limit each accident. D. Builder's Risk Insurance. During construction, Licensee shall require that Licensee's construction contractors and subcontractors maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the work for "all risk" or special causes of loss form with limits equal to one hundred percent (100%) of the completed value of the work, with coverage to continue until final acceptance of the work by Licensee and City. City shall be included as an insured on such policy. Licensee may self-insure this risk. 5. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as an additional insured under all general liability policies with respect to liability arising out of Licensee's ongoing and completed operations related to this Master License and with respect to use or occupancy of the License Area. City, its elected or appointed officers, officials, employees, agents and volunteers shall be named as an additional insured on any of Licensee's contractor's and subcontractor's policies. B. Primary and Non Contributory. Policies shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or New Cingular Wireless PCS, LLC, Page D-2 liability arising directly or indirectly from Licensee's operations. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Master License shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. F. Notice of Cancellation. The insurance required by this Master License shall not be cancelled or non-renewed, or reduced in coverage or in limits except after thirty (30) calendar days written notice has been sent to City. It is Licensee's obligation to ensure that provisions for such notice have been established. G. Reserved. 6. Additional Requirements. A. In the event City determines that (i) the Licensee's activities on the License Area creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Licensee agrees that the minimum limits of any insurance policy required to be obtained by Licensee or Licensee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from Licensee's then-existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Licensee's then- existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice. New Cingular Wireless PCS, LLC, Page D-3 B. Reserved. C. Licensee and Licensee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Licensee shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Licensee shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 20 38 04 13 and CG 20 37. E. If Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Licensee. F. To the extent allowed by law, Licensee shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Licensee or Licensee's agents, representatives, consultants, contractors or subcontractors performance under this Master License. G. Licensee shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Master License. H. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Master License. In addition, the cost of all required insurance shall be borne by Licensee or by Licensee's consultants, contractors or subcontractors. I. If Licensee or Licensee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Master License, or fail to provide proof of insurance, City has the right to declare this Master License in default without further notice to Licensee, and City shall be entitled to exercise all available remedies. J. Licensee agrees not to use the License Area in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the License Area or on adjacent premises, or that will cause cancellation of any other insurance coverage for the License Area or adjoining premises. Licensee further agrees not to keep on the License Area or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the License Area. Licensee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the License Area. New Cingular Wireless PCS, LLC, Page D-4