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Home My WebLink AboutAgenda Report - November 17, 2021 G-01 PHAGENDA ITEM C3 so CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Public Hearing to Consider the Recommendation of the Planning Commission to Introduce and Waive First Reading of an Ordinance Amending Lodi Municipal Code Title 17 — Development Code — Article 3 "Site Planning and General Development Standards", Chapter 17.36 "Standards for Specific Land Uses", by Adding Section 17.36.150 "Small Cell Wireless Telecommunication Facilities in the Public Right -of -Way" MEETING DATE: November 17, 2021 PREPARED BY: Community Development Director RECOMMENDED ACTION: Public hearing to consider the recommendation of the Planning Commission to introduce an ordinance amending Lodi Municipal Code Title 17 — Development Code — Article 3 "Site Planning and General Development Standards", Chapter 17.36 "Standards for Specific Land Uses", by adding Section 17.36.150 "Small Cell Wireless Telecommunication Facilities in the Public Right -of -Way". BACKGROUND INFORMATION: As reliance on wireless and broadband infrastructure is becoming greater, cities must face the reality that to meet increasing demands of residents and businesses, more wireless facilities and infrastructure must be deployed. With that reality, city officials must also face a number of policy, public safety, land -use, and right-of-way considerations. California municipalities are constantly faced with a changing regulatory framework related to the next generation of wireless services which requires installing vast numbers of small cell equipment. In order to ensure compliance with Federal Communications Commission orders regarding application timeline/turnaround and fees, as well as address policy, public safety, land -use, and right-of-way issues. On October 7, 2020, by Resolution 2020-224, City Council approved a contract with Magellan Advisors, LLC for wireless policy consulting services. Magellan has significant knowledge and experience in developing and implementing policies and processes that streamline the expansion of wired and wireless broadband infrastructure in communities. Over the past year, Magellan has assisted and guided Lodi in policy development around wireless policies including the development of a Master License Agreement, Design and Deployment Standards and Guidelines for wireless facilities and an updated Telecommunications Ordinance. Staff from the Community Development, Public Works and the Electric Utility all participated in the development of these guiding documents, with final review provided by the City Attorney's Office. "5G" Wireless Technology City staff recognized the significant evolution in wireless technology to fifth generation wireless technology ('5G"), as well as related significant new regulations promulgated by the Federal APPROVED: Steve Schwabauer Stephen Schwabauer, City Manager Small Cell Wireless November 17, 2021 Page 2 of 5 Communications Commission (FCC). These new FCC regulations were intended to preempt local authority and govern the placement of 5G wireless facilities under federal rules. Therefore, city staff initiated a comprehensive review of the City's existing wireless telecommunications facilities regulations to identify whether any additional policy provisions should be implemented due to the emergence of 5G wireless technology and recent FCC actions. 5G or "small cell" wireless technology' is designed to densify coverage within a given community by placing 5G wireless antennas in intervals of 800 feet or less, where feasible, in exchange for the much larger bandwidths2 available from the technology. Wireless technology advancements and consumer demand for network data capacity — smartphones and tablets are now ubiquitous and "data hungry" — are leading the wireless industry to seek to deploy 5G's smaller, more densely placed wireless antenna facilities in the public rights-of-way. Wireless providers typically place these small cells in locations where numerous devices (smartphones, iPads, tablets, etc.) are present to provide additional network capacity, such as downtown areas, entertainment districts, and heavily used traffic corridors. Streetlights and other municipal infrastructure in the public right-of-way are considered by wireless providers to be "ideal" for placement of 5G antennas and related radio/other equipment. Understanding this, City staff is anticipating applications for small cell facilities in the public right of way (PROW), although the timing is uncertain — depending on wireless providers marketing and business plans. Wireless providers have been placing 5G wireless antennas in municipalities throughout the state and the US for some time now as evidenced by the extensive advertising of "5G wireless" service. The following is a further description of the nature, benefits, and requirements of a 5G network: In telecommunications, "5G" is the fifth -generation technology standard for broadband cellular networks, which cellular phone companies began deploying worldwide in 2019. 5G is the planned successor to the 4G networks which provide connectivity to most current cellphones. 5G networks are predicted to have more than 1.7 billion subscribers worldwide by 2025, according to the GSM Association. Like its predecessors, 5G networks are cellular networks, in which the service area is divided into small geographical areas called cells. All 5G wireless devices in a cell are connected to the Internet and telephone network by radio waves through a local antenna in the cell. The main advantage of the new networks is that they will have greater bandwidth, giving higher download speeds, eventually up to 10 gigabits per second (Gbit/s). Due to the increased bandwidth, it is expected the 5G networks will not exclusively serve cellphones like existing cellular networks, but also be used as general internet service providers for laptops and desktop computers, competing with existing ISPs such as landline providers. 5G is also crucial for supporting new applications in internet of things (IoT) and machine to machine areas as well as autonomous vehicles. The FCC's Small Cell Order and 9th Circuit Court of Appeals Decision The FCC has jurisdiction over regulation of radio spectrum matters and has implemented wireless regulations in several major proceedings in the past two decades. Most recently, the FCC issued its "Small Cell Order" in September 20183 which among other things sought to limit and preempt local ' "Small cells" may be contrasted with the "macro cell" that is typically used for broader coverage, with a radius of several miles. Macro cell facilities are typically located on private property on freestanding towers, faux tree poles, tall buildings, water tanks, etc. 2 5G uses different frequencies which have different characteristics — low, mid and high band. The high band frequency can support speeds of a gigabit or more with the trade-off that antennas must be more closely spaced. 3 Declaratory Ruling and Third Report and Order; In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment; WT Docket No. 17-79; In the Matter of Accelerating Wireline Small Cell Wireless November 17, 2021 Page 3 of 5 authority over placement of small cell facilities. The Small Cell Order limited the attachment and administrative fees that can be charged by a local authority to "objectively reasonable costs" and set out a presumptively reasonable amount as a "safe harbor" of $270 per attachment per year. The FCC also encroached on local authority over aesthetic realuirements by stating that such requirements must be reasonable, objective, non-discriminatory and published in advance. The Small Cell Order was appealed by many parties and ultimately the 9f" Circuit Court of Appeals upheld the FCC's regulations regarding fees but vacated the Order's provisions preempting local authority over aesthetic consideration s.4 The proposed ordinance is compliant with the provisions of the FCC Small Cell Order regarding fees for small cell attachments and properly uses the City's authority over aesthetic considerations. The Proposed Ordinance Staff from Community Development, Lodi Electric, Public Works and the City Attorney's office prepared an ordinance (with the assistance of Magellan Advisors) to regulate "small cell" wireless telecommunications facilities in the public right-of-way. Staff reviewed several ordinances from California cities with municipal electric operations as part of its work to develop the proposed ordinance. Staff circulated the final draft ordinance on Wireless Telecommunications Facilities in the Public Right -of -Way and Small Cell Design and Deployment Standards to all known wireless telecommunication providers in the area for comments and input on the proposed set of regulations. The feedback received was thoroughly reviewed by the project team, including the City Attorney's office, in creating the final draft version of the ordinance and design standards. Both the final draft ordinance and the design standards include processes and provisions found acceptable to the industry similar ordinances by many other agencies in the area and statewide. The proposed ordinance is consistent with regulatory requirements from federal and state law regarding wireless communications and add standards for small cell wireless communication facilities in the public right-of-way. The City currently has no development standards to regulate placement of small cell facilities in the public right-of-way. The current wireless telecommunications facility ordinance was enacted in February 2013 and addresses cell towers — not small cell facilities which are a more recent development. As noted in the Ordinance introduction, the purpose and intent of the Ordinance is to establish policies and procedures for the placement of small wireless telecommunication facilities in the public right-of- way within the City's jurisdiction. The placement of wireless telecommunication facilities outside of the public right-of-way is regulated elsewhere in the City's Code. This proposed ordinance is also intended to manage the approval process for small wireless telecommunication facilities in the public right of way to promote efficiency in the expansion of wireless service and coverage within the City to serve residents and businesses. In sum, the proposed ordinance is intended to: • impose reasonable time, place and manner regulations upon the installation of wireless telecommunication facilities within the public right-of-way, • prevent interference with the use of the public right-of-way for travel or other lawful uses of the public right-of-way, • prevent visual and physical obstructions that create safety hazards, • minimize damage to the City's pavement, and Broadband Deployment by Removing Barriers to infrastructure Investment; WC Docket No. 17-84; Released by the Federal Communications Commission, September 27, 2018. 4 City of Portland v. United States, 969 F.3d 1020, 1049-1053 (91h Cir., 2020). Small Cell Wireless November 17, 2021 Page 4 of 5 • protect the aesthetics and character of the locations where wireless telecommunications facilities are installed. The development standards contained in the draft ordinance are designed to preserve the visual environment of the public right-of-way against any negative aesthetic impacts and to ensure the safe placement of wireless facilities in the public right-of-way. Wireless communication facilities shall be stealth and employ screening, equipment undergrounding and camouflage design techniques to minimize any significant view impacts from the surrounding properties. The proposed ordinance: • provides commonly used definitions associated with Small Cell facilities; • lays out the application requirements for placement of small wireless facilities in the public right-of-way; • states location, installation, and maintenance standards for small wireless telecommunications facilities; ■ provides that Lodi Electric Utility Department may develop Small Cell Design and Deployment Standards for small cell facilities including pole availability, location, and pole loading, general and specific requirements for placement of small wireless facilities equipment and aesthetics, radio frequency matters, standard conditions and maintenance obligations; • addresses modifications to existing wireless facilities under the FCC's rules implementing provisions of the Spectrum Act; • establishes provisions for use of a Master License Agreement to be used by each wireless service provider to manage installation of small cell facilities on City facilities in the public right- of-way; and, • states requirements for removal and relocation of facilities. Master License Agreement Use of Master License Agreements ("MLA") has emerged as a key practice for cities to deal with multiple pole attachments that are associated with 5G deployment. An MLA establishes the procedures, terms and conditions under which licensees may request individual pole licenses. The MLA is a comprehensive document that contains uniform terms and conditions applicable to all wireless facilities installed on City -owned poles, by all providers. Individual pole licenses identify the licensed pole and contain detailed exhibits for the site plans, permits, fee schedules, insurance documentation, and other materials that are unique to each site. When the City grants a pole license, that pole license (together with all the plans, equipment specifications and fee schedules) become integrated with the MLA. Staff intends to negotiate individual MLAs with each interested wireless provider under the ordinance's requirements and bring each negotiated agreement to the Council for approval. Design Standards and Guidelines An emerging best practice for management of small cell deployments by cities is the use of small cell design standards and guidelines. These Standards and Guidelines are administered by the relevant City department (e.g., Lodi Electric Utility) under authority included in the wireless ordinance. This best practice avoids embedding specific terms, guidelines and procedures in ordinances and allows the City to be more flexible over time in how it administers wireless facilities placement requirements and adapts to rapid change in technology. Small Cell Design and Deployment Standards to be administered by the Lodi Electric Utility were developed under the ordinance's requirements and provided to the industry for input and comments. The feedback received was thoroughly reviewed by the project team, including the City Attorney's office, in creating the final draft version of both the ordinance and design standards. Both the final Small Cell Wireless November 17, 2021 Page 6 of 6 draft ordinance and the design standards include processes and provisions found acceptable to the industry similar ordinances by many other agencies in the area and statewide. The Small Cell Design and Deployment Standards include further more detailed standards beyond those stated in the proposed ordinance to ensure that small cell wireless facilities are installed in the least intrusive manner, maximally blending with the natural and built environment of the City and protecting the aesthetic character of the City. These Standards include a series of General Requirements, Site Location Requirements, Equipment, Wiring and Cabling Requirements, Radio Frequency Requirements, Submittal Requirements, Notification Requirements, and Standard Conditions and Maintenance Obligations. The project is Categorically Exempt according to the California Environmental Quality Act, Article 19 §15061 (b) (3). This is the "common sense" exemption, which applies to projects as follows: "The activity is covered by the common sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." [CEQA 15061(b)(3)] No significant environmental impacts are anticipated and no mitigation measures are required, Future development projects proposed on vacant and unentitled land would be required to undergo individual CEQA review, which would identify any potential site- or project -specific impact. At a meeting on October 27, 2021 the Planning Commission with a vote of 4-0 recommended that the City Council introduce the ordinance as presented. Staff recommends that the City Council introduce an ordinance amending Lodi Municipal Code Title 17 — Development Code — Article 3 "Site Planning and General Development Standards", Chapter 17,36 "Standards for Specific Land Uses", by adding Section 17.36,150 "Small Cell Wireless Telecommunication Facilities in the Public Right -of -Way". FISCAL IMPACT: Not applicable FUNDING AVAILABLE: Not applicable Gv/ John ella Monica, Jr. Community Development Director Attachments: Planning Commission Resolution Draft Master License Agreement Small Cell Design & Deployment Standards Ordinance RESOLUTION NO. P.C. NO. 21-07 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF LODI RECOMMENDING THAT THE CITY COUNCIL AMEND LODI MUNICIPAL CODE TITLE 17 — DEVELOPMENT CODE — ARTICLE 3 "SITE PLANNING AND GENERAL DEVELOPMENT STANDARDS", CHAPTER 17.36 "STANDARDS FOR SPECIFIC LAND USES", BY ADDING SECTION 17.36.150 "SMALL CELL WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY -------------------------------------------------------------------------- -------------------------------------------------------------------------- WHEREAS, the Planning Commission of the City of Lodi has heretofore held a duly noticed public hearing, as required by law, on the requested determination, in accordance with the California Government Code Section 65402.(a); and WHEREAS, the project proponent is City of Lodi, 221 West Pine Street, Lodi, CA 95240; and WHEREAS, City staff recognized the significant evolution in wireless technology to fifth generation wireless technology ("5G"), as well as related significant new regulations promulgated by the Federal Communications Commission (FCC); and WHEREAS, City Staff initiated a comprehensive review of the City's existing wireless telecommunications facilities regulations to identify whether any additional policy provisions should be implemented due to the emergence of 5G wireless technology and recent FCC actions; and WHEREAS, Streetlights and other municipal infrastructure in the public right-of-way are considered by wireless providers to be "ideal" for placement of 5G antennas and related radio/other equipment; and WHEREAS, The FCC has jurisdiction over regulation of radio spectrum matters and has implemented wireless regulations in several major proceedings in the past two decades; and WHEREAS, the proposed ordinance is compliant with the provisions of the FCC Small Cell Order regarding fees for small cell attachments and properly uses the City's authority over aesthetic considerations; and WHEREAS, the development standards contained in the draft ordinance are designed to preserve the visual environment of the public right-of-way against any negative aesthetic impacts and to ensure the safe placement of wireless facilities in the public right-of-way; and WHEREAS, the use of Master License Agreements ("MLA") has emerged as a key practice for cities to deal with multiple pole attachments that are associated with 5G deployment; and WHEREAS, Staff intends to negotiate individual MLAs with each interested wireless provider under the requirements of the ordinance and bring each negotiated agreement to the Council for approval; and WHEREAS, Design Standards and Guidelines have been created and will be administered by the Lodi Electric Utility under authority included in the wireless ordinance; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT DETERMINED AND RESOLVED by the Planning Commission of the City of Lodi that a Resolution is hereby adopted and the proposed amendments to Lodi Municipal Code Title 17 — Development Code — Article 3 "Site Planning and General Development Standards", Chapter 17.36 "Standards for Specific Land Uses", by adding Section 17.36.150 "Small Cell Wireless Telecommunication Facilities In The Public Right -Of Way", is made a part of this Resolution by reference, are hereby recommended for approval and adoption by the Lodi City Council. Dated: October 27, 2021 I certify that P.C. Resolution No. 21-07 was passed and adopted by the Planning Commission of the City of Lodi at a regular meeting held on October 27, 2021 by the following vote: Commissioners: AYES: Cummins, Hicks, Slater and Chair Martin Commissioners: NOES: Commissioners. ABSENT: Hennecke, Maciel and Singh ATTEST: Secreta lanning Commission MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES IN THE RIGHT-OF-WAY This MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES IN THE RIGHT-OF-WAY ("Master License") dated [insert date] (the "Effective Date") is between the City of Lodi, a California general -law city (the "City" or "Licensor") and (the "Licensee"). This Master License may refer to the City and the Licensee individually as a "Party" or collectively as the "Parties." RECITALS. A. WHEREAS, Technology developments and demand for high-speed mobile data service and capacity have extended beyond the capabilities of traditional macro -cell wireless communications facilities; and B. WHEREAS, Wireless providers have accelerated their small cell deployments in the public right-of-way and the City wishes to manage these accelerated deployments in a way that preserves local aesthetics and public health and safety while balancing the benefits of these new technologies for the City's businesses and residents to the greatest extent practicable; and C. WHEREAS, Pursuant to Section 253 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, codified as 47 U.S.C. § 253, the City controls access to and use of City right-of-way, and may require reasonable compensation for such use on a competitively -neutral and nondiscriminatory basis so long as such compensation is disclosed; and D. WHEREAS, Licensee is a public communications utility in California, holding a Certificate of Public Convenience and Necessity from the California Public Utilities Commission ("CPUC"); and E. WHEREAS, The City owns a substantial number of assets within the public right-of-way that may be suitable for installing wireless communications facilities within the City's jurisdiction and has a duty to derive appropriate value from the City's property assets for the benefit of the public; and F. WHEREAS, Licensee desires to install, maintain and operate its telecommunications network facilities on the City assets in the public right-of-way in a manner consistent with the City's regulatory authority and Licensee is willing to compensate the City for the right to use the City's assets for communications purposes; and G. WHEREAS, Consistent with all applicable laws and regulations, the City does not intend this Master License to grant the Licensee any exclusive right to use or occupy the 1 City of Lodi Master License Agreement Final Draft August 2021 public right-of-way, and Licensee expressly acknowledges that the City may in its sole discretion enter into similar or identical agreements with other entities, which include without limitation Licensee's competitors; and H. WHEREAS, The City desires to authorize Licensee's access to individual City- owned assets based on the terms and conditions set forth in this Master License, and pursuant to all the applicable permits issued by the City to protect public health and safety; and NOW THEREFORE, for good and valuable consideration received and acknowledged by the City and Licensee, the City and Licensee agree as follows: AGREEMENT 1. GENERAL DEFINITIONS "Agent" means agent, employee, officer, contractor, subcontractor, or representative of a Party to this Master License. "Assignment" means any of the following: (a) a merger, acquisition, or other transfer of a controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee's sale, assignment, encumbrance, pledge, or other transfer of any part of its interest in or rights with respect to the License Area; and (c) any action by Licensee to permit any portion of the License Area to be occupied by anyone other than itself, including a sublicense. "Claim" mean any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect. "Common Control" means two entities that are both controlled by the same third entity. "Control" means (a) as to a corporation, the ownership of stock having the right to exercise more than 50% of the total combined voting power of all classes of stock of the controlled corporation, issued and outstanding; or (b) as to partnerships and other forms of business associations, ownership of more than 50% of the beneficial interest and voting control of such association. "CPUC" means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or it's duly appointed successor agency. "EMF" means electromagnetic fields or radio frequency between 30 kHz and 300 GHz in the electromagnetic spectrum range. 