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19-0917_NEW CINGULAR WIRELESS PCS, LLC_E9_Correspondence_1dIL AT&T VIAE MAIL San Juan Capistrano City Council San Juan Capistrano, CA ANN AHRENS BECK Assistant Vice President - Senior Legal Counsel September 16, 2019 9/17/2019 AT&T Services, Inc. 208 S. Akard Street Room 3026 Dallas, TX 75202 Phone: 214.757.5748 E -Mail: ann.beck@att.com Re: AT&T's Comments to Municipal Facility License Agreement Dear Mayor Maryott, Mayor Pro Tem Bourne, Councilmembers Farias, Reeve and Taylor, and Mr. Alvarez: I write on behalf of my client New Cingular Wireless PCS, LLC (AT&T) to provide comments on the proposed Municipal Facility License Agreement regarding wireless telecommunications facilities (the "Agreement") for the City of San Juan Capistrano (the "City"), which will license the placement of wireless telecommunications facilities on City light poles. AT&T recognizes the City's desire to regulate placement of wireless telecommunications facilities, as well as the need to carefully balance the City's interests with the rights of wireless providers to access and place equipment on City light poles. AT&T has worked with other jurisdictions to draft reasonable master license agreements similar in form to the Agreement. With this experience in mind, AT&T feels there are a number of provisions/concepts in the current version of the Agreement that are not reasonable and might prevent AT&T from being able to move forward with finalizing the Agreement with the City. Accordingly, AT&T offers the following comments with respect to the Agreement that outline the unacceptable Agreement provisions/concepts and AT&T's rationale for such positions. AT&T respectfully requests removal and/or revision of the unacceptable Agreement provisions/concepts prior to presentation to City Council and welcomes the prospect of working with the City to improve the Agreement. AT&T Comments to the A iKreement -Definition of "Services" (Section 1.10) — The Agreement's definition of "Services" includes a reference to the Digital Infrastructure and Video Competition Act (DIVCA) that creates an ambiguity as to the definition's meaning and scope within the context of the Agreement. DIVCA is inapplicable to video services delivered wirelessly by a commercial mobile service provider (i.e., AT&T, Verizon, T -Mobile, etc.). Specifically, Cal. Pub. Utilities Code Section 5830(s) states as follows: "(s) "Video service" means video programming services, cable service, or OVS service provided through facilities located at least in part in public rights -of- way without regard to delivery technology, including Internet protocol or other technology. This definition does not include (1) any video programming provided by a commercial mobile service provider defined in Section 332(4) of Title 47 of the United States Code, or (2) video programming provided as part of, and via, a service that enables users to access content, information, electronic mail, or other Errorl Unknown document property name.Errorl Unknown document property name. �J services offered over the public Internet." AT&T is a commercial mobile service provider. The Agreement relates to installing facilities to provide wireless services to consumers; not fiber optic or cable services to consumer. Therefore, including the DIVCA reference in the definition of "Services" is confusing and vague, and could potentially lead to litigation in the future over its intended meaning. For the purpose of resolving this ambiguity and to further clarify the intent of the parties as to what "Services" are to be provided by AT&T, AT&T would ask that the definition of "Services" be revised to recite as follows: "Services" means the transmission and reception of communications signals for the provision of wireless voice, data, video, messaging or similar type of wireless service now or in the future offered to the public in general using spectrum radio frequencies licensed or authorized by the Federal Communications Commission ("FCC"). -Term (Section 2.1/2.2) — The Agreement currently provides that the term of the Agreement and any Supplements thereto are to be coterminous (i.e., the term of each Supplement will end simultaneously with the Agreement). This creates the problematic possibility that AT&T may enter into a Supplement with the City that will not have an assured minimum term of five (5) years. For example, as currently drafted, AT&T could install a wireless facility during the eighth (801) year of the Agreement's Initial Term, and the Supplement that would govern that facility would then only have a guaranteed term of two (2) years. Ensuring that each Supplement has a minimum term of five (5) years is in the best interest of both AT&T and the City. As the City is well aware, the installation of AT&T's wireless facilities is a costly process that requires coordination between the City, AT&T and various third -party vendors. If AT&T is going to make this substantial investment in the City's Right of Way (i.e., bringing fiber optics and other facilities to the poles, building out the necessary infrastructure, installing the wireless facilities, etc.), AT&T needs some assurance that the wireless facilities being installed will be able to operate for a period of at least five (5) years before the applicable Supplement terminates. AT&T has previously requested that the City consider allowing Supplements to have standalone terms of ten (10) years, with automatic renewals, similar to the Agreement. If the City cannot agree to such terms, AT&T would suggest as a compromise that the City gives AT&T the sole option not to renew the Agreement for the first five (5) year Renewal Term of the Agreement, rather than such option being at the discretion of either party. Following the first Renewal Term, the City and AT&T would then both have the option not to renew the Agreement in their sole discretion. Such a compromise would at least provide AT&T with an assured Agreement term of fifteen (15) years, while still having the Agreement and each Supplement be coterminous. -Damage. Maintenance_& Repair (Section 6.8.2) — Section 6.8.2 provides that if a Replacement Facility needs to be replaced or repaired, that AT&T will conduct the work at its own expense. The City has agreed to take some of the responsibility for clearing any Replacement Facilities from the public Right of Way, but AT&T believes that City should also be responsible for the replacement or repair of the Replacement Facility since City is owner of the pole and regularly deals with such poles in the normal course of its business. AT&T is willing to provide replacement poles to the City, as needed, and will agree to pay its share of the costs for replacement and repair. AT&T is not, however, comfortable taking on the responsibility of replacing or repairing the poles, as it believes the City is far better equipped to perform such replacements or repairs in an efficient and timely manner. -Indemnification (Section 7) — The indemnification provision as drafted is too broad and cannot be agreed to by AT&T. The indemnification carve out should be revised to apply to the "negligence or willful misconduct of the Licensor, its council members, officers, employees, 2 V agents, or contractors". Additionally, this carve out for the City's negligence should apply to all indemnification language in the Agreement. For example, Section 6.13 (Risk of Loss) contains indemnity language. This would need to be adjusted as well. See also, Section 6.14 (Hazardous Substances). -Insurance Provisions (Section 8) — City rejected much of AT&T Risk Management's proposed revisions to the insurance provisions. AT&T is open to discussing alternative insurance language; however, AT&T cannot agree to the insurance provisions as currently constructed. AT&T would suggest a direct call between the parties' risk management representatives to discuss the issues and potential alternative language. AT&T appreciates the opportunity to work with the City Manager and City Attorney to make AT&T specific changes to the insurance provisions under the Agreement. Conclusion AT&T encourages the City to consider implementation of AT&T's comments to the Agreement. AT&T believes the proposed comments and revisions are reasonable and consistent with Agreement provisions agreed to in other similar jurisdictions. AT&T welcomes the opportunity to work with the City to develop a more reasonable and workable Agreement. Sincerely, Ann Ahrens Beck