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HomeMy WebLinkAboutOmnipoint Communications, Inc., a T-Mobile USA, Inc. subsidiary - T-Mobile West Corporation - Crown Castle - 2009-01-20T" '* � I * .>� T-Mobile USA, Inc 7/7/2016 City of Huntington Beach 2000 Main St Attn City Clerk Huntington Beach, CA 92648 Via Certified Marl — 7013 1710 0001 0006 0386 GJ/L .sanJ r;r? 44-- P"'4644s I/ 4�s `I 12920 SE 3811 Street Bellevue, WA 98006 Attn Property Management (877)373-0093 Atm PropertyManagement@T-Mobile com RE: License Agreement, dated April 19, 1999 ("Agreement") City of Huntington Beach ("Landlord") and T-Mobile West, LLC, successor in interest to Pacific Bell Mobile Services ("Tenant") Site ID: LA02902A Site Address: 2000 Main St., Huntington Beach, CA 92648 To Whom It May Concern Pursuant to Section 5 of the above referenced Agreement, T-Mobile is providing notice of its desire to extend the Agreement for an additional five (5) year term, that is scheduled to commence on 10/1/2016 Should you have any questions or comments, Property Management can be contacted via email or telephone as noted above Sincerely, Jason Glasgow Specialist, Lease Management /cc City of Huntington Beach Attn Real Estate Services Manager 2000 Main St Huntington Beach, CA 92648 Crown Castle 2000 Corporate Drive Canonsburg, PA 15317 Tel 866-482-8890 Fax 724-416-4015 www.crowncastle.com May 22, 2013 4v� CITY OF HUNTINGTON BEACH CITY CLERK CD 2000 MAIN ST HUNTINGTON BEACH, CA 92648-2763 CA) RE: T-Mobile Site ID LA02541A; Crown Castle Business Unit Number 827443; Crown Castle Lease Number 517070 Dear Landowner: As you know, Crown Castle, or its applicable subsidiary, is now responsible for operating this tower site. This correspondence is being provided to advise you of Crown Castle's notice address. Please send lease -related correspondence and/or notices to the address below: CCTMO LLC Attn: Legal Department 2000 Corporate Drive Canonsburg, PA 15317 We have also enclosed a Form W-9 and Direct Deposit Enrollment Form. As previously communicated, Crown Castle is required to obtain a completed Form W-9 for each payee. Crown Castle strongly recommends that you utilize direct deposit as a way to receive your ground rent payments in an efficient and timely manner. If you have not already completed, signed and returned these forms, please take this opportunity to do so and return in the enclosed postage -paid envelope. If you have already returned the same, please disregard the enclosures. Also, please note that commencing with any payments due to be paid on or after August 1, 2013, direct deposit payments will be paid on the first business day of the month for which the ground rent is due. For check payments, the checks will be dated for the first of the month and will be mailed approximately five business days prior to the first of the month. If you have any questions, please contact the Landowners Help Desk by way of email to LOHD@crowncastle.com or call toll -free 866-482-8890. Sincerely, Mark chrott Vice President of Property Management n 0000001116 t 2/7/2012 Joan L.Flynn, City Clerk, 2000 Main Street Huntington Beach, CA 92648 l� v T-Mobile West Corporation (T-Mobile)�� Engineering Development — Orange County 2008 McGaw Avenue Irvine, CA 92614 1 llll'"ra / 0-1 - � u RE: T-Mobile West Corporation, successor in interest to Omnipoint Communications Inc., (Wireless IID #: U-3056-C). Notification Letter for T-Mobile Site No/Name: LA13156E / Td's Raw ]Land This letter provides the Commission with notice pursuant to the provisions of General Order No. 159A of the Public Utilities Commission of the State of California (CPUC) that with regard to the project described in Attachment A: ® (a) T-Mobile has obtained all requisite land use approval for the project described in Attachment A. ❑ (b) No land use approval is required because A copy of this notification letter is being sent to the local government agency identified .below for its information. Should there be any questions regarding this project; or if you disagree with the information contained herein, please contact Joe Thompson for T-Mobile, at.949-850-2400. Sincerely, Zoning Manager : Attachment A Anna Hom, Consumer Protection and Safety Division, California Public Utilities Commission 505 Van Ness Avenue San Francisco, CA 94102 Fred Wilson, City Manager, 2000 Main Street Huntington Beach, CA 92648 Scott Hess; AICP, Planning Director, 2000 Main Street Huntington Beach, CA 92648 T-Mobile West Corporation (Wireless ID #: U-3056-C) Notification better for T-Mobile Site LA13156E / TJ's Rawland 2/7/2012 Page 2 of 2 ATTACHMENT A 1. Project Location Site Identification Number: LA13156E Site Name: TJ's Rawland Site Address: 16901 Algonquin Street Huntington Beach, CA 92649 County: Orange Assessor's Parcel Number: 178=271-03 Latitude: 33.425968 Longitude:-118.030505 2. Project Description Number of Antennas to be installed: 3 Tower Design: Flagpole / Tenant Improvement Tower Appearance: The installation of panel antennae within a flag pole, a new equipment room tenant improvement located in a existing building lobby, radio equipment with the T.I. New mechanical condensing units on the roof top with a screen wall to conceal them and connection to, existing utilities (Electric and Telephone) as needed to service the site. Tower Height: 55 feet Size of Buildings: 136 total lease area sq. ft. 3. Business Addresses of all Governmental Agencies_ 2000 Main Street Huntington Beach, CA 92648 4. Land Use Approvals Date Zoning Approval Issued: 1-19-2012 Conditional Use Permit No. 11-029 / Wireless Permit # 11-054 Land Use Permit required. r r p P T-Mobile USA, Inc. 12920 SE 38th Street, Bellevue, WA 98006 City of Huntington Beach City Clerk 2000 Main St Huntington Beach, CA 92648-2702 October 16, 2012 T-Mobile Site ID: LA02541A e,���� SENT BY CERTIFIED MAIL Re: The lease for the premises located at or about 6900 BRUNSWICK DR, Huntington Beach, CA 92647 (the "Lease"), and the transfer of the Lease to T3 Tower 1 LLC Dear Landlord: This letter serves as notice that on September 28, 2012, T-Mobile USA, Inc., ("T-Mobile") entered into a Master Agreement ("Master Agreement") with Crown Castle International Corp., ("Crown") regarding Crown's management and operation of the T-Mobile tower portfolio, which your site is a part of. T-Mobile expects this transaction with Crown to close approximately at the end of November, 2012. Pursuant to the terms of the Master Agreement, T-Mobile will, at Closing, transfer the Lease to T3 Tower 1 LLC. T3 Tower 1 LLC will grant Crown the right to manage and operate the site at the above premises by entering into a master lease (basically a sublease). will remain the owner of the rights, title and interest in and to this site. Additionally, T-Mobile will continue to maintain its communications facilities on the site. T-Mobile/Crown will send you a follow-up letter with further details around the time this transaction closes. If you have any questions about this notice, please e-mail us at picopeityirianagemei7it@t-mobi'ie.com. Sincerely, Allan Tantillo Director, Titan Towers PG90817 Copy to: City of Huntington Beach Real Estate Services Manager 2000 Main Street Huntington Beach CA 92648 May 4, 2009 City of Huntington Beach City Clerk 2000 Main Street Huntington Beach, CA 92647 2009 MAY 10 AN 11; 09 H U $ 6 I i „ ..r •4J ! i�:'• ,.. Ian i.r ; SENT BY CERTIFIED MAIL 2736 w RE: Lease LA02902A commenced on or about 4/19/1999 between City of Huntington Beach and Omnipoint Communications Inc. ("Lease") for the Premises located at or about 2000 Main St. Huntington Beach California 92648 Dear City of Huntington Beach: Omnipoint Communications Inc., as Tenant under your Lease, is part of the T-Mobile family. We thank you for being part of the exciting growth of T-Mobile as we help people stay connected to those who matter most. As a result of our continued growth, T-Mobile is simplifying its corporate structure by combining certain of its subsidiaries which will have no functional effect to you. This correspondence serves as notice that the Lease will be conveyed to T-Mobile West Corporation effective June 30, 2009. This is merely an internal conveyance and it will not change or affect your relationship with T-Mobile, including the contact information you currently use, the T-Mobile analyst who administers your Lease, or the rent payment you receive from T-Mobile. If you have any questions, feel free to e-mail us at entit yc�ge(6yOv.com. Please include the Notice ID and the Site ID stated below. Thank you so much. Very truly yours, Debby Andresen Director Lease Compliance and Information Management Certified Mail Tracking Number: 7008281000017946 9831 Notice ID: nls Site ID: LA02902A l May 4, 2009 City of Huntington Beach Real Estate Services Manager 2000 Main Street Huntington Beach, CA 92648 2CO910 13 AH 11- 05 SENT BY CERTIFIED MAIL 2500 w RE: Lease LA02543A commenced on or about 1/2/2003 between City of Huntington Beach and Omnipoint Communications Inc. ("Lease") for the Premises located at or about 18591 Edwards Street Huntington Beach California 92648 Dear City of Huntington Beach: Omnipoint Communications Inc., as Tenant under your Lease, is part of the T-Mobile family. We thank you for being part of the exciting growth of T-Mobile as we help people stay connected to those who matter most. As a result of our continued growth, T-Mobile is simplifying its corporate structure by combining certain of its subsidiaries which will have no functional effect to you. This correspondence serves as notice that the Lease will be conveyed to T-Mobile West Corporation effective June 30, 2009. This is merely an internal conveyance and it will not change or affect your relationship with T-Mobile, including the contact information you currently use, the T-Mobile analyst who administers your Lease, or the rent payment you receive from T-Mobile. If you have any questions, feel free to e-mail us at entitvchange(�,bv.com. Please include the Notice ID and the Site ID stated below. Thank you so much. Very truly yours, Debby Andresen Director Lease Compliance and Information Management Certified Mail Tracking Number: 7008281000017946 7479 Notice ID: nls Site ID: LA02543A 1 xuq a c l c.