HomeMy WebLinkAbout2018-03-27 - Resolution No. 18-05 RESOLUTION NO. 18-05
RESOLUTION OF THE BOARD OF DIRECTORS
OF THE YORBA LINDA WATER DISTRICT
ADOPTING POLICIES AND PROCEDURES FOR
COMMUNICATION FACILITIES LICENSES
WITHIN YORBA LINDA WATER DISTRICT PROPERTIES
WHEREAS, the Yorba Linda Water District (District) has multiple communications site
lease agreements currently in force; and
WHEREAS, the District has received additional requests for such lease agreements; and
WHEREAS, the District desires to set forth policies and procedures for granting
communication licenses and approving licensee improvements on District
properties.
NOW THEREFORE, the Board of Directors of the Yorba Linda Water District does find,
determine, and resolve:
Section 1. The District's Communication Facilities Licenses Policy as set forth and
attached hereto is hereby adopted and shall be deemed effective March 27,
2018.
PASSED AND ADOPTED this 27th day of March 2018 by the following called vote:
AYES: Directors Hall, Hawkins, Jones and Miler
NOES: No a
ABSTAIN: None
ABSENT: Director Nederhood
Brooke .cones, Vice President
Yorba Linda Water District
ATTEST:
Annie Alexander, Board Secretary
Yorba Linda Water District
Reviewed as to form by General Counsel:
Aedrew B. Gags , sq.
Kidman Law LL
Resolution No. 18-05 Adopting a Communications Facilities Licenses Policy 1
4010-001 Communication Facilities Licenses Policy Page 1 of 11
Policies and Procedures
Policy No.: 4010-001
Adoption Method: Resolution No. 18-05
Effective Date: March 27, 2018
Prepared By: Steve Conklin, Engineering Manager
Applicability: District Wide
POLICY: COMMUNICATION FACILITIES LICENSES WITHIN YORBA
LINDA WATER DISTRICT PROPERTIES
In recent years, the District allowed the installations of two wireless communications
facilities on its properties that were deemed feasible and compatible with District
operations. Looking to the future, to better manage these existing facilities and potential
new facilities, the District and ATS Communications entered into a Professional Services
Agreement (“Agreement”) on January 3, 2018, for the development and ongoing
management of wireless communications facilities (e.g. cell towers) on District property.
As part of this Agreement, ATS Communications and the District have developed these
Policies and Procedures for granting communication licenses and approving licensee
improvements on District properties. In accordance with these Policies and Procedures,
the District will balance its interest in generating revenues from wireless communication
companies against the District’s operational needs and security of its facilities and
property for Communications Facilities.
1.0 INTRODUCTION
The terms and requirements set forth in these Policies and Procedures shall
apply to all Communication Facilities and all references to License(s) and/or
Licensee(s) shall extend to all existing Lease(s) and Lessee(s), as applicable. All
new applications for Communication Facilities shall comply with the terms as
outlined in these Policies and Procedures, and the authorizations to use District
property shall be in substantially the same form as the Communication Facility
License Agreement attached in Appendix A.
Any existing Lease for Communication Facilities may be replaced with a
Communication Facility License Agreement permitted under these Policies and
Procedures upon the expiration of the current Communications Facility Lease
Agreement; or, earlier upon request, provided such Lessee is not in default under
the terms of such existing Communications Facility Agreement.
The terms and requirements set forth in these Policy and Procedures shall also
apply to Amendments or changes to existing Communications Facility
Agreements. See Appendix B for the form of Amendments to License
Agreements.
These Policies and Procedures may be amended from time-to-time by YLWD’s
Board of Directors, in its sole discretion. YLWD shall notify, in writing, Licensee,
in advance, of any proposed revision to these Policies and Procedures. All
4010-001 Communication Facilities Licenses Policy Page 2 of 11
Licensees shall comply with the most current Board approved version of these
Policies and Procedures.
1.1 DEFINITIONS
The terms referenced in these Policy and Procedures shall have the
meanings as defined below.
A. Amendment – A written change or addition to a Communication
Facility License Agreement which, when properly executed, has
the same legal validity as the original Communication Facility
License Agreement.
B. Application - Application for new Communication Facilities, or
modifications to existing Communication Facilities, that complies
with the terms outlined in these Policy and Procedures.
C. Board – The Board of Directors of Yorba Linda Water District.
D. Communication Facility – Cell Site, Wireless Communications
Facilities, WCF
E. District – Yorba Linda Water District.
F. General Manager – General Manager of the District, his or her
designee, or the person appointed by the Board to act in the
capacity of the General Manager and authorized to administer this
Policy on his/her behalf.
G. Licensees - Wireless communication companies, including
existing lessees and new applicants for Communication Facilities.
H. License Agreement - Communication Facility License Agreement
between District and Licensee.
I. Site - District property for the location of Communications
Facilities pursuant to a License Agreement.
2.0 LICENSE AGREEMENTS AND AMENDMENTS
2.1. Any and all License Agreements and Amendments are subject to
approval by the District and its General Counsel, who retain the right not
to enter into any License Agreement or Amendment. Only the District has
the authority to enter into any License Agreement or Amendment.
2.2. The General Manager shall review and negotiate all License Agreements
and Amendments in accordance with these Policies and Procedures.
2.3 Key terms of the License Agreement in Appendix A include:
A. The License Term shall be for ten (10) years, and at the option of
Licensee for an additional five (5) year period (fifteen (15) years
aggregate) provided Licensee is not currently in default under the
License Agreement.
B. The License Fee amount for the ten (10) year license period shall
be negotiated between the District and the Licensee and is
4010-001 Communication Facilities Licenses Policy Page 3 of 11
payable in advance in annual payments. Payment schedule for
License Fees is listed in Appendix A of the Agreement.
C. Annual License Fees shall begin immediately and be payable
within 45 days of the full execution of the License Agreement
and/or Amendment (the prorated portion of the annual License
Fee, if any).
D. License Fee amounts will be subject to an automatic yearly
increase equal to 4 percent (4%) per annum during the ten (10)
year license period and during any option period, as applicable.
General Manager may negotiate other annual percentage
increase rates at the time of the Agreement execution, so long as
the starting Annual License Fee amount and the annual
percentage increase equate to an equivalent net-present-value as
the previously determined License Fee at a 4 percent per annum
increase. In addition, if applicable, a one-time catch-up inflation
adjustment shall be made for the first year of the option period
based on the consumer price index as described in Section 4 of
the License Agreement.
E. Should the agreement lapse, the District shall charge a holdover
fee of 150% of the then current annual License Fee, pro-rated on
a monthly basis as described in Section 5 of the License
Agreement.
F. Licensee shall submit to the District for approval, two (2)
competitive bids with a performance bond for removal of the
Licensee’s equipment and restoration of the Site, at the
Licensee’s expense, to the condition which existed prior to
Lessee’s installation of its equipment.
3.0 CELL CARRIER FACILITY DEVELOPMENT GUIDELINES AND
REQUIREMENTS
3.1 Universal Installation Requirements
All Communications Facilities on District properties shall be installed,
operated, maintained, modified, and altered, according to these Policies
and Procedures, whether under new, or pursuant to existing, License
Agreements.
The following requirements apply to all Communications Facilities on
District property.
A. New Site Build, Site Modifications and Site Repairs
1. Although the process from Application through Site design,
License Agreement negotiations to construction
completion for the New Site Build, Site Modifications, and
Site Repairs may be managed by a third-party, the District
retains all rights as the property owner to control the entire
process. The District’s policy is for all Communications
Facilities to be located on separate tower structures, where
ever possible, on a District Site. Construction,
modifications and site repairs of Licensee’s
communications facility shall be coordinated with the
District and conducted so as not to create an unsafe or
4010-001 Communication Facilities Licenses Policy Page 4 of 11
dangerous condition or unduly interfere with the conduct of
any other activities at the Property. All work to be done by
Licensee shall be performed in accordance with plans
approved by the District and shall be in accordance with
District Standards.
2. Prior to commencement of any work by Licensee at a
District property, the District shall have:
a. A fully executed License Agreement or
Amendment, as applicable;
b. A current Certificate of Insurance with the proper
endorsements pursuant to Section 12 of the
License Agreement. Additionally, Licensee shall
ensure that any contractor(s) to be engaged in the
installation, maintenance, or modification of any
kind of a Communications Facility, conform with the
Insurance requirements described in the License
Agreement;
c. Set of construction drawings/plans for the proposed
Communications Facility signed and stamped by
both a licensed professional Civil Engineer,
registered in the State of California (P.E.) and the
jurisdiction of record received and accepted by the
District;
d. Proof that Licensee has complied with all applicable
zoning and planning approval requirements from
appropriate jurisdictions along with Conditions of
Approval (COA’s), if any;
e. A copy of a building permit, and/or any other
permit(s) required; and,
f. A copy of the signed and stamped Structural
Analysis, from a P.E.
3. A pre-construction conference conducted with the District’s
Inspector. The pre-construction conference shall be held
at least one week prior to start of construction and
attended by Licensee’s representative(s), its contractor(s),
and the District’s Inspector. Licensee or its contractor(s)
shall provide the District’s Inspector the following:
a. A complete construction schedule;
b. 24-hour contact information for the contractor(s)
and/or its project foreman; and
c. Contractor(s) proof of Insurance and all
endorsements.
4. No work shall commence prior to the issuance of a
Consent Letter by the District. The District shall issue a
Consent Letter once all the requirements in these Policy
and Procedures and the License Agreement have been
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met by the Licensee and the District has determined that
the proposed work may commence. The Consent Letter
shall accompany District approved construction
drawings/plans that have been signed and stamped by the
jurisdiction of record.
5. After the Licensee receives a Consent Letter and District
approved construction drawings/plans, the Licensee, or its
contractor(s) shall notify the District’s Inspector at least two
(2) working days prior to beginning any work.
6. The District reserves the right not to issue, or right to
withdraw, its approval to commence work if the Licensee or
its contractor(s) have failed to satisfy these Policy and
Procedures or is in default of the License Agreement.
7. If the District’s facilities require maintenance work that may
interfere with the Licensee’s activities at the Site, the
District reserves the right to require Licensee to postpone
Licensee’s work activities on the Site until such time the
District’s work has been completed. The District will,
wherever possible, give advance notice of any scheduled
maintenance work and coordinate its activities with the
Licensee and/or its representatives.
8. Under no circumstances will Licensee and/or it employees,
agents, contractors be allowed access to the roof of any
District reservoir tank without direct District staff
supervision. Furthermore, the District reserves the right to
determine any work limitations at any District facilities
and/or Site.
9. Licensee’s personnel, including contractors and
subcontractors, shall ensure that the District Site and
District facility is accessible at all times to District
personnel, in accordance with Section 4. below.
10. The Licensee shall be responsible for any damage, due to
any of its construction work or other activities, to District
facilities and/or District Site and upon request by the
District shall promptly return damaged facilities and/or Site
to its pre-existing condition, or better, at no cost to the
District, and Licensee shall ensure its contractors comply
with the foregoing. In the event Licensee does not comply,
District may perform the necessary repairs and bill
Licensee, which Licensee shall pay within thirty (30) days
of receipt of the invoice.
11. All new and existing Communication Facilities and
equipment owned by the Licensee shall be properly
tagged, identifying the Licensee’s name, Site name and/or
number, and 24-hour emergency phone number.
12. The Licensee and its contractor(s) shall have a copy of the
jurisdictional required permit(s) and the construction
drawings/plans approved by the District’s Director of
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Engineering (or designee) on-site at all times, while work
activities are occurring.
13. The Licensee and its contractor(s) are both responsible to
ensure the District Site and facilities cannot be accessed
by the public at any time while work activities are
occurring.