2 City of Lodi Master License Agreement Final Draft August 2021 "Environmental Laws" means any law relating to industrial hygiene, environmental conditions, or Hazardous Materials. "Equipment" means antennas and any associated utility or equipment box, and battery backup, transmitters, receivers, radios, amplifiers, ancillary fiber-optic cables and wiring, and ancillary equipment for the transmission and reception of radio communication signals for voice and other data transmission, including the means and devices used to attach Equipment to a licensed City Site, peripherals, and ancillary equipment and installations, including wiring, cabling, power feeds, and any approved signage attached to Equipment. "FCC" means the Federal Communications Commission or its duly appointed successor agency. "Hazardous Material" means any material that, because of its quantity, concentration, or physical or chemical characteristics, is at any time now or hereafter deemed by any Regulatory Agency to pose a present or potential hazard to human health, welfare, or safety or to the environment. Hazardous Material includes any material or substance defined as a "hazardous substance," or "pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 etseq.) or section 25316 of the California Health & Safety Code; and any "hazardous waste" listed California Health & Safety Code § 25140; and petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids. "Investigate and Remediate" means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. "Invitee" means the client, customer, invitee, guest, tenant, subtenant, licensee, assignee and sublicensee of a Party in relation to the License Area. "Laws" means all present and future statutes, ordinances, codes, orders, regulations and implementing requirements and restrictions of federal, state, county and municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question. "Licensee's On -Call Representative" mean the person(s) assigned by Licensee to be on- call and available to the City regarding the operation of Licensee's Equipment. Such person(s) shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency in and in day-to-day operations 3 City of Lodi Master License Agreement Final Draft August 2021 of the Equipment. "Make -Ready Work" means the work required on or in a Municipal Facility to create space for the Equipment, and/or replacing and/or reinforcing the existing Municipal Facility to accommodate Equipment including, but not limited to, rearrangement or transfer of existing Equipment and the facilities of other entities, and Municipal Facility relocation and replacement if applicable. "City Asset" means Licensor -owned structures, objects, and equipment in the ROW, including, but not limited to, streetlights, banners, street furniture, billboards, or other poles, lighting fixtures, or electroliers located within the ROW, and may refer to such facilities in the singular or plural, as appropriate to the context in which used. "Permitted Use" means Licensee's installation, operation and maintenance of Equipment for the transmission and reception of wireless, cellular telephone and data and related communications equipment on License Areas. "Pole" means a streetlight pole, utility pole or other support structure (excluding traffic signals) located in the public right-of-way within the City and owned by the City. "Site License" means the document in the form of Exhibit A that, when fully executed, incorporates the provisions of this Master License and authorizes Licensee to install, operate and maintain Equipment for the Permitted Use on the City Asset identified in the Site License. "License Area" means the geographic information identifying each City Asset on which Licensee is authorized to install, operate and maintain Equipment under a Site License. The License Area will be identified in Exhibit A-1 to each Site License. "Property" means any interest in real or personal property, including land, air and water areas, leasehold interests, possessory interests, easements, franchises and other appurtenances, public rights-of-way, physical works of improvements such as buildings, structures, infrastructure, utility and other facilities, and alterations, installations, fixtures, furnishings and additions to existing real property, personal property and improvements. "Regulatory Agency" means the local, regional, state or federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance with applicable Laws. "Regulatory Approvals" means licenses, permits and other approvals necessary for Licensee to install, operate and maintain Equipment on the License Area. 4 City of Lodi Master License Agreement Final Draft August 2021 "Release" when used with respect to Hazardous Material includes any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment. "RF" means radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range. "RF Compliance Report" means a report prepared and certified by an RF engineer acceptable to the City that certifies that the proposed facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts ERP) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. 2. SCOPE OF LICENSE 2.1. License Area 2.1.1. Site License Issuance and Effect Subject to the terms and conditions in this Master License, the City will issue to Licensee one or more Site Licenses, which will grant Licensee a contractual privilege to use the space on the subject City Asset approved for the Equipment, which includes any conduits, pull boxes or other City Property specifically identified in the construction encroachment permit attached to the Site License (individually for each licensed City Asset and collectively for all licensed City Assets, the "License Area"). Any fully executed Site License will become effective on the first day of the month following the date on which the City executes and delivers the Site License. 2.1.2. Limitations on License Areas This Master License applies to only City Assets identified in a final and fully executed Site License. This Master License does not authorize Licensee or any other persons or entities to enter on to or use any other City Property, except the License Areas specified in any fully executed Site Licenses. Furthermore, neither this Master License nor any Site License authorizes or confers any rights to Licensee or any other persons or entities to use any portions of the public rights-of-way, or any improvements or other personal property within the public rights-of-way owned by any third parties. The City reserves 5 City of Lodi Master License Agreement Final Draft August 2021 the absolute right to reject any permit application or Site License submitted to the City. 2.2. Limitations on Licensee's Interests 2.2.1. Limited Interest Created Licensee expressly acknowledges and agrees that: (1) Licensee does not have any rights to use or interest in any City Asset for any purpose whatsoever until and unless the City issues a Site License for such City Asset; and (2) neither this Master License nor any Site License issued pursuant to this Master License creates or will be deemed to create any leasehold, easement, franchise or any other possessory interest or real property interest whatsoever in the License Area. 2.2.2. Limited Rights Created Any Site License the City approves pursuant to this Master License grants to Licensee only a non -possessory and revocable license to enter on to and use the License Area for the Permitted Use. Licensee expressly acknowledges and agrees that: (1) neither this Master License or any Site License will be coupled with any possessory interest; (2) the City retains legal possession and control over all City Assets for the City's operations, which will be superior to Licensee's interest at all times; (3) subject to the terms and conditions in this Master License and any Site License, the City may terminate a Site License in whole or in part at any time; (4) except as specifically provided otherwise in this Master License, the City may enter into any agreement with third parties in connection with use and occupancy of City Assets and other City Property; and (5) neither this Master License nor any Site License creates or will be deemed to create any partnership or joint venture between the City and Licensee. 2.2.3. No Impediment to Municipal Uses Except as specifically provided otherwise in this Master License, neither this Master License nor any Site License limits, alters or waives the City's right to use any License Area in whole or in part as infrastructure established and maintained for the City's and the public's benefit. 2.3. Diminutions in Light, Air and Signal In the event that any existing or future structure diminishes any light, air or signal propagation, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Additional Fees or any other sums payable to the City under this Master License or any Site License. The City shall have no liability to Licensee whatsoever and such diminution will not affect this Master License, any Site License or Licensee's obligations, except as may be expressly provided 6 City of Lodi Master License Agreement Final Draft August 2021 in this Master License. 2.4. License Area Condition 2.4.1. "As -Is and With All Faults" Condition Licensee expressly acknowledges and agrees to enter on to and use the License Area in its "as -is and with all faults" condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the License Area's condition or suitability for Licensee's use. Licensee expressly acknowledges and agrees that neither the City nor its Agents have made, and the City expressly disclaims, any representations or warranties whatsoever, whether express or implied, with respect to the physical, structural, or environmental condition of the License Area, the present or future suitability of the License Area for the Permitted Use, or any other matter related to the License Area. 3. TERM 3.1. Master License Term The term under this Master License (the "Term") will commence on the Effective Date and will automatically expire 10 years from the Effective Date (the "Expiration Date"), unless extended or terminated in writing in accordance with this Master License. Licensee must provide notice to the City [90] days prior to the expiration date of the Master License of its intent to extend the Master License term or Renewal Term. Provided that Licensee is not in default of the Agreement or any Supplemental Agreement following written notice and the expiration of any applicable cure period, this Agreement may, upon written approval by the City, be renewed for successive five- year renewal terms (each, a "Renewal Term"). 3.2. Site License Term The term of each Site License will be set forth in each Site License. The expiration of this Master License shall not affect the application of its terms to any Site License Agreement issued during the Term. 4. FEES AND OTHER PAYMENTS 4.1. License Fees Licensee shall pay an annual License Fee consistent with the terms of the applicable Site License(s). 7 City of Lodi Master License Agreement Final Draft August 2021 4.2. Administrative Fees 4.2.1. Reservation Fee To initiate the site licensing process, Licensee shall reserve a location for the installation of its Equipment and shall pay the applicable reservation fee, as established by the City Council. 4.2.2. Revocable and Construction Encroachment Permit Fees At the time Licensee delivers to the City a revocable permit application, construction encroachment permit application, and a partially executed Site License, Licensee shall pay to the City the applicable permit fees, as established by the City Council. The Parties agree that these fees represent a reasonable estimate of the City's administrative costs to review each application. The Parties further acknowledge that these permit fees are intended to cover the City's administrative costs incurred in its proprietary capacity as the licensor and these permit fees do not substitute for or diminish the Licensee's obligation to pay other fees required by the City. 4.2.3 Blanket Maintenance Permit Fees Following installation of Licensee's Equipment, Licensee will apply for an annual blanket maintenance encroachment permit and shall pay to the City the applicable blanket maintenance encroachment permit fee, as established by the City Council. 4.2.4 Administrative Fees The Parties to this Master License collectively refer to all permit fees required by the City as "Administrative Fees." The City will not be obligated to commence its review for any permit applications until it receives the required Administrative Fees. In addition, Administrative Fees include all other fees charged by the City as referenced in this Agreement which are not License Fees, such as late charges, default interest, or additional fees. 4.3. Late Charges In the event that Licensee fails to pay any License Fee, Additional Fee, Administrative Fees or any other amount owed to the City within 10 days after the due date, such amounts will be subject to a late charge equal to 6% of unpaid amounts. 4.4. Default Interest Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City other than late charges will bear interest at 10% per annum from the due 8 City of Lodi Master License Agreement Final Draft August 2021 date when not paid within 10 days after the due date. Any sums received shall be first applied towards any interest, then to the late charge and lastly to principal amount owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee. 4.5. Additional Fees The Parties to this Master License define "Additional Fees" to collectively mean any sums the City may assess in its proprietary capacity as the licensor, which includes without limitation any late charges, default interest, costs in connection with a request for the City's consent to an Assignment under Section 16.2 (Proposed Assignment Procedures) and Default Fees under Section 17.2.4; provided, however, that the term excludes any (1) License Fees; (2) Administrative Fees; (3) any other amounts payable to the City by Licensee in connection with the City's review of Site License Applications or coordinating and inspecting Equipment installed on the License Area; and (4) any payments to the City in its regulatory capacity. 4.6. Payment Procedures Licensee shall pay all License Fees, Additional Fees, Administrative Fees and all other amounts payable to the City in cash or other immediately available funds by (1) check payable to City of Lodi; (2) electronic wire transfer to an account specified by the City; or (3) any other means approved by the City. Any payment made with a dishonored check will be deemed unpaid and Licensee shall be responsible for all associated bank fees or charges from the return of the invalid check. 5. USES 5.1. Permitted Use Licensee may use the License Area solely for the installation, operation and maintenance of Equipment for the provision of communications services (the "Permitted Use") in compliance with all applicable Laws and any conditions in any Regulatory Approvals and for no other use whatsoever without the City's prior written consent, which the City may withhold in its sole and absolute discretion for any or no reason. 5.2. Signs or Advertisements Licensee acknowledges and agrees that its rights under this Master License and any Site License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area. 9 City of Lodi Master License Agreement Final Draft August 2021 6. SITE LICENSES 6.1. City Approval Required Licensee shall not have any right to use the License Area in whole or in part for any purpose until and unless the City approves a Site License. The City will not be obligated to subordinate its municipal functions or proprietary interest in any manner whatsoever to Licensee's interest under any Site License. When the City considers whether to approve or disapprove any Site License, the City may consider any matter that affects its municipal functions or proprietary interests, which include without limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance with any applicable Laws; (3) impacts on the City's street light operations and maintenance; (4) any potential hazards or unsafe conditions that could result from Licensee's installation, operation or maintenance; (5) any potential visual or aesthetic impacts provided the proposed Equipment is in conformance with objective design standards adopted by the City; (6) the additional load the proposed Equipment would create; and (7) any municipal plans for the City Asset or right-of-way in proximity to the City Asset. 6.2. Design Guidelines The Parties agree that all permit applications will be subject to the requirements set forth in the Lodi Municipal Code and any regulations, such as its Small Cell Design and Deployment Guidelines ("Design Guidelines") as they may be amended from time to time. While the City may update and amend its Design Guidelines from time -to -time, such updated or amended Design Guidelines shall not apply retroactively to any Licensed Area unless required by Law. Nothing in this Section 6.2 is intended to limit or affect the City's rights to disapprove any Site License pursuant to Section 2.1.2 (Limitations on License Areas), Section 6.1 (City Approval Required), Section 6.4.5 (City's Right to Disapprove) or any other provision in this Master License that expressly reserves the City's right to disapprove any Site License. 6.3. Application Review For each Site License, the Licensee must submit: (1) two partially executed duplicate Site License applications in the form attached as Exhibit 1 to this Master License; (2) a revocable permit application; (3) a construction encroachment permit; (4) the required Administrative Fees; (5) a complete RF Compliance Report; and (6) any other documents required by Law, the Lodi Municipal Code, or any City regulations (including the Design Guidelines). At the time Licensee submits a revocable permit application and a construction encroachment permit to the City, Licensee shall mail notice to the affected landowners and tenants consistent with the requirements set forth in the Design Guidelines for pre - construction notice. 10 City of Lodi Master License Agreement Final Draft August 2021 6.4. Permit Application Review Procedures The City will review complete Site License Applications within applicable timeframes and pursuant to applicable Law and Lodi Municipal Code, taking into account any tolling periods for such timeframes. The City reserves the right to negotiate the terms of the form Site License attached hereto at Exhibit A-1. 6.4.1. Site License Approval If the City approves a revocable permit and a construction encroachment permit for a License Area, the City will issue a notice to proceed ("NTP") to Licensee. Attached to the NTP will be an approved construction encroachment permit attached to a fully executed Site License. Licensee acknowledges and agrees that the City's decision to approve or disapprove any permits or and Site License is not, and will not be deemed to be, a regulatory determination subject to any administrative appeal, but is an exercise of the City's proprietary authority over City Assets. 6.4.2. Waiver of Certain Federal and State Rights of Licensee Inapplicable Despite any potential future change in Law during the initial 10 -year term and any subsequent terms of this Master License, Licensee expressly waives any State or Federal rights to challenge: (1) the fees paid to the City pursuant to this Master License and any Site License; (2) the timeframes established in this Master License by which the City must review and process permit applications, including any notices, tolling, or extensions required under this Master License; and (3) the right to claim that existing facilities and new facilities installed pursuant to this Master License are eligible for mandatory collocations or modifications under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. Preceding the commencement of any extension of this Master License, Licensee may request from the City an amendment of this Master License to comply with such changed laws, if applicable. For the avoidance of doubt, any such amendment would be effective only after the initial 10 -year term of this Master License expires or as otherwise agreed to in writing by the Parties. Licensee is aware of and familiar with the provisions of California Civil Code Section 1542 which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him must have materially affected his or her settlement with the debtor." 11 City of Lodi Master License Agreement Final Draft August 2021 As such relates to the Master License and Site License, Licensee hereby waives and relinquishes all rights and benefits which it may have under California Civil Code Section 1542. The obligations of Licensee under this Section shall survive the termination of this Master License or Site License. 7. EQUIPMENT INSTALLATION 7.1. Approved Plans and Equipment Specifications Licensee must submit complete plans and equipment specifications with any revocable permit application and construction encroachment permit application, which must include without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage, concealment elements and other improvements proposed in connection with the License Area. 7.1.1. Site Identification Required On each licensed City Asset, Licensee must install one identification plate in strict compliance with the size, material, form and substance as shown on Exhibit A-1 to the fully executed Site License. The identification plate must include Licensee's corporate name and telephone number at which Licensee's On -Call Representative can be reached at all times (24 hours per day and 7 days per week). Licensee must replace the identification plate within 5 business days if any information on such plate changes. 7.1.2. Changes Required for Regulatory Approvals Licensee may amend previously approved plans when such changes are required to obtain or maintain compliance with other Regulatory Approvals necessary to install the Equipment. Any such amendments will be submitted to the City for its review and prior written approval. The City will provide notice of its decision to Licensee in accordance with Section 28.1 (Notices). 7.1.3. Corrections to Approved Plans Licensee shall have the obligation to correct any errors or omissions in any approved plans and related Regulatory Approvals. Licensee shall immediately send written notice to the City if Licensee discovers any such defects. Any approved plans and/or amendments to approved plans by the City will not release or excuse Licensee's obligations under this Section 7.1.3. 7.2. Prior Regulatory Approvals Required Licensee shall not commence any work at the License Area until Licensee obtains all 12 City of Lodi Master License Agreement Final Draft August 2021 necessary Regulatory Approvals, which includes without limitation a revocable permit, a construction encroachment permit, a Site License, and any other permit obtained through any other City department. The City's consent or refusal to consent to any permit or Site License issued by the City in its proprietary capacity will not be deemed to be any approval or denial in connection with any Regulatory Approval issued by the City in its regulatory capacity as a municipal government. 7.3. Make Ready Work and Costs 7.3.1 Licensee shall bear responsibility for all Make -Ready Work. If a Person other than Licensee or Licensor would have to rearrange or adjust any of its facilities in order to accommodate new Equipment, Licensee shall be responsible, at Licensee's sole expense, to coordinate such activity. Licensee shall be responsible for directly paying such other Person for its charges for the same. If Licensee is requested by another Person, in comparable circumstances, to relocate or adjust any Equipment to accommodate that Person's facilities, subject to Licensor's written approval of such relocation, Licensee shall reasonably cooperate with such request. 7.3.2 Construction, installation, and operation of the Equipment shall be conditioned on the completion of all Make -Ready Work needed to establish full compliance with NESC, and with the City's regulatory rules and engineering standards; provided, however, that Licensee shall not be responsible for any third - party or Licensor costs necessary to correct third party or Licensor attachments that are non-compliant at the time of Licensee's permit applications. 7.4. Installation; Strict Compliance with Approved Plans Licensee shall not commence any work at the License Area until the City provides an NTP and executed Site Licensee with the approved construction encroachment permit attached. Licensee shall perform all work in connection with the License Area in strict compliance with the approved permits and in a diligent, skillful and workmanlike manner. All installed Equipment must be high quality, safe, fire resistant, modern in design and attractive in appearance, all as approved by the City. After any work at the License Area concludes, Licensee shall restore the License Area and any other City Property to a condition equal to or better than what existed immediately prior to the work commenced. 7.4.1. Alterations to City's Property Licensee shall not remove, damage or in any manner alter any City Property without prior written consent from the City and any other agencies with jurisdiction over the subject City Property. The City may withhold its consent in its sole and absolute discretion and may condition its consent in each instance based on scope and nature of 13 City of Lodi Master License Agreement Final Draft August 2021 the proposed alterations. Licensee shall immediately notify the City if any removal, damage or other alteration occurs to City Property for any reason and through any cause. 