� May 4, 2009 City of Huntington Beach City Clerk 2000 Main Street Huntington Beach, CA 92647 2009a 131I=t�6 5 ryrye�, ..•};t.s ,'%�''1-�y�:,�1�3 SENT BY CERTIFIED MAIL 2054 w RE: Lease LA02089A commenced on or about 5/1/1996 between City of Huntington Beach and T- Mobile CA/NV, LLC ("Lease") for the Premises located at or about 7111 Talbert Ave. Huntington Beach California 92648 Dear City of Huntington Beach: T-Mobile CA/NV, LLC, as Tenant under your Lease, is part of the T-Mobile family. We thank you for being part of the exciting growth of T-Mobile as we help people stay connected to those who matter most. As a result of our continued growth, T-Mobile is simplifying its corporate structure by combining certain of its subsidiaries which will have no functional effect to you. This correspondence serves as notice that the Lease will be conveyed to T-Mobile West Corporation effective June 30, 2009. This is merely an internal conveyance and it will not change or affect your relationship with T-Mobile, including the contact information you currently use, the T-Mobile analyst who administers your Lease, or the rent payment you receive from T-Mobile. If you have any questions, feel free to e-mail us at entitychange;a�bv.com. Please include the Notice ID and the Site ID stated below. Thank you so much. Very truly yours, Debby Andresen Director Lease Compliance and Information Management Certified Mail Tracking Number: 7008281000017946 3013 Notice ID: nls Site ID: LA02089A 1 May 4, 2009 City of Huntington Beach Real Estate Manager 2000 Main Street Huntington Beach, CA 92648 ZD09 ` 13 AU! 11 05 SENT BY CERTIFIED MAIL 2465 w RE: Lease LA02495A commenced on or about 6/19/2000 between City of Huntington Beach and Omnipoint Communications Inc. ("Lease") for the Premises located at or about 7000 Norma Dr. Huntington Beach California 92647 Dear City of Huntington Beach: Omnipoint Communications Inc., as Tenant under your Lease, is part of the T-Mobile family. We thank you for being part of the exciting growth of T-Mobile as we help people stay connected to those who matter most. As a result of our continued growth, T-Mobile is simplifying its corporate structure by combining certain of its subsidiaries which will have no functional effect to you. This correspondence serves as notice that the Lease will be conveyed to T-Mobile West Corporation effective June 30, 2009. This is merely an internal conveyance and it will not change or affect your relationship with T-Mobile, including the contact information you currently use, the T-Mobile analyst who administers your Lease, or the rent payment you receive from T-Mobile. If you have any questions, feel free to e-mail us at entitvchange,�bv.com. Please include the Notice ID and the Site ID stated below. Thank you so much. Very truly yours, n Debby Andresen Director Lease Compliance and Information Management, - Certified Mail Tracking Number: 7008281000017946 7127 Notice ID: I nls Site ID: LA02495A 1 May 4, 2009 City of Huntington Beach Arnold Ross, Sr. Accountant P.O. Box 711 Huntington Beach, CA 92648 2009 MAY 13 gi I I *. 06 SENT BY CERTIFIED MAIL 2056 w RE: Lease LA02090A commenced on or about 5/1/1996 between City of Huntington Beach and Omnipoint Communications Inc. ("Lease") for the Premises located at or about 19711 Bushard Street Huntington Beach California 92646 Dear City of Huntington Beach: Omnipoint Communications Inc., as Tenant under your Lease, is part of the T-Mobile family. We thank you for being part of the exciting growth of T-Mobile as we help people stay connected to those who matter most. As a result of our continued growth, T-Mobile is simplifying its corporate structure by combining certain of its subsidiaries which will have no functional effect to you. This correspondence serves as notice that the Lease will be conveyed to T-Mobile West Corporation effective June 30, 2009. This is merely an internal conveyance and it will not change or affect your relationship with T-Mobile, including the contact information you currently use, the T-Mobile analyst who administers your Lease, or the rent payment you receive from T-Mobile. If you have any questions, feel free to e-mail us at entit cy hangeru]bv.com. Please include the Notice ID and the Site ID stated below. Thank you so much. Very truly yours, 6 a— C�, At,,� Debby Andresen Director Lease Compliance and Information Management Certified Mail Tracking Number: 7008281000017946 3037 Notice ID: nls Site ID: LA0209OA 1 Council/Agency Meeting Held: / � Deferred/Continued to: 1 Approved ❑ Conditionally Approved ❑ Denied " y bt C erk's (gnat e Council Meeting Date: 1/20/2009 Departme D Number: ED 09-04 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COU v CIL MEMBERS SUBMITTED BY: FRED A. WILSON, CITY ADMINIST R PREPARED BY: STANLEY SMALEWITZ, DIRECTOR OF ECONOMIC DEVELOPMENT JIM B. ENGLE, DIRECTOR OF COMMUNITY SERVI ' SUBJECT: APPROVE SITE LICENSE AGREEMENTS WITH OM DINT COMMUNICATIONS, INC. (A T-MOBILE USA, INC. SU SIDIARY) FOR WIRELESS TELECOMMUNICATION FACILITIES AT BOLSA VIEW PARK AND HARBOUR VIEW PARK. Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The City Council is asked to approve two site license agreements with Omnipoint Communications for wireless telecommunication facilities at Harbour View Park and Bolsa View Park. Funding Source: Under the license terms, Omnipoint Communications, Inc. (a T-Mobile USA, Inc. subsidiary) assumes all responsibility for any costs associated with the installation, maintenance, and liability of their telecommunication facilities. Each of these sites will initially generate $30,000 a year in revenue to the City. Recommended Action: Motion to- 1 . Authorize the Mayor and City Clerk to approve and execute Site between the City of Huntington Beach and Omnipoint Communications, T-Mobile USA, Inc., a Delaware Corporation at Harbour View Park. 2. Authorize the Mayor and City Clerk to approve and execute Site between the City of Huntington Beach and Omnipoint Communications, T-Mobile USA, Inc., a Delaware Corporation at Bolsa View Park. Alternative Action(s): Do not approve the site license agreements. License Agreement Inc., a subsidiary of License Agreement Inc., a subsidiary of ��9 REQUEST FOR CITY COUNCIL, ACTION MEETING DATE: 1/20/2009 DEPARTMENT ID NUMBER: ED 09-04 Analysis: Wireless telecommunications vendors have contacted the City to install telecommunication facilities at various locations throughout the City in order to complete their countywide and statewide wireless networks. Omnipoint Communications, Inc., a subsidiary of T-Mobile USA, Inc., ("Omnipoint") has requested permission to place wireless telecommunications facilities at Bolsa View Park, located at 5741 Brighton Drive, and Harbour View Park, located at 16600 Saybrook Lane. The term of the site license agreements will be for ten (10) years with renewal options of two (2) additional five (5) year terms. The initial rent will be $2,500 per month with an annual increase of four (4) percent. Omnipoint will also post an additional rent deposit of $20,000 per location. A portion of this amount may be refunded if construction approvals are not obtained or if the City decides to terminate the agreement due to the City's default. Omnipoint will pay for the installation and maintenance of the telecommunication facilities which include, installing separate meters for utilities. In addition, Omnipoint has agreed that the facility will ,not interfere with the City's own communications network. The agreements require that all conditions, development approvals, and building permits be completed and issued prior to site development. Both the Community Services and Planning Departments have approved Omnipoint's request for a wireless permit along with the basic conceptual plan as set forth in Exhibit B of the agreement. Omnipoint has agreed to the terms and conditions of the site license agreements. The Real Estate Division of the Economic Development Department, which is the operating department for wireless communication license agreements, along with the Community Services Department, recommend the approval for the telecommunication facilities at Bolsa View Park and Harbour View Park. The approval of this action would be an added benefit to the community by providing improved wireless service, as well as increasing revenue to the City's general fund. Strategic Plan Goal: C-2 Provide quality public service with the highest professional standards to meet community expectations and needs, assuring that the City is sufficiently staffed and equipped overall. Environmental Status: Not applicable. -2- 1/6/2009 7:11 AM REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 1/20/2009 DEPARTMENT ID NUMBER: ED 09-04 Attachment(s): -3- 1/6/2009 7:11 AM ,-----ATTACHMENT #1 DO NOT RECORD SITE LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND OMNIPOINT COMMUNICATIONS, INC., A SUBSIDIARY OF T-MOBILE USA, INC., A DELAWARE CORPORATION AT HARBOUR VIEW PARK THIS SITE LICENSE AGREEMENT ("Agreement") is made and entered into this _ of 200_�?