14. Upon completion of work, Licensee shall schedule a final
walk-through with the District’s Inspector. Upon
acceptance by the District’s Inspector, Licensee or its
contractors shall provide the District with a set of District
accepted construction drawings/plans with field mark-ups
(as-built), if any. These construction drawings/plans shall
be labeled “Record Drawings” and are mandatory for the
District to issue a Notice of Completion upon completion of
the installation and/or related work activity. Any project that
has not been successfully completed may result in the
District’s delay in reviewing any subsequent project
submittal(s).
15. Licensee and its contractors shall comply with all local,
state, and federal health and safety requirements
pertaining to the construction, installation, operation and
maintenance of their Communications Facilities.
Requirements of the Occupational Safety and Health
Administration (OSHA) & Federal Communications
Commission(FCC) shall be adhered to at all times;
including any safety and injury prevention placards or
program that is required under applicable laws and/or
regulations. A copy of such program, if required by law or
regulation, shall be on-site at all times and employees and
contractors of the Licensee shall be trained accordingly.
3.2 Maintenance & Emergency Access
Maintenance at Communication Facilities is divided into two categories:
Routine and Non-routine. If Licensee has uncertainty which category
proposed work is defined as, Licensee should contact the District’s
Inspector. All maintenance activity shall be performed during regular
business hours (7:00 AM – 5:00 PM, Monday through Thursday) or
according to the hours prescribed by the jurisdiction of record, whichever
is more stringent.
A. Routine maintenance is defined as the following:
1. Any work performed by Licensee to repair or service the
Communication Facility which does not require
entitlements (e.g. Planning/Zoning Approval, Building
Permit, Electrical Permit) from a jurisdictional body; and
2. Any work within Licensee’s equipment area that does not
extend beyond the Site, in any direction, and does not
require any excavation; and
3. In the case of antennas, like-for-like replacement is
acceptable, subject to the conditions of approvals (COA’s)
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imposed by the jurisdiction of record for the current
antenna installation.
B. Non-routine maintenance:
Non-routine maintenance is defined as: Any maintenance,
modification, construction that alters the sizes, weight, shape,
appearance or other similar characteristics of a replacement
component. In such case, Licensee is required to submit an
Application, appropriate fee(s), and construction drawings/plans
for the District’s review and approval.
C. Emergency Access:
Licensee emergency access may be required in an event whereby
Licensee’s Communication Facilities becomes suddenly impaired
or non-operational due technical reasons including, but not limited
to power failure, equipment failure, theft, vandalism, or acts of
nature. In such an event, Licensee has the non-exclusive license
to access the Communication Facilities via foot or motor vehicle
(but not including vehicles with more than two (2) axles/more than
twenty (20) feet in length) in order to install, operate, and maintain
the Communications Facility, provided that Licensee adheres to
this Program.
In the event of such an emergency, Licensee will use best efforts
to undertake repairs during standard business hours. Licensee
shall immediately, but no less than within 24 hours, notify the
District, via e-mail and phone (714) 701-3000, when access to a
District Site occurred or is to occur as a result of an emergency.
3.3. Site Restoration
District Sites shall be repaved or restored. Any other features disturbed,
removed, or damaged by Licensee or its contractors shall be replaced
with new features, or repaired, as determined by the District Inspector.
The Site shall be restored within 30 days to a condition equal or better.
3.4. Emergency Back-up Generators
The District is aware of the importance of disaster preparedness,
recovery, and restoration during natural disasters and the need for
operational continuity of communications networks. In time of natural
disasters, communication networks are a critical component for public
safety (e.g. first responders such as firefighters, law enforcement,
paramedics, utility workers, and relief workers). In an effort to be
environmentally friendly and reduce the amount of effluent emissions at
any one Site, rather than each carrier providing their own fixed backup
power source, a single multi-tenant generator unit will provide a fixed
generation asset that Licensees can access at a commercially reasonable
cost. Therefore, the District recognizes the importance of a single multi-
tenant generator asset owned, operated, and maintained by a third-party
provider.
Notwithstanding the foregoing, the District, in its sole discretion, may
allow Licensee access for portable standby generators. The District may,
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at any time, require the Licensee to remove Licensee’s portable standby
generator(s).
4.0. SITE ACCESS AND SECURITY
4.1. Installation of Locking Devices
In the event Licensee requires access through the District’s gate on a Site
for access to Licensee’s Communications Facility, Licensee shall install a
District approved lock, which shall be “daisy chained” to the existing chain
and locks in order to provide access for all agencies with existing locks;
exceptions to daisy chaining will be at the District’s sole discretion.
4.2. Security Measures and Access Regulations
The District is subject to local, State, and Federal law, including
Homeland Security regulations. Pursuant to these Policy and
Procedures, Licensee and its contactors will have access to District
facilities which are deemed Critical Infrastructure as defined by both the
Critical Infrastructures Protection Act of 2001 (42 U.S.C. § 5195c(e)) and
defined as pipeline, interconnection, treatment plant, pumping or lift
station, water, wastewater or chemical storage tank, power generating
plant or interconnection and any physical computer-based operating or
monitoring system, communications, hardware, software, procedures,
information, wherein any actual, potential, or threatening interference
with, attack on, compromise of, or incapacitation of, would jeopardize or
threaten public health or safety. Accordingly, Licensee and its contractors
must comply with security measures and access regulations, including,
but not limited to:
A. Licensee and its contractor(s) shall ensure their activities do not
block the District’s personnel from accessing the Site at any time,
except with District’s prior written consent.
B. Except in an emergency situation described in Section 3.2.3
above, Licensee and its contractors may not access a District Site
unless the Licensee provides, and District acknowledges, at least
two (2) working days’ notice to access a District Site. In an
emergency situation, Licensee must give the District notice of
access to a District Site immediately but no later than 24 hours
after access as described above in Section 3.2.3.
C. Rules and guidelines for each District Site are at the sole
discretion of the District and shall be adhered to by Licensee.
Site-specific rules and regulations, and updates to them, will be
effective upon written notice to Licensee. Failure to follow the
District’s rules and guidelines may result, in the sole discretion of
the District, in the forfeiture of the License Agreement.
D. Licensee may not leave the District Site accessible (unlocked
gate) and unattended at any time for any reason. It is the
responsibility of the Licensee to ensure the District Site is properly
locked upon leaving for any amount of time. If District personnel
are present at a District Site, it is Licensee’s responsibility to
announce their presence and to let District personnel know when
they leave.
4010-001 Communication Facilities Licenses Policy Page 9 of 11
E. In the event Licensee discovers theft or vandalism, whether to the
Licensee’s facilities or District Site, Licensee shall report it to the
District either immediately or at least within 48 hours.
F. Licensee or its contractors shall provide at least 24-hours written
notice to the District prior to accessing a District Site and an
estimated duration of the Site activities. Licensee or its
contractors shall immediately notify the District when they have
exited the Site on each day (not including meal breaks) until the
activities for that project or maintenance have concluded. The
notification shall be by email.
G. Employees of Licensee and its contractors accessing a District
Site shall carry name badges and picture identification and shall
present such to a District employee when requested. Persons
without proper identification may be required to leave the Site.
H. All vehicles of Licensee or its contractors shall be marked as such
and be distinguishable from general public vehicles when on a
District Site. Any vehicle accessing District Site without
distinguishing markings shall display a business card in the
windshield identifying the entity accessing the Site.
I. The District may charge an escorted access fee for any requests
by Licensee employees or contractors for access that are not due
to a malfunctioning key.
4.3. Ongoing Operations
A. Ongoing operations and maintenance of the Licensee’s facility
shall comply with all applicable local, state, and federal laws and
regulations and the requirements of these Policy and Procedures
and the applicable executed License Agreement.
B. In the event Licensee installs any equipment outside the
parameters of the License Agreement without the prior written
authorization of the District, the District may, at its sole discretion,
terminate the agreement with the Licensee, or charge an
unauthorized facility fee equivalent to 200% (two hundred percent)
of the current Rent or License Fee that would have been due to
the District for a similar increase in use had the District’s prior
consent been properly obtained. For the purposes of calculating
the rent/License Fee due for such unauthorized equipment, the
District will assume the equipment was in place for the period
which is the shorter of: two years prior to the date of discovery or
the period from the effective date of the applicable License
Agreement to the date of discovery.
5.0. APPLICATION PROCESS GUIDELINES
5.1. All formal requests for a new Communications Facility, or modifications to
an existing facility, require the Licensee to submit an Application and the
appropriate fees (Appendix D) to the District for review and processing.
All Applications for new Communications Facilities shall be authorized in
substantially the same form as the Communications Facility License
Agreement template attached in Appendix A. All Applications for an
Amendment to a Communications Facility License Agreement shall be
4010-001 Communication Facilities Licenses Policy Page 10 of 11
authorized in substantially the same form as the Amendment to
Communication Facility License Agreement template attached in
Appendix B.
5.2. The Licensee is encouraged to perform a Site-inspection with the District
early in the Application process for both the Licensee and the District to
determine if the proposed project or improvements are feasible. The
District will send notice to the Licensee of the receipt of the Application.
All Applications shall be valid for a six-month time-period starting on the
date of notice from the District to Lessee of receipt of Licensee’s
application. Licensee may request an extension to the six-month time-
period, which may be granted at the District’s sole discretion.
5.3. The General Manager shall review all Applications in accordance with
these Policies and Procedures. All Applications for proposed work at a
District Site shall follow the general Application Process Guidelines
(Project inception to project completion):
A. Licensee contacts the District to request a Site Application for a
proposed project (New Build, Modification or Decommission).
B. Licensee is referred to District’s processing agent (Agent).
C. Upon contact, Agent shall provide the Licensee with a copy of the
District’s current Communication Facilities License Program and
the District’s Communications Facilities Project Application form.
D. Licensee shall complete the Communications Facilities Project
Application Form, sign and date, then submit the form back to the
Agent, accompanied by a check for the appropriate fees issued by
the Licensee (no third-party checks will be accepted) or a
cashier’s check.
E. Agent shall review the Application for accuracy, clarity and
completeness. Upon Agent’s satisfaction, the Application shall be
delivered to the District for review and possible acceptance. The
District shall provide the Licensee a letter of acceptance and
receipt for the fees received, along with a project tracking number.
F. Licensee will coordinate with Agent for Site access, if necessary,
for Architectural & Engineering surveys (A&E site-visit).
G. Licensee shall provide Agent with construction drawings/plans for
District’s review.
H. District may require the Licensee to have the construction
drawings/plans corrected or modified and the District/Agent will
provide redlined construction drawings/plans with comments for
corrections.
I. Licensee shall provide Agent revised construction drawings/plans
for District’s final review and approval. Upon approval, the District
shall provide the Licensee a letter of authorization (LOA) allowing
the Applicant to submit the proposed construction drawings/plans
to the local jurisdiction for any necessary entitlements. If the
jurisdiction requires modifications to District approved construction
drawings/plans, Licensee shall obtain District approval for any
4010-001 Communication Facilities Licenses Policy Page 11 of 11
modifications to previously approved District construction
drawings/plans.
J. Once the Licensee has obtained all necessary entitlements and
has fulfilled the requirements listed in Section 3 above to District’s
satisfaction, the District will issue a Consent Letter allowing
Licensee to undertake and complete the proposed work.
K. Prior to full completion of work, Licensee’s contractor(s) shall
schedule a walk-through with the District’s Inspector to identify
and list issues (punch-list), if any, with the work.
L. Once the punch-list items are completed, Licensee’s contractor(s)
shall schedule a final walk-through with the District’s Inspector.
M. Upon District’s final acceptance of the work, Licensee or its
contractor(s) shall provide the District a set of as-built plans
labeled “RECORD DRAWINGS,” showing all field changes, if any.