7.4.2. Licensee's Contractors Licensee and all its contractors shall obtain and maintain all necessary licenses, including without limitation Contractor State Licensing Board licenses and a City of Lodi Business License, prior to performing work on or about the License Area. Licensee shall use only qualified and trained persons and appropriately licensed contractors for all work performed on or about the License Area. Licensee shall give the City at least seventy- two (72) hours' prior written notice of commencement of any construction or installation on any part of the License Area, including: (1) a schedule with all activities to be performed in connection with the work; and (2) a list with all the names, contractor's license numbers and business addresses for all contractors who will perform the work. Routine repair and maintenance of Licensee's Equipment shall be subject to the terms of an annual blanket maintenance encroachment permit issued to Licensee. 7.5. Labor and Materials Costs Licensee shall be responsible for all direct and indirect costs (labor, materials, and overhead) in connection with designing, purchasing, installing, operating, and maintaining all Equipment in accordance with the approved plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation, which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigation measures that arise from Licensee's proposed installation. 14 City of Lodi Master License Agreement Final Draft August 2021 7.6. Project Managers The City and Licensee shall each designate the person listed in this Section 7.6 as its project manager to coordinate Licensee's Equipment design and installation, and to serve as each Party's respective primary contact person for all design, engineering, construction and installation issues that may arise between the Parties in connection with this Master License. City's Project Manager: Name: Title: Phone: Email: Address: Licensee's Project Manager: Name: Title: Phone: Email: Address: Licensee acknowledges that the City's project manager is not exclusively assigned to this Master License, and that the City's project manager may not always be immediately available to Licensee or its project manager. Licensee further acknowledges that the authority delegated by the City to the City's project manager is limited to the administration of this Master License, any permit applications, and any approved Site Licenses. The Parties' respective project managers will have no obligation to perform any term or covenant to be performed by the other Party under this Master License. Notices to the Parties' respective project managers alone will not be deemed effective notice for any purpose under this Master License. The Parties may designate a new project manager from time -to -time by written notice to the other Party. 7.7. Coordination with the City Licensee must coordinate all its installation, construction and other work on or about the License Area with the City to avoid any interference (physical, electronic or otherwise) with any existing utilities, substructures, facilities, City Property and the 15 City of Lodi Master License Agreement Final Draft August 2021 City's municipal operations. 7.8. Title to Licensee's Equipment and Other Improvements Except as specifically provided otherwise in this Master License, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents or Invitees will be and remain at all times Licensee's personal property. All structural improvements to any City Asset, including any replacement Pole and any underground fiber optic cables, as approved by the City and shown in the approved plans, will become City Property and remain should Licensee vacate or abandon such License Area, unless the City elects in a written notice to Licensee that it does not wish to take title to such structural improvements, in which case Licensee shall remove such improvements at its sole cost and in a manner acceptable to City, and shall restore all affected areas by such removal to a condition compliant with all applicable Laws. Subject to Section 24 (Surrender of License Area), Licensee may remove its Equipment from the License Area at any time after 30 days' written notice to theCity. 8. PUBLIC WORKS OPERATIONS 8.1. City's Access to License Areas Except as specifically provided otherwise in this Master License, the City and its Agents have the right to access any License Area in whole or in part at any time without notice for any purpose. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City's or its Agents' access to the License Area, which includes any Equipment removed in an emergency or other exigent circumstances pursuant to Section 8.4 (Emergencies), except to the extent that the damage arises directly and exclusively from the gross negligence or willful misconduct of the City or its Agents and not contributed to by the acts, omissions or negligence of Licensee, its Agents or Invitees. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City's or its Agents' gross negligence or willful misconduct and not contributed to by Licensee's or its Agents' or Invitees' acts, omissions or negligence. 8.2. Repairs, Maintenance and Alterations to Sites The City will: (1) maintain and repair Sites as needed, in its sole judgment, for its streetlight operations and other municipal functions; and (2) correct any immediately hazardous condition. If City requires the termination of electrical service to the Equipment in order to maintain or repair any City Asset, the City shall inform Licensee at the telephone number provided in section 7.6 and the Parties shall coordinate in good 16 City of Lodi Master License Agreement Final Draft August 2021 faith to determine suitable dates and times to complete such actions. Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment for the City's use in an emergency. Except as provided in Section 26 (Termination), and excluding conditions that arise from the City's or its Agents' gross negligence or willful misconduct, neither any City work on any City Asset nor any condition on any City Asset will: (1) entitle Licensee to any damages; (2) excuse or reduce any obligation by Licensee to pay any License Fees or Additional Fees or perform any covenant under this Master License; or (3) constitute or be construed as a constructive termination of this Master License or any Site License. 8.3. Repairs, Maintenance and Alterations to License Areas The City may, at any time, alter, add to, repair, remove from and/or improve the License Area in whole or in part for any operational purpose, which includes without limitation maintenance and improvements in connection with street light services and compliance with Laws; provided, however, (1) the City makes a good -faith effort to provide notice to Licensee's On -Call Representative; (2) the City allows Licensee's representative to observe the City's work; and (3) the City takes reasonable steps not to disrupt Licensee's ordinary operations on the License Area. If City requires the termination of electrical service to the Equipment in order to alter, add to, remove from, and/or improve the License Area, the City shall inform Licensee at the telephone number provided in section 7.5 and the Parties shall coordinate in good faith to determine suitable dates and times to complete such actions. The provisions in this Section 8.3 will not be construed to allow Licensee's ordinary operations to impede or delay the City's authority and ability to make changes to the License Areas necessary to maintain streetlight services. 8.4. Emergencies In emergencies, the City's work will take precedence over Licensee's operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole determination and in accordance with this Section 8.4, whether the City has notified Licensee of such emergency or other exigent circumstances or not. The City's removal of Licensee's Equipment in emergencies or other exigent circumstances will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee's contractual privilege to use the License Area. 8.5 Notice in event of Emergencies or Repairs Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment to allow the City to correct any immediately hazardous condition. If City uses Licensee's emergency shut-off switch, City will notify Licensee at the telephone number provided in section 7.6. When safe and practicable, the City will 17 City of Lodi Master License Agreement Final Draft August 2021 notify Licensee on a contemporaneous basis of any emergency or other exigent circumstances that requires the City to remove or replace any City Asset and will allow Licensee to remove its Equipment before the City removes or replaces the City Asset. The City will remove the Equipment from the City Asset when in the City's sole determination it would (1) be unsafe or not practicable to wait for Licensee to perform the work; (2) cause significant delay; or (3) otherwise threaten or compromise public safety or public services. The City will remove any Equipment with reasonable care and store the Equipment for retrieval by Licensee. Licensee shall have the right to reinstall such removed Equipment or equivalent Equipment at Licensee's sole expense on the repaired or replaced Site and in accordance with Section 7 (Equipment Installation). 9. LICENSEE'S MAINTENANCE OBLIGATIONS 9.1. Damage to City Assets 9.1.1. Notice to the City Licensee agrees to give the City notice of the need for any repair to a City Asset promptly after Licensee discovers any damage from any cause. Licensee's agreement to provide notice is not an assumption of liability for any life-threatening or hazardous conditions unless caused by the acts, omissions or negligence of Licensee or its Agents or Invitees. Failure to provide such notice will be a material default under this Master License. 9.1.2. Damage Caused by Licensee If any use or maintenance by Licensee or its Agents or Invitees cause any damage to any License Area, Licensee must repair such damage within 30 days, or reasonable period, after the City provides a notice to Licensee that describes such damage. Such cure period may be extended to a date certain if the City agrees the cure reasonably requires more time. If Licensee fails to timely cure the damage, the City may repair the damage at Licensee's expense. Licensee will reimburse the City for all costs incurred to repair such damage within 10 days after Licensee receives the City's demand for payment, together with copies of invoices or other evidence to document the costs incurred. 9.1.3. No Right to Repair Absent notice from the City with a demand to cure any damage to a City Asset, Licensee is not authorized to make any repairs to any City Asset. Licensee expressly waives all rights it may have under any applicable Laws to make repairs at the City's expense. 9.2. Equipment Maintenance Licensee shall, at its sole cost and expense, install, maintain and promptly repair any 18 City of Lodi Master License Agreement Final Draft August 2021 damage to any Equipment installed on the License Area whenever repair, repair and removal, or maintenance may be required, subject to the City's prior approval if required under Section 7 (Equipment Installation). Licensee is not required to seek the City's prior approval for any Equipment repair, maintenance, replacement or other installation on the License Area when such Equipment is shown on the approved permits. Licensee must obtain the City's prior written approval for any Equipment repair, maintenance, replacement or other installation that involves larger, different or additional Equipment than shown on the approved permits. Licensee expressly acknowledges that Section 6409(a) of the Middle -Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) does not apply to this Master License or any Site License because the City is granting them in its proprietary capacity as the owner of the City Assets. Any work on Licensee's Equipment installed on City Assets that is authorized or permitted under this Subsection is subject to Licensee obtaining any required RegulatoryApprovals. 9.3. Graffiti Abatement Licensee's repair and maintenance obligation includes the removal of any graffiti from the License Area within forty-eight (48) hours after the City notifies Licensee. 9.4. Standard of Work All work performed by or for Licensee under this Master License shall be: (1) at Licensee's sole cost and expense; (2) performed only by qualified and trained persons and appropriately licensed contractors; (3) performed in a manner and with equipment and materials that will not interfere with or impair the City's operations; and (4) compliant with all applicable Laws. 9.5. Inspections At least once in every License Year, Licensee shall perform an inspection of all Equipment. Upon the City's request, Licensee shall furnish, within 30 days, a written report to the City on the condition of such Equipment that includes, without limitation, any identified concerns and corrective action taken or planned to be taken. If Licensee's inspection reveals any maintenance concerns in connection with any License Area, Licensee shall promptly notify the City. Licensee shall provide the City with at least 30 days' prior written notice before it commences any inspection. Licensee shall permit any City employee or third -party consultant to observe any inspection activities and may make reasonable accommodations as needed to facilitate such observations; provided that any third -party consultant will be required to agree to a reasonable confidentiality agreement as may be requested by Licensee. If Licensee, its Agents or Invitees notice any maintenance concerns with respect to any License Area, Licensee shall promptly notify the City. 19 City of Lodi Master License Agreement Final Draft August 2021 10. LIENS Licensee shall keep the License Area free and clear from any and all liens in connection with any work performed, material furnished, or obligations incurred by or for Licensee. Licensee shall inform each and every contractor and material supplier that provides any work, service, equipment, or material to Licensee in any way connected with Licensee's use of the License Area that the License Area is public property and is not subject to mechanics' liens or stop notices for Equipment or other materials or services provided for Licensee's Equipment. If Licensee does not cause the release of lien of a mechanic's lien or stop notice by any contractor, service provider or equipment or material supplier purporting to attach to the License Area or other City Property within 30 days after notice or discovery of the lien, the City will have the right, but not the obligation, to cause the same to be released by any means it deems proper, including payment of the Claim giving rise to such lien. Licensee must reimburse the City for all expenses it incurs in connection with any such lien (including reasonable attorneys' fees) within 10 days following receipt of the City's demand together with copies of invoices or other evidence to document the costs incurred. Licensee shall give the City at least 10 days' prior notice of commencement of any construction or installation on any part of the License Area except for minor and routine repair and maintenance of Licensee's Equipment. Licensee shall not create, permit, or suffer any other encumbrances affecting any portion of the License Area. 11. UTILITIES Unless otherwise specified in a Site License, Licensee shall be responsible to secure its own utility services for its Permitted Use and shall not be permitted to use or submeter from any electrical service provided to the City on any Site. The City may, in its sole and absolute discretion, permit Licensee to connect to or submeter from any electrical service provided to the City on any Site not subject to a flat rate from the City's electrical service provider. Licensee shall timely pay when due all charges for all utilities furnished to its Equipment. 12. TAXES AND ASSESSMENTS 12.1. Possessory Interest Taxes Licensee understands and acknowledges that this Master License may create a possessory interest subject to taxation and that Licensee will be required to pay any such possessory interest taxes. Licensee further understands and acknowledges that any sublicense or assignment permitted under this Master Agreement and any exercised options to renew or extend this Master License may constitute a change in ownership for taxation purposes and therefore result in a revaluation for any possessory 20 City of Lodi Master License Agreement Final Draft August 2021 interest created under this Master License. 12.2. Licensee's Tax Obligations Licensee agrees to pay when due and prior to delinquency any and all taxes, assessments, charges, excises and exactions whatsoever, including without limitation any possessory interest taxes, that arise from or in connection with Licensee's use within the License Area or Licensee's Equipment that may be imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any taxes, assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee's Equipment. In the event that the City receives any tax or assessment notices on or in connection with the License Area or Licensee's Equipment, the City shall promptly (but in no event later than 30 calendar days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Licensee's Equipment. 13. COMPLIANCE WITH LAWS 13.1. Compliance with Current and Future Laws Licensee shall install, operate and maintain the Equipment, and shall perform all work in connection with such installation, operation and maintenance, in strict compliance with all applicable Laws and all conditions in any Regulatory Approvals issued in connection with the Equipment or its installation and operation. The Parties agree that Licensee's obligation to comply with all Laws is a material part of the bargained -for consideration under this Master License, irrespective of the degree to which such compliance may interfere with Licensee's use or enjoyment of the License Area, the likelihood that the Parties contemplated the particular Law involved and whether the Law involved is related to Licensee's particular use of the License Area. No occurrence or situation arising during the Term arising under any current or future Law, whether foreseen or unforeseen and however extraordinary, will relieve Licensee from its obligations under this Master License or give Licensee any right to terminate this Master License or any Site License in whole or in part or to otherwise seek redress against the City. Licensee waives any rights under any current or future Laws to terminate this Master License or any Site License, to receive any abatement, diminution, reduction or suspension of payment of License Fees, or to compel the City to make any repairs to comply with any such Laws, on account of any such occurrence orsituation. 13.2. Licensee's Personnel 13.2.1. Personnel Training and Certification Licensee shall ensure that all persons who install, operate or maintain the Equipment 21 City of Lodi Master License Agreement Final Draft August 2021 are appropriately trained and licensed by the California Contractors State License Board (CSLB) as required under applicable CPUC rules and regulations. Licensee shall ensure that such persons are trained in and observe all safety requirements established by the City, the CPUC and the California Division of Occupational Safety and Health, Department of Industrial Relations, which includes without limitation site orientation, tag- out and lock -out de-energization rules, ladder and lift restrictions and track and street right-of-way safety requirements. 13.2.2. Licensee's Indemnification for Personnel Injuries Licensee acknowledges that: (1) the City has delegated to Licensee control over the License Area at any time in which Licensee or its Agents are installing, operating or maintaining the Equipment; and (2) the City is not a co -employer of any employee of Licensee or any employee of Licensee's Agents, and the City shall not be liable for any Claim by Licensee's or its Agent's employee(s). Licensee agrees to fully indemnify, defend and hold the City harmless in the same manner as provided in Section 18 (Licensee's Indemnification Obligations) against any Claim by any employee of Licensee or its Agents that arises in connection with Licensee's or its Agents' access, uses or other activities on or about the License Area. 13.3. Compliance with CPUC GO 95 Licensee shall conduct all activities on the License Area in accordance with CPUC General Order 95 and the rules and other requirements enacted by the CPUC under that General Order, as applicable and as amended. 13.4. Compliance with Building and Electric Codes Licensee shall conduct all activities on the License Area in accordance with the requirements of all applicable codes and regulations related to building and construction safety, which includes without limitation the California Building Code, the California Electric Code, National Electric Safety Code IEEE C2 (the "NESC") and any applicable local building electrical code, as those codes exist now or may be amended in the future. To the extent that CPUC General Order 95 does not address cellular telephone antenna installations on City Assets carrying electrical lines, Licensee shall apply applicable provisions of the NESC, with particular attention to paragraphs 224, 235C, 235F, 238, 239 and 239H and sections 22, 41 and 44. Where any conflict exists between the California Building Code, the NESC, the California Electric Code, any local code and CPUC General Order 128, the more stringent requirements will apply, as determined by the City. 13.5. Compliance with RF Exposure Regulations 22 City of Lodi Master License Agreement Final Draft August 2021 Licensee's obligation to comply with all Laws includes all Laws related to maximum permissible exposure to RF or EMF emissions on or about the License Area, which includes all applicable FCC standards, whether such RF or EMF emissions or exposure results from Licensee's Equipment alone or from the cumulative effect of Licensee's Equipment added to all other sources on or near the License Area. Licensee must provide to the City an RF Compliance Report and all other reports required by the Lodi Municipal Code and the Design Guidelines for each proposed City Asset on which the Licensee desires to install or operate its Equipment. 14. DAMAGE OR DESTRUCTION 14.1. City's Rights After Damage or Destruction In the event the License Area in whole or in part becomes damaged due to any cause, the City: (1) will have no obligation whatsoever to repair or replace the damaged License Area; and (2) may, in the City's sole and absolute discretion, elect to take any of the following actions: 14.1.1. Election to Repair or Replace Damaged Site Within 30 days after the date on which the City discovers damage or destruction of a City Asset licensed to Licensee, the City will give Licensee notice of the City's decision whether to repair or replace the damaged City Asset and its good faith estimate of the amount of time the City will need to complete the work. If the City cannot complete the work within 30 days after the date that the City specifies in its notice, or if the City elects not to do the work, then Licensee will have the right to terminate the affected License on 30 days' notice to the City. With City approval, Licensee may replace damaged streetlight and any adjacent improvements at the Licensee's sole expense. 14.1.2. Election to Remove Damaged Site If the City elects to remove, rather than repair or replace, a damaged City Asset licensed to Licensee, then the applicable Site License will automatically terminate on the last day of the month in which the removal occurs. 14.1.3. Election to Remove Equipment from Damaged Site If the acts of third parties or an act of nature or other force majeure circumstance outside the control of Licensee or its Agents or Invitees destroys or damages any City Asset to such an extent that, in the City's reasonable determination, the Equipment on the City Asset cannot be operated, the City may decide to terminate the affected Site License on 30 days' written notice to Licensee and require Licensee to remove the 23 City of Lodi Master License Agreement Final Draft August 2021 Equipment from the damaged City Asset before the termination date specified in the City's notice. 14.2. Licensee's Rights upon Termination After the City terminates a Site License pursuant to this Section 14, the City will: (1) refund any pre -paid License Fee in connection with the terminated Site License on a pro - rata basis determined by the number of months left in the current License Year at the time such termination occurs, subject to the Minimum Term as defined in Section 3.2 (Site License Term) in this Master License; and (2) prioritize Licensee's permit application for one replacement Site License. 14.3. Waiver of Statutory Rights The Parties understand, acknowledge and agree that this Master License fully governs their rights and obligations in the event that any licensed City Asset becomes damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases the provisions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws. 15. CONDEMNATION 15.1. Permanent Takings In the event that any entity with the power to condemn permanently takes any License Area in whole or in part, or in the event that the City transfers any License Area in whole or in part to such entity in lieu of eminent domain, the following provisions will apply: 15.1.1. Termination Any affected Site License will automatically terminate as to the part taken or transferred on the date the permanent taking or transfer occurs, and the License Fee under the affected Site License will be ratably reduced to account for the reduction in License Area. 15.1.2. Award The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against the City for the value of any unexpired Term of any Site License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee's loss or damage to Licensee's Equipment. 