_, by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, herein referred to as "Licensor", and OMNIPOINT COMMUNICATIONS, INC., a subsidiary of T-MOBILE USA, INC., a Delaware corporation, hereinafter referred to as "Licensee." The parties hereto agree as follows: ARTICLE 1 — TERM OF LICENSE Section 1.01 Property and Use (a) Licensor is the owner of certain real property located in the City of Huntington Beach, County of Orange, State of California as more particularly described in Exhibit "A" (Legal Description), attached hereto and incorporated herein by reference ("Property"). The Property is commonly known as the Harbour View Park, 16600 Saybrook Lane, Huntington Beach, CA 92649 Harbour View Park, Site #LA13156A). (b) Licensee is a provider of communication services which require the transmission and reception of radio communication signals on various frequencies. (c) Licensee desires to place its equipment in an underground vault; install antennas mounted to a new monopalm, coax cable runs from equipment to panel antennas; a 200A electrical and telephone service to equipment. (d) Subject to the terms and conditions contained herein, Licensor hereby grants to Licensee the privilege to install, upgrade, operate and maintain a mobile/wireless telecommunications facility, and other communication equipment, structures and improvements as may be approved, hereinafter referred to as "Licensee's Facilities" or "Premises," and more specifically described in Exhibit "B" attached hereto and made a part hereof (e) The right and permission of Licensee is revocable as set forth herein for the Term and each Renewal Term and is subordinate to the prior and paramount right of Licensor to use the Property in its entirety for public purposes to which now it is and may, at the option of Licensor, be devoted. Licensee undertakes and agrees to use the Property and to exercise this license at all times in such manner as will not unreasonably 07-1228.002/28812 1 DO NOT RECORD interfere with the full use and enjoyment of the Property by Licensor including emitting frequencies that may affect City public safety communications. Notwithstanding the foregoing, Licensor agrees to use good faith efforts to carry out its public purposes in a manner that will, whenever feasible, continue to accommodate Licensee's use of the Property as set forth herein. (f) Licensor represents and Licensee hereby acknowledges title to the Property is vested in Licensor and Licensee agrees never to assail or resist the same, and further agrees that Licensee's use and occupancy of the Property shall be referable solely to the permission herein given. (g) Subject to Section 4 below: (i) Licensee acknowledges that it is the intent of the Licensor to collocate the facilities of several wireless carriers at this location; (ii) Licensee shall make reasonable efforts to locate its equipment and facilities in such a manner so as to accommodate any and all additional carriers licensed by the Licensor to use the Property; (iii) Licensee will work in a timely and cooperative fashion to assist the Licensor and any and all additional wireless carriers that are licensed by the Licensor, to locate and operate a wireless facility on the Licensor's Property. Licensee acknowledges that it shall have no right to independently negotiate and/or physically collocate additional carriers on its facilities or equipment without the prior written consent of Licensor. Licensee and Licensor acknowledge that such consent may be conditioned upon Licensor entering into an agreement with such additional carriers for the placement of their equipment. In such event the parties will enter into a third party agreement whereby the Licensor and Licensee will share rent at a percentage to be agreed upon in the future. Section 1.02 Condition Precedent This Agreement is conditioned upon Licensee receiving a license, or already having a license, from the Federal Communications Commission ("FCC") and all applicable governmental permits and approvals, including any conditions of approval thereto, (collectively "Approvals") enabling Licensee to construct and operate Licensee's Facilities. In the event Licensee, despite good faith efforts to do so, has not been able to obtain any such Approvals within one hundred eighty (180) days after the full execution of this Agreement, Licensee may terminate this Agreement without penalty or further liability by providing written notice to Licensor prior to the expiration of the one hundred eighty (180) day period. The installation, operation and maintenance and any upgrades of Licensee's Facilities on the Property are subject to all ordinances and regulations of general application now in effect or subsequently enacted including, but not limited to those concerning encroachment permits, business licenses, zoning and building. 07-1228.002/28812 0 DO NOT RECORD Licensee agrees that any additions, alterations, or new construction to the Property or Licensee's Facilities, other than that set forth in Exhibit B, must be re -reviewed and approved in writing by Licensor prior to the addition or construction taking place. Section 1.03 Term The term of the Agreement for the Property ("Term") shall be ten (10) years commencing on the earlier to occur of: (i) the first day of the month following written notice to Licensor by Licensee of Licensee's intent to commence installation of Licensee's Facilities on the Property, or (ii) the first day of the month following the issuance of a local building permit allowing Licensee to construct its mobile/wireless communications facilities on the Property, or (iii) the first day of the month following the twelve (12) month anniversary of the date written in the first paragraph of this Agreement ("Commencement Date"). The Term of the Agreement for the Property may be extended for two (2) additional five (5)-year terms (each additional term shall be a "Renewal Term") upon the mutual consent of the parties. Licensor may withhold consent for Renewal Terms, if at its sole discretion, Licensor determines that the Property will be used for public purposes that are inconsistent with this Agreement. Each Renewal Term shall be on the same terms and conditions set forth herein. Section 1.04 License Fee (a) Within thirty (30) days of the Commencement Date, and on the first day of each month thereafter during the Term or Renewal Term ("Payment Date"), Licensee shall pay Licensor a monthly license fee in the amount of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) ("License Fee") adjusted in accordance with paragraphs below. The parties agree that this is a net Agreement intended to assure Licensor the License Fee reserved on an absolute net basis. In addition to the License Fee, Licensee shall pay to the parties entitled thereto all taxes, assessments, insurance premiums, maintenance charges, and any other charges, costs and expenses to the extent attributable to Licensee's use of the Property or Licensee's Facilities. Any portion of the License Fee shall incur the following additional charges in the event it remains unpaid within ten (10) days following Licensor's written notice of late payment: (i) A late charge of ten percent (10%); and (ii) One and a half percent (1-'/2%) interest per month for each month payment hereunder is due but unpaid. (b) Licensor and Licensee agree that the License Fee shall annually adjusted each year beginning on the first anniversary of the Commencement Date such that the Licensee Fee shall be increased by four percent (4%). (c) Any holding over after the expiration of the Term or Renewal Term and following notice from Licensor of its intent not to renew or extend the Term of this Agreement shall be construed to be an extension from month to month at 1-1/2 times the then current License Fee (which shall include the 07-1228.002/28812 3 DO NOT RECORD annual increase herein specified) and shall otherwise be on the conditions herein specified, so far as applicable. Section 1.05 Additional Rent Within thirty (30) days after the full execution of this Agreement, Licensee shall deposit with Licensor the sum of Twenty Thousand Dollars ($20,000) to be retained by Licensor as additional consideration for this License. Notwithstanding the foregoing, Licensor agrees that, pursuant to Section 1.02, Licensor shall refund Licensee fifty percent (50%) of the additional rent deposit should Licensee not be able to obtain Approvals to construct Licensee's Facilities despite good faith efforts to do so as required herein. This section shall not apply to upgrades or any future construction on the Premises. Section 1.06 Non -Possessory Interest Licensor retains full possession of the Property and Licensee will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. Section 1.07 Non -Recording Licensee may record a memorandum of this Agreement in the office of the County Recorder wherein the Property is located provided that Licensee first supplies Licensor with a fully executed Quit Claim Deed which Licensor may similarly record immediately upon the expiration or