If no field changes were made – a note indicating “Built to Plan”
shall be depicted on the Title Sheet.
N. In addition to submitting “RECORD DRAWINGS,” the Licensee
representative shall sign and date the Consent Letter and return
the signed and dated document to the Agent for final project
close-out.
O. Upon District’s acceptance of the “RECORD DRAWINGS” and
receipt of the signed/dated Consent Letter from Licensee’s
representative, the District’s Inspector shall sign, date and return
the Consent Letter to the Licensee, which indicates the project
has been successfully closed-out.
6.0. DECOMMISSION OR TERMINATION PROCESS
Any Licensee that decides to decommission its Communications Facilities on any
of District Site shall follow the process described herein.
Licensee shall submit a letter to the District, by certified mail or equivalent,
indicating Licensee’s intention to decommission its Communications Facility
located on a District Site. The letter shall include Licensee’s Communications
Facility name and number, District Site name, Site address, contact person,
mailing address, e-mail address, and intended time-frame for the decommission
activity.
The District shall provide Licensee a return letter acknowledging Licensee’s
intention to decommission its Communications Facility and directing Licensee to
initiate the application process, payment of appropriate fees, and submission of
necessary decommission plans.
7.0 APPENDICES
A. Communications Facility License Agreement Template
B. Amendment to Communications Facility License Agreement Template
C. Application Procedure and Forms
D. Fee Schedule
E. Signature Block and Equipment Table Samples
F. Construction Notes, General Notes, Plan Notes & Requirements
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
Page 1 of 27
YORBA LINDA WATER DISTRICT
COMMUNICATIONS FACILITY LICENSE AGREEMENT
([Carrier]/[District Site Name])
THIS LICENSE AGREEMENT (“License”) is made and entered into this ____day of
_____, 20xx, (“Effective Date”) by and between YORBA LINDA WATER DISTRICT, a
California water district existing and operating pursuant to Division 12 of the California Water
Code (“District”), and [CARRIER NAME], a _____________, dba _______________
(“Licensee”). District and Licensee are sometimes referred to in this License individually as
“party” or jointly as “parties.” The term “License” used herein means this License and any
amendments to this License.
RECITALS
District adopted Policy and Procedures for Communications Facilities Licenses within
District Properties on ____, _____2018 (“Policy and Procedures”).
District is the owner of real property commonly known as the [DISTRICT SITE NAME],
located at [SITE ADDRESS], California ______ (Assessor’s Parcel Number:
________________), as legally described in Exhibit A attached hereto (the “Site”).
[FOR RENEWAL SITE] Licensee entered into the a Communications Facility Lease
Agreement [DISTRICT SITE NAME] with District dated _____________, as amended by an
Amendment to Communications Facility Lease Agreement dated ________ (collectively,
“Original Agreement”) (referenced by Licensee as ________), under which Licensee currently
has installed and is operating Licensee’s federally licensed communications facility at the Site.
District and Licensee desire to enter into this new License to replace the Original Agreement.
This License is being entered into by District and Licensee in accordance with the Policy
and Procedures to allow Licensee to use designated portions of the Site for installation and
operation of Licensee’s federally licensed Communications Facility (as defined and described
under Section 1 hereof and Exhibit B hereto).
LICENSE
Section 1A. Non-exclusive License. Subject to the terms and conditions in this
License and the Policy and Procedures, District grants Licensee a non-exclusive license to
install, operate, and maintain its Communications Facility, as particularly described in Exhibit B
hereto, on a portion or portions of the Site as designated and approved by District. The Site
plan, attached as Exhibit C, depicts the dimensions and approved location of the
Communications Facility on the Site to be used by Licensee under this License (“Licensed
Area”). The Licensed Area includes (i) designated space on District’s existing surface
infrastructure; (ii) approximately ___________ (XXX) square feet of designated surface ground
space; and (iii) utility routes all as depicted in Exhibit C. Notwithstanding District’s approval of
Licensee’s use of the Licensed Area, nothing in this License may be deemed to convey in
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
Page 2 of 27
Licensee a real property interest in land. The term “Communications Facility” as used in this
License shall include all wireless communications facilities (e.g. cell towers, antennas,
structures, equipment and utilities) and its appurtenances that Licensee erects, installs and/or
uses on or under the Site as authorized and listed in Exhibit B, as may be modified. In the
event of a material conflict between the terms of this License (excluding Sections 1A, 3-8, 10-14
and 21-33) and the Policy and Procedures (excluding Appendix A – Communications Facility
License Agreement Template), the more stringent term shall prevail.
Section 1B. Access License. The License granted hereunder includes non-exclusive
ingress and egress to the Licensed Area, seven (7) days a week, twenty-four (24) hours a day,
via foot or motor vehicle (but not including vehicles with more than two (2) axles/more than
twenty feet (20’) in length) via the access area depicted in Exhibit C, subject to the Policy and
Procedures governing access, as well as any additional Site-specific rules not inconsistent with
this License or as required by law. Further, when District’s access to a Site is established
through an access easement over third-party property to the Site (“Access Easement”), nothing
herein shall be deemed to be a representation or warranty by District that its interest or other
rights to use of the Access Easement is sufficient to permit its use for Licensee’s purposes, and
Licensee shall use only those rights as are held by District.
Licensee assumes the risk of any challenge, claim, litigation or damage, asserted in
connection with Licensee’s use of the Access Easement for ingress and egress to the Site and
Licensee shall defend and indemnify District from any and all claims or damages arising out of
Licensee’s use of the Access Easement. If District’s continued use of the Access Easement is
challenged or threatened in any way by Licensee’s use of the Access Easement, upon notice
from District, Licensee shall cease ingress and egress to the Site until such time as the
challenge or threat to District’s continued use of the Access Easement is resolved, which may
require Licensee to obtain any necessary approvals, licenses or easements from the third-party
property owner at its sole cost and expense.
Section 2. Permitted Use. Licensee may transmit and receive communication
signals and install, operate and maintain the Communications Facility in the Licensed Area in
accordance with the Site plan and dimension sketch of the Communications Facility in Exhibit
C and the Policy and Procedures. Licensee may replace portions of its Communications Facility
as part of Routine Maintenance (as defined in the Policy and Procedures) without District’s prior
consent as described in the Policy and Procedures. Licensee may not perform Non-Routine
Maintenance (as defined in the Policy and Procedures) or install any other facilities or use any
other equipment not otherwise described in Exhibit B and depicted on Exhibit C without
District’s prior written consent. Applications for consent will only be considered by District if
submitted in accordance with the Policy and Procedures. Licensee acknowledges that the
primary purpose of the Site is to provide water and/or wastewater services to District’s
customers, and Licensee’s use of the Site shall be subject to District’s paramount rights to use
the Site for any and all current and future uses necessary for District’s water or wastewater
storage, conveyance or treatment purposes, including, but not limited to maintenance, repair,
installation, construction and replacement of any existing facilities or the construction or
installation of any additional facilities or equipment, including additional subsurface and surface
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infrastructure (“Paramount Rights”). If District determines that Licensee is physically interfering
with such Paramount Rights, District shall notify Licensee and Licensee shall cease such
physical interference within seventy-two (72) hours. In case of an emergency, District may take
steps to eliminate such physical interference without prior notice to Licensee. District shall
thereafter promptly notify Licensee of the physical interference. Licensee shall reimburse
District for any and all actual costs incurred to eliminate the interference caused by Licensee.
Section 3. License Term; Option Period. This License shall be for a term of ten
(10) years, referred to as the “License Term,” commencing on the Effective Date. At least six
(6) months prior to the end of the License Term, and provided Licensee is not in default under
this License, Licensee may give District written notice of its intention to extend the License Term
for an additional five year period (“Option Period”), subject to all terms and conditions of this
License.
Section 4. Annual License Fee; Increases; Late Payments. For the first year of
the License Term, Licensee shall pay District the total sum of
_______________________($______) (“Annual License Fee”) not later than forty-five (45) days
after the full execution of this License. The Annual License Fee for subsequent years shall be
payable annually in advance on the anniversary of the Effective Date, and shall increase
annually during the License Term and the Option Period, effective as of each anniversary of the
Effective Date, by an amount equal to four percent (4%) over the amount of the Annual License
Fee in effect immediately prior to such increase. Notwithstanding the preceding sentence, the
Annual License Fee payable for the first year of the Option Period shall be the higher of: (i) four
percent (4%) over the amount of the Annual License Fee in effect immediately prior to such
increase; or (ii) the amount (if any) that exceeds xxx xxx Thousand xxx Hundred xxx-xxx and
xx/100 ($xx,xxx.xx), which amount is calculated by increasing the first Annual License Fee paid
in the License Term by the increase in the Consumer Price Index (All Items, Base 1982-1984 =
100) as published by the United States Department of Labor, Bureau of Labor Statistics for All
Urban Consumers for the Los Angeles-Riverside-Orange County (CPI-U) over the License Term
as measured in the month, three months prior to the expiration of the License Term. The Annual
License Fee shall be payable without offset or deduction by check sent to District's address
specified below or to any other person or firm as District may, from time to time, designate in
writing at least sixty (60) days in advance of any Annual License Fee due date. If, at any time,
Licensee fails to make timely payment, interest shall accrue on the past due amount at the rate
of one and one-half percent (1 1/2%) per month or the maximum allowable by law, whichever is
less, until paid in full. This right to collect interest is in addition to all rights of District to
terminate this License for non-payment pursuant to Section 7A of this License.
Section 5. Holdover. If the Communications Facility or any part thereof is still on
the Site, or Licensee is otherwise using the Site without a written agreement with District after
expiration of the License Term or Option Period, such possession or use shall be deemed a
holdover use under the same terms and conditions of this License, except that the Annual
License Fee shall be one hundred fifty percent (150%) of the Annual License Fee in effect at the
expiration of the License Term or Option Period and shall be payable in advance in equal
monthly installments. Nothing contained herein shall grant Licensee the right to holdover after
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the expiration of the License Term or Option Period and, notwithstanding the payment of license
fees during the holdover period, District shall have the right to require Licensee to vacate the
Site at Licensee’s expense and at any time upon thirty (30) days written notice.
Section 6. Temporary Relocation. Licensee understands and agrees that during
the License Term or Option Period, District may require Licensee to remove and/or relocate all
or portions of the Communications Facility from the Licensed Area temporarily at Licensee’s
expense in order for District to exercise its Paramount Rights at the Site. District shall use its
best efforts to give Licensee at least sixty (60) days prior written notice of the necessity to
relocate the Communications Facility for the temporary period and will use good faith efforts to
provide temporary space at the Site, or another mutually acceptable District location for such
temporary relocation; provided Licensee is not in default under this License. Licensee shall be
responsible, at its expense, for obtaining any necessary permits in connection with the
temporary relocation of its Communications Facility. Licensee acknowledges that in case of
emergency (as determined by District in its sole discretion), the notice period for temporary
relocation may be shortened. Notwithstanding any relocation or any shortened notice period,
the License shall continue without abatement of the Annual License Fee unless District is
unable to provide space for temporary relocation and as a result Licensee is required to cease
to operate its Communications Facility for a period of more than fourteen (14) days in which
event Licensee shall be entitled to an abatement of the Annual License Fee equivalent to the
number of full days in excess of fourteen (14) days during which Licensee was unable to
operate its Communications Facility multiplied by 1/365 of the Annual License Fee applicable
during such period. The District will calculate and refund such abatement amount within sixty
(60) days after the end of the temporary relocation period.