24 City of Lodi Master License Agreement Final Draft August 2021 15.1.3. No Statutory Right to Terminate The Parties understand, acknowledge and agree that this Section 15.1 (Permanent Takings) is intended to fully govern the Parties' rights and obligations in the event of a permanent taking. Licensee and the City each hereby waives and releases any right to terminate this Master License in whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and under any similar Laws to the extent applicable to this Master License. 15.2. Temporary Takings Any taking that affects any License Area in whole or in part for less than 90 days will have no effect on the affected Site License, except that Licensee will be entitled to a pro -rata abatement in the applicable License Fee to the extent that such temporary taking materially impairs Licensee's use of the License Area. Furthermore, in the event that the City receives an award, if any, in connection with such temporary taking, Licensee will receive the portion from the award that represents compensation for the use or occupancy of the License Area during the Term but not to exceed the License Fees payable by Licensee for the period of the taking, and the City will retain the balance of the award. 16. ASSIGNMENT AND OTHER TRANSFERS 16.1. General Restriction Except as specifically provided in Section 16.3 (Permitted Assignments), Licensee shall not directly or indirectly assign its interests or rights, whether in whole or in part, in connection with this Master License, any Site License or the License Area without the City's prior written consent. The City shall not unreasonably withhold its consent to any proposed assignment; provided, however, that the Parties acknowledge that the City may reasonably withhold its consent to any proposed assignment at any time in which any monetary or other material default by Licensee under this Master License remains uncured. 16.2. Proposed Assignment Procedures 16.2.1. Proposed Assignment Notice In the event that Licensee desires to assign its interests or rights, whether in whole or in part, in connection with this Master License, any Site License or the License Area, Licensee shall first send written notice ("Proposed Assignment Notice") to the City, which states in detail the proposed terms and conditions for the Assignment and complete information, which includes without limitation financial statements, business 25 City of Lodi Master License Agreement Final Draft August 2021 track records, references and other information about the proposed assignee that the City reasonably requires to fully evaluate Licensee's request and render an informed decision. If the Licensee fails to provide all such information simultaneously with the Proposed Assignment Notice, the Proposed Assignment Notice shall be deemed incomplete. 16.2.2. City Response The City shall approve or disapprove any request for consent to an Assignment within 45 days after the City receives a complete Proposed Assignment Notice ("Assignment Response Period"). If the City fails to respond within the Assignment Response Period, the request for consent will be deemed disapproved. If the City delivers to Licensee written consent to the proposed Assignment, then Licensee shall have 100 days from such written consent to complete the Assignment. The City's consent will be deemed revoked if Licensee fails to complete the proposed Assignment within the 100 -day period; provided, however, that the 100 -day period may be extended to a date certain in a written agreement, which the City shall not unreasonably refuse. As a condition on the City's consent, Licensee shall pay to the City fifty percent (50%) the amount by which any consideration paid to Licensee by the Assignee exceeds the aggregate sum of all Licensee Fees and any other fees that remain payable under the assigned Site License(s) within 10 days after Licensee receives payment from the Assignee. Notwithstanding anything in this Master License or any Site License to the contrary, the City may, in its sole and absolute discretion, refuse consent to any assignment to a Proposed Assignee with (i) liquid assets or other immediately available funds less than Ten Million Dollars ($10,000,000); (ii) any history of discrimination or other employment practices that conflict with the City's non-discrimination policies; or (iii) any pending or past criminal convictions or civil judgements that would impugn or damage the City's reputation by association with said Proposed Assignee. 16.3. Permitted Assignments 16.3.1. Definition The City agrees that Licensee will be permitted to enter into an Assignment of this Master License and Site Licenses issued under it (a "Permitted Assignment"), without the City's prior consent but with notice to the City as provided below, to: (i) Licensee's parent; (ii) Licensee's subsidiary; (iii) an entity that acquires all or substantially all of Licensee's assets in the market in which the License Area is located (as the market is defined by the FCC under an order or directive of the FCC; (iv) an entity that acquires Licensee by a change of stock ownership or partnership interest; or (v) an entity controlled by Licensee or that, with Licensee, is under the Common Control of a third party. 26 City of Lodi Master License Agreement Final Draft August 2021 16.3.2. Conditions A Permitted Assignment is subject to all the following conditions: (a) the Assignee uses the License Area only for the Permitted Use and holds all Regulatory Approvals necessary to lawfully install, operate, and maintain Equipment on the License Area; (b) Licensee provides the City with notice 30 days before the effective date of Permitted Assignment, stating the contact information for the proposed Assignee and providing financial information establishing that the proposed Assignee has the capital and fiscal qualifications greater than or equal to Licensee's; and (c) Licensee is in good standing under this Master License and any Site License. 16.4. Effect of Assignment No assignment by Licensee will relieve Licensee of any obligation on its part under this Master License, unless expressly provided in writing signed by the City. Any assignment that is not in compliance with this Article 16 will be void and be a material default by Licensee under this Master License without a requirement for notice and a right to cure. The City's acceptance of any License Fee or other payments from a proposed assignee will not be deemed to be the City's consent to such Assignment, recognition of any Assignee, or waiver of any failure of Licensee or other transferor to comply with this Section 16. 16.5. Assumption by Assignee Each Assignee shall assume all obligations of Licensee under this Master License and each assigned Site License and will be and remain liable jointly and severally with Licensee for all obligations to be performed by Licensee. No assignment will be binding on the City unless Licensee or the Assignee delivers to the City evidence satisfactory to the City that the Assignee has obtained all Regulatory Approvals required to operate as a wireless telecommunications service provider on the assigned License Area, a copy of the assignment agreement (or other document reasonably satisfactory to the City in the event of an assignment under Section 16.3 (Permitted Assignments)), and an instrument in recordable form that contains a covenant of assumption by such assignee satisfactory in substance and form to the City, consistent with the requirements of this Article. However, the failure or refusal of an Assignee to execute such instrument of assumption will not release such Assignee from its liability as set forth in this Section. Except for a Permitted Assignment as provided in Section 16.3 (Permitted Assignments), Licensee shall reimburse the City on demand for any reasonable costs that the City incurs in connection with any proposed assignment, including the costs of investigating the acceptability of the proposed Assignee and legal costs incurred in connection with considering any requested consent. 27 City of Lodi Master License Agreement Final Draft August 2021 16.6 Licensee's Customers Licensee may provide capacity to Licensee's customers using, or permit such customers to use, the Equipment installed by Licensee upon prior written notice to the City that (a) identifies the customer who will be using the Equipment and the location(s) where such use will occur; and (b) includes the appropriate annual License Fee for the additional carrier, prorated to account for any partial year. Thereafter, Licensee shall pay the additional carrier fee each year in the same manner as the License Fee so long as the additional carrier continues to use the Equipment. Notwithstanding anything in this Master License to the contrary, Licensee shall not be required to pay any additional fee to allow Licensee's customers to use the wireline portions of the Equipment for data transport, backhaul or similar services. 17. DEFAULT 17.1. Events of Default by Licensee Any of the following will constitute an event of default by Licensee under this Master License and any Site Licenses issued under it: (1) Licensee fails to pay any sums due to the City within 15 days after notice from the City; (2) Licensee fails to perform or comply with any other obligation or representation made under this Master License or any Site License, if the failure continues for 30 days after the date of notice from the City, or, if such default is not capable of cure within the 30 -day period, Licensee fails to promptly undertake action to cure such default within such 30 -day period and thereafter fails to use its best efforts to complete such cure within 60 days after the City's notice; (3) Licensee removes its Equipment or abandons the License Area for a continuous period of more than 60 days, such that the License Area is no longer being used for the Permitted Use; or (4) any of the following occurs: (i) the appointment of a receiver due to Licensee's insolvency to take possession of all or substantially all of the assets of Licensee; (ii) an assignment by Licensee for the benefit of creditors; or (iii) any action taken by or against Licensee under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief Laws, if any such receiver, assignment, or action is not released, discharged, dismissed, or vacated within 60 days. 17.2. City's Remedies In addition to all other rights and remedies available to the City at law or in equity, the City will have the following remedies following the occurrence of an event of default by Licensee. 17.2.1. License Continuation Without prejudice to its right to other remedies, the City may continue this Master 28 City of Lodi Master License Agreement Final Draft August 2021 License and applicable Site Licenses in effect, with the right to enforce all of its rights and remedies, including the right to payment of License Fees, Additional Fees, and other charges as they become due. 17.2.2. Site License Termination If a default specific to one or more Site Licenses is not cured by Licensee within the applicable cure period, if any, specified in Section 17.1 (Events of Default by Licensee), the City may terminate each Site License in default. 17.2.3. Master license Termination If Licensee's default is of such a serious nature in the City's sole judgment that the default materially affects the purposes of this Master License, the City may terminate this Master License in whole or in part. Termination of this Master License in whole will terminate all Site Licenses issued under it automatically and without the need for any further action by the City. In either case, the City will deliver notice to Licensee providing 30 -days' notice of termination and specify whether the termination affects the entire Master License or only certain Site Licenses in the notice. The City will specify the amount of time Licensee will have to remove its Equipment from any affected City Asset, which will be at least 30 days after the date of the City's notice for up to 50% of licensed City Assets and an additional 30 days for more than 51% of licensed City Assets. If Licensee does not remove its Equipment within the specified period, the City will be entitled to remove Licensee's Equipment from the City Asset. The City will have the right to make any terminated portion of the License Area available for license to other parties as of the effective date of the termination, even if Licensee's Equipment is still on the City Asset. 17.2.4. Default Fees Without limiting the City's other rights and remedies under this Master License, the City may require Licensee to pay additional fees for the City's administrative cost in providing notice or performing inspections for the events described below (each, a "Default Fee") by giving notice of the City's demand that Licensee cure the default and specifying the cure period. The Default Fee for the initial notice from the City will be due and payable to the City 10 days after delivery of notice to Licensee. In addition, if Licensee fails to cure the condition within the cure period set forth in the initial notice, and the City then delivers to Licensee a follow-up notice requesting compliance, then the Default Fee for the follow-up notice will be due and payable to the City 10 days after delivery of the follow-up notice to Licensee. Default Fees will apply to any of the following events: (1) Licensee constructs or installs any alteration or improvement without the City's prior approval as required by Section 6 (Site Licenses), Section 7 (Equipment Installation), or Section 7.3.1 (Alterations to City's Property) of this Master License; (2) Licensee fails to 29 City of Lodi Master License Agreement Final Draft August 2021 cure damage required by Section 9 (Licensee's Maintenance Obligations) on a timely basis; (3) Licensee fails to notify the City, through its project manager, before accessing the License Area or following the plan approval procedures as set forth in Section 7 (Equipment Installation); or (4) Licensee fails to provide evidence of the required insurance coverage described in Appendix B— Insurance Requirements on a timely basis. 17.3. Licensee's Remedies Licensee's sole remedy for the City's breach or threatened breach of this Master License or any Site License issued under it will be an action for damages, subject to Section 20 (Limitations on City's Liability). 17.4. Cumulative Rights and Remedies All rights and remedies under this Master License are cumulative, except as otherwise provided. 18. LICENSEE'S INDEMNIFICATION OBLIGATIONS A. To the maximum extent permitted by applicable Laws, Licensee, for itself and its successors and assigns, shall indemnify, defend, protect and hold the City, its officers, employees, agents, volunteers invitees and their respective heirs, legal representatives, successors and assigns (the "Indemnified Parties"), harmless from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses (collectively "Claims"), whether direct or indirect, incurred in connection with or arising in whole or in part from: (1) death or personal injury to any person or property damage or other loss that occurred on or about the License Area or arises in connection with Licensee's or its Agents' or Invitees' authorized or unauthorized uses on or about the License Area; (2) any failure or refusal by Licensee to observe or perform any term, covenant or condition in this Master License to be observed or performed on Licensee's part; (3) Licensee's or its Agents' or Invitees' uses or occupancy, or manner of use or occupancy, of the License Area; (4) any exposure to RF emissions or EMFs from Licensee's Equipment or uses on or about the License Area; (5) the License Area condition or any occurrence on or about the License Area attributable to the events described in clauses (1), (2), (3) or (4) in this Section 18; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether any negligence may be attributed to the Indemnified Parties or not, and all whether liability without fault is imposed or sought to be imposed on the Indemnified Parties, but except to the extent that such Claim(s) arise from the Indemnified Parties' sole, gross negligence or willful misconduct. Licensee's obligations under this Section 18 include, without limitation, reasonable fees, costs and 30 City of Lodi Master License Agreement Final Draft August 2021 expenses for attorneys, consultants and experts, and the City's costs to investigate any Claim. Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the Indemnified Parties from any Claim that actually or potentially falls within this Section 18, even when the allegations in such Claim are groundless, fraudulent or false, and which obligation arises at the time the Indemnified Parties tender such Claim to Licensee and continues at all times until such Claim's final resolution. B. Licensee's obligations under this Section 18 will survive the expiration or termination of this Master License or any Site License. 19. INSURANCE 19.1. Licensee's Insurance As a condition to issuance of any Site License, Licensee must provide proof of compliance with the insurance requirements as stated in Exhibit B — Insurance Requirements except to the extent the City's Risk Manager agrees otherwise. 20. LIMITATIONS ON THE CITY'S LIABILITY 20.1. General Limitations on the City's Liability To the fullest extent permitted by law, Licensee shall hold harmless, defend at its own expense, and indemnify the City of Lodi, its Mayor, Council, officers, representatives, agents, employees and volunteers, against any and all liability, claims, losses, damages, or expenses, including reasonable attorney's fees, arising from all acts or omissions to act of contractor or its officers, agents, or employees in rendering services under this contract; excluding, however, such liability, claims, losses, damages, or expenses arising from the City of Lodi's sole negligence or willful acts. The duty to defend and the duty to indemnify are separate and distinct obligations. The indemnification obligations of this section shall survive the termination of this agreement. The City is not responsible or liable to Licensee for, and Licensee hereby waives all Claims against the City, its officers, employees, volunteers, and agents (collectively "City and its Agents" and releases the City and its Agents from, all Claims from any cause (except to the extent caused by the sole, gross negligence or willful misconduct of the City and its Agents), including acts or omissions of persons using the sidewalk or street adjoining or adjacent to or connected with the License Area; utility interruption; theft; burst, stopped or leaking water, gas, sewer or steam pipes; or gas, fire, oil, or electricity in, flood, or vehicle collision on or about the License Area or other City Property. 20.2. Consequential Damages Licensee expressly acknowledges and agrees that the License Fees and any other fees 31 City of Lodi Master License Agreement Final Draft August 2021 payable under this Master License do not take into account any potential liability of the City for consequential or incidental damages. The City would not be willing to enter into this Master License or issue any Site Licenses in the absence of a complete waiver of liability, to the fullest extent permitted by Law, for consequential or incidental damages due to the acts or omissions of the City or its Agents, and Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting any Indemnification obligations of Licensee or other waivers contained in this Master License and as a material part of the consideration for this Master License, Licensee fully releases, waives and discharges forever any and all Claims against the City for consequential and incidental damages arising out of this Master License or any Site License, including lost profits arising from the disruption to Equipment, any interference with uses conducted by Licensee under this Master License and Site Licenses, regardless of the cause, and whether or not due to the active or passive negligence or willful misconduct of the City or its Agents, and covenants not to sue for such damages the City, and the City's other departments, and all City agencies, officers, directors and employees, and all persons acting by, through or under each of them. Without limiting any Indemnification obligations of Licensee or other waivers contained in this Master License, in no event shall Licensee be liable to the City for any special, consequential or indirect damages. 20.3. No Relocation Assistance This Master License creates no right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assistance Law (Cal. Gov. Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§ 4601 etseq.) or similar Law upon anytermination of occupancy except as provided in Section 15 (Condemnation). To the extent that any relocation law may apply, Licensee waives, releases and relinquishes forever any and all Claims that it may have against the City for any compensation from the City except as specifically provided in this Master License upon termination of its occupancy of all or any part of the License Area. 20.4. Non -Liability for City Officials, Employees and Agents No elective or appointive board, agency, member, officer, employee, volunteer or other agent of the City will be personally liable to Licensee, its successors and assigns, in the event of any default or breach by the City or for any amount which may become due to Licensee, its successors and assigns, or for any obligation of the City under this Master License. 20.5. Licensee's Waiver Licensee acknowledges the City's rights under this Section and waives any Claims arising from the exercise of its rights. In connection with the preceding sentence and 32 City of Lodi Master License Agreement Final Draft August 2021 releases and waivers under Section 8.1 (City's Access to License Areas), Section 9.1.3 (No Right to Repair), Section 13.1 (Compliance with Current and Future Laws), Section 14.1.1 (Election to Repair or Replace Damaged Site), Section 15.1.3 (No Statutory Right to Terminate), Section 19.3 (Subrogation Waiver), Section 20.1 (General Limitations on City's Liability), Section 20.2 (Consequential Damages), Section 20.3 (No Relocation Assistance), Section 23.3 (Application) and any other waiver by Licensee under this Master License, Licensee acknowledges that it is familiar with section 1542 of the California Civil Code, which reads: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Licensee realizes and acknowledges that the waivers and releases contained in this Master License include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated Claims. Licensee affirms that it has agreed to enter into this Master License in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of California Civil Code section 1542 and any similar Law. The releases and waivers contained in this Master License will survive its expiration or earlier termination. 21. RECORDS 21.1. Accounting Records Licensee shall maintain throughout the Term and the term of any Site License entered into during the Term, and for at least three years after any Site License expires or terminates, the following records in physical format at Licensee's place of business within San Joaquin County (or such other location as identified to the City) and in an electronic format: (1) site identification and location for all City Assets under active Site Licenses; (2) the amount and payment date for all License Fees paid to the City pursuant to this Master License; (3) all Regulatory Approvals issued in connection with the Equipment on City Assets; and (4) all correspondence with the City in connection with any matter covered under this Master License. The City, or its designee, will have the right to inspect and audit Licensee's records at Licensee's place of business during regular business hours on 10 days' notice to Licensee. 21.2. Estoppel Certificates Licensee, at any time and from time -to -time on not less than 30 days' notice from the City, shall execute, acknowledge and deliver to the City or its designee, a certificate of 33 City of Lodi Master License Agreement Final Draft August 2021 Licensee stating: (a) that Licensee has accepted the License Area (or, if Licensee has not done so, that Licensee has not accepted all or any part of the License Area and specifying the applicable portions of the License Area and reasons for non-acceptance); (b) the Commencement Dates of any Site Licenses then in effect; (c) the Effective Date and Expiration Date of this Master License; (d) that this Master License and Site Licenses are unmodified and in full force and effect or, if modified, the manner in which they are modified; (e) whether any defenses then exist against the enforcement of any of Licensee's obligations under this Master License (and if so, specifying the same); (f) whether any of the City's obligations under this Master License are outstanding (and if so, identifying any City obligations that Licensee believes that the City has failed to meet); (g) the dates, if any, to which the License Fees, Administrative Fees, and or other fees have been paid; and (h) any other information that may be reasonably required by the City or its designee. 22. RULES AND REGULATIONS At all times throughout the Term, Licensee shall faithfully comply with any and all reasonable rules, regulations and instructions that the City may from time -to -time establish and/or amend with respect to the License Area. 23. SECURITY DEPOSIT 23.1. Amount At the time Licensee executes this Master License, Licensee must tender to the City for deposit a sum equal to [ ] (the "Security Deposit") to secure Licensee's faithful performance of all terms, covenants and conditions in this Master License and any Site License. 