earlier termination of this Agreement thereby removing from record the memorandum of this Agreement. ARTICLE 2 — TAXES AND UTILITIES Section 2.01 Taxes Licensee shall pay before they become delinquent all taxes, assessments or other charges levied or imposed by any government entity, including Licensor, on Licensee's Facilities or the Premises. If such taxes are not assessed separately to Licensee, Licensor shall timely provide Licensee with evidence, reasonably acceptable to Licensee, of such tax assessment and the amount due, which is attributable to Licensee's Facilities, sufficient to allow Licensee to consent to or challenge such assessment. Section 2.02 Utilities (a) Licensee shall pay for the following at the rate charged by the service provider and hold Licensor free and harmless from: (i) all utilities 07-122& 002128812 4 DO NOT RECORD furnished to the Property for the use, operation and maintenance of Licensee's Facilities during the Term of this Agreement, or any extension thereof, and (ii) for the removal of garbage and rubbish, from the Premises and, to the extent caused by Licensee or its contractors, employees or agents, the Property, during the Term of the Agreement, or any extension thereof. (b) Licensee shall have the right to install utilities and to improve the present utilities on or near the Property and to install a temporary above ground emergency back-up power generator, all at Licensee's sole cost and expense. Subject to Licensor's contracting power, and at the reasonable discretion of the City Attorney, Licensor agrees to execute such documentation as may be required by the servicing utility provider in order for Licensee to acquire necessary utility service at no cost to Licensor. Notwithstanding the foregoing, the parties acknowledge that such documentation must be commercially reasonable and nothing herein will waive Licensor's right to determine in consultation with the servicing utility provider the route of Licensee's utility easements. Licensee shall, wherever practicable, install separate meters for utilities used on the Property by Licensee. In the event separate meters are not utilized, Licensee shall pay the periodic charges for all utilities attributable to its use. Licensee shall have the right to place utilities on Licensor's Property in order to service the Property and Licensee's Facilities provided the location of such utilities is pre -approved by Licensor and the servicing utility provider, which approval shall not be unreasonably withheld and shall be given within thirty (30) days of a request to locate utilities from Licensee. Licensee shall be responsible to relocate its utilities or other substructures, at Licensee's sole cost and expense, within forty-five (45) days after receiving written notice to do so by Licensor. Licensor shall only require relocation of Licensee's utilities or other substructures if Licensor reasonably determines that relocation is necessary to permit Licensor's ordinary use of the Property for public purposes. Notwithstanding the foregoing, Licensor shall not require the relocation of Licensee's utilities of other substructures more than one (1) time during the Term of this Agreement or any extension thereof. Licensee shall comply with all requirements to underground utilities. ARTICLE 3 — IMPROVEMENTS AND ACCESS Section 3.01 Licensee's Facilities (a) During the Term or any Renewal Term, Licensee shall have the right, at its sole cost and expense, to construct, maintain and operate Licensee's Facilities on the Property. In connection therewith, Licensee, through the appropriate permit or approval process, shall have the right to perform all 07-1228.002/28812 5 DO NOT RECORD work necessary to prepare, maintain and alter the Property for Licensee's Facilities. Licensor shall endeavor to approve within thirty (30) days, all plans and specifications for such work, in writing, before any work, except technician maintenance or repair, may begin. (b) Licensor reserves the right to add additional telecommunication or other equipment as may be needed by Licensor and/or enter into additional agreements with any third party to install and operate additional telecommunication equipment on the Property so long as the equipment does not interfere with Licensee's Facilities. Licensor reserves the exclusive right to negotiate and collect all rents, license fees or any other payments from any arrangements it enters into with such third party. (c) Except as provided herein, Licensor shall not have the right to install equipment on the Licensee's Facilities or within the area depicted on the attached Exhibit B which is designated for Licensee's exclusive use. (d) During the installation of Licensee's Facilities, Licensee shall cooperate with Licensor's representatives, which may monitor the installation of Licensee's Facilities, at Licensor's sole cost and expense. (e) All of Licensee's construction/installation work shall be performed at Licensee's sole cost and expense and completed in a good and workmanlike manner by licensed and bonded contractors and shall not materially interfere with Licensor's then existing facilities and operations. Any and all modifications to the Licensor's property must meet all applicable structural engineering, building and safety standards for this type of public facility. (f) Licensee shall hold title to Licensee's Facilities and any equipment placed on the Property by Licensee. All of Licensee's Facilities shall remain the personal property of Licensee and are not fixtures. Licensee has the right to remove all of Licensee's Facilities at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a workmanlike and careful manner and without interference or damage to any other equipment, structures or operations on the Property, including the use of the Property by Licensor or any of Licensor's licensees, assignees or Licensees. Licensee shall repair any damage to the Property caused by such removal and will leave those portions of the Property impacted by License's use in the same condition they existed in prior to the Commencement Date, reasonable wear and tear and casualty excepted. Licensee shall be required to remove all of Licensee's Facilities and improvements, including antennas, and if Licensee fails to do so within ninety (90) days, Licensor may elect to do so at Licensee's sole cost and expense or elect to not remove its Facilities, in which case, such Facilities shall become the property of Licensor, at 07-1228.002/28812 6 DO NOT RECORD Licensor's option, in their "AS IS" and "WHERE IS" condition without representation or warranty of any kind or nature. Rent shall not cease, unless and until all the Licensee's Facilities that Licensee must remove, are removed or Licensor has taken title to them as set forth herein. (g) Licensee shall be required to provide for electrical service to and through Licensor's property at Licensee's sole cost and expense. Any encroachment necessary for such utility service will be at a location reasonably acceptable to Licensor and the servicing utility. (h) Licensor shall provide Licensee and its employees, agents, contractors and subcontractors access to the Premises and Licensee's Facilities twenty-four (24) hours a day, seven (7) days a week or as designated in permit approvals. Except in the case of emergencies, Licensee shall give Licensor twenty-four (24) hours notice prior to entry into the Property. Licensor represents and warrants that it has full rights of ingress and egress to and from the Property, and hereby grants such rights to Licensee to the extent required to construct, maintain, install, and operate Licensee's Facilities on the Property. Licensee's exercise of such rights shall not cause undue inconvenience to Licensor nor shall any such exercise interfere with the use of the premises by Licensor or its licensees, guests, or assignees. In the event of an emergency threatening the health or safety of persons or property, Licensor shall contact Licensee's emergency hotline at the telephone number listed under the notice provision of this Agreement whereupon Licensee shall promptly address the issue and take such actions as are reasonably required given the nature of the emergency. Should changes be made to the contact names and telephone number, Licensor shall be notified prior to the change. (i) Unless caused directly by Licensor, its agents, employees or contractors, Licensee shall, at its sole cost and expense, maintain and repair the Premises and Licensee's Facilities including, but not limited to, the removal of all trash, debris and graffiti therefrom. Licensor may exercise its right to self-help and bill Licensee in the event trash, debris and graffiti are not removed within forty-eight (48) hours of notice thereof to Licensee. If Licensee causes any damage to the Property, or to access roadways or other nearby facilities, it shall properly repair same to the condition in which it existed prior to the damage. Licensee shall provide contact names for damage/graffiti control. In addition, should changes be made to the contact names and telephone number, Licensor shall be notified prior to the change. (j) Entry and Inspection. Licensor may at any time, without any obligation to do so, enter the Property for the purpose of viewing and ascertaining the condition of the Property, or to protect its interests in the Property, or to inspect the operations conducted on the Property