At the end of the temporary relocation period, Licensee shall, at its expense, return the
relocated Communications Facility to the Licensed Area, unless the parties mutually agree that
the Communications Facility may remain at the temporary location in which case the parties
shall memorialize such agreement by an amendment to this License. Licensee shall have a
right to terminate this License upon thirty (30) days prior written notice to District if any
temporary relocation exceeds ninety (90) days, or if District requires Licensee to relocate the
Communications Facility more than one (1) time during the License Term, or more than one (1)
time during the Option Period. If the License is terminated for such reason, District shall refund
unused months of the Annual License Fee on a proportionate basis, but Licensee shall not be
entitled to reimbursement or payment by District of any further expenses or costs it may incur by
reason of its election to terminate this License hereunder.
Section 7A. District’s Termination. In addition to other District rights of termination
and revocation under this License, District may terminate and revoke this License prior to
expiration of the License Term or Option Period in any of the following circumstances:
(a) By giving Licensee sixty (60) days prior written notice, if District determines in its
sole discretion that the Licensed Area is necessary for the exercise of its
Paramount Rights at the Site or District decides to sell or otherwise dispose of its
property rights in the Site. Upon notice of termination and revocation under this
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subsection (a), District shall make a good faith effort to permit Licensee to
relocate the Communications Facility, at Licensee’s expense, to another District
property prior to termination of the License.
(b) By giving Licensee sixty (60) days prior written notice, if Licensee fails to
maintain and repair the Communications Facility according to the requirements of
the License and the Policy and Procedures and fails to cure such non-
compliance in response to any District request for such repairs within thirty (30)
days, or within such shorter time specified by District in such written request.
Further, if District in its sole discretion determines that the Communications
Facility is in a state of disrepair which either interferes with the exercise of
District’s Paramount Rights or imminently endangers the health and safety of
District customers, District employees, and users of the Site, District may
terminate the License and take steps to address the situation immediately
without prior notice to Licensee, provided that District shall thereafter promptly
notify Licensee of the situation, and Licensee shall reimburse District for its
actual costs incurred to take such action.
(c) If Licensee fails to pay the Annual License Fee when due, District may, after
giving ten (10) days prior written notice to Licensee, terminate and revoke this
License and seek other remedies, as appropriate, under the laws of the State of
California, unless Licensee cures such default by payment of both the Annual
License Fee and accrued interest charges within such notice period.
(d) If Licensee fails to perform or observe any of the other material terms or
conditions of this License, District may, after giving thirty (30) days prior written
notice to Licensee, terminate and revoke this License and seek other remedies
under the laws of the State, unless Licensee cures such non-performance or
non-observance within such notice period.
The parties agree that it is presumed that any termination and revocation is exercised in
good faith, in accordance with the terms hereof, and in a fair and reasonable manner. In the
event Licensee disputes District’s right to terminate or revoke this License, Licensee has the
burden of presenting information to District within 30 days of the notice in Paragraph 7A.(d) that
District has breached the terms hereof and that District has not exercised termination and
revocation rights in either good faith, fairly, or in a reasonable manner.
Section 7B. Licensee’s Limited Termination Right. It is understood and agreed
that Licensee’s ability to use the Site is contingent upon Licensee continually maintaining in full
force and effect, after the Effective Date, all the certificates, permits, and other approvals that
are required by any federal, state, or local authorities. In the event that any certificate, permit,
license, or approval issued to Licensee is canceled, expires, lapses, or is otherwise withdrawn
or terminated by any governmental authority so that Licensee is unable to use the Site for its
intended purposes, Licensee may terminate this License upon ninety (90) days written notice to
District, except those terms that survive termination, including but not limited to Licensee’s
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obligations to remove the Communications Facility and restore the Site, and Licensee’s
indemnity obligation.
Section 8. Licensee’s Installation, Ownership, Operation and Maintenance of
Facilities; FCC Regulations, Emissions Testing, Compliance with Law.
(a) Licensee shall install, construct and maintain the Communications Facility in
accordance with this License and the Policy and Procedures.
(b) It is expressly understood and agreed that the Communications Facility placed
on Site by Licensee shall be and remain the personal property of Licensee.
Licensee has the right to remove, at Licensee’s expense, the Communications
Facility in, under, or upon the Licensed Area.
(c) Licensee, at Licensee’s expense, shall keep and maintain, or cause to be kept
and maintained, the Communications Facility in a state of good appearance and
repair, reasonable wear and tear excepted as determined in the District’s sole
discretion. Licensee shall pay, when due, all claims for labor or materials
furnished to, or for, Licensee for the use on the Licensed Area which claims are
or may be secured by any mechanic’s or materialmen’s liens against the
Communications Facility, or the Licensed Area, or any interest of Licensee
therein. Licensee agrees that District has no greater obligation to repair and
maintain the Site due to Licensee’s presence at the Site than it would have in the
ordinary course of its business, and District has no obligation to repair or
maintain the Licensed Area, or the Communications Facility.
(d) Licensee shall, at its own expense, protect, replace and provide any landscaping
required in its permits to shield the Communications Facility on the Site and shall
promptly replace any District landscaping damaged by Licensee’s activities
consistent with the requirements of the Policy and Procedures.
(e) Licensee shall have a separate meter installed for Licensee's electrical power
consumption, whereupon Licensee shall be solely responsible for payment of all
utilities costs.
(g) Upon completion of the installation of the Communications Facility, or upon the
District’s request, Licensee shall proceed with a Radio Frequency (“RF”)
emissions test, to be performed by a Federal Communications Commission
(“FCC”)-certified third-party in accordance with FCC regulations, which results
shall be provided to District in a written report including the monitoring results, if
applicable, prior to commencement of any operations or use of the
Communications Facility by Licensee. Licensee shall be responsible for all costs
of the RF test, the written report and the monitoring results. During the License
Term or Option Period, Licensee shall conduct all RF tests or other emissions
tests as required by FCC regulations and shall provide all results to District within
thirty (30) days of completion in a written report. All RF test results shall meet
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FCC regulations and emissions exposure limits. If results indicate RF emissions
exceed the applicable FCC exposure limits or fail to meet applicable FCC
standards, such failure shall be a material breach of this License, and subject the
License to termination and revocation procedures pursuant to Section 7A.
(h) In addition to compliance with specific laws otherwise described in this License,
Licensee shall comply, and will ensure that its contractors and representatives
will comply, with all regulations and requirements of the FCC and the California
Public Utilities Commission, and all other federal, state and local laws,
ordinances, rules and regulations, including health and safety requirements,
pertaining to the construction, installation, operation and maintenance of the
Communications Facility and work on the Site. Requirements of the
Occupational Safety and Health Administration (OSHA) shall be adhered to at all
times during any activities on the Site by Licensee and its contractors or other
representatives.
Licensee shall have a safety and injury prevention program in place for the
construction, installation, operation and maintenance of the Communications
Facility and work on the Site, if required by laws or regulations. If required by law
or regulation, a copy of any such program shall be on the Site at all times.
Section 9. Removal/Restoration/Bond. Licensee shall remove all of the
Communications Facility at its expense upon the expiration or earlier termination of the License.
Licensee shall repair any damage to the Licensed Area caused by such removal and shall
return the Licensed Area to the condition which existed before the Effective Date, reasonable
wear and tear excepted as determined in the District’s sole discretion. On or before the
Effective Date, Licensee shall obtain a faithful performance bond, in the amount of
__________________________ and 00/100 Dollars ($xxx,xxx.00), from a bond company duly
licensed to do business in California in favor of District (the “Bond”). The Bond shall secure
Licensee's removal of its equipment from the Licensed Area following the expiration or earlier
termination of the License, and shall be maintained in force by Licensee throughout the License
Term or Option Period. Licensee agrees to deliver to District a copy of the Bond prior to
commencement of construction activities on the Licensed Area (or if the License is a renewal for
a previously constructed facility, prior to full execution of the License). Prior to commencement
of any Option Period, District and Licensee shall review the amount of the Bond to assess
whether the amount of the Bond is reasonably sufficient to cover then current removal and
restoration costs. If it is reasonably determined to be insufficient, Licensee shall obtain and
maintain in force a Bond for such additional amount that District reasonably determines to be
sufficient.
Section 10. Prior Communications Facilities on Site, District Communications
Systems; Non-interference.
(a) Licensee acknowledges and understands that the communications facilities
providers listed in Exhibit D hereto (referred to as the “Prior User(s)”) has(ve)
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entered into an agreement(s) (the “Prior Use Agreement(s)”) with District,
pursuant to which the Prior User(s) has(ve) been permitted to install and operate
communications equipment on the Site. Licensee represents and warrants that
prior to the execution of this License, Licensee has determined that the Prior
Users present no material interference with Licensee’s intended use within the
Licensed Area.
(b) Licensee shall operate the Communications Facility in a manner that will not
cause harmful interference to (i) any communications equipment operated and/or
owned by District, or (ii) any communications equipment operated and/or owned
by the Prior User(s) as of the Effective Date, provided that the Prior User(s)
operates its communications equipment in accordance with the terms of the Prior
Use Agreement(s). If Licensee’s Communications Facility causes harmful
interference to the communications equipment operated and/or owned by District
under “(i)” above or the Prior User(s) under “(ii)” above, Licensee will take all
steps necessary to correct and eliminate the interference, including but not
limited to, at Licensee’s option, powering down such equipment and later
powering up such equipment for intermittent testing. If such interference cannot
be corrected or powered down within two (2) days after Licensee is advised of
such interference, District may require that Licensee cease (or cause the
cessation of) operation of the interfering equipment until such interference can be
so corrected at which time the operation of such equipment may resume.
(c) Licensee further acknowledges that District assumes no risk or liability for any
interference with Licensee’s use of the Site which results from the operation of
communications equipment on the Site by the Prior User(s) under the Prior Use
Agreement(s) and agrees that District shall be indemnified and held harmless
from claims due to any such interference, pursuant to the indemnification terms
set forth in Section 13 herein.
(d) District reserves the right to license other portions of the Site to third parties
during the License Term or Option Period. Subsequent to the installation of the
Communications Facility, District will not knowingly permit the installation of new
equipment on the Site if such equipment will cause harmful interference with the
Communications Facility. If any such harmful interference occurs, Licensee shall
use its best efforts to resolve the interference issues in cooperation with the
District and operator of the new equipment without involving District personnel. If
any such subsequent users cannot correct such harmful interference within ten
(10) business days of Licensee’s written notification thereof to District, Licensee
may terminate this License upon sixty (60) days written notice to District and
obtain a refund of prepaid unused amounts of the Annual License Fee, or seek
injunctive or other legal relief against/from such subsequent users. The refund
shall be Licensee’s sole and exclusive remedy and recovery as against District,
and Licensee hereby waives any other rights or remedies it may have at law or in
equity against District. The parties recognize and agree that it is the intention of
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this Section 10 that District not become embroiled in any disputes or proceedings
between Licensee and subsequent users, and/or expend funds as a result
thereof; therefore, Licensee agrees to defend and indemnify District against any
disputes or proceedings between Licensee and subsequent users to the extent
such disputes or proceedings are initiated by Licensee or arise from Licensee’s
negligence or willful misconduct or arise from Licensee’s failure to comply with
this Agreement or the Policy and Procedures.
Section 11. Environmental.