23.2. Further Deposits In the event that the City applies or uses the Security Deposit in whole or in part to cure any default by Licensee under this Master License or any Site License, Licensee shall replenish the Security Deposit in the amount and on the date specified in a written notice to Licensee. The City may, in the City's reasonable judgment, require Licensee to increase the Security Deposit amount from time -to -time when the City determines that Licensee's past acts or omissions in connection with the License Area warrant additional security. 23.3. Application Licensee agrees that the City may use the Security Deposit in whole or in part to remedy 34 City of Lodi Master License Agreement Final Draft August 2021 any damage to the License Area caused by Licensee, its Agents or Invitees or any failure by Licensee to perform any term, covenant or condition in this Master License or any Site License (including without limitation any failure to pay any License Fee or other sums due under this Master License or any Site License either before or after any default). If the City uses the Security Deposit in whole or in part, the City will not be deemed to have waived any rights under this Master License, or legal or equitable rights whatsoever. Licensee expressly waives any rights it may have under California Civil Code section 1950.7 or any similar Law and agrees that the City may retain from the Security Deposit any portion reasonably necessary to compensate the City for any foreseeable or unforeseeable loss or damage caused by Licensee's, its Agents' or Invitee's acts or omissions. The City's obligations with respect to the Security Deposit shall be in the nature of a debtor, and the City shall not be deemed to hold the Security Deposit in trust for any reason. The City may (but shall not be obligated to) keep the Security Deposit separate from general funds. Licensee shall not be entitled to any interest on the Security Deposit. 24. SURRENDER OF LICENSE AREA 24.1. Surrender No later than 30 days after the Expiration Date or other termination of this Master License or any Site License, Licensee shall peaceably remove its Equipment from the applicable portion of the License Area and surrender it to the City in good order and condition, normal wear and tear excepted, free of debris and hazards, and free and clear of all liens and encumbrances. Immediately before the Expiration Date or other termination of this Master License, Licensee shall remove all of Licensee's Equipment except for any fiber optic cable to which the City will obtain title under and Site License and repair any damage resulting from the removal. Licensee's obligations under this Section 24.1 will survive the Expiration Date or other termination of this Master License. 24.2. Abandonment At its option, the City may deem any items of Licensee's Equipment that remain on a City asset or otherwise on the License Area or other City Property more than 30 days after the Expiration Date of this Master License to be abandoned and in such case the City may dispose of the abandoned Equipment in any lawful manner after expiration of a 30 -day period initiated by the City's notice to Licensee to remove the Equipment. Licensee agrees that California Civil Code sections 1980 et seq. and similar provisions of the Civil Code addressing abandoned property by residential or commercial tenants do not apply to any abandoned Equipment. 35 City of Lodi Master License Agreement Final Draft August 2021 24.3. Holding Over Any holding over after the Expiration Date with the express consent of the City will be construed to automatically extend the Term of this Master License for a period of one License Year at a License Fee equal to 150% of the License Fee in effect immediately before the Expiration Date, and the Master License otherwise will be on its express terms and conditions. Any holding over without the City's consent will be a default by Licensee and entitle the City to exercise any or all of its remedies, even if the City elects to accept one or more payments of License Fees, Additional Fees or other amounts payable to the City from Licensee after the Expiration Date. 25. HAZARDOUS MATERIALS 25.1. Hazardous Materials in License Area Licensee covenants and agrees that neither Licensee nor any of its Agents or Invitees shall cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed of or Released in, on, under or about the License Area or any other part of City Property, or transported to or from any City Property in violation of Environmental Laws, except that Licensee may use small quantities of Hazardous Materials as needed for routine operation, cleaning and maintenance of Licensee's Equipment that are customarily used for routine operation, cleaning and maintenance of such equipment and so long as all such Hazardous Materials are contained, handled and used in compliance with Environmental Laws. Licensee shall immediately notify the City if and when Licensee learns or has reason to believe any Release of Hazardous Material has occurred in, on, under or about the License Area or other City property. 25.2. Licensee's Environmental Indemnity If Licensee breaches any of its obligations contained in this Section, or if any act, omission, or negligence of Licensee or any of its Agents or Invitees results in any contamination of the License Area or other City Property, or in a Release of Hazardous Material from, on, about, in or beneath any part of the License Area or other City Property, or the violation of any Environmental Law, then Licensee, on behalf of itself and its successors and assigns, shall indemnify, defend and hold harmless the City, as set forth in Article 18. Licensee's Indemnification obligation includes costs incurred in connection with any activities required to investigate and remediate any Hazardous Material brought onto the License Area or other City Property by Licensee or any of its Agents or Invitees and to restore the License Area or other City Property to its condition prior to Licensee's introduction of such Hazardous Material or to correct any violation of Environmental Laws. Without limiting the foregoing, if Licensee or any of its Agents or Invitees causes the Release of any Hazardous Material on, about, in, or beneath the License Area or other City Property, then in any such event Licensee shall, immediately, 36 City of Lodi Master License Agreement Final Draft August 2021 at no expense to any Indemnified Party, take any and all necessary actions to return the License Area or other City Property, as applicable, to the condition existing prior to the Release of any such Hazardous Materials on the License Area or other City Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent such Release was caused by the gross negligence or willful misconduct of the City or its Agents. Licensee shall afford the City a full opportunity to participate in any discussions with Regulatory Agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding involving Hazardous Material. 26. TERMINATION 26.1. Licensee's Termination Rights 26.1.1. Master License Termination Rights Licensee may, in Licensee's sole discretion, elect not to extend this Master License at the end of the initial ten (10) year term or any subsequent extension terms with at least one (1) year's written notice to the City at any time after the Effective Date. Licensee may not terminate this Master License during the initial ten (10) year term except as expressly provided in this Master License. 26.1.2. Site License Termination Rights Licensee may, in Licensee's sole discretion, terminate any Site License on 90 days' written notice to the City at any time after 12 months from the subject Site License Commencement Date so long as Licensee is not in default with respect to the subject Site License. 26.1.3. Termination Rights after Site Replacement If the City exercises its absolute right to replace any City Asset, the City shall make a reasonable effort to provide Licensee with at least 60 days' notice. The City's failure to provide at least 60 days' notice prior to any replacement shall not affect the City's rights under this Master License. Within 90 days after Licensee receives notice from the City, Licensee may elect to either: (1) install Licensee's Equipment on the replacement City Asset at Licensee's sole cost and expense; or (2) terminate the applicable Site License as to the replacement License Area. The term of the Site License will not be affected by the replacement. 26.2. City's Absolute Right to Terminate Site Licenses The City has the absolute right to terminate any or all Site Licenses on 30 days' written 37 City of Lodi Master License Agreement Final Draft August 2021 notice to Licensee when the City determines, in the City's sole discretion, that Licensee's continued use of the License Area(s) adversely affects or threatens public health and safety, constitutes a nuisance, interferes with the City's municipal functions or requires the City to maintain a City Asset no longer necessary for the City's purposes. 26.3. Licensee's Rights after Termination If the City terminates any Site License for reasons unrelated to Licensee's failure to perform its obligations under this Master License Agreement, the Licensee may submit permit applications for a new Site License to replace the terminated Site License. If Licensee opts not to submit permit applications for a replacement Site License, City shall refund any pre -paid Licensee Fee for the terminated Site License on a pro -rata basis. In addition, the City shall prioritize Licensee's permit applications for any Site License to replace the terminated Site License; provided, however, that: (1) the City shall prioritize only as many permit applications as Site Licenses terminated by the City; and (2) the City's prioritization will not affect Licensee's obligations under this Master License Agreement. 27. INTERFERENCE 27.1. Licensee's Obligation Not to Cause Interference Licensee will not operate or maintain its Equipment in a manner that interferes with or impairs other communication (radio, telephone and other transmission or reception) or computer equipment lawfully used by any person, including the City or any of its Agents. Such interference will be an event of default under this Master License by Licensee, and upon notice from the City, Licensee shall be responsible for eliminating such interference promptly and at no cost to the City. Licensee will be required to use its best efforts to remedy and cure such interference with or impairment of City operations. If Licensee does not cure the default promptly, the Parties acknowledge that continuing interference may cause irreparable injury and, therefore, the City will have the right to bring an action against Licensee to enjoin such interference or to terminate all Site Licenses where the Equipment is causing interference or impairment, at the City's election. 27.2. Impairment Caused by Change in City Use If any change in the nature of the City's use of the License Area during the Term results in measurable material adverse impairment to Licensee's normal operation of its Equipment making it necessary to alter the Equipment to mitigate the adverse effect, Licensee shall notify the City and provide evidence of the claimed impairment. Upon receipt of such notice, the City will have the right to make its own reasonable determination and, if it agrees with Licensee, investigate whether it can reasonably and 38 City of Lodi Master License Agreement Final Draft August 2021 economically mitigate that interference. The City will provide notice to Licensee of the City's determination. If the City determines in its sole discretion that mitigation is feasible and can be achieved for a reasonable cost in the City's reasonable judgment, the City's notice will specify when the City will mitigate the adverse effect. The City's mitigation will effect a cure, and the City will not be liable to Licensee in any other way or be required to take any other measures with respect to the Equipment. If the City determines in its sole discretion that mitigation is not feasible or cannot be achieved for a reasonable cost in the City's reasonable judgment, Licensee may elect either to: (1) terminate the Site License as to the affected City Asset and receive a ratable reduction in the License Fee; or (2) take steps itself at its own cost to mitigate the adverse effect and continue to operate the Equipment on the City Site, and receive from the City a waiver of the License Fee for the first six months of the following License Year under the affected Site License to offset the cost of mitigation. Licensee agrees that the City's temporary and partial abatement or waiver of the License Fee under this Section 27.2 will be the only compensation due to Licensee for costs incurred or otherwise arising from the adverse effect as liquidated damages fully compensating Licensee for all Claims that may arise or be related to the adverse effects. Under no circumstances may the City be required to alter its operations at the identified City Asset or provide a replacement City Asset to Licensee. 27.3. Impairment Caused by City Access Licensee agrees that it will not be entitled to any abatement of License Fees if the City exercises its rights of access under Section 8.1 (City Access to License Area) unless the City's activities cause Licensee to be unable to operate Equipment on the License Area for its permitted use for a period of more than 10 days, in which case, subject to proof, License Fees will be abated ratably for the entire period that Licensee is unable to operate any Equipment on any affected City Asset. 28. MISCELLANEOUS PROVISIONS 28.1. Notices Except as may be specifically provided otherwise in this Master License, all notices, demands or other correspondence required to be given to the City and Licensee under this Master License must written and delivered through: (1) an established national courier service that maintains delivery records and confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows: 39 City of Lodi Master License Agreement Final Draft August 2021 TO CITY: [ ] Department Attn: [ ] [Street Address] , CA [Zip Code] Telephone: (xxx) xxx-xxxx Email: [Email Address] with a copy to: City Attorney [Street Address] , CA [Zip Code] Telephone: (xxx) xxx-xxxx Facsimile: (xxx) xxx-xxxx Email: [Email Address] TO LICENSEE: All notices under this Master License will be deemed to have been delivered: (i) five days after deposit if delivered by first class mail; (ii) two days after deposit if delivered by certified mail; (iii) the date delivery is made by personal delivery or overnight delivery; or (iv) the date an attempt to make delivery fails because a Party has failed to provide notice of a change of address or refuses to accept delivery. Telephone, facsimile and email information are provided for convenience and for couriers who may require such information, and any notice given solely through electronic means will not be deemed to be effective notice. Any copies required to be given constitute an administrative step and not actual notice. The Parties may change the notice addresses above from time- to- time through written notice to the addresses above or the then -current notice address. 28.2. Waiver; No Implied Waivers No failure by either Party to insist upon the strict performance of any obligation of the other under this Master License or to exercise any right, power or remedy arising out of a breach thereof, irrespective of the length of time for which such failure continues, will constitute a waiver of such breach. No acceptance by the City of full or partial payment of License Fees, Administrative Fees, or Additional Fees, or other fees during the 40 City of Lodi Master License Agreement Final Draft August 2021 continuance of any such breach will constitute a waiver of such breach or of the City's right to demand strict compliance with such term, covenant or condition, or operate as a waiver of any requirement of this Master License. No express waiver by either Party of any default or the performance of any provision hereof will affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more waivers of a default or the performance of any provision hereof by either Party will not be deemed to be a waiver of a subsequent default or performance. The City's consent given in any instance under the terms of this Master License will not relieve Licensee of any obligation to secure the City's consent in any other or future instance under the terms of this Master License. 28.3. Amendments No part of this Master License (including all Site Licenses) may be changed, waived, discharged or terminated orally, nor may any breach thereof be waived, altered or modified, except by a written instrument signed by both Parties. 28.4. Interpretation The following rules of interpretation apply to this Master License. 28.4.1. General Whenever required by the context, the singular includes the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice versa; and defined terms encompass all correlating forms of the terms (e.g., the definition of "indemnify" applies to "indemnity," "indemnification," etc.). 28.4.2. Multi-party License If the City enters into a Site License with more than one Licensee for the same License Area, the obligations and liabilities under this Master License imposed on the Licensees will be joint and several among them. 28.4.3. Captions The captions preceding the sections of this Master License and in the table of contents have been inserted for convenience of reference and such captions in no way define or limit the scope or intent of any provision of this Master License. 28.4.4. City Actions 41 City of Lodi Master License Agreement Final Draft August 2021 All approvals, consents, exceptions, or other determinations permitted or required by the City under this Master License will be made by or through the Public Works Director or designee, unless otherwise provided in this Master License or by the City Municipal Code, or any City ordinance. 28.4.5. Words of Inclusion The use of the term "including," "such as," or words of similar import when following any general or specific term, statement or matter may not be construed to limit the term, statement or matter to the stated terms, statements or matters, whether or not language of non -limitation, such as "including, but not limited to" and "including without limitation" are used. Rather, the stated term, statement or matter will be interpreted to refer to all other items or matters that could reasonably fall within the broadest scope of the term, statement or matter. 28.4.6. Laws References to all "Laws," including specific statutes, relating to the rights and obligations of either Party mean the Laws in effect on the Effective Date and as they are amended, replaced, supplemented, clarified, corrected or superseded at any time while any obligations under this Master License or any Site License are outstanding, whether or not foreseen or contemplated by the Parties. 28.5. Successors and Assigns The terms, covenants and conditions contained in this Master License bind and inure to the benefit of the City and Licensee and, except as otherwise provided herein, their successors and assigns. 28.6. Brokers Neither Party has had any contact or dealings through any licensed real estate broker or other person who could claim a right to a commission or finder's fee in connection with this Master License or any Site License contemplated herein ("Broker"), whose commission, if any is due, is to be paid pursuant to a separate written agreement between such Broker and the Party through which such Broker contracted. If any Broker perfects a claim for a commission or finder's fee based upon any such contact, dealings or communication, Licensee shall indemnify the City from all Claims brought by the Broker. This Section will survive expiration or earlier termination of this Master License. 28.7. Severability If any provision of this Master License or the application thereof to any person, entity 42 City of Lodi Master License Agreement Final Draft August 2021 or circumstance is invalid or unenforceable, the remainder of this Master License, or the application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each provision of this Master License will be valid and be enforced to the full extent permitted by Law, except to the extent that enforcement of this Master License without the invalidated provision would be unreasonable or inequitable under all the circumstances or would frustrate a fundamental purpose of this Master License. 28.8. Governing Law; Venue This Master License must be construed and enforced in accordance with the laws of the State of California and the City Municipal Code, without regard to the principles of conflicts of law. This Master License is made, entered and will be performed in the City of Lodi, County of San Joaquin, State of California. Any action concerning this Master License must be brought and heard in Superior Court for the County of San Joaquin or in the United States District Court for the Eastern District of California. 28.9. Time for Performance Provisions in this Master License relating to number of days mean calendar days, unless otherwise specified. "Business day" means a day other than a Saturday, Sunday or a federal or City holiday. If the last day of any period to give notice, reply to a notice, or to undertake any other action occurs on a day that is not a business day, then the last day for undertaking the action or giving or replying to the notice will be the next succeeding business day. Time is of the essence with respect to all provisions of this Master License in which a definite time for performance isspecified. 28.10. Survival Expiration or earlier termination of this Master License will not affect the right of either Party to enforce any and all Indemnities and representations and warranties given or made to the other Party under this Master License, or any provision of this Master License that survives termination. 28.11. Recording Licensee agrees not to record this Master License, any Site License or any memorandum or short form of any of them in the Official Records of the County of San Joaquin. 28.12. Counterparts This Master License may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will be one and the same 43 City of Lodi Master License Agreement Final Draft August 2021 instrument. 28.13. Approval Authority Each person signing this Master License and any Site License on behalf of Licensee warrants and represents that: (i) he or she has the full right, power and capacity to act on behalf of Licensee and has the authority to bind Licensee to the performance of its obligations under those agreements without the subsequent approval or consent of any other person or entity; (ii) Licensee is a duly authorized and existing entity; (iii) Licensee is qualified to do business in California; and (iv) Licensee has full right and authority to enter into this Master License and Site Licenses. Upon the City's request, Licensee shall provide the City with evidence reasonably satisfactory to the City confirming the representations and warranties above. [END OF MASTER LICENSE — SIGNATURES APPEAR ON NEXT PAGE] 44 City of Lodi Master License Agreement Final Draft August 2021 The City and Licensee executed this Master License as of the date last written below: CITY OF LODI: LICENSEE: By: By: _ Its: City Manager Its: _ Date: APPROVED AS TO FORM: By: City Attorney Date: APPROVED BY CITY COUNCIL RESOLUTION No. [insert] ATTEST: By: [ ] City Clerk Date: Date: [END OF SIGNATURE — ATTACHMENTS APPEAR ON NEXT PAGE] 45 City of Lodi Master License Agreement Final Draft August 2021 Exhibit A FORM OF SITE LICENSE AGREEMENT 193:1 vivi I I.Im" Iffel 14 11 M1 MLA NO. [INSERT] SITE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER] This SITE LICENSE AGREEMENT FOR FACILITIES IN THE RIGHT-OF-WAY ("Site License") between the City of Lodi, a general -law city ("City") and ("Licensee") is effective on [date] ("Commencement Date"). This Site License may refer to the City and/or Licensee individually as a "Party" or collectively as the "Parties." Background A. WHEREAS, the Parties entered into a Master License Agreement for Wireless Facilities in the Right -of -Way ("Master License") effective on [date]. B. WHEREAS, the Licensee has submitted the necessary revocable permit application and construction encroachment permit application required by Lodi Municipal Code and City policies. C. WHEREAS, the Licensee acknowledges that this Site License will not be effective until executed by the City and returned to Licensee. The City reserves the absolute right to reject any application to install wireless facilities on City assets. If any revocable permit application or construction encroachment permit is rejected, this Site License is not effective. NOW THEREFORE, in exchange for the consideration received by the City, as reflected in this Site License, the Parties agree as follows: 1. Master License. The terms of the Master License shall apply to this Site License and are incorporated herein by this reference. The definitions set forth in the Master License Agreement apply to the capitalized terms in this Site License, unless a term is specifically defined in this Site License. If the Master License expires during the term of this Site License, the terms of the Master License shall remain applicable and enforceable as part of this Site License. 