provided that Licensor 07-1228.002/28812 7 DO NOT RECORD gives Licensee enough prior written notice to reasonably allow Licensee to accompany Licensor on such inspection to help assure the safety of the visitors and to minimize any accidental interference with Licensee's Facilities. If Licensor's entry or inspection discloses that the Property is not in a decent, safe, healthy, and sanitary condition, Licensor may, after twenty (20) days written notice to Licensee, have any necessary maintenance work done in order to keep the Property in a decent, safe, healthy, and sanitary condition, all at Licensee's sole cost and expense, and Licensee shall promptly pay any and all commercially reasonable costs incurred by Licensor in having the necessary maintenance work done. If at any time Licensor determines that the Property is not in a decent, safe, healthy, and sanitary condition, Licensor may, without additional notice, require Licensor to file with Licensor a faithful performance bond to assure prompt correction of any condition which is not decent, safe, healthy, and sanitary. The bond shall in an amount adequate in Licensor's reasonable opinion to correct the unsatisfactory condition but shall not exceed $10,000.00. Licensee shall pay the cost of the bond. The rights reserved in this section shall not create any obligation on Licensor or increase Licensor's obligations elsewhere in this License Agreement. Upon the expiration or termination of this Agreement, Licensee shall surrender the Property to Licensor in good and clean condition, less ordinary wear and tear, and as approved in writing within ten (10) business days from Licensee's vacate date by Licensor. Section 3.02 Liens Licensee shall not permit any mechanics' or materialmen's, or other liens, or stop notices, to stand against the Property by reason of any use or occupancy by Licensee, or any person claiming under Licensee. If Licensee desires to contest or withhold any payment which would lead to the placement of any such liens or stop notices, or contest any such lien, or stop notice, then prior to commencing such contest and withholding, Licensee shall furnish Licensor with a bond to secure the payment of such obligation and obtain Licensor's prior written approval of the bond. Licensor hereby waives any - and all lien rights it may have, statutory or otherwise, concerning Licensee's Facilities or any portion thereof, which shall be deemed Licensee's personal property. ARTICLE 4 - INTERFERENCE Section 4.01 Interference (a) Licensee shall operate Licensee's Facilities in such a manner that will not cause signal interference to communication equipment operated by Licensor in the normal course of providing public services and other previously authorized users of the Property and shall not disturb the communications equipment, configuration or frequency that exists on the 07-1228.002/28812 8 DO NOT RECORD Property on the Commencement Date of operation of Licensee's Facilities. Licensee's operations shall not interfere with any of Licensor's communications operations on a citywide basis, either current or future nor with any third party's communications operations provided that the third party's communications operations were installed prior the installation of Licensee's Facilities. The final determination of this interference rests solely with Licensor. In the event Licensee caused signal interference should occur, all costs to remedy the interference shall be borne by Licensee. All communication systems operations, operating in the same manner as of the time of installation of Licensee Facilities and in compliance with all applicable laws, including all applicable Federal Communications Commission requirements shall not be deemed interference to Licensee. All operations by Licensee shall be lawful and in compliance with all applicable laws, including all applicable Federal Communications Commission requirements. (b) Licensee shall provide initial proof of compliance with original transmission tolerance and interference analysis by a certification through an independent source. (c) Subsequent to the installation of Licensee's Facilities, Licensor shall not permit use of the Property in a manner which interferes with the communication operations of Licensee and shall cause any such interference to promptly cease unless said interference is caused by public safety communication operations. In the event Licensor reasonably determines that a third party's operations contained within Licensor's Property do not interfere with Licensee's communications operations, and Licensee is still experiencing interference, Licensee shall have the right to hire, at Licensee's sole cost and expense, a non-affiliated, third -party consultant that is an expert in radio frequency interference issues ("Expert") to determine the source of such interference. This Expert shall determine the source of such interference, and will recommend in writing an appropriate course of action to eliminate the interference with Licensee's Facilities. If the Expert determines that a third party's operations interfere with Licensee's communications operations, Licensee shall provide Licensor with the Expert's written recommendation, and Licensor shall enforce the provisions of this Section, and promptly mandate the elimination of the third-party's interference which is contained within the Licensor's Property. (d) Subsequent to the installation of Licensee's Facilities, Licensor and Licensee shall notify each other thirty (30) days prior to the use or installation of any equipment on the Property, which may likely interfere with Licensee's Facilities, Licensor's facilities or its equipment, or the facilities or equipment of any other licensee, assignee or sublicensee of Licensor. Within ten (10) business days from Licensee's notification to 07-1228.002/28812 9 DO NOT RECORD Licensor, Licensor will forward Licensee contact information to any existing communications, licensee, assignee or sublicensee of Licensor's. (e) If Licensee or Licensor breaches its obligations under this Article 4, the party breaching its obligations, upon receiving written notice from the other party of any such breach, shall take all steps necessary to promptly correct and eliminate such interference. If Licensee breaches its obligation, Licensee shall without limitation modify its equipment and/or antennas and/or shut down its equipment and/or antennas from any facilities or towers which are causing the prohibited interference. If Licensee cannot correct such harmful interference within thirty (30) days, Licensee shall have the right, in addition to any other rights that it might have at law or in equity, to terminate this Agreement. Upon such termination, Licensor shall return any unearned Rent for that month only to Licensee after final inspection and acceptance of the Property from Licensee. (f) Licensee agrees that under no circumstances will its facilities, operations or services interfere in any way or manner with the use or operation of police and fire department's radio equipment, including but not limited to the 800 Megahertz radio system. If, in the sole but reasonable discretion of the Licensor, the Licensee is deemed to have interfered with the use or operation of the police and fire department's radio equipment, and Licensee cannot cure said interference within the time provided in paragraph (e), Licensor, without liability to Licensee, shall have the right to take whatever steps are necessary to temporarily cease and shut down the Licensee's facilities and operations. If reasonably possible, Licensor shall endeavor to give prior notice to Licensee of any impending shut down. (g) If Licensor breaches its obligation, Licensor shall, without limitation, promptly enforce provisions in any license or other agreement between Licensor and the persons or entities causing such harmful interference, pursuant to which Licensor may compel such persons or entities to cease operation, modify their equipment and/or antennas, or remove their equipment and/or antennas from any facilities or towers owned or Licensed and/or managed by Licensor on the Property. If Licensor cannot promptly correct such harmful interference, Licensee shall have the right, in addition to any other rights that it may have at law or in equity, enforce such provisions on Licensor's behalf and/or to terminate the Agreement as per Article 6 contained within this Agreement. Upon such termination, Licensor shall return any unearned License Fee and twenty-five percent (25%) of the additional rent deposit to Licensee after final inspection and acceptance of the Property from Licensee. Notwithstanding the foregoing, in the event such termination occurs after the expiration of the Initial Term 07-1228.002/28812 10 DO NOT RECORD of this Agreement, no reimbursement of the additional rent deposit shall be due or owning. (h) Radio -Frequency Radiation. Licensee shall maintain radio -frequency radiation within the levels allowed by Federal Regulations stated in Section 1.1310 of CFR 47 and OET Bulletin 65. Any area casually accessible by the general public or by any worker at ground level shall be maintained below limits stated for General Population/Uncontrolled Exposure. Licensee shall report to Licensor or responsible federal or state agency any areas discovered by Licensee to exceed such federally mandated limits. Licensee shall not hold Licensor responsible for radiation levels found to exceed such limits unless caused by Licensor. The parties hereto acknowledge Hazardous RF radiation levels may be encountered when climbing on antenna structures [Refer to FCC OET Bulletin 65]. Protection of employees performing service on buildings, roofs, air-conditioning equipment, water tanks, communications equipment, or any other maintenance work is of primary concern. Any areas in which such employees may be subjected to radiation levels that exceed the General Population/Uncontrolled limits must be clearly identified as required by CAL -OSHA. ARTICLE 5 — INDEMNITY AND INSURANCE Section 5.01 Indemnification, Defense, Hold Harmless (a) Licensee hereby agrees to protect, defend, indemnify and hold harmless Licensor, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every kind or nature) to the extent caused by Licensee's (or Licensee's subcontractors, if any) negligent use of the Property or performance of this Agreement or its breach of a representation or warranty contained in this License by Licensee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of Licensor. Licensor shall be reimbursed by Licensee for all costs and attorney's fees incurred by Licensor in enforcing this obligation. Licensee will conduct all defenses at its sole cost and expense. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by the Licensee. (b) Licensor hereby agrees to protect, defend, indemnify and hold harmless Licensee, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, 07-1228.002/28812 11 DO NOT RECORD expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every kind or nature) to the extent caused by Licensor's (or Licensor's subcontractors, if any) gross negligence or willful misconduct and/or Licensor's breach of a representation or warranty as set forth herein. Section 5.02 Worker's Compensation and Employers' Liability Insurance The parties hereto respectively acknowledge awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Licensee covenants itself that it shall comply with such provisions prior to the commencement of this Agreement and shall obtain and furnish to the other proof of its workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Licensee shall require all sublicenses and contractors to provide such workers' compensation and employers' liability insurance for all of the sublicenses' and contractors' employees as required by law. Licensee shall furnish a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and shall similarly require respective sublicenses and contractors to waive subrogation. Section 5.03 General Liability Insurance In addition to the workers' compensation and employers' liability insurance and Licensee's covenant to defend, hold harmless and indemnify Licensor, Licensee shall obtain and furnish to Licensor, a policy of general commercial liability insurance, including motor vehicle coverage against any and all claims to the extent directly caused by Lessee's use of the Property. This policy shall provide coverage for Licensee, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with Licensee's activities on the Property, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00) for the Property. This policy shall name Licensor, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to this Agreement shall be deemed excess coverage and that Licensee's insurance shall be primary with respect to Licensee's negligence. Under no circumstances shall said above -mentioned insurance contain a self -insured retention on the required coverage with respect to Licensee's negligence. 07-1228.002/28812 12 DO NOT RECORD Section 5.04 Property Insurance Licensee shall provide before commencement of this License and shall obtain and furnish to Licensor, at Licensee's sole cost and expense, property and fire insurance with extended coverage endorsements thereon, by a company licensed to conduct insurance business in the State of California and having an A.M. Best's rating of no less than A- VII, in an amount insuring for the full insurable value of the Premises, Licensee's Facilities and all Improvements, Trade Fixtures, personal property installed thereon by Licensee, and all trade inventory in or on the Property against damage or destruction by fire, theft or the elements. This policy shall contain a full replacement cost endorsement naming Licensee as the insured and shall not contain a coinsurance penalty provision. The policy shall contain a special endorsement that such proceeds shall be used to repair, rebuild or replace any such Improvements, Trade Fixtures, personal property whether or not owned or Licensed by Licensee, and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding any insurance proceeds for Trade Fixtures, personal property whether or not owned or Licensed by Licensee, and trade inventory, but only to the extent the insurance proceeds specifically cover those items) shall be paid to Licensor. The policy shall also contain a special endorsement that if the Premises are so destroyed and either party elects to terminate the License, the entire amount of any insurance proceeds shall be paid to Licensor to the extent necessary to repair the Premises. The proceeds of any such insurance payable to Licensor may be used, in the sole discretion of Licensor, for rebuilding or repair as necessary to restore the Premises. This policy shall also contain the following endorsements: (1) The insurer shall not cancel or reduce the insured's coverage amount without (30) days prior written notice to Licensor; (2) Licensor shall not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with Licensor prior to the Commencement Date of this Agreement. At least thirty (30) days prior to the expiration or termination of any such policy, a signed and complete certificate of insurance showing that coverage has been renewed shall be filed with Licensor. Increase in Amount of General Public Liability and Property Insurance Not more frequently than once every five (5) years, if, in the sole but reasonable opinion of Licensor, the amount and/or scope of general public liability insurance and/or property insurance coverage above at that time is not adequate, Licensee may increase such liability coverage amounts as reasonably required by Licensor during the Term or any Renewal Term of this Agreement to comply with telecommunications industry standards. Notwithstanding the foregoing, such increases may not exceed an increase 07-1228.002/28812 13 DO NOT RECORD greater than twenty percent (20%) of the then current coverage amount and must be universally applied to all similar telecommunications tenants, licensees and lessees located on the Property. Section 5.05 Certificates of Insurance; Additional Insured Endorsements Prior to the Commencement Date of this Agreement, Licensee shall furnish to Licensor commercially reasonable certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: (1) provide the name and policy number of each carrier and policy; (2) state that the policy is currently in force; and (3) promise to provide that such policies shall not be canceled or modified without thirty (30) days' prior written notice of Licensor; however ten (10) days' prior written notice in the event of cancellation for nonpayment of premium, which 10-day notice provision shall not apply to property insurance set forth above. Licensee shall maintain the foregoing insurance coverages in force during the entire Term of the License or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Licensee's defense, hold harmless and indemnification obligations as set forth in this License. Licensee shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required to be carried by Licensee pursuant to this Agreement. Section 5.06 Insurance Proceeds Any insurance proceeds received by Licensor because of the total or partial destruction of said Property or any buildings on said Property shall be the sole property of Licensor. Section 5.07 Insurance Hazards Licensee shall not commit or permit the commission of any acts on said Property by its agents or employees nor use or permit the use of said Property by its agents or employees in any manner that will increase the existing rates for or cause the cancellation of any property, liability or other insurance policy insuring the Property, said Property or the improvements on said Property. Licensee shall not do anything to violate the insurance policies that may now or in the future be kept in place on the Property, or the improvements located thereon, by Licensor in Licensor's sole discretion. 