(a) For purposes of this License, the term “Hazardous Substances” means: (a) any
substance, products, 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 (CERCLA), 42 United
States Code Section 9601 et seq.; the Resources Conservation and Recovery
Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials
Transportation Conservation and Recovery Act, 42 United States Code Section
1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.;
the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.;
the California Hazardous Waste Control Act, Health and Safety Code Section
25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code
Section 25330 et seq.; the California Safe Drinking W ater and Toxic Enforcement
Act, Health and Safety Code Section 25249.5 et seq.; California Health and
Safety Code Section 25280 et seq. (Underground Storage of Hazardous
Substances); the California Hazardous Waste Management Act, Health and
Safety Code Section 25170.1 et seq.; California Health and Safety Code Section
25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or
the California Porter-Cologne Water Quality Control Act, Water Code Section
13000 et seq., all as amended; 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
Substance, now or at any time hereinafter in effect; (b) 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
based on negligence, trespass, intentional tort, nuisance or strict liability or under
any reported decisions of a state or federal court; (c) petroleum or crude oil, other
than petroleum and petroleum products which are contained within regularly
operated motor vehicles; and (d) asbestos.
(b) Except as otherwise specifically permitted under the terms of this License,
Licensee shall not use, create, generate, store, deposit, dispose of or allow any
Hazardous Substances on, under, about or within the Site in violation of any
federal, state, or local law, rule, regulation, order, decree or other requirement
listed in this Section 11. Batteries for emergency power and/or fuel for temporary
or fixed stand-by generators during power outages may only be used or stored
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on-Site with the prior written approval of District. On Site use, but not storage, of
ordinary paints, solvents and similar substances commonly used in small
quantities and necessary for maintenance of Licensee’s Communications Facility
are excepted from the preceding prohibition of use by Licensee of Hazardous
Substances on the Site, so long as Licensee complies with all applicable federal,
state and local laws rules and regulations governing the use of such items.
(c) Except as otherwise specifically permitted under the terms of this License and
listed in Exhibit B, attached hereto, no permanent underground or above ground
fuel storage tanks shall be installed on the Site.
(d) District or its officers, employees, contractors, or agents shall at all times have
the right to go upon and visually inspect the Licensed Area and the operations
conducted thereon to assure compliance with the requirements herein stated.
This inspection may also include taking samples for chemical analysis of
substances and materials present and/or testing soils on the Licensed Area and
taking photographs. Except in case of emergency, District will not take samples
or test soils on the Licensed Area without providing Licensee with notice and the
opportunity to have a representative present.
(e) Licensee shall, within forty-eight (48) hours of the discovery by Licensee of the
presence of, or believed presence of, a Hazardous Substance, give written notice
to District in the event that Licensee knows or has reasonable cause to believe
that any release of Hazardous Substance has come or will come to be located
on, under, about or within the Licensed Area or Site. The failure to disclose in a
timely manner the release of a Hazardous Substance by Licensee shall be
grounds for termination of this License by District in addition to actual damages
and other remedies provided by law. Licensee shall immediately clean up and
completely remove, at Licensee’s expense, all Hazardous Substances placed by
Licensee on, under, about or within the Licensed Area or Site, in a manner that is
in all respects safe and in accordance with all applicable laws, rules and
regulations.
(f) In the event Hazardous Substances are discovered, Licensee shall disclose to
District the specific information regarding Licensee’s discovery of any Hazardous
Substances placed on, under, about or within the Licensed Area or the Site by
Licensee, and provide written documentation of its safe and legal disposal.
(g) Breach of any of these covenants, terms, and conditions, and Licensee’s failure
to cure within thirty (30) days of Licensee’s receipt of written notice from District
of any such breach, shall give District the authority to either immediately
terminate this License or to shut down Licensee’s operations thereon, at the sole
discretion of District. In either case, Licensee will continue to be liable under this
License to remove and mitigate all Hazardous Substances placed by Licensee
on, under, about or within the Licensed Area or the Site. Licensee shall be
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responsible for, and bear the entire cost of removal and disposal of, all
Hazardous Substances introduced to the Licensed Area or Site by Licensee.
Upon termination of this License, Licensee shall, in accordance with all laws,
remove from the Licensed Area or Site any Communications Facility that may be
contaminated by Hazardous Substances.
Section 12. Insurance.
The Licensee shall not commence work pursuant to the License until it has obtained and
the District has approved all insurance required hereunder. In addition, the Licensee shall not
allow any subcontractor to commence work on its subcontract until such subcontractor has
obtained all required insurance, as provided in Section 12.2.11 below.
12.1 Insurance Requirements for Licensee - Licensee shall procure and
maintain for the duration of the License, or as specified below, insurance against claims for
injuries to persons or damage to Site which may arise from or in connection with the License by
the Licensee, his agents, representatives, employees or subcontractors. The cost of such
insurance shall be borne by the Licensee.
12.1.1 Scope of Insurance - coverage shall at least be as broad as:
12.1.1(a) Insurance Services Office Commercial General
Liability Coverage (Occurrence Form No. CG 0001, or equivalent), including completed
operations coverage, with no explosion, collapse or underground damage exclusions (XCU)
12.1.1(b) Insurance Services Office (Form No. CA 0001, or
equivalent) covering Automobile Liability, Code 1 (any auto) or in the alternative, owned or
scheduled autos plus non-owned and hired autos.
12.1.1(c) Workers’ Compensation coverage, as required by
the Labor Code of the State of California, including an “all states” endorsement and employer's
liability coverage.
12.1.1(d) (For Licenses with Construction/Builders Risk
exposures) Course of construction (builders risk) insurance or an installation floater, covering for
"all risk" or special form causes of loss for limits equal to 100% of the completed value of
contract, including coverage for explosion, collapse, underground excavation and removal of
lateral support, with coverage to continue until the termination of the construction work pursuant
to the License. At the discretion of District, the requirement for such coverage may include
additional protection for Earthquake and/or Flood. District shall be included as an insured on
such policy. The Licensee shall provide the District with a copy of the policy for Builder’s Risk
insurance coverage.
12.1.2 Minimum Limits of Insurance:
12.1.2(a) Liability insurance:
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General liability: $3,000,000 per occurrence, $3,000,000
general aggregate $3,000,000 completed operations aggregate.
Automobile liability: $1,000,000 per accident combined
single limit.
Liability limits as set forth herein in this Section 12.1.2(a)
may be achieved through any combination of primary and excess or umbrella insurance policies
and shall apply above the other liability policies, and “follow form” providing coverage at least as
broad as coverage provided in the underlying policies.
12.1.2(b) Workers' Compensation limits shall be statutory as
required by the Labor Code of the State of California.
12.1.2(c) Builder's Risk insurance shall provide limits equal to
100% of completed value of the License.
12.2 Other Licensee Insurance Provisions - The policies specified herein
are to contain, or be endorsed to contain, the following provisions:
12.2.1 Additional Insureds - The District, and their directors, officers, officials,
agents, employees, attorneys, consultants and volunteers are to be included as insureds on all
third party liability policies, including automobile, general liability and excess or umbrella
policies. The coverage shall contain no special limitations on the scope of protection afforded to
the District and their directors, officers, officials, agents, employees, attorneys, consultants, or
volunteers.
12.2.2 Primary Insurance - The Licensee's insurance coverage, including any
excess liability coverage, shall be primary insurance as respects the District, their directors,
officers, officials, agents, employees, attorneys, consultants, and volunteers for all liability
arising out of the activities performed by or on behalf of the Licensee, including the District’s
general supervision of the Licensee; products and completed operations of the Licensee;
premises owned, occupied, leased or used by the Licensee. Any insurance, pool coverage, or
self-insurance maintained by the District and their directors, officers, officials, employees,
attorneys, consultants, or volunteers shall be excess of the Licensee's insurance and shall not
contribute with it.
12.2.3 Waiver – All insurance coverage maintained or procured pursuant to this License
shall be endorsed to waive subrogation against District, their directors, officers, officials, agents,
employees, attorneys, consultants, and volunteers or shall specifically allow Contractor or
others providing insurance evidence in compliance with these requirements to waive their right
of recovery prior to loss. Licensee waives its right of recovery against the District and their
directors, officers, officials, agents, employees, attorneys, consultants, and volunteers for
damages covered by insurance required by this License. Licensee shall require similar written
express waivers and insurance clauses from each of its subcontractors.
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The insurer issuing the Workers’ Compensation insurance shall amend its policy to
waive all rights of subrogation against District, the Engineer/Architect and their directors,
officers, officials, agents, employees, attorneys, consultants, and volunteers.
12.2.4 Enforcement of Contract Provisions - Licensee acknowledges and agrees
that any actual or alleged failure on the part of District to inform Licensee of non-compliance
with any requirement imposes no additional obligations on District nor does it waive any rights
hereunder.
12.2.5 Requirements not Limiting – Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a given
issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type.
12.2.6 Notice of Cancellation – Licensee agrees to oblige its insurance broker
and insurers to provide to District with 30 days notice of cancellation (except for nonpayment for
which 10 days notice is required) or nonrenewal of coverage for each required coverage except
for builder’s risk insurance. The builder’s risk policy will contain or be endorsed to contain a
provision providing for 30 days written notice to District of cancellation or nonrenewal, except for
nonpayment for which 10 days notice is required.
12.2.7 Self-insured Retentions and Deductibles – Licensee agrees not to self-
insure or to use any self-insured retentions on any portion of the insurance required herein and
further agrees that it will not allow any indemnifying party to self-insure its obligations to District.
If Licensee’s existing coverage includes a self-insured retention, the self-insured retention must
be declared to the District. The District may review options with the Licensee, which may include
reduction or elimination of the self-insured retention, substitution of other coverage, or other
solutions. Licensee agrees to be responsible for payment of any deductibles.
12.2.8 Proof of Insurance - The Licensee shall, at the time of the execution of
the License, present the original policies of insurance required by this Section, or present signed
certificates of insurance with original additional insured endorsements for general liability
insurance effecting coverage required by this License, and a workers’ compensation waiver of
subrogation, showing the issuance of such insurance and the addition of policy insureds and
other provisions required herein. Licensee shall provide certified copies of all insurance policies
required above within 10 days of District’s written request for said copies.
The Licensee shall, at the expiration of any insurance policy required by the License, file
a signed and completed renewal "Certificate of Insurance" and endorsements as required by
this License.
12.2.9 Maintenance of Insurance - Should the Licensee neglect to obtain or
maintain in force any such insurance for the duration of this contract, then it shall be lawful for
the District to obtain and maintain such insurance, and the Licensee hereby appoints the District
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as its true and lawful attorney-in-fact to do all things necessary for this purpose. All money paid
by the District for insurance premiums under the provisions of this Section shall be charged to
the Licensee.
12.2.10 Acceptability of Insurers - Insurance is to be placed with insurers
with a Best's rating of no less than A-: VII or equivalent as determined by the District.
12.2.11 Subcontractors – Licensee's contract with each subcontractor
shall include (1) an agreement by the subcontractor to indemnify the District, its agents and
representatives against, and defend and hold each of them harmless from, any and all actions,
claims, damages to persons or property, penalties, obligations or liabilities that may be asserted
or claimed by any person or entity arising out of or in any manner directly or indirectly related to
the operation or activities of the subcontractor in connection with the Work, including defense
costs and attorney's fees; (2) insurance requirements for the subcontractor that are the same
as the requirements imposed on the Licensee by this Section except as to limits, but limits shall
be no less than (a) $1 million per occurrence for General Liability, (b) $1 million per accident for
automotive, and (c) statutory limits for Worker's compensation, and; (3) a requirement that the
subcontractor name the District as an insured on the subcontractors General Liability policy.
Licensee shall be responsible to enforce compliance with these requirements, and all
documentation establishing compliance shall be made available to the District upon request.
12.2.12 Compliance with Insurance Requirements – Licensee’s obligation
to obtain insurance coverage as set forth in Section 12.0 is separate and distinct from
Licensee’s obligation to indemnify, hold harmless and defend. Compliance with the
requirements of Section 12.0 shall not relieve Licensee of Licensee’s obligations to defend and
indemnify the District.