2. License Area. A. Pursuant to the terms and conditions of this Site License, the Master License, and the Lodi Municipal Code and regulations, the City agrees to license to Licensee the area reflected in the final Encroachment Permit attached hereto as Exhibit A-1, for 46 City of Lodi Master License Agreement Final Draft August 2021 the installation, operation, and maintenance of the telecommunications equipment specified in Exhibit A-1. Licensee acknowledges that Exhibit A-1 is the approved plan, and that Licensee is only permitted to install the Equipment and other improvements shown in Exhibit A-1. B. Licensee's Due Diligence. Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee, into the License Area condition and suitability for Licensee's intended use, and that Licensee relies solely on its due diligence for such determination. Licensee further expressly represents and warrants to the City that Licensee's intended use is the Permitted Use as defined in Section 5 in this Master License. 3. Initial Term and Extensions A. The initial term of this Site License shall be ten years from the Commencement Date and will automatically expire 10 years from the Effective Date (the "Expiration Date"), unless extended or terminated in writing in accordance with this Master License. B. Provided that Licensee is not in default of the Agreement or any Supplemental Agreement following written notice and the expiration of any applicable cure period, this Agreement may, upon written approval, be renewed for successive five-year renewal terms (each, a "Renewal Term"). C. The initial term and all extensions shall be collectively referred to herein as the "Term." 4. License Fee A. Licensee shall pay to the City an annual fee at the rate specified in the License Fee Schedule attached to this Site License as Exhibit A-2 (the "License Fee"), including any annual adjustment as provided in Section 4.13. below. [If the Parties agree to a reduced fee in exchange for specified in-kind services, (see example in section 5), Exhibit A-2 must reflect the reduced fee.] The City also reserves the right to increase the License Fee to a fee based on fair market value, effective on the Commencement Date if, after the Commencement Date, there is a change in applicable federal law or regulations, oranyfederal court determines that local governments have the right to charge a fair market rate rather than a fee based on a reasonable approximation of costs. B. Effective January 1 of each year throughout the Term, the License Fee will be 47 City of Lodi Master License Agreement Final Draft August 2021 increased 3% over the License Fee payable in the immediately previous year. The adjustment provided in this Section will be effective even if the first License Year was for less than a full calendar year. C. The License Fee shall be paid annually, in advance, without any demand, deduction, setoff, or counterclaim for any reason. The initial License Fee shall be paid within 30 days of the Commencement Date. Each subsequent License Fee shall paid no later than January 1 for the following year throughout the Term. D. Should the Commencement Date fall on any date other than January 1, the License Fee for the first year and final year shall be prorated based on the remaining number of months in the calendar year. E. Failure to pay the License Fee prior to the due date shall be grounds for termination of this Site License. S. In -Kind Contributions [subject to negotiation on site -by -site basis] A. Licensee's Equipment on the License Area includes [fiber-optic cables, conduit, or other wireless facility] that would support the City's smart city goals. Licensee shall, as partial consideration paid to the City for this Master License, grant the City a license to use up to twelve (12) strands in any fiber-optic cable that Licensee owns at each licensed Site. Such license shall be automatically effective upon Licensee's installation of any fiber-optic cables on the License Area, and Licensee shall designate and mark the licensed fiber strands in any conduit that serves the License Area for the City's use at the time it installs such fiber-optic cables. B. Licensee further agrees that, at the time this Site License expires or terminates, Licensee shall transfer to the City title and ownership of any fiber strands that the City uses or desires to use by quitclaim or bill for sale at no cost to City. 6. Utilities [subject to negotiation on site -by -site basis] The City shall permit Licensee to connect to or submeter from the electrical service for the License Area, subject to an additional payment of 7. Certified Access Specialist Disclosure Pursuant to California Civil Code § 1938, and to the extent applicable to this Site License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has not inspected the License Area in whole or in part to determine whether it meets all applicable construction -related accessibility requirements. 48 City of Lodi Master License Agreement Final Draft August 2021 8. Termination In addition to the grounds for termination set forth in the Master License: A. Licensee may, in Licensee's sole discretion, terminate this Site License on 90 days' written notice to the City at any time after 12 months from the Commencement Date, so long as Licensee is not in default under this Site License. B. The City may terminate this Site License in the event of any default by Licensee under this Site License or the Master License, or the failure to comply with any provisions of the Lod Municipal Code or City regulations, or any terms or conditions of any permit issued for the License Area. C. If Licensee fails to cure any default within the timeframes set forth in the Master License, this Site License shall be immediately terminated, and City may determine whether to terminate the Master License. D. Should Licensee fail to complete construction of the Licensed Site within 60 days of the Commencement Date, this Site License will terminate immediately without notice of default or opportunity to cure, unless the City grants an extension of Licensee's construction encroachment permit, as set forth in Lodi Municipal Code section [CITE]. 9. Counterparts This Site License may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will be one and the same instrument. CITY OF LODI: 92 LICENSEE: 0 City Manager or Designee Print Name: Title: Date: Date: APPROVED AS TO FORM: By: City Attorney Date: 49 City of Lodi Master License Agreement Final Draft August 2021 EXHIBIT A-1 SITE LOCATION / LICENSE AREA [City to attach approved construction encroachment permit with final, approved plans] Per 6.4 Application reference, this would include items per the Standards and Guidelines such as: • Encroachment permit application, • Photo simulations, • Engineered drawings and construction plans per DPW Design Standards • Any agreements for private property/easement access • commitment letter approving the electrical point of connection, connected equipment specification sheet, location map, electrical load calculation and certification that is stamped and signed by a licensed electrical engineer • pole loading calculation/ Structural Analysis prepared by a State of California Licensed Civil Engineer, including a Field Verification of Street Light Footing Dimensions • RF Report • Demonstration of compliance with Noise regulations • Contractor license information and certificate of liability insurance • Etc. 50 City of Lodi Master License Agreement Final Draft August 2021 EXHIBIT A-2 LICENSE FEE SCHEDULE Annual License Fees [City to adjust/approve] 2021 $270 2022 $278 2023 $286 2024 and beyond Prior year fee, plus 3% 51 City of Lodi Master License Agreement Final Draft August 2021 EXHIBIT B. INSURANCE REQUIREMENTS [Need requirements from Risk Management] 52 City of Lodi Master License Agreement Final Draft August 2021 Small Cell Design & Deployment Standards 1. Purpose and Intent: A. These design and deployment standards are intended to protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the City's local values. These local values include, but are not limited to, the aesthetic character of the City, its neighborhoods and community. These standards are also intended t flect and promote the community interest by: i. ensuring that the balance between public and private interests is maintained; :1 ii. protecting the City's visual character from potential adverse impacts and/or visual blight created or exacerbated by small wireless facilities and related communications infrastructure, iii. protecting and preserving the City's environment\urce; iv. protecting and preserving t Y's p rights municipal infrastructure located within t lic rigand v. promoting access to high-quality, ced wireless services for the City's residents, businesses an�tors. The City has researched and adopted the following design standards for small wireless service facilities. Given the rapidness with which small wireless service facility technology may change, City staff are, available to meet with wireless carriers and their representatives to discuss designs standards that deviate from those listed in this section. The intent of these designs standards is to establish cealment elements and other standards for small ;se standards shall ensure that small cell wireless ;ast intrusive manner, maximally blending with the of the City and protecting the aesthetic character of hall apply to all small wireless service facilities on r other structures in the public right-of-way: facilities shall comply with Lodi Municipal Code .ecommunications Facilities. ii. All facilities shall have subdued colors and non -reflective materials that blend with the materials and colors of the surrounding area and structures. iii. The small wireless service facility shall be of the least intrusive design possible and occupy the least amount of space in the right-of-way possible 1 Compliance with these General Requirements is to be included in documentation provided per Section 7, Submittals, below. City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards but in no event shall exceed the limits prescribed in these design standards. iv. Equipment: a. Above ground electrical meter facilities are prohibited. Metered electric service may be used with written approval of the Electric Utility Director in the rare case where non -metered service may not be available. b. With the exception of streetlight pole base shrouds described in these design standards, equipment installed at grade is prohibited. Such equipment may only b stalled with written approval of the Electric Utility Director -metered service is not be available. v. Vaults and pull boxes shall be installed flus to grade and in compliance with the City's Standard Construction Specifications. vi. Signage must be approved by the City and include wording that accurately identifies the site owner/oper4kthe owner/operator's site name or identification number and a to ee number to the owner/operator's network operations center. Small wireless facilities and other infrastructure deployments may not bear any other signage or advertisements unless expressly approved by the FCC or other Unit tate emissions reeulation or recommended under es for compliance with RF vil, Lighting or aq type oation ofWities are prohibited. B. Visual Criteria. All wireless facil except for antennas and stacked radio relay units (RRU), shall be installed unde und, except where sufficient space in the public right of way does not exist to d o. View impacts of above ground equipment to surrounding properties shall be minimized. Camouflaging and integrating above -ground wireless facilities by using non -reflective materials and colors that blend in with their surroundings is required. When placed above- und, wireless equipment shall either be completely contained and concealed the interior of an integrated streetlight, and/or attached within a shroud at an existing utility pole in a manner where their protrusion is minimized. C. Carried should consider siting as much as possible on existing infrastructure or City assets. Attrchments shall be limited to mast arm -type streetlights on Caltrans Type -15 Poles (see Section 3, below). D. No Interference with Other Uses. A facility shall not be located within any portion of the public right-of-way that interferes or may interfere with City and emergency operations, and pedestrian and vehicular access. Small cells and any associated antennas, accessory equipment or improvements shall not be located in any place or manner that would physically interfere with or impede access to any: (1) worker access to any above -ground or underground infrastructure for traffic control, 2 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards streetlight or public transportation, including without limitation any curb control sign, parking meter, vehicular traffic sign or signal, pedestrian traffic sign or signal, barricade reflectors; (2) access to any public transportation vehicles, shelters, street furniture or other improvements at any public transportation stop; (3) worker access to above -ground or underground infrastructure owned or operated by any public or private utility agency; (4) fire hydrant or water valve; (5) access to any doors, gates, sidewalk doors, passage doors, stoops or other ingress and egress points to any building appurtenant to the rights-of-way; or (6) access to any fire escape. E. Specific requirement Waivers. A waiver may b ranted for an individual requirement for certain projects if the designate irectors makes both of the following findings: i. Specific physical charact at the propo3�ed small cell location make it impossible or reasonab tical to comply with the exact requirement as written in these Deplo Standards as found by the Electric Utility Director; and ii. The small cell project is proposed in a design that is the least intrusive manner, maximally blending with the natural and built environment of the City and protecting the aesthetic character of the City in accordance with the general intent of these Design Standards as found by the Community Development Director. 10 3. Site Availability a�ation rqqNv A. Attachments shall be limited to mast arm -type streetlights on Caltrans Type -15 Poles, or other mast arm poles subject to engineering proof of structural capacity proval of the Electric Utility Dictor. chments to historic, ornamental, and decorative poles shall not be permitted. ii. Attachments A%atpolnesive in the [downtown district, define or provide map] stbeperitted. lents to traffic signal poles shall not be permitted. lents shall not be located along the frontage of a historic building, historic on a federal, state, or local level, or in front of public art. cell device or attachment may be attached to any pole or structure except for colocation by the same carrier, or colocations by a neutral host as may be authorized in writing by the Electric Utility Director. C. Permittee shall replace, in kind, any poles or their existing foundations showing signs of damage or corrosion as determined by City. Poles that were determined by the City's Electric Utility Department to have insufficient or unknown structural capacity during the required field verification shall also have replacement footings designed. Pole number labels, if incorrect or missing, shall be corrected. City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards No new pole heights shall exceed 35' in residential, historical, and environmentally sensitive areas; and 60' otherwise. D. New mast arm poles (Caltrans Type -15) shall be designed in accordance with City Standard Specifications for pole spacing, to seamlessly fit with the existing lighting system, and may be placed only with the approval of the Electric Utility Director. i. New pole locations within fifty (50) feet of existing utility or light poles shall not be permitted. ii. New foundation, adhering to City stan is required when installing new streetlight pole. iii. A plan for a pole shall be submitted for review and approval that shows the existing and proposed streetlight and electrigLinfrastructure and designed in such a way that a unifo li ht distributio rovided in the subject area. iv. Once approved and insta the new streetlight po other infrastructure will be the pr of the City of Lodi. E. In a residential zoning district, in addi on to the above noted gen 1 requirements, the following standards shall apply: i. No small cell wireless communicatio*ility shall be located immediately adjacent to a front yard of any residential dwelling. ii. No small Cell wireless communications facility shall be placed within five ' hundred feet of another small cell wireless facility owned by the same carrier. IN Facilities shall not be located in front of business or residential windows, primary walkways, primary entrances or exits, or in such a way that it would impede a delivery to the building. Facilities shou e located near shared property lines between two adjacent lots as h as possible or along a secondary rear property street frontage. Poles in violation of ADA access requirements shall not be permitted. F. All costs associatJdd with fixing or replacing the damage to the pole or any componene pole that occur during installation are to be paid by the carrier. G. It is the Permittee's responsibility to conduct field verification during the design phase to determine that the pole foundation is adequate for the planned attachments. This verification shall be undertaken and documented by a Registered Professional Engineer (Civil) licensed in the State of California. If the pole foundation is later found to be inadequate based on the dimensions and/or condition of the foundation not matching the plans, field work shall be stopped and the plans redesigned and resubmitted with the proposed foundation details, conduit and conductor layout, anchor bolt pattern confirmation, single line diagram and site 4 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards plan for City Electrical and Structural Engineering approval. H. In the case where a new pole foundation is required, Permittee shall, wherever possible, reuse the location for the existing foundation to place the new pull box for the relocated streetlight pole, and restore any surrounding improvements. 4. Equipment, Wiring and Cabling A. Equipment on pole shall contain antenna and stacked radio relay units (RRU) only. Any other equipment that cannot be installid underground in accordance with Section 2.13 must be low -profile, blended intoe surrounding environment, or placed in another location. B. Equipment and enclosures (not includinna) shall be of low -profile form factor. They shall be mounted as close4toepole as allowed by applicable regulation and manufacturer equipment standards and shall not extend more than 12" from the pole. Enclosures should be consolidated with existing signs to minimize visual impact. C. Antenna should be mounted in a concealed canister (cantenna he top of pole and all equipmeould be mounted flush to the pole. D. Antenna height shall not exceed 2'. E. Antenna width shall not exceed 14.5" in diameter. F. Where there are existing banners on streetlights, written permission must be receiv from the banner owner prior to adjusting banners for small cell insta ns. ' G. Equipm and cabling below the antenna must be shrouded. All equipment on each pole shall be housed in a suitable enclosure to conceal components and cabling from public view. The enclosure shall be coated in material and color matching that of the pole and surroundings. The permittee shall regularly maintain the enclosure and the equipment. o exposed meter, meter pan or meter pedestal may be used. Metered panels kl� sockets shite be mounted at 10' or higher from grade. I. CAWbelow radio relay units shall enter the pole with no more than a five -inch gap b een bottom of each radio relay unit and the bottom of the corresponding entry hole on the pole. Conduit connection at pole entry points shall utilize the smallest fitting sizes available. Sealing compounds, if utilized, shall be tidy without excess bubbling and painted to match pole. J. All cabling, wires, and conduit shall be concealed completely within the pole and applicable shrouds. Cabling and wires shall enter/exit the streetlight pole through conduit sweeps within the streetlight footing. External conduit attachment to the pole is not permitted. Camouflaging and integrating cabling, wires and conduit by using non -reflective materials and colors that blend in with their surroundings may be permitted with the approval of the Electric Utility Director. City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards K. If drilling and cutting into City poles, holes shall be structurally welded and reinforced. Seams and bolts/screws at antenna and shroud assembly area shall be fabricated and installed in a manner so as to reduce their visibility (e.g., flush mounting screws) from sidewalk level. Permittee shall notify the City upon completion of work to provide for any necessary inspections by the City. L. Permittee shall retain fiber and power inside the pole at the base. M. Permittee shall ensure any legs/handles are removed from RRUs and equipment logos are all removed. N. Permittee shall utilize signage (e.g. road, formational signage), or other appropriate elements, in front of RRUs t isibility for pole locations in areas which define City (e.g. historic di s) O. Permittee shall remove all manufa decals and logos. Permittee shall retain one Radio Frequency (RF) wa ing sticker near antenna with smallest size and lowest visibility color a 'Sns 5. Radio Frequency (RF) A. City Street Light and Signage Techor representatives shal ave access to disconnect radio electtcal service for maintenance to streetlights, emergencies or RF interference to public safet&dio systems. Each small cell must have its own circuit breaker in a Stan cation which is clearly marked and easily accessibl r streeth ainte e technicians to de- activate from the gfound. B. Permittee shall submit to the Ci study in cating proposed location, frequency, and Effective Isotropi diated Power (EIRP) will not interfere with Public Safety Radio Network or Ci mmunications equipment and operations. Permittee is obligated to comp**hV laws including all laws related to maximum permissible exposuror EMF emissions on or about the License Area, which includes a, l applicable FCC standards, whether such RF or EMF missions or exposure results from permittee's equipment alone or from the ulative effect of permittee's equipment added to all other sources on or near t . ense Area. After facilityjqs been constructed, the permittee will be required to cover all costs associated with the measuring, recording, reporting and monitoring of emissions, including Electromagnetic Radiation/RF and noise associated with the wireless communications facility. Such information shall be provided, within 30 days of activation of the equipment, in an RF Compliance Report. E. Field testing is required each time a modification (change of small cell equipment) is proposed that may change the RF emissions, and every time the permit is renewed. F. The RF Compliance Report shall be prepared by a certified professional engineer, or other technical expert approved by the City of Lodi and shall provide 6 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards information that demonstrates the facility will not cause any potential exposure to RF emissions that exceed adopted FCC standards for human exposure. Testing shall be conducted in compliance with FCC regulations governing the measurement of RF emissions, and any other testing methods the City may prescribe, and shall be conducted during normal business hours on a non -holiday weekday with the subject equipment measured while operating at maximum power. The RF report must include the actual frequency and power levels (in watts effective radiated power) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. For all measurements made, evidence must be submitted showing that the testing instrument(s) used were calibrated within their manufacturer's suggested periodic calibration intery nd that'fhe calibration is by methods traceable to the National Bureau of Sdards. At the sole option of the City an agent of the City may monitor the performance of testing required for preparation of the RF Compliance Report. G. The permittee shall undertake to inform and perform appropriate tests for residents of dwelling units located within 300 feet o 4 e transmitting antennae at the time of testing for the Activation Report. i. At least 14 calendar days prior to conducZRfig the testing required for preparation of the Activation Report, the Applicant shall notify the Electric Utility Department, and shall send a letter, via registered mail through the U.S. Postal Service, to the resident of any dwelling unit within 300 feet of a transmitting antenna, notifying them of the date on which testing will be conducted. ii. Within 30 days of the installation and operation of the facilities, the Applicant shall confirm in writing to the Electric Utility Department, through an Activation Report, that the facilities are being maintained and erated in compliance with applicable Building, Electrical and other e requirements, as well as applicable FCC emissions standards. H. All wirelessriers shall provide radio maintenance contact, who can be notified prior to radio power being disconnected. 