07-1228.002/28812 14 DO NOT RECORD ARTICLE 6 — TERMINATION AND DEFAULT Section 6.01 Termination in the Event of Casualty or Condemnation (a) In the event of any damage, destruction or condemnation of the Property, which renders the Property unusable or inoperable for Licensee's use as reasonably determined by Licensee, Licensee shall have the right, but not the obligation, to terminate the Agreement with respect to the Property by giving written notice to Licensor within thirty (30) days after such damage, destruction or condemnation whereupon the effective date of termination shall be the date of such damage, destruction or condemnation. In addition, in the event of such damage or casualty should Licensee elect to continue this Agreement, upon request from Licensee, Licensor agrees to work in good faith with Licensee and make available to Licensee, if reasonably available in Licensor's reasonable discretion, a temporary location on the Property, to install and operate temporary transmitting/receiving facilities, including a so-called cell -on -wheels or "COW" during the period of rebuilding. In such event, the License Fee shall be abated from the date of the damage, destruction or condemnation but only until such time as Licensee's commences installation of the temporary facility. (b) In the event of condemnation, unless Licensee is allowed by the condemning authority to continue its operations on the Property, the Agreement shall terminate as of the date title to the Property vests in the condemning authority or Licensee is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, Licensee's entitlement to any award or payments, if any, shall be limited to relocation benefits afforded to Licensee pursuant to State or Federal eminent domain / condemnation laws. Licensee shall be entitled to any and all awards, payments and relocation benefits afforded to them through local, State or Federal eminent domain / condemnation laws. Section 6.02 Termination (a) In addition to other rights of termination as specifically set forth herein, this Agreement may be terminated on thirty (30) days prior written notice as follows: (1) by either party upon a default of any covenant or term, material or otherwise, hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of the default, provided that the grace period for any monetary default is fifteen (15) days from receipt of notice, or (2) automatically if Licensee loses its license to provide mobile wireless services from the Property for any reason subject to any applicable appeals period, or (3) by Licensee if Licensee is unable to 07-1228.002/28812 15 DO NOT RECORD occupy and utilize the Property due to any action of the Federal Communications Commission, including without limitation, a take back of channels or change in frequencies as set forth in Section 1.02 above. (b) Licensor may terminate this Agreement at any time upon twelve (12) months prior written notice to the Licensee due to the implementation of a revitalization plan or any reconfiguration or major maintenance of the Property affecting Licensee's operations. Licensee is hereby granted the right to participate in such process, and will be afforded the opportunity to continue to operate pursuant hereto so long as Licensee meets Licensor's requirements pursuant to such process. (c) Licensor may terminate this Agreement at any time upon thirty (30) days written notice to Licensee should the signal from Licensee's Facilities materially interfere, as objectively determined by a qualified independent engineer, with Licensor's normal and customary operations and maintenance of its facilities in place and operating on the Commencement Date, provided, however that in the event Licensee solves the interference and/or discontinues use of equipment causing the interference during such thirty (30) day period, this Agreement shall not terminate. (d) Licensee shall have the right to exercise a buyout option ("Buyout") in which Licensee desiring to terminate this Agreement shall remit to Licensor the sum of six (6) months' License Fees as liquidated damages. Upon Licensor's written acceptance, which will not be unreasonably withheld, of the Buyout, this Agreement will be terminated. Licensee will be required to faithfully execute all terms and conditions as stated herein prior to termination. Section 6.03 Relocation and Assistance In the event this Agreement is terminated for cause, Licensee shall not be entitled to any relocation rights or benefits and expressly waives such benefits and rights under city, state or federal relocation assistance plans. In the event this Agreement is terminated pursuant to this Section 6 (Licensor's Default), Licensee shall be entitled to reimbursement of fifty percent (50%) of the additional rent deposit. In the event such default occurs after the Initial Term of this Agreement, Licensee shall not be entitled to the additional rent deposit. ARTICLE 7 — ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 7.01 Permitted Assignment Licensee may assign this Agreement to any wholly -owned affiliate or subsidiary of Licensee or Licensee's parent company provided such assignee can provide Licensor 07-1228.002/28812 16 DO NOT RECORD commercially reasonable evidence of its ability to perform the financial requirements under this Agreement. Any other assignment, sublicense, collocation or transfer of Licensee's rights pursuant to this agreement requires Licensor's prior written consent which may be in the form of a tri-party agreement in its sole and absolute discretion. Except as provided above, this Agreement is personal to Licensee, and Licensee will not assign, transfer sublicense or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party. Section 7.02 Abandonment by Licensee Should Licensee breach this Agreement and abandon the Property prior to the expiration of the Term or any Renewal Term, Licensor may: (a) Continue this Agreement in effect by not terminating Licensee's right to the Property, in which event Licensor shall be entitled to enforce all its rights and remedies under this Agreement, including the right to recover the License Fee/consideration specified in this Agreement as it becomes due under this Agreement; or (b) Terminate this Agreement and recover from Licensee: 1. The worth at the time of award of the unpaid License Fee which has been earned at the time of termination of the Agreement, or the sum of one (1) year's License Fee, whichever is greater, and 2. The worth at the time of award of the amount by which the unpaid License Fee which would have been earned after termination of the Agreement until the time of award exceeds the amount of rental loss that Licensee proves could have been reasonably avoided; and 3. The worth at the time of award of the amount by which the unpaid License Fee for the balance of the term of this Agreement after the time of award exceeds the amount of rental loss that Licensee proves could be reasonably avoided; and 4. Any other reasonable amount necessary to compensate Licensor for all detriment proximately caused by Licensee's failure to perform its obligations under this Agreement. Section 7.03 Default Should Licensee, beyond any applicable grace or cure period, default in the performance of any of the terms, conditions or obligations contained in the Agreement, Licensor may, in addition to any remedy specified herein, re-enter and regain possession of the Property and require Licensee to remove all of Licensee's Facilities at 07-1228.002/28812 17 DO NOT RECORD its sole cost and expense a workmanlike and careful manner and without interference or damage to any other equipment, structures or operations on the Property, including the use of the Property by Licensor or any of Licensor's licensees, assignees or Licensees. Licensee shall repair any damage to the Property caused by such removal and will leave the Property in the condition required herein subject to Licensor's reasonable acknowledgement in writing that such conditions have been satisfied. If Licensee fails to remove all its Facilities, including antennas within forty-five (45) days, Licensor may elect to do so at Licensee's sole cost and expense or elect to not remove its Facilities, in which case, such Facilities shall become the property of Licensor, at Licensor's option. Any personal property, equipment or other improvements that are not removed within the forty-five day period shall become the property of Licensor, at Licensor's option in conformance with Section 3.01(e). Section 7.04 Insolvency of Licensee The insolvency of Licensee as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Licensee, or the making of a general assignment for the benefit of creditors by Licensee, or the filing of a petition in bankruptcy by Licensee shall terminate this Agreement and entitle Licensor to re-enter and regain possession of the Property. Section 7.05 Cumulative Remedies The remedies given to Licensor and Licensee in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. Section 7.06 Waiver of Breach The waiver by Licensor or Licensee of any breach by the other party of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or another provision of this Agreement. ARTICLE 8 — QUIET ENJOYMENT Section 8.01 Quiet Enjoyment Licensor warrants that: (1) Licensor owns the Property in fee simple and has rights of access thereto; (2) Licensor has full rights to make this Agreement; and (3) Licensor covenants and agrees with Licensee that upon Licensee paying the License Fee and not being in default of this Agreement beyond any applicable grace or cure periods, Licensee may peacefully and quietly enjoy the Property; subject, nevertheless, to the terms and conditions of this Agreement. 