Section 13. Indemnification. Licensee shall be responsible, and District shall
not be answerable or accountable in any manner, for any loss or expense by reason of any
damage or injury to person or property, or both, arising out of the acts of Licensee, its agents,
officers, employees, or invitees (collectively with Licensee referred to in this Section 13 as
”Licensee”), including acts on the Site or on and over an Access Easement, the design or
installation of the Communications Facility, the operation, maintenance or removal of its
Communications Facility, any harmful interference caused by Licensee which interferes with the
ability of the Prior Users to operate their communications equipment in accordance with the
terms of the Prior Use Agreements, and, any other use pursuant to this License.
To the fullest extent permitted by law, the Licensee will defend, indemnify and hold
harmless District, its directors, officers, employees, attorneys, and authorized volunteers from
and against all claims and demands of all persons that arise out of, pertain to, or relate to the
Licensee’s negligence, recklessness, or willful misconduct in the performance (or actual or
alleged non-performance) of the work under this License. Further, the Licensee will defend,
indemnify and hold harmless District, its directors, officers, employees, attorneys, and
authorized volunteers from and against all claims and demands of all persons that arise out of
this License, including but not limited to claims by the Licensee, the Licensee’s employees, any
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subcontractors and any of their employees for damages to persons or property, except for
damages resulting from the sole negligence, active negligence, recklessness or willful
misconduct of District, its directors, officers, employees, or authorized volunteers. The Licensee
shall defend itself against any and all liabilities, claims, losses, damages, and costs arising out
of or alleged to arise out of the Licensee’s performance or non-performance of the work
hereunder, and shall not tender such claims to District nor to its directors, officers, employees,
attorneys, or authorized volunteers, for defense or indemnity.
The Licensee shall defend, at Licensee’s own cost, expense and risk, any and all such
aforesaid suits, actions or other legal proceedings of every kind that may be brought or
instituted against District or any of its directors, officers, employees, attorneys, or authorized
volunteers, with legal counsel reasonably acceptable to District. The Licensee shall pay and
satisfy any judgment, award or decree that may be rendered against District or any of its
directors, officers, employees, attorneys, or authorized volunteers, in any and all such aforesaid
suits, actions, or other legal proceedings for which the Licensee is obligated to defend,
indemnify and hold harmless the District, its directors, officers, employees, attorneys, and
authorized volunteers under this License.
The Licensee shall reimburse District or its directors, officers, employees, attorneys, and
authorized volunteers, for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. The Licensee’s obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by District or its
directors, officers, employees, attorneys, or authorized volunteers.
Within thirty (30) days of receipt of any third-party claim arising from or relating to this
License, the District shall provide written notification of such claim to Licensee. Licensee will
defend any action or actions filed in connection with any of said claims, damages, penalties,
obligations or liabilities and will pay all costs and expenses, including attorney’s fees incurred in
connection therewith.
Licensee’s obligation to indemnify, defend and hold harmless is separate and distinct
from its obligations to provide insurance. Compliance with the requirements set forth hereunder
shall not relieve Licensee of his obligations to obtain insurance.
Licensee’s indemnification obligation hereunder and the provisions of this Section 13
shall survive any termination, revocation, expiration, or assignment of this License.
Section 14. Dispute Resolution
(a) Dispute Resolution Process. Except for any claim, controversy or dispute that is
subject to the jurisdiction of the FCC, any claim, controversy, or dispute arising
out of or relating to this License, or to the threatened, alleged, or actual breach
thereof by any party, shall be resolved exclusively as set forth in this Section 14.
(b) Invocation. Subject to the requirements of subsections (c) and (d) below, the
resolution procedures shall be invoked when a party sends a written notice to the
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other party following the occurrence or threat of any claim, controversy, or
dispute arising out of or relating to this License. The notice shall describe the
nature of the dispute and the party’s position with respect to such dispute.
(c) Representatives. Prior to invoking resolution procedures, the parties shall
expeditiously schedule consultations or a meeting between representatives
designated by each party in an effort to resolve the dispute informally.
(d) Reference to Management Representatives. If the representatives appointed by
each party are unable to resolve the dispute within thirty (30) days, the
management representatives designated by each party shall attempt to resolve
such dispute through consultation and negotiation, within an additional thirty (30)
days (or such longer period as mutually agreed by the parties). The
management representatives may request the assistance of an independent
mediator if they believe that such a mediator would be of assistance to the
efficient resolution of the dispute. Unless otherwise agreed, the cost of the
mediator will be shared equally by the parties.
(e) Binding Arbitration. If the management representatives cannot resolve the
dispute as set forth herein, the matter may be resolved by arbitration in the
County of Orange, California, pursuant to the rules of Judicial Arbitration and
Mediation Services (“JAMS”) Written notice to the other party initiating arbitration
shall include a description of the claim(s) asserted and the facts upon which the
claim(s) are based. All disputes shall be decided by a single arbitrator. The
arbitrator shall be selected by mutual agreement of the parties within thirty (30)
days of the effective date of the notice initiating the arbitration. If the parties
cannot agree on an arbitrator, the arbitrator shall be selected pursuant to the
applicable JAMS rule for the selection of a single arbitrator. The arbitrator shall
have only such authority to award equitable relief, damages, costs, and fees as a
court would have for the particular claim(s) asserted. In no event shall the
arbitrator award punitive damages of any kind. Any judgment upon the award
rendered by the arbitrator may be entered in any court, state or federal, having
jurisdiction thereof. Any Party may apply to the arbitrator seeking injunctive relief
until the arbitration award is rendered or the controversy is otherwise resolved.
Any Party also may, without waiving any remedy under this Agreement, seek
from any court located in Orange County, California having jurisdiction any
interim or provisional relief that is necessary to protect the rights or property of
that Party, pending the establishment of the arbitral tribunal (or pending the
arbitral tribunal’s determination of the merits of the controversy). All costs of
JAMS or of the arbitrator shall be divided equally among the Parties, unless
otherwise ordered by the arbitrator. In any arbitration, the arbitrator’s award shall
be supported by law and substantial evidence.
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Section 15. Policy and Procedures Fees. If not already paid by Licensee to District
under the Policy and Procedures requirements, then concurrently with the execution of this
License, Licensee shall pay to District the applicable fees set forth in the Policy and Procedures.
Section 16. Entire Agreement; Amendment. This License and the Policies and
Procedures constitute the entire understanding between the parties with respect to the subject
matter hereof, superseding all negotiations, prior discussions and agreements made prior to the
date hereof. In the event there is an existing lease or license between Licensee (or its
predecessor-in-interest) and District covering the Licensed Area, it is agreed and understood
that this License shall cancel, supersede and terminate said prior lease or license as of the
Effective Date of this License. This License may not be modified except in a writing executed
by both parties.
Section 17. Paragraph Heading and Construction. The section headings contained
in this License are for convenience only and not for purposes of interpreting or applying this
License.
Section 18. Governing Law/Venue. This License shall be governed by and
construed in accordance with the laws of the State of California without regard to its conflicts of
laws rules. Any legal action brought in connection with this License (as may be permitted
hereunder) shall be brought in the appropriate court of the County of Orange, California, and the
parties agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of
Civil Procedure Section 394.
Section 19. Binding on Successors; No Third-Party Beneficiaries. This License
shall be binding upon and inure to the benefit of the parties and their respective heirs,
successors and assigns. No customer, other person or entity other than the parties shall be
deemed to be a third-party beneficiary, and nothing in this License, either express or implied, is
intended to confer upon any customer or other person or entity, other than the parties and their
respective successors and assigns, any rights, remedies, obligations or liabilities under this
License. Licensee shall defend and indemnify District against claim or challenge to District’s
rights to enforce this License against Licensee’s successors and assigns.
Section 20. Independent Contractors. Licensee’s contractors, agents and
representatives are independent contractors of Licensee, and are not employees or
independent contractors of the District while on the Site, or while engaged in any work on the
Site, including the construction, installation, maintenance or operation of the Communications
Facility.
Section 21. Limited Assignment/ No Sub-licensing.
(a) This License, or the license interest of Licensee in the Licensed Area, shall not
be assigned by Licensee except with the prior written consent of District which
consent may be withheld in the District’s sole discretion, notwithstanding
Sections 1995.260 and 1995.270 of the California Civil Code, and as they may
be amended, or as allowed under subsection (b) hereof.
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(b) Licensee may, without District’s consent but upon at least sixty (60) days prior
written notice to District, assign this License in its entirety (i) to any entity which
has a fifty-one percent (51%) or greater interest in Licensee (a “Parent”), or to
any entity in which Licensee or a Parent has a fifty-one percent (51%) or greater
interest. Any such assignment shall not be effective unless and until the
assignee executes and delivers to District a written assumption of all Licensee’s
obligations under this License.
(c) Sub-licensing is strictly prohibited.
(d) Any attempted or unauthorized assignment or sub-license shall be void and shall
be cause for immediate termination of this License by District. The acceptance
of Annual License Fees by District from any person other than Licensee or an
authorized assignee shall not be deemed to be a waiver by District of any
provision hereof. Consent to one assignment shall not be deemed consent to
any subsequent assignment.
(e) Applications for consent to assignments shall be submitted to the District in
accordance with the requirements set out in the Policy and Procedures.
Section 22. Waiver of District’s Lien. Subject to Licensee’s obligations otherwise
set forth in this License, District waives any lien rights it may have concerning the
Communications Facility which are deemed Licensee’s unattached personal property and not
fixtures, and Licensee has the right to remove such unattached personal property without
District’s consent.
Section 23. Attorneys’ Fees. Should either party institute arbitration, legal, or other
proceedings against the other for or on account of its failure or refusal to perform or fulfill any of
the covenants or conditions of this License, then the prevailing party in such action or
proceeding shall receive its attorney’s fees and costs from the other party as adjudged
reasonable by the arbitrator or court.
Section 24. Notice. Any notice, request, information or other document to be given
hereunder to any of the parties by any other parties shall be in accordance with the Policy and
Procedures or where the Policy and Procedures are silent, in writing, and shall be deemed
given and served upon delivery, if delivered personally, or three (3) days after mailing if sent by
certified mail, or upon delivery, if delivered by a nationally recognized overnight courier, postage
prepaid, as follows:
If to Licensee: If to District:
CARRIER Yorba Linda Water District
dba XXXX 1717 E. Miraloma Avenue
STREET ADDRESS Placentia, CA 92870
CITY, ST ZIP Attn.: Engineering Manager
Attn: XXX
Site: XXX
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Either party may change the address or persons to which notices are to be sent to it by
giving ten (10) business days’ prior written notice of such change to the other party in the
manner provided herein.
Section 25. Counterparts. This License may be executed in counterparts, each of
which shall be deemed to be an original.
Section 26. Representations and Warranties.
(a) Each party represents and warrants that this License constitutes a legal, valid,
and binding agreement and is enforceable against each party.
(b) Licensee represents and warrants that it has received a complete copy of the
Policy and Procedures from District, has read and understood the requirements
of the Policy and Procedures, and is able to and will fully comply with the Policy
and Procedures.
(c) Licensee acknowledges and agrees that the Policy and Procedures may be
revised from time to time by District, and all changes or revisions to the Policy
and Procedures (except for Appendix A – Communications Facility License
Agreement Template) will automatically apply to this License upon written notice
of the revised Policy and Procedures by District in accordance with Section 24,
without the need for any formal amendment of this License.
(d) Licensee acknowledges and agrees that Licensee is not entitled to relocation
assistance, or any other benefits under the Uniform Relocation Assistance Act, or
any other applicable provision of law upon termination of this License.