6. Notifications Prior to Construction A. Prior to construction, applicant shall mail out, by regular mail, a notification letter to all owners and occupants within a 300 -foot radius of the subject streetlight. The Community Development Department will supply the mailing list within 5 working days of request by the applicant. The notification letter shall contain the following information: 7 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards i. Clear description of the scope of work ii. Photo simulation iii. Applicant contact information including a telephone number at which the applicant or designated representative may be contacted. B. Residents/businesses/schools must be given 20 calendar days' notice prior to C. construction beginning. If construction operations are delayed for any reason beyond the duration stipulated in the notices or phasing of work includes dormant periods greater than 1 -month intervals, the applicant shall re -issue written not D. The following public outreach information package: i. Notification letter ii. List of recipients 7. Submittals CA Submittals shall be prepared the City of Lodi and local st, following criteria: 1. with permit submittal experienced in ►shall meet the Photo simulations are clear, const nt, and realistically portray antennas, equipment, offset bracket systems, and cabling. Submittals based on Google Street Views are not acceptable. ii. Include engineered drawings reflecting topographic/property maps �ocessing right-of-way, PUE, and pr, e�rt line delineation. iii. Private property access and easements, if required, shall be supported by agreements granting the permittee such access or easements. The agreement shall hold the City harmless of any liabilities. iv. Each submittal shall include a commitment letter approving the electrical point of con 'on, connected equipment specification sheet, location map, elects acalculation and certification that is stamped and signed by a licen lectrical engineer. Underground and overhead utility shall be located and conflicts identified. vi. ore pits and other work above surface in City right-of-way shall be epaired or'replaced according to City standards. vii. EaeWmittal of poles greater than 35' in height shall include a soil study report showing the structural integrity of foundations and poles. viii. Each submittal of new poles located within 10' of roadway without curb and gutter shall include a vehicle impact study and protective devices such as bollards. ix. Each submittal shall include a pole loading calculation to ensure the foundation is sufficient to accommodate the new loading. City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards B. Telecommunication providers must provide notification to the City's Community Development Department when planning to onboard a new design professional to prepare fiber or small cell submittals. All design professionals must be onboarded by Community Development and have a single permit issued before submitting subsequent permits. C. A complete submittal package for small cell installation in the right-of-way, using forms designed or approved by the City, includes each item listed below and must be its own PDF and must the follow the associated naming convention below. Submit the application files electronically to email addressl. i. Revocable Permit Application ii. Construction Encroachment Permit Application iii. Radio Frequency Report A* iv. Structural Analysis prepared by a State of Calif Licensed Civil Engineer, including a Field Verification of Street Light Footing Dimensions. V. Demonstration that the propocility will be compliant with the City's Noise Regulations specified in apter 9.24 of the Lodi Municipal Code. vi. Construction Plans prepared in accordance with the City of Lodi — Department of Public Works Design Standards. The installation of the small cell equipment on all approved permits must be performed by an electrical contractor holding an appropriate current license, as issued by the Contractors State License Board. vii. Certificate of Liability Insurance for Contractor and Owner of Equipment viii. Contractor's LiceC-10) or ther appropriate license and Contact Information ix. Field Walk Data Collectio rm including a physical reading taken from the circuit in question to verify existing capacity. self -certification by the permittee of the maximum AC wattage umption for all equipment associated with each small cell device co ed. E. Upon w proval of a submitted application, the [Community Develop artment] will contact the applicant to confirm the applicant's struction schedule, review and approve applicant's traffic control plan, and assign an inspector. F. The notice to proceed with construction activities (encroachment permit) will be issued at the pre -construction meeting by the inspector assigned by the City. It is the responsibility of the applicant or its contractor to coordinate the date, time, and location of the pre- construction meeting with the assigned inspector. 8. Standard Conditions and Maintenance Obligations 9 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards A. Site Maintenance. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved construction drawings and all conditions in this encroachment permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred. B. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, e6llapse, weakening, or loss of lateral support to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless faci '' the public right-of-way. The permittee shall restore such areas, structures an tems to the condition in which they existed prior to the installation or mainten hat necessitated the repairs. In the event the permittee fails to complete such repai hin thirty (3 0) days of being notified of the need for such repairs by the City, the City may take actions allowed by Article V of Chapter 12.04 for violatincvisions of encroachment permits granted by the City under that Chapter. C. Within thirty (30) days of the anniversary date of the encroachment permit, the permittee shall routinely inspect the small wireless facility to ensure that it is maintained in good condition, including without limitation ensuring the facilities are reasonably free of. general dirt and grease; chipped, faded, peeling, and cracked paint; rust and corrosion; cracks, dents, and discoloration; missing discolored, or damaged camouflage; graffiti, bills, stickers, advertisements, litter, and debris; broken and misshapen structural parts; and any damage from any cause. Permittee shall obtain all necessary permits and regulatory approvals prior to performing any maintenance activity on the personal wireless service facility. Rearrangement and Relocation. Permittee understands and acknowledges that city y require permittee to relocate one or more of its equipment installations. ittee shall at city's direction and upon ninety (90) days prior written notice to pe e, relocate such equipment at permittee's sole cost and expense whenever city r bl determines that the relocation is needed for any of the following purposesequired for the construction, modification, completion, repair, relocation, aintenance of a city or other public agency project; (b) because the equipment is interfering with or adversely affecting proper operation of city owned poles, traffic signals, communications, or other municipal facilities; or (c) to protect or preserve the public health or safety. In the event the City determines there is an urgent need for relocation due to interference or adverse effect on the public health or safety, or proper operation of city owned poles, traffic signals, communications, or other municipal facilities, the City may require relocation of facilities on an expedited basis determined in consultation with the permittee. In 10 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 Small Cell Design & Deployment Standards any such case, city shall use reasonable efforts to afford permittee a reasonably equivalent alternate location. If permittee shall fail to relocate any equipment as requested by the city in accordance with the foregoing provision, city shall be entitled to remove or relocate the equipment at permittee's sole cost and expense, without further notice to permittee. Permittee shall pay to the city actual costs and expenses incurred by the city in performing any removal work and any storage of permittee's property after removal within thirty (30) days of the date of a written demand for this payment from the city. To the extent the city has actual knowledge thereof, the city will attempt promptly to inform permittee of the displacement or removal of any pole on which any equipment is lotted. If the municipal facility is damaged or downed for any reason, and as a result is not able to safely hold the equipment, the city will have no obligation W repair or replace such municipal facility for the use of permittee's equipment, or to protect, remove or store the permittee's equipment installed gn the damaged or downed facility. E. Relocations at Permittee's Request. In the event Permittee desires to relocate any Equipment from one Municipal Facility to another, Permittee shall so advise City. City will use reasonable efforts to a modate Permittee by making another reasonably equivalent Municipal Faci available for use in accordance with and subject to the terms and conditions of this Agreement. City may require Permittee to submit an application and/or enter into a new Supplement for the prospective relocation site. Permittee shall be liable for all cos of relocation, including any P4 % % 11 City of Lodi, CA Small Cell Deployment Standards Final Draft August 2021 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI AMENDING LODI MUNICIPAL CODE TITLE 17 — DEVELOPMENT CODE — ARTICLE 3 "SITE PLANNING AND GENERAL DEVELOPMENT STANDARDS", CHAPTER 17.36 "STANDARDS FOR SPECIFIC LAND USES", BY ADDING SECTION 17.36.150 "SMALL CELL WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY" ----------------------------------------------------------------------- ----------------------------------------------------------------------- BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: Section 1. Lodi Municipal Code Title 17 — Development Code — Article 3 "Site Planning and General Development Standards", Chapter 17.36 "Standards for Specific Land Uses" is hereby amended by adding Section 17.36.150 "Small Cell Wireless Telecommunication Facilities in the Public Right -of -Way": 17.36.150 Small Cell Wireless Telecommunication Facilities in the Public Right -of -Way A. Purpose and Intent. The purpose of this section is to establish policies and procedures for the placement of small wireless telecommunication facilities in the public right-of-way within the City's jurisdiction. The placement of wireless telecommunication facilities outside of the public right-of-way is regulated elsewhere in this Code. This section is also intended to manage the approval process for small wireless telecommunication facilities in the public right-of-way so as to promote the expansion of wireless service and coverage within the City to serve residents and businesses. This section is intended to impose reasonable time, place and manner regulations upon the installation of wireless telecommunication facilities within the public right-of-way pursuant to Public Utilities Code section 7901.1, to prevent interference with the use of the public right-of- way for travel or other lawful uses of the public right-of-way, prevent visual and physical obstructions that create safety hazards, minimize damage to the City's pavement, and protect the aesthetics and character of the locations where wireless telecommunications facilities are installed. B. Definitions The following words and phrases shall, for the purposes of this section, have the following meanings: 1. "Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. 2. "Collocate" means to install, mount, maintain, modify, operate, or replace wireless telecommunications facilities on an existing pole. "Collocation" has a corresponding meaning. 3. "Day" means calendar day. 4. "Director" means the Public Works Director or his or her designee, or the Director of Electric Utility or his or her designee. The "Public Works Director" shall be the "Director" for all installations which do not include infrastructure under the control of the Lodi Electric Utility. The "Director of Electric Utility" shall be the "Director" for all installations on infrastructure under the control of the Lodi Electric Facility. 1 5. "Large wireless telecommunications facility" means wireless telecommunications facility which exceeds either of the maximum sizes for a "small wireless telecommunications facility." 6. "Master License Agreement" means an agreement between the City and a wireless telecommunications provider including, among other terms, the details of approved designs for small wireless telecommunications facilities to be installed by the provider. 7. "Parkway" means that area between the sidewalk and the curb of any street, and where there is no sidewalk, that area between the edge of the roadway and the property line adjacent thereto. Parkway shall also include any area within a roadway, which is not open to vehicular travel. 8. "Person" means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the City. 9. "Public sidewalk" means any surface dedicated to the use of pedestrians by license, easement, operation of law or by grant to the City. 10. "Public right-of-way" or "right-of-way" means any public street, public way, or public place, and the space on, above or below it, and all extensions thereof, and additions thereto, under the jurisdiction of the City. 11. "Public street" means all of that area dedicated to public use for public street and sidewalk purposes and includes, but is not limited to, roadways, parkways, landscape areas, alleys and sidewalks. 12. "Small wireless telecommunications facility" means those facilities defined by 47 C.F.R. Section 1.6002(1) as may be amended, and subject to the regulations as set forth in this Section 17.36.150. 13. "Vertical support structure" means poles and non -decorative streetlight standards owned by the City of Lodi onto which are mounted streetlights, telecommunications cables, and electrical distribution and supply lines. 14. "Wireless telecommunications facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: (i) equipment associated with wireless communications; and (1)) radio transceivers, antennas, coaxial or fiberoptic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless telecommunications facilities. The term does not include: (i) the structure or improvements on, under, or within which the equipment is collocated; or (ii) coaxial or fiber-optic cable that is between wireless support structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. 15. "Wireless telecommunications provider" means a company operating wireless telecommunication facilities. C. Permissible Facilities 1. Small Wireless Telecommunications Facilities. Small wireless telecommunications facilities that wholly or partially rest upon, in, or over the public right-of-way are allowed with a permit from the City and subject to compliance with all provisions of this section. All other wireless telecommunications facilities are disfavored within the public right-of- way. Wireless telecommunication facilities which do not meet the criteria for "small wireless telecommunications facility" are allowed in the public right-of-way subject to the permit requirements in Chapter 12.04 of this Code. 2 Notwithstanding the foregoing, the Director may modify the application requirements as determined appropriate for a proposed right-of-way installation, including but not limited to requiring submission of Certificate of Public Convenience and Necessity from the California Public Utilities Commission in lieu of a lease or other agreement. D. Small Wireless Telecommunications Facility Application 1. Eligibility. A small wireless telecommunications facility may be located in the public right- of-way subject to the permit requirements in Chapter 12.04 of this Code and the application requirements of this section. 2. Permissible Locations. A small wireless telecommunications facility may be located on any existing City -owned pole or other vertical infrastructure in the right of way, as defined above including but not limited to streetlights, provided that the City and owner of the small wireless telecommunication facility have entered into a master license agreement for the installation of the facility on the City asset, and the facility is in compliance with all of the terms and conditions of the license agreement. 3. Application Submittal. An application shall be made to the Director on such form as required by the City and shall contain all of the following information: a. If the proposed facility does not substantially conform to a previously approved design for small wireless telecommunications facilities, an explanation as to why conforming to a previously approved design is not feasible and demonstrating that the proposed facility will not create a negative aesthetic impact to the area; b. If the proposed facility will not be collocated on an existing pole or other vertical support structure, information demonstrating that either: i. No existing pole or other vertical support structure in the vicinity of the proposed location is available to the applicant, or ii. Utilizing an existing pole or other available vertical support structure would result in greater public safety or aesthetic impacts than the proposed new facility. iii. Information required by the Submittal requirements of the City's Small Cell Design and Deployment Standards. Within thirty (30) days of receiving an application, the City must determine and notify the applicant whether the application is complete, unless a shorter period of time is required by state or federal laws or regulations, and if incomplete must specify in writing what information is missing. 4. Application Approval. The Director shall approve an application for a standard permit within sixty (60) days of the submittal of an application containing all of the items required by paragraph C of this section if the Director makes all of the following findings: a. The proposed facility meets the definition of a small wireless telecommunications facility; b. The proposed facility complies with the City's Small Cell Design and Deployment Standards and the standards contained in Section 17.36.150(E), and is not reasonably likely to endanger the safety of persons or property, interfere with or 3 impedes the flow of pedestrian or vehicular traffic, or interfere with existing uses and facilities in the vicinity; If the proposed facility does not substantially conform to a previously approved design, that the design of the proposed facility is aesthetically consistent with its surroundings and visually unobtrusive; and d. If the proposed facility will not be collocated on an existing pole or other vertical support structure, that no existing support structure is reasonably available to the applicant or that the proposed facility will have lesser impacts than if it were collocated on an existing support structure. 5. Excavation Permit Required. If the installation of the proposed wireless telecommunications facility involves excavation of the public right-of-way, an excavation permit must also be obtained pursuant to this Code. E. Standards Lodi Electric Utility Department Standards. The Lodi Electric Utility Department may develop and administer Small Cell Design and Deployment Standards for small cell facilities proposed to be installed within Lodi City limits. These standards may address subjects related to placement of small cell facilities including pole availability, location, and pole loading, general and specific requirements for placement of small wireless facilities equipment and aesthetics, radio frequency matters, standard conditions and maintenance obligations, examples of designs which have been previously approved, and submittal requirements. 2. Location Standards a. No person shall install, use or maintain any wireless telecommunications facility which projects onto, in or over any part of the roadway of any public street or which rests, wholly or in part, upon, along or over any portion of the roadway of any public street. b. No person shall install, use or maintain any wireless telecommunications facility which in whole or in part rests upon, in or over any public sidewalk or parkway, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property. Nor shall any wireless telecommunications facility unreasonably interfere with or impede the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. 3. Installation Standards a. The wireless telecommunications facility shall be colored to blend with other streetscape or surrounding features to the extent feasible. b. In the event the parkway and/or roadway adjacent to the applicant's wireless telecommunications facility is disturbed or altered in the process of installation, the applicant shall restore the parkway to the condition in which it existed prior to installation. 4 c. No modifications to an above -ground wireless telecommunications facility, including those related to size, color, and shape of the housing, may be made by the applicant without first having obtained approval from the Director. d. The applicant shall place all existing or proposed equipment cabinets other equipment not mounted to pole below ground whenever feasible. Where equipment is ground - mounted, the equipment shall be setback at least two feet from the edge of the sidewalk and shall be screened from public view, to the extent feasible. e. All equipment and facilities installed shall comply with the Americans with Disabilities Act for proper clearance distances. f. The applicant shall obtain the Director's approval of a tree protection plan prepared by a certified arborist for the installation of any wireless telecommunications facility located within the canopy of a street tree or within minimum of a 10 -foot radius of the base of such a tree. Depending on site specific criteria (e.g. location of tree, size and type of tree etc.), a radius greater than 10 feet may be required by the Director. g. No wireless telecommunications facility may be illuminated unless specifically required by the Federal Aviation Administration or other governmental agencies. h. An antenna array shall not extend over 7 feet beyond the top of the pole, unless additional height is required to comply with California Public Utilities Commission General Order 95 or any subsequent orders of the CPUC, or unless authorized by a preapproved design. i. Panel antennas shall utilize brackets that allow no more than a 4 -inch extension from the pole, unless additional extension is required to comply with California Public Utilities Commission General Order 95 or any subsequent orders of the CPUC, or unless authorized by a preapproved design. Panel antennas shall not exceed the height of the pole unless such design is part of a preapproved design. j. If an applicant proposes to replace an existing pole in order to accommodate their telecommunications facility, the replacement pole or other material shall match the appearance of the original surroundings to the extent feasible and shall be approved by the Director. k. No new pole may be installed in the public right-of-way that is more than 10% taller than the average height of existing poles in the right-of-way in the vicinity of the installation, as determined by the Director. 4. Maintenance Standards a. The permittee shall provide on-going maintenance of its ground mounted, at -grade or above -grade wireless telecommunications facilities, including ensuring the facilities are reasonably free of: i. General dirt and grease; ii. Chipped, faded, peeling, and cracked paint, or on all visible painted areas; iii. Visible rust or corrosion; iv. Cracks, dents, blemishes, and discoloration; 5 V. Graffiti, bills, stickers, advertisements etc.; vi. Broken and misshapen structural parts; vii. Exposed wires; and, viii. Any damage from any cause including, but not limited to, vandalism. b. Wireless telecommunications facilities shall be maintained such that they comply at all times with the noise regulations set forth in this Code. c. All ground -mounted, at -grade, and above -ground wireless telecommunications facilities shall be properly maintained in accordance with the following procedures: All necessary repairs, including graffiti removal, shall be completed by the applicant within 48 hours after discovery of the need for such repairs or in receiving notification from the Director. The applicant shall provide routine maintenance within ten (10) working days after receiving notification from the Director. iii. The applicant shall replace ground -mounted, at -grade, and above ground wireless telecommunications facilities, in kind, if routine or emergency maintenance is not sufficient to return the equipment to the condition at the time of installation. 5. Hold Harmless Agreement. Every permittee, and person on a shared permit, must agree to defend, indemnify, and hold harmless the City of Lodi, its City Council, officers, and employees to the maximum extent permitted by law, from any loss or liability or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person as a result of the installation, use, or maintenance of the applicant's facilities. 