Section 27. NO WARRANTY. LICENSEE’S RIGHT TO USE THE LICENSED AREA,
DISTRICT IMPROVEMENTS, AND THE SITE IS STRICTLY ON AN “AS IS” BASIS WITH ALL
FAULTS. DISTRICT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND AS TO
THE PRESENT OR FUTURE CONDITION OF OR SUITABILITY OF THE SITE, DISTRICT
IMPROVEMENTS, OR THE LICENSED AREA FOR LICENSEE’S USE AND DISCLAIMS ANY
AND ALL WARRANTIES EXPRESS OR IMPLIED WITH RESPECT TO THE PHYSICAL,
STRUCTURAL, OR ENVIRONMENTAL CONDITION OF THE SITE, DISTRICT
IMPROVEMENTS, AND LICENSED AREA AND THE MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE. LICENSEE IS SOLELY RESPONSIBLE FOR INVESTIGATION
AND DETERMINATION OF THE CONDITION AND SUITABILITY OF THE SITE, DISTRICT
IMPROVEMENTS, AND LICENSED AREA FOR LICENSEE’S INTENDED USE.
Section 28. Taxes. District hereby provides notice pursuant to California Revenue
and Taxation Code Section 107.6, and Licensee acknowledges that this License may create a
possessory interest and Licensee may be subject to property taxes levied on such interest, as
described in California Revenue and Taxation Code Section 107. Licensee shall pay, when
due, all real and personal property taxes, fees and assessments, assessed against the
Licensed Area and the Communications Facility.
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Section 29. Time. Time is of the essence of this License.
Section 30. Survival. All terms that by their nature should survive termination of this
License shall survive, including but not limited to payment of amounts owed and indemnification
obligations.
Section 31. The following exhibits are incorporated in this License:
Exhibit A Site Legal Description
Exhibit B Description - Communications Facilities (Equipment List)
Exhibit C Licensed Area (Site Plan)
Exhibit D List of Prior User(s)
Exhibit E District’s Project-Specific General Provisions
Section 32. Prior Replaced Agreement. District and Licensee agree that, upon the
Effective Date, this License shall replace the Original Agreement (referenced by Licensee as
Contract No. NG34360-1). District and Licensee acknowledge that notwithstanding the
replacement of the Original Agreement and the commencement of this License, Licensee may
continue to make, and the District may continue to receive, rental and other payments pursuant
to the Original Agreement. In such event, any rental or other payments made pursuant to the
Original Agreement after its replacement shall be applied and credited against any license fees
or other payments due under this License.
Section 33. Binding Authority/Authorized Representatives. Each of the parties
represents and warrants that it has the full right, power, legal capacity and authority to enter into
and perform its obligations hereunder and that those obligations will be binding upon that party
without the approval or consent of any other person or entity. Each person executing this
License represents and warrants he/she has been duly authorized to execute the same.
IN WITNESS WHEREOF, the parties hereto have executed this License as of the day
and year first written above.
“District”: “Licensee”:
YORBA LINDA WATER DISTRICT [CARRIER], dba XXX
By: By:
Title: General Manager Title:
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Exhibit A Site - Legal Description
All that real property situated in the County of Orange, State of California, described as follows:
[Insert Legal Description]
Assessor’s Parcel Number: XXX
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Exhibit B Description ‐‐‐‐ Communications Facility (Licensed Equipment)
i. Up to xxx (xx) _____-mounted panel antennas;
ii. Up to xx (x) _____-mounted microwave antenna(s);
iii. Up to xx (x) GPS antennas mounted to ____________;
iv. One (1) equipment _________ (with related communications equipment and
appurtenances) for a total equipment license area of approximately ______ Sqft.
v. Utilities, conduits, wires, cables, cable tray space and access necessary for the
operation and maintenance of the unmanned wireless facility.
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Exhibit C Licensed Area (Site Plan):
(See the following pages 21 to xx)
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Exhibit D List of Prior User(s)
____.
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Exhibit E District’s Project-Specific General Provisions
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XX.XX\XX
AMENDMENT NO. [X]
TO YORBA LINDA WATER DISTRICT
COMMUNICATIONS FACILITY LICENSE AGREEMENT
THIS AMENDMENT NO. [X] (“Amendment No. X”) is made and entered into this _____
day of __________________, 20xx, by and between YORBA LINDA WATER DISTRICT, a
California water district existing and operating pursuant to Division 12 of the California Water
Code (“District”), and [CARRIER NAME], a _____ company (“Licensee”).
RECITALS
A. District is the owner of that real property legally described in Exhibit “A”
commonly known as [SITE NAME] located at [STREET ADDRESS], CA [ZIP] (Assessor’s
Parcel Number(s) ___-___-__) (“Site”) related to the License Agreement defined in Recital B
below.
B. District and Licensee are parties to the Communications Facility License
Agreement (“License”) (dated [MONTH, DAY, YEAR], by and between District and [CARRIER
NAME], a _______ company, formerly known as XXXXX, as amended by that certain First
Amendment to License dated [MONTH, DAY, YEAR], and as further amended by that certain
Second Amendment to License dated [MONTH, DAY, YEAR], wherein District licenses to a
certain portion of the Site, including any applicable non-exclusive easements for access and
utilities, commonly known as [DISTRICT SITE NAME] for uses permitted under the License (the
“Licensed Area”).
C. District and Licensee have agreed to amend the License in order to: (i) allow
Licensee to expand the Licensed Area, and to install and operate additional equipment and
associated cables on Site, as more particularly described in Section 1 below; (ii) revise the
License Fee payable during the Term and/or applicable Renewal Term of the License to
account for the expansion of Licensed Area and additions to the Site; and (iii) make certain
other revisions to the License, all as set forth more fully below.
D. District and Licensee agree to increase the current License Fee payable under
the License by XXX and 00/100 Dollars ($XXX.00) per month as set forth below.
E. [IF CPI IS USED] Currently, License Fee is increased annually by the Consumer
Price Index – [DESCRIBE WHICH TABLE IS USED] from the U.S. Department of Labor,
Bureau of Labor Statistic (“CPI”). However, it is the intent of the parties that annual License Fee
increases are to change from the current CPI to a flat percentage equal to xxx percent (x%).
F. Currently, an access protocol for ingress/egress to the Site from the public right-
of-way does not exist. To address this matter, it is District’s intention to implement access
procedures and protocol that would better allow District to be aware of and track Licensee or
Licensee’s contractors, agents, or consultants entering and occupying the Site. Where
practicable, District may install a trackable locking mechanism at each of its Sites in order to
track all persons entering and occupying thereto.
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G. The District’s “Policy and Procedures for Communication Facilities Licenses
within Yorba Linda Water District Properties” dated [MONTH DAY, YEAR], as it may be revised
from time-to-time (“Policy and Procedures”), is incorporated by this Amendment No. [X], if not
already made a part thereof. It is District’s obligation to circulate copies of the Policy and
Procedures, as the same may be revised from time to time, to Licensee prior to any new
policies being effective as related to this Amendment No. X.
H. District and Licensee agree to enter into this Amendment No. [X] in order to set
forth terms and conditions applicable to the License as described below.
AGREEMENT
NOW THEREFORE, in consideration of the promises and conditions set forth herein,
and for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are, by this reference,
hereby incorporated into this Amendment No. [X] as if fully set forth in the body
hereof.
2. Licensed Area. The Licensed Area is not at a Site currently capable of tracking
entrants. Instead, the Licensed Area is located at a semi-secure Site wherein access
is not controlled by a locking gate. District may secure the Site in its sole and
complete discretion. To this end, should a gate be installed at a later date, Licensee
will be provided with two keys to be used and distributed only to authorized Licensee
personnel. The set of two keys will cost Licensee Five Hundred Dollars ($500.00)
and is non-refundable. Licensee shall promptly notify District of any lost or stolen
keys.
3. Additional Equipment. In addition to the equipment permitted in the License,
District consents to the installation and operation of additional equipment, and
associated cables on Site as more completely described in Attachment 1 and
depicted in Exhibit B-2. Therefore, Exhibit “[DESCRIBED IN THE LICENSE]” to the
License is hereby deleted in its entirety and replaced in full with Attachment 1 and
Exhibit B-2 attached hereto and incorporated herein by this reference. District’s
execution of this Amendment No. [X] will signify District’s approval of Exhibit B-2. To
the extent of any discrepancy between Exhibit [DESCRIBED IN THE LICENSE] and
Exhibit B-2, Exhibit B-2 shall control.
4. License Fee. Commencing on the first day of the month following full execution of
this Amendment No. [X] (the “License Fee Increase Commencement Date”), License
Fee shall be increased by XX XXX and 00/100 Dollars ($XXX.00) per month, subject
to further adjustments as provided in the License. District acknowledges that
Licensee’s initial payment of the increased License Fee may not occur until sixty (60)
days after the License Fee Increase Commencement Date.
[IF BACK LICENSE FEE OWED FOR UNAUTHORIZED EQUIPMENT INSTALLATION]
Within forty-five (45) days after the full execution of this Amendment No. [X],
Licensee shall pay to District a one-time payment in the amount of XXX XX and
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XX.XX\XX
XX/100 Dollars ($XXX.XX) (“Back License Fee”) in full accord and satisfaction, and
as full and final settlement of any and all amounts owed and all claims with respect
thereto between the parties arising out of or in any way related to Licensee’s
installation of its [DESCRIBE EQUIPMENT – IF ANY] and associated cables and
equipment covering the period from [MONTH DAY, YEAR] through the effective date
of this Amendment No. [X] (“Dispute”).
5. Annual License Fee Adjustment. Section X of the License is hereby amended to
replace the CPI annual License Fee increase with the following:
“Commencing on July 1, 2017, and on July 1 of each year during the remaining
Renewal Terms, if any, the License Fee shall be adjusted annually by X percent
(X%) over the License Fee paid during the previous year.”
6. Improvements; Access. Portions of Section X of the License are amended and
Section [X1, (y1)] is deleted in its entirety and replaced in full with the following:
“District shall provide access to Licensee, Licensee's employees, agents, contractors
and subcontractors to the Premises twenty-four (24) hours a day, seven (7) days a
week. Access during normal business hours (8:00 AM to 5:00 PM, Monday through
Friday, excluding holidays) shall be at no charge to Licensee. After-hour access shall
be for emergency purposes only. Licensee shall reimburse to District any cost or
expense reasonably associated with Licensee's after-hour access and/or Licensee’s
supervised access to the Site. Licensee has limited rights of ingress to and egress
from the Site. Licensee’s access to the site shall not cause undue inconvenience to
District or interfere with District’s Paramount Rights. Prior to accessing the Site for
any purpose, Licensee shall call (714) 701-3102 and/or email District providing the
following information: (a) entity name requesting access and entity’s relationship to
Licensee, (b) anticipated time, date and duration for access, and (c) a brief
explanation of the scope of work to be performed including the use of heavy
equipment such as cherry pickers or large vehicles commonly associated with
construction activities, if any.”
Section [X2, (y2)] is hereby deleted in its entirety and replaced in full with the
following:
“Licensee shall remove all Communications Facility at its sole cost and expense
upon the expiration, cancellation or within ninety (90) days after the early termination
of the License. Licensee shall be responsible for paying monthly License Fee then
currently due until Site areas are restored and Licensee shall repair or pay for any
damage to the Site caused by such removal and restore the Site to the reasonable
satisfaction of the District, reasonable wear and tear excepted as determined by the
District in its sole discretion.”
7. Repairs. Section [X3, (y3)] of the License is hereby deleted in its entirety and
replaced in full with the following:
Licensee shall maintain the Site and Communications Facility in compliance with the
Policy and Procedures, including any applicable conditions of approval referenced
above or subsequently approved modifications. Moreover, Licensee shall repair the
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
4
XX.XX\XX
Site for damage attributable to Licensee’s use of the Site within one hundred twenty
(120) days upon written request from the District. Nothing herein shall require
Licensee, however, to restore or repair any damage to the Site caused by the
District.
8. Notices. Section [X4] of the License is hereby deleted in its entirety and replaced in
full with the following:
“Notices. All notices, requests, demands and other communications shall be in
writing and are effective three (3) days after deposit in the U.S. mail, certified and
postage paid, or upon receipt if personally delivered or sent by at least two-business-
day delivery via a nationally recognized overnight courier to the addresses set forth
below. Notices will be addressed to the parties as follows:
Lessor: Yorba Linda Water District
1717 E. Miraloma Avenue
Placentia, CA 92870
Attention: Engineering Manager
Lessee: [CARRIER NAME]
Attn: XXX
RE: [Cell Site No.: XXX; Cell Site Name: XXX]
[STREET ADDRESS]
[CITY, ST ZIP]
With a Copy to: [XXX]
Attn: XXX
RE: [Cell Site No.: XXX; Cell Site Name: XXX]
[STREET ADDRESS]
[CITY, ST ZIP]
The copy sent to the Legal Department is an administrative step which alone does
not constitute legal notice. Either party hereto may change the address or persons
for the giving of notice to it by ten (10) days’ prior written notice to the other as
provided herein.”
9. Policy and Procedures. Licensee acknowledges and agrees that it will comply, at
all relevant times with Policy and Procedures, adopted on [MONTH DAY, YEAR] and
incorporated into this Amendment No. [X]. Further, Licensee acknowledges and
agrees that the Policy and Procedures may be revised from time to time by District,
and all relevant changes or revisions to the Policy and Procedures will automatically
apply to this Amendment No. [X] upon written notice of the revised Policy and
Procedures by District without the need for any formal amendment of this License.
10. Continued Effect. Except as expressly amended hereby, all terms and
conditions set forth in the License remain unmodified and in full force and effect.
Unless specified otherwise, any capitalized terms used herein shall have the same
meaning prescribed to them in the License.
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
5
XX.XX\XX
11. Signature Authority. The persons who have executed this Amendment No. [X]
represent and warrant that they are duly authorized to execute this Amendment No.
[X] in their individual or representative capacity as indicated.
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
6
XX.XX\XX
IN WITNESS WHEREOF, District and Licensee have executed this Amendment No. [X]
to the Communications Site License Agreement as of the date first written above.
DISTRICT: LICENSEE:
YORBA LINDA WATER DISTRICT, [CARRIER NAME].
a public agency a company
By: By:
Name: Name:
Title: Title:
Approved as to Form:
[Name], General Counsel
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
7
XX.XX\XX
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
District’s Site of which the Licensed Area is a part is legally described as follows:
[INSERT LEGAL DESCRIPTION]
[STREET, CITY, CA ZIP] (Assessor’s Parcel Number ___-___-__)
YLWD SITE NAME:
LICENSEE SITE NAME:
LICENSEE SITE NUMBER:
8
XX.XX\XX
ATTACHMENT 1
Description of License Space & Equipment Totals Pursuant to the Communications Facility
License Agreement [DEIFINED NAME] dated [MO. DAY, YR]:
Equipment License area equal to (XX’-XX” x XX’-XX” x XX’-XX”) ~XXX+/- square feet
[DESCRIPTION].
Up to six (XX) _____-mounted antennas with XXX (X) X’-XX” panel antennas per sector on
XXXX (X) sectors.
Up to ___ RRU’s, XX per sector on XX sectors.
One (1) XX’ x XX’ equipment _____.
Together with underground conduits, cables, cable trays, wires and utility equipment necessary
for the operation of the communications facilities.
Licensed Space & Equipment additions pursuant to this Amendment No. [X] to include the
following:
Add XX (X) ____-mounted XXX antenna.
Together with underground conduits, cables, cable trays, wires and utility equipment necessary
for the operation of the communications facilities.
EXHIBIT B-2
[See attached page XX of XX pages]
YLWD SITE NAME: LICENSEE SITE NAME: LICENSEE SITE NUMBER: 9 XX.XX\XX SITE PLAN
Appendix C
Application Procedures and Forms
YLWD.v.2018.15 Communications Facilities Project Application Page 1 of 2
Communications Facilities Project Application
Required for all New & Existing Communications Facilities on District Property
(Check all that apply)
Application for New License Agreement
Application for License Amendment
Application for Consent Letter for minor improvements (no excavation/plan approval)
Application for Consent Letter for major improvements (Site excavation/plan approval)
Specialty field inspection (coating, welding, compaction, etc.), billed to licensee upon completion
of construction
Application for Site Decommission (Site excavation/plan approval)
Application for insurance compliance, name change, assignment, change of ownership or entity
Please see the Fee Schedule in Appendix D of the YLWD Communication Facilities License Program
(Payments should be made payable to YLWD and shall accompany this application)
Total Fee: $ Check #:
YLWD Site Name: __________________________________________
YLWD Site Address: ________________________________________
APN#: ___________________________________________________
Carrier Name (Licensee): ___________________________________
Licensee’s Local Address: ________________________________
Licensee’s site Name /Number: ________________________________
Correspondence regarding this application should be sent to:
Agent Name:
Agent Company: _______________________________
Address:
Phone:
E-mail:
Applicant Signature Date
____ New License Modified Build ______Decommission
Detailed description of Project:
(mark all that apply)
Antenna(s) (Y/N): _____________________ Number / Size: ________________
___________________________________
Microwave dish (Y/N): _________________ Number / Size: _________________
RRUs (Remote Radio Units) (Y/N): _______ Number / Size: ________________
Surge Suppressors (Y/N): _____________ Number / Size: ________________
TMA/LNA (Y/N): ___ Number / Size: ________________
Trenching (Y/N): ______________________ Location/Length: _______________
Proposed Location of the BTS equipment (and existing equipment, if applicable):
Interior/Exterior: Size: Square Feet:
Enclosure material: _________________________________________________________
Proposed screening material: _________________________________________________
Site access to equipment: ____________________________________________________
Aesthetic mitigation measures: ________________________________________________
This application is valid for 12 months from the receipt of the application fees
YLWD only
Payment Received: $ Date:
Original Submittal Date: _____
Re-submittal No.: Date:
YLWD Project Tracking No.:
Appendix D
Fee Schedule
Yorba Linda Water District
Communication License Program
Application Fee Schedule1
Checks for Site Application fees should be made payable to the Yorba Linda Water District.
The District request that Licensee issues separate checks for each type of fee. Prior to cashing
the checks, the District will review each application and determine whether the required
application fees have been submitted. If a fee has been submitted that is not necessary, the
District will return the check. If fees are missing, the District will advise the Applicant. Once a
fee is accepted, it is non-refundable and not assignable to another project application. Failure
to diligently pursue an application once submitted (for example, by not responding to a District
request for information for several months) may result in denial of the application and require
resubmittal.
Types of fees:
1. Application Fee for a new License Agreement - $3,500.00 nonrefundable deposit and full
reimbursement of District out-of-pocket and attorney fees above that amount.
2. Application Fee for License Amendment - $1,250.00 nonrefundable deposit and full
reimbursement of District out-of-pocket and attorney fees above that amount.
3. Application Fee for a Consent Letter for minor improvements (no excavation) - $1,500.00
flat fee.
4. Application Fee for a Consent Letter for major improvements (Site excavation) -
$1,750.00 flat fee.
5. Application for a letter of authorization to commence zoning and permitting - $500.00 flat
fee.
6. Specialty field inspections fees - $75 per hour (coating, welding, compaction, etc.), billed
to Licensee upon completion of installation and prior to close-out.
7. Application Fee for a Site Decommission - $2,000.00 nonrefundable deposit and full
reimbursement of District out-of-pocket and attorney fees above that amount.
8. Application Fee for insurance compliance, name change, assignment, change of
ownership or entity - $600.00 nonrefundable deposit and full reimbursement of District
out-of-pocket and attorney fees above that amount.
1 These processing application fees are in addition to the ‘annual License Fee’ required under the License
Agreement/Amendment.
Appendix E
Signature Block and Equipment Table Samples
Signature Block Sample and Equipment Schedule
Required on all title pages of drawings submitted to YLWD for approval for
communication license holder’s site improvements.
Approved By: Yorba Linda Water District
DATE
By: Title:
YLWD SITE NAME
EQUIPMENT SCHEDULE
ZONING
APPROVED
LICENSED
APPROVED
EXISTING ON
SITE
NEW
MOD (TOTALS)
# OF
ANTENNAS
ANTENNA
SIZE
EQUIPMENT
AREA
RRU'S /
LOCATION
Appendix F
Construction Notes
1
These construction notes shall appear on the notes sheet of every set of Construction
Drawings/Plans submitted for District’s review and approval:
YLWD Construction Notes:
1. The Yorba Linda Water District Inspector shall be notified at least two (2) working
days prior to beginning of construction. Call (714) 701-3100 to arrange for inspection.
2. A preconstruction conference of representatives from applicable agencies shall
be held on Site at least one week prior to beginning construction at which time a
construction schedule and 24-hour contact information shall be provided to YLWD.
3. Contractor shall maintain safe access to the Site at all times for YLWD
personnel. Open trenches shall be properly plated at the end of each working day to
allow for 24-hour YLWD access to the Site.
4. The Contractor(s) and Licensee shall be responsible for any damage due to
Construction activities to District Facilities and the existing Site(s) and shall return
damaged facilities to existing condition or better at no cost to the District.
5. The Contractor shall notify Underground Service Alert (DIG ALERT) at least two
(2) working days prior to beginning construction at 1-800-422-4133. Any YLWD facilities
to be crossed or paralleled within five feet shall be potholed to verify location prior to
working in the vicinity of YLWD facilities. Licensee or its Contractor is responsible for
providing gate access to DIG ALERT inspection(s). All excavations across YLWD
facilities shall be due by hand.
7. All new and existing Communications Facilities shall be properly tagged (e.g.
stencil or decal) identifying the Carrier's name, Carrier Site Name and/or Number and
24-hour phone emergency contact number. Contractor to ensure that radio frequency,
warning and emergency signage (placards) are correct and meet the requirements from
the local jurisdiction, State and Federal guidelines.
8. The Contractor shall have a copy of any required permit, a copy of the District
approved Construction drawings/plans and a copy of the District signed Consent Letter
on-site at all times during the work activity.
9. The Contractor is responsible to ensure the Site is secure at all times, during
both working and non-working hours.
10. The Contractor shall provide the District with a set of City (County) stamped and
approved Construction Drawings/Plans and a copy of any necessary permits (Building
2
Permit, Electrical Permit, Grading Permit and/or Encroachment Permit) prior to
commencing any work.
11. The contractor shall saw cut all pavement. Backfill shall be one sack slurry or
aggregate base to within 1" of existing AC.
12. The contractor shall provide a minimum cover of 30-inches on top of all
underground conduits.
13. The contractor shall replace asphalt pavement with: 1st lift - 3/4" mix, relative
compaction 95%, no more than 3" placed at any one time. 2nd lift - 1/2" fine, no more
than 11/2" lift.
14. The contractor shall slurry seal the entire work area and any damaged areas
curb to curb. The contractor may be required to repair, and slurry seal additional areas
as identified by District Inspector (e.g. opening trench seams in asphalt patch).
14B. If applicable, see Section 3.7 Softscape Replacement of the Policy and
Procedures for Communication Facilities.
15. The contractor and license holder shall perform a final walkthrough to for release
and provide the District a copy of as-built project Construction Drawings/Plans redlined
with field changes, if any, labeled “RECORD DRAWINGS” on the Title Sheet. If no field
changes were made, the RECORD DRAWINGS shall denote “Built to Plan” on the Title
Sheet.