6. Insurance Required. Every permittee agrees to maintain public liability insurance, naming the City as an additional insured, in an amount that meets or exceeds the minimum levels and standards of liability insurance and claims reserve, established by the City's Risk Manager. This requirement may be satisfied through self-insurance or an insurance policy from an insurer admitted in California. F. Removal and Relocation Emergency Removal. The City retains the right and privilege to cut or move any wireless telecommunications facility located within the public right-of-way of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the City shall notify the permittee and provide the permittee an opportunity to move its own facilities prior to cutting or removing facility, and shall notify the permittee after cutting or removing a small wireless telecommunications facility. 2. Removal of Facility for Public Improvement. Within ninety (90) days following written notice from the City, a permittee shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any wireless telecommunications facility within the public right-of-way whenever the City has determined that such removal, relocation, change or alteration, is reasonably necessary 0 for the construction, repair, maintenance, or installation of any City improvement in or upon, or the operations of the City in or upon, the public right-of-way. 3. Abandonment of Facilities. The permittee shall notify the City within ninety (90) days of the abandonment of a wireless telecommunications facility within the public right-of-way. Following receipt of such notice the City may direct the permittee to remove all or any portion of the facility if the City, or any of its departments, determines that such removal will be in the best interest of the public health, safety and welfare. 4. Damage and Repair. The City may require a permittee to repair all damage to the public right-of-way caused by the activities of the permittee and return the public right-of-way to its functional equivalence before the damage. If the permittee fails to make the repairs within 90 days after written notice, the City may affect those repairs and charge the permittee the reasonable, documented cost of such repairs. G. Modifications Any proposed modification to an existing wireless telecommunication facility in the public right-of-way shall be reviewed and approved subject to the standard permit procedure of this section, unless the applicant claims that the requested modification is subject to the requirements of Section 6409(a) of the Spectrum Act (codified at 47 U.S.C. 1455(a)) and the regulations implementing Section 6409(a) (47 CFR 1.40001), which require the City to approve "any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimension of such structure.' 2. Any person seeking City approval of a modification claimed to be subject to the requirements of Section 6409(a) shall submit to the City an application for modification that is accompanied by information demonstrating that the proposed modification meets the eligibility requirements under Section 6409(a). No additional information or documentation shall be required of applicants claiming coverage under Section 6409(a). The Director shall approve any requested modification that the Director determines meets the eligibility requirements of Section 6409(a) within the same timeframes provided for in the standard permit procedure in this section. H. Master License Agreement 1. Master License Agreement, in a form approved by the City, is required to install, maintain, and operate wireless communication facilities on existing vertical infrastructure in the public right-of-way. Each wireless telecommunications provider shall enter into a separate Master License Agreement. 2. A Master License Agreement shall include any information and terms deemed necessary by the City, including agreement terms, limitations, responsibilities of each party, enforcement, etc. 3. A Master License Agreement may include or refer to City -approved designs for typical small cell installations in order to allow the streamlined processing of small cell applications. 4. A Master License Agreement shall require approval by the City Council. Amendments to an existing Master License Agreement may be made only by the City Council unless otherwise provided in the Agreement. 7 I. Enforcement This section may be enforced in any manner authorized under the law, including but not limited to enforcement via civil, criminal or administrative actions. Remedies under this section are in addition to and do not supersede or limit any and all other remedies, civil, criminal or administrative. The remedies provided for herein shall be cumulative and not exclusive. Section 2. No Conflict. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 3. No Mandatory Duty of Care. This Ordinance is not intended to and shall not be construed or given effect in a manner that imposes upon the City or any officer or employee thereof a mandatory duty of care towards persons and property within or without the City, so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 4. Severability. If any provision of this Ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. This City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the Ordinance by enforced. Section 5. Effective Date and Publication. This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance bay be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c)(1). Approved this day of December, 2021. ALAN NAKANISHI Mayor Attest: JENNIFER CUSMIR City Clerk ---------------------------------------------------------------- ---------------------------------------------------------------- 0 State of California County of San Joaquin, ss. I, Jennifer Cusmir, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held 2021, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2021, by the following vote: AYES: COUNCIL MEMBERS — NOES; COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: JANICE D. MAGDICH City Attorney W" JENNIFER CUSM[R City Clerk City of Lodi, CA City Council: Wireless Ordinance, Small Cell Standards& Master License Agreement Presented By: Jory Wolf, VP of Digital Innovation November 17, 2021 f MANAGING PLACEMENT Telecommunication companies are rolling out 5G technology, rapidly. Adding to 4G coverage Designed to densify coverage through "small cells" placed closely together (e.g., every 800ft.) Small cells are antenna and related equipment that telecommunication providers deploy to increase their overall network capacity and to extend wireless coverage. Mage►lan - 2 MANAGING PLACEMENT providH 6 Ni-gF Flush Mounted St reit I Ig ht utility Poles 70�e 1 a aria 1iw,i "i r;{sa se pl; e heigM Loy na mace 06)h 5f"s PLL10 pa 1% Urelou % —ay mw"w pc� c dF6b om ((( I ))) Pole Tapper r ellan .- f .rLh -tn i"rj if, ISfrI mY Lament ffj 1r,+gtid vym rd i v— i porete*„amE 1 Flush MoU nted Pale To pp e r - 3 L PREEMPTED LOCAL REGULATORY POWERS Magelan ► Wireless lobby pursued a legislative agenda to remove barriers to wireless deployment. FCC laws and regulations mandate local governments lease public infrastructure, eliminate reasonable local environmental and design review, and constrain the ability for local governments to negotiate fair leases or public benefits for use of public infrastructure. Local authority to deny/regulate installation is mostly preempted. Only local regulatory powers for aesthetics prevailed. Draft Wireless Ordinance and Design Guidelines provide for local control as laws and regulations permit. FEDERAL REGULATION -ADVISORS The Federal Communications Commission's Small Cell Order (2018) and 9th Circuit Court of Appeals Decision (2020) 9th Circuit upheld FCC on attachment and administrative fees that can be charged by a local authority- FCC required "objectively reasonable costs" and set out a presumptively reasonable amount as a "safe harbor" of $270 per attachment per year. 9th Circuit reversed FCC on its attempted preemption of local authority over aesthetic considerations. The proposed ordinance is compliant with the provisions of the FCC Small Cell Order and the standards & guidelines reasonably implement the City's authority over aesthetic considerations. Earlier FCC regulations address RF emissions and modification of existing facilities ORDINANCE and STANDARDS & GUIDELINES DEVELOPMENT Created by Working Group Including: Community Development Lodi Electric Public Works City Attorney's office r ellan -ADVISORS#- Reviewed similar ordinance and agreements by many other agencies in the area and statewide Reviewed and considered small cell standards and guidelines from many other agencies in the area and statewide Circulated the final draft ordinance and standards & guidelines to all known telecommunications providers for comment Reviewed industry comments and adjusted drafts as necessary - 7 WIRELESS ORDINANCECIO fo Mae►gADVISORS Ordinance governs the placement of all small wireless telecommunication facilities in the public right-of-way. Overseen by Public Works Director or his or her designee, or the Director of Electric Utility or his or her designee. Establishes approval process for small wireless telecommunication facilities in the public right of way to promote efficiency in the expansion of wireless service and coverage within the City to serve residents and businesses. Imposes reasonable time, place and manner regulations upon the installation of wireless telecommunication facilities within the public right-of-way. Prevents interference with the use of the public right-of-way for travel or other lawful uses of the public right-of- way. Prevents visual and physical obstructions that create safety hazards. Minimizes damage to the City's pavement. Protects the aesthetics and character of the locations where wireless telecommunications facilities are installed. - 8 APPLICATION and NOTIFICATION PROCESS Magelga�n� Section 5 of the Ordinance addresses SWF application requirements Excavation permit required if installation involves excavation Requires Master License Agreement for SWF installation on City assets Requires conformance with Small Cell Design and Deployment Standards or explanation why use of previously approved design is not feasible Deadlines for notifying applicant the application is complete (30 days) and approval (60 days) upon required findings Section 6 of the Small Cell Design and Deployment Standards addresses notification requirements Notification prior to construction to all owners/occupants within 300 foot radius of subject streetlight CDD provides mailing list Notification provides clear description of scope of work, photo simulation and applicant contact information Notification provided at least 20 calendar days priorto construction If construction is delayed for more than a month, notice must be reissued Outreach information to be provided in application submittal package Section 7 of the Small Cell Design and Deployment Standards lines out specific submittal requirements - 9 DESIGN STANDARDS & GUIDELINE° Mage► Administered by the relevant City department (e.g., Lodi Electric Utility) under authority included in the wireless ordinance Allows for flexibility with changing technology trends, avoids embedding specific technology in the Code Wireless facilities are to be installed in the least intrusive manner, maximally blending with the natural and built environment of the City and protecting the aesthetic character of the City. Includes specific requirements on Site Location, Equipment, Wiring and Cabling, Radio Frequency Requirements, Submittals, Notifications, and Standard Conditions and Maintenance Obligations as well as General Conditions. - 10 MASTER LICENSE AGREEMENT MLA contains uniform terms and conditions applicable to all wireless facilities installed on City -owned poles by all providers - each providerwill execute an MLA The Working Group created draft MLA based on MLAs from many other agencies in the area and statewide Will be negotiated with each carrier under the ordinance's requirements and bring each negotiated agreement to the Council for approval. The MLA will cover individual pole licenses which identify the licensed pole and contain detailed exhibits for the site plans, permits, fee schedules, insurance documentation, and other materials that are unique to each site - 11 MASTER LICENSE AGREEMENT Draft Provisions include: Term: 10 years with option for two 5 -year renewals License Rate: Annual rate under review by staff. To be included in MLA for future Council Approval. Includes 3% annual rate increase. Security Deposits Required to cover any fees and costs to remedy any default under the MLA. Construction: Construction of site must be completed within 60 days of the agreement's commencement date. 12 STAFF RECOMMENDED MOTION Staff recommends that the City Council introduce an ordinance amending Lodi Municipal Code Title 17 - Development Code - Article 3 "Site Planning and General Development Standards", Chapter 17.36 "Standards for Specific Land Uses", by adding Section 17.36.150 "Small Cell Wireless Telecommunication Facilities in the Public Right -of -Way". - 13 QUESTIONS? Mage//an ADV/SORB u` rll +1 ! POSTIN �� AGN°�� ORDINANCE NO. 1989 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 13 .— PUBLIC SERVICES =CHAPTER 13,20, "ELECTRICAL SERVICE," ARTICLE III, "RATES," BY REPEALING AND REENACTING SECTION 13.20.310, "SCHEDULE EDR — ECONOMIC DEVELOPMENT RATES," IN ITS ENTIRETY On Thursday, November 18, 2021, in the City of Lodi, San Joaquin County, California, a certified copy of Ordinance No. 1989 (attached hereto, marked Exhibit "A") was posted in the Lodi City Clerk's Office. I declare ander penalty of perjury that the foregoing is true and correct. Executed on November 18, 2021, at Lodi, California. c=, ;Z-�AAaQ Pamela M. 1° . rns Assistant City Clerk ordsum mari es\aaDecPos t. doe ORDERE=D BY: JENNIFER CUSMIR CITY CLERK Kaylee Clayton Administrative Clerk ORDINANCE NO. 1989 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 13 — PUBLIC SERVICES — CHAPTER 13.20, "ELECTRICAL_ SERVICE," ARTICLE III, "RATES," BY REPEALING AND REENACTING SI-CTION '13.2.0,315, "SCHEDULE EDR - ECONOMIC DEVELOPMENT RATES," IN 1"1-S ENTIRETY BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: SECTION 1. Lodi Municipal Code Title 13 — Public Services — Chapter 13.20, "Electrical Service," Article III, "Rates," is hereby amended by repealing and reenacting Section 13.20.315, "Schedule EDR - Economic Development Rates," in its entirety. Section 13.20.315 shall read as follows: SECTION 13.20.315 SCHEDULE EDR - ECONOMIC DEVELOPMENT RATES Applicability: A. New Business Rate (NBR) Discount. NBR discount, applicable to any new corrunercial or industrial customer that locates their operations/business in the City of Lodi and receives electric utility service from the City of Lodi, with the following stipulations: a customer assigned to the G1 electric utility rate shall receive a discount for twelve consecutive months of twenty-five dollars per month; and, customers assigned to the G2, G3, G4, G5, or 11 electric utility rate shall receive a discount for twelve consecutive months of five percent; and this rate discount may not be combined with any other electric discount or rate, including but not limited to the NJR discount, and shall only apply to the base rate. Surcharges including, but not limited to, the California Energy Commission fee, public benefits charge, state energy tax, and other assessments or charges after the date of this rate schedule shall not be subject to this discount. B. New Jobs Rate (NJR) Discount. NJR discount, applicable to any commercial or industrial customer that adds a minimum of one full-time position, and retains that position for at least twelve consecutive months, with the following stipulation; a two percent discount for one to three new positions; four percent discount for four to six new positions; six percent discount for seven to nine positions; eight percent discount for ten to twenty new positions. NJR discount, applicable to any commercial or industrial customer that adds 21 to 30 new, full-time positions, and retains those positions for 24 consecutive months, an eight percent discount; that adds 31-40 positions and retains those positions for 36 consecutive rrionths, an eight percent discount; that adds 41-50 positions and retains those positions for 48 months, an eight percent discount; and that adds greater than 50 positions and retains those positions for 60 consecutive months, an eight percent discount. The discount will remain in effect if the number of new positions remain 'funded for the corresponding time period. The maximum discount available is eight percent; all discounts and time periods the discount remains in effect are contingent on the number of new, full-time employees added at the time of application; all discounts are subject to submission and validation of reports, as- specified sspecified by the City. This rate discount may not be combined with any other electric discount or rate, including but not limited to the NBR discount, and shall only apply to the base rate. Surcharges including, but not limited to, the California Energy Commission fee, public benefits charge, state energy tax, and other assessments or charges after the date of this rate schedule shall not be subject to this discount. C. The rate schedules referenced above shall be effective on applicable electric utility billings prepared by the City of Lodi on or after January 1, 2022. S1rC`f ION 2 No Mandatory Duty Of C -21M. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION 3. Severability,. If any provision of this ordinance or the application thereof to any person or circumstances is hold invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. 4y �7 iN 4 All ordinance and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. 'lbw . Effective Date and F UbligZt icon. ]-his ordinance shall take effect on January '1, 2022. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c) (1). ATT�E ST: JENNIFER CU_ SMIR City Clerk State of California County of San Joaquin Approved this day of � k 2021. ALAN NARANISHI Mayor I, Jennifer Cusmir, City Clerk of the City of Lodi, do hereby certify that Ordinance No. '1939 was introduced at a regular meeting of the City Council of the City of Lodi held November 17, 2021, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held December 1, 2021, by the following vote: AYES: COUNCIL. MEMBERS - NOES: COUNCIL MEMBERS -• ABSENT: COUNCIL MEMBERS ABSTAIN: COUNCIL MEMBERS -- I I further certify that Ordinance No. 1939 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. JENNIFER CUSMIR City Clerk Approved as to Form: ,1ANICE D. MAGIDICH City Attorney 'Tho forcq)oIng d0CW--Y1(1M b, QQAjil0ci JQ tic. Coric;4t Copy of tho orlgln al on Ajl<, in th(o City Cjior•tc's ()IrjQQ. A��i4t6nt City C i)rtc, Q6ty Qf LOA! vatoci: �w,�941 Pleasei�zmediately confirm receipt s this fax by calling 333-670. CITY OF LODI P. O. BOX 3006 LODI, CALIFORNIA 952414910 ADVERTISING INSTRUCTIONS SUBJECT: JECT: SUMMARY OF ORDINANCE NO. 1987 - NO. 1989 pUBL1$H DATE: SATURDAY, NOVEMBER 20, 2021 4 I TEAR SHEETS WANTED:�I SEND AFFIDAVIT AND BILL TO: JENNIFER CUSMIR, CITY CLERK LN3 ACCT. 05100152 City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: THURSDAY, NOVEMBER 18, 2021 ORDERED BY: JENNIFER CUSMIR CITY CLERK PAMELA M. FARRIS KAYLEE CLAYTON ASSISTANT CITY CLERK ADMINISTRATIVE CLERK Verify Appoaranco Y Legal the Newspaper Copy I Emailed to he Sentinel at legals@lodMews.com at 21.[a (time)on (date) \\cvcfi1v01\Ad in istration$Wdministration\CLERK\OrdSu nunarieMdvins, doc CITY OF LODI ORDINANCE NO. 1987 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 17 — DEVELOPMENT CODE — ARTICLE 3, "SITE PLANNING AND GENERAL DEVELOPMENT STANDARDS," CHAPTER 17.36 "STANDARDS FOR SPECIFIC LAND USES," BY REPEALING AND REENACTING LODI MUNICIPAL CODE SECTION 17.36.130, "SECOND DWELLING UNITS." The purpose of this ordinance is to amend the Lodi Municipal Code to be compliant with State Accessory Dwelling Unit and Junior Accessory Dwelling Unit development standards within the City for efficient implementation. Introduced November 3, 2021. Adopted November 17, 2021 and effective December 17, 2021. AYES: Chandler, Khan, Kuehne, and Mayor Nakanishi; NOES: None; ABSENT: Hothi. ORDINANCE NO. 1988 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 17 — DEVELOPMENT CODE — ARTICLE 3, "SITE PLANNING AND GENERAL DEVELOPMENT STANDARDS," CHAPTER 17.36 "STANDARDS FOR SPECIFIC LAND USES," BY ADDING SECTION 17.36.150, "SMALL CELL WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT OF WAY." The purpose of this ordinance is to ensure compliance with Federal Communications Commission orders regarding application timeline/turnaround and fees, as well as address policy, public safety, land -use, and right-of-way issues for small cell wireless telecommunication facilities in the public right-of-way. Introduced November 17, 2021. Adoption to be considered December 1, 2.021. AYES: Chandler, Khan, Kuehne, and Mayor Nakanishi; NOES: None; ABSENT: Hothi. ORDINANCE NO. 1989 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 13 — PUBLIC SERVICES —CHAPTER 13.20, "ELECTRICAL SERVICE," ARTICLE III, "RATES," BY REPEALING AND REENACTING SECTION 13.20.315, "SCHEDULE EDR — ECONOMIC DEVELOPMENT RATES," IN ITS ENTIRETY. The purpose of this ordinance is to modify the New Jobs Rate (NJR) discount program for Lodi Electric Utility's commercial and industrial customers creating more than 20 new jobs. Introduced November 17, 2021. Adoption to be considered December 1, 2021. AYES: Chandler, Khan, Kuehne, and Mayor Nakanishi; NOES: None; ABSENT: Hothi. Jennifer Cusmir, City Clerk City of Lodi November 17, 2021 Certified copies of the full text of these ordinances are available in the office of the Lodi City Clerk. Please immediately confirm receipt of this fax by calling 333-6702 CITY OF LODI P. O. BOX 3006 LODI, CALIFORNIA 95241-1910 ADVERTISING INSTRUCTIONS SUBJECT: NOTICE OF PUBLIC HEARING TO INTRODUCE AN ORDINANCE AMENDING LODI MUNICIPAL CODE TITLE 17 — DEVELOPMENT CODE — ARTICLE 3, "SITE PLANNING AND GENERAL DEVELOPMENT STANDARDS," CHAPTER 17.36, "STANDARDS FOR SPECIFIC LAND USES," BY ADDING SECTION 17.36.150, "SMALL CELL WIRELESS TECHNOLOGY FACILITIES IN PUBLIC RIGHT-OF-WAY" PUBLISH DATE: SATURDAY, NOVEMBER 6, 2021 TEAR SHEETS WANTED: One (1) please SEND AFFIDAVIT AND BILL TO: JENNIFER CUSMIR, CITY CLERK LNS ACCT. #5100152 City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: THURSDAY, NOVEMBER 4, 2021 ORDERED BY: JENNIFER CUSMIR CITY CLERK PAMELA M. FARRIS ASSISTANT CITY CLERK KAYLEE CLAYTON ADMINISTRATIVE CLERK Emailed to the Sentinel at legals(glodinews.com at 'a �aotime) on i 14. (date). (pages) forms\advins.doc DECLARATION OF POSTING NOTICE OF PUBLIC HEARING TO INTRODUCE AN ORDINANCE AMENDING LODI MUNICIPAL CODE TITLE 17 — DEVELOPMENT CODE — ARTICLE 3, "SITE PLANNING AND GENERAL DEVELOPMENT STANDARDS," CHAPTER 17.36, "STANDARDS FOR SPECIFIC LAND USES," BY ADDING SECTION 17.36.150, "SMALL CELL WIRELESS TECHNOLOGY FACILITIES IN PUBLIC RIGHT-OF-WAY" On Thursday, November 4, 2021, in the City of Lodi, San Joaquin County, California, a Notice of Public Hearing to consider introducing an ordinance amending Lodi Municipal Code Title 17 — Development Code — Article 3, "Site Planning and General Development Standards," Chapter 17.36, "Standards for Specific Land Uses," by adding Section 17.36.150, "Small Cell Wireless Technology Facilities in Public Right -of -Way" (attached and marked as Exhibit A) was posted at the following locations: Lodi City Clerk's Office Lodi City Hall Lobby Lodi Carnegie Forum WorkNet Office I declare under penalty of perjury that the foregoing is true and correct. Executed on November 4, 2021, at Lodi, California. PAMELA M. FARRIS ASSISTANT CITY CLERK ORDERED BY: JENNIFER CUSMIR CITY CLERK c q. , aG-. KA L E CLAYTON ADMINISTRATIVE C ERK \\cvcfilv0l\administration$\Administration\CLERK\Public Hearings\AFFADAVITS\DECPOSTCDD.DOC . UTY OF LODI Carnegie Forum 305 West Pine Street, Lodi NOTICE OF PUBLIC HEARING Date: November 17, 2021 Time: 7:00 p.m. For information regarding this notice please contact: Jennifer Cusmir City Clerk Telephone: (209) 333-6702 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that on Wednesday, November 17, 2021, at the hour of 7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider the following item: a) Ordinance amending Lodi Municipal Code Title 17 — Development Code — Article 3, "Site Planning and General Development Standards," Chapter 17.36, "Standards for Specific Land Uses," by adding Section 17.36.150, "Small Cell Wireless Technology Facilities in Public Right -of -Way." Information regarding this item may be obtained in the Community Development Department, 221 West Pine Street, Lodi, (209) 333-6711. All interested persons are invited to present their views and comments on this matter. Written statements may be filed with the City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior to the hearing scheduled herein, and oral statements may be made at said hearing. If you challenge the subject matter in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to the close of the public hearing. By Order f the Lodi City Co�lncil: n r Cu it U;jy Clerk Dated: November 3, 2021 App ved as to form: JanRw . Magdich City Attorney AVISO: Para obtener ayuda interpretativa con esta noticia, por favor (lame a la oficina de la Secretaria Municipal, a las (209) 333-6702. CLERKIPUBHEARINOTICESINOTCDD_Wireless 10/29/21