07-1228.002/28812 18 DO NOT RECORD ARTICLE 9 — HAZARDOUS MATERIALS Section 9.01 Hazardous Materials Licensor represents that it has no knowledge, and will not store or dispose, of any hazardous substance on the Property in violation of any applicable federal, state or local law, rule or regulation. Licensee and Licensor represent they shall not introduce, transport or use any hazardous substance on the Property in violation of any applicable law. Licensee further agrees to clean-up and remediate any hazardous substance on the Property released by Licensee or its agents, and to hold Licensor harmless from and indemnify Licensor against, any release of any such hazardous substance and any damage, loss, or expense or liability to the extent caused thereby (including all attorneys' fees, costs and penalties). "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after reticence into the environment will or may reasonably be anticipated to cause sickness, death or disease. Licensee and Licensor shall each indemnify, defend and hold the other harmless from and against any and all losses, expenses or liabilities for their respective breach of the representations or warranties contained in this Section. ARTICLE 10 — MISCELLANEOUS Section 10.01 Force Majeure — Unavoidable Delays Should the performance of any act required by this Agreement to be performed by either Licensor or Licensee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused. Provided, however, that nothing contained in this section shall excuse the prompt payment of the Licensee Fee by Licensee as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, Licensor or Licensee, required to perform the act. Section 10.02 Notice Any written notice or required submittals, given under the terms of this Agreement, shall be delivered personally, or mailed, certified mail, postage prepaid, addressed to the party concerned as follows: 07-1228.002/28812 19 DO NOT RECORD TO LICENSEE: T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: PCS License Administrator Omnipoint Communications, Inc., a Subsidiary of T-Mobile, USA, Inc. 3 MacArthur Place, #1100 Santa Ana, CA 92702 Attn: License Administration Mgr. T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: Legal Dept. AND Omnipoint Communications, Inc., a Subsidiary of T-Mobile, USA, Inc. 3 MacArthur Place, #1100 Santa Ana, CA 92702 Attn: Legal Dept. LICENSEE'S EMERGENCY CONTACT NUMBER: 1-888-662-4662. TO LICENSOR: City Of Huntington Beach Director of Economic Development 2000 Main Street Huntington Beach, CA 92648 Phone: (714) 536-5542 Licensor or Licensee may from time to time designate any other address for this purpose by written notice to the other party. All notices shall be deemed effective three (3) days after deposit in U.S. mail, certified and postage paid, or upon receipt if personally delivered or sent by next -business -day delivery via a nationally recognized overnight courier to the address set forth above. Section 10.03 Contract Administrator The Real Estate Services Manager, o Administrator for this Agreement and all herein shall be so directed and addressed. Section 10.04 Compliance with Laws r his designee, shall be City's Contract approval and notices required to be given Licensee shall, at Licensee's sole cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state and county and municipal, required by Licensee's use and occupancy of the Property and Licensee's Facilities, whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. The final judgment of any court of competent jurisdiction, which shall include any right of appeal, or the admission by Licensee in a proceeding brought against Licensee by any government entity, that 07-1228.002/28812 20 DO NOT RECORD Licensee has violated any such statute, ordinance, regulation or requirement shall be conclusive as between Licensor and Licensee and shall be ground for termination of this Agreement by Licensor. Licensee shall, at Licensee's sole cost and expense, obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. Section 10.05 Binding on Heirs and Successors This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. Section 10.06 Interpretation of this Agreement The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and whenever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. Section 10.07 Waste or Nuisance Licensee shall not commit or permit the commission by its agents or contractors of any waste on the Property. Licensee shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Property; and Licensee shall not use or permit the use of the Property for any unlawful purpose. Section 10.08 Repairs Licensee shall not be required to make any repairs to the Property, except for damages to the Property to the extent caused by Licensee, its employees, agents, contractors, and subcontractors. 07-1228.002/28812 21 DO NOT RECORD Section 10.09 Time of Essence Time is expressly declared to be the essence of this Agreement. Section 10.10 Governing Law This Agreement shall be governed under the laws of the State of California, and any and all actions initiated under this Agreement shall be brought solely and exclusively in a court of competent jurisdiction in the County of Orange, State of California, and no other court. Section 10.11 Survival Terms and conditions of this Agreement which by their sense and context survive the termination or expiration of this Agreement, shall so survive. Section 10.12 Public Necessity Following the expiration of the Initial Term, Licensor may, upon six (6) months prior written notice to Licensee, suspend or revoke this Agreement without liability to Licensee when either: (i) public necessity so requires, or (ii) Licensor desires to redevelop the Property in such a manner as is inconsistent with Licensee's continued use of the Premises as set forth herein; or (iii) in the event of public emergency threatening the health or safety of persons or property, suspend operation immediately hereunder without any liability to Licensee. An event of public emergency shall be determined by the reasonable discretion of the City Administrator. Such suspension will immediately terminate when the public necessity or emergency no longer exists. Notwithstanding the foregoing, during any such suspension, Licensor shall give Licensee notice of the suspension as soon as is reasonably practicable given the state of the emergency and the Licensee Fee shall abate during the term of suspension. Furthermore, Licensor's right to terminate pursuant to (i) or (ii) above shall be conditioned on Licensor and Licensee first adhering to the following relocation procedure during the six (6) month notice period. (a) Upon Licensee's receipt of notice of termination as set forth above, Licensee shall have the right to propose alternative locations on the Property, or upon property owned by Licensor adjacent thereto, as potential candidates for the relocation of Licensee's Premises and facilities for Licensor's consideration (herein referred to as the proposed "Revised Premises"). Licensor and Licensee shall thereafter promptly meet in good faith to discuss the feasibility of the proposed Revised Premises for Licensee's continued use as a wireless communications facility. In the event Licensee and Licensor agree on a Revised Premises, Licensee shall have the right, at its sole cost and expense (and subject to Licensee obtaining all necessary permits and approvals), to relocate the Premises and its facilities located thereon to the Revised Premises as mutually 07-1228.002/28812 22 r DO NOT RECORD agreed upon. Such relocation shall be accomplished in a manner that does not interfere with either Licensor's public use of the Property or its redevelopment thereof as the case may be. Subject to the foregoing, Licensee shall have the right to utilize a COW on the Property in a location as mutually agreed upon at Licensee's sole cost and expense in order to minimize any disturbance to its service provided from the Property during such relocation. Upon completion of the relocation to the Revised Premises, Licensee and Licensor shall amend this Agreement to reflect the new Revised Premises and all references herein to the Premises shall thereafter refer to and mean the Revised Premises. (b) Notwithstanding the foregoing, in the event Licensee and Licensor can not agree upon a Revised Premises prior to the expiration of the six (6) month period, this Agreement shall terminate at the expiration of such time period without further obligation thereafter on the part of either party unless otherwise set forth herein. Section 10.13 Conflict of Interest Licensee warrants and covenants that, to the best of its knowledge, no official or employee of Licensor nor any business entity in which an official or employee of Licensor is interested (1) has been employed or retained to solicit or aid in the procuring of this Agreement; or (2) will be employed in the performance of this Agreement without the immediate divulgence of such fact to Licensor. In the event Licensor determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of the Licensor, Licensee, upon request of Licensor, shall terminate such employment immediately. For material breaches or violations of this Section, Licensor shall have the right both to annul this Agreement without liability, and, in its sole discretion, recover the full amount of any such compensation paid to such official, employee or business entity. Section 10.14 Attorney's Fees In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. Section 10.15 Captions Captions used in this Agreement are for ease of reference only and shall not affect the construction or interpretation of this Agreement. Section 10.16 Duplicate Original The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, 07-1228.002/28812 23 DO NOT RECORD irrespective of the date of its execution and delivery, be deemed an original. Each of the parties hereto shall retain an originally signed copy hereof. Each duplicate original shall be deemed an original instrument as against any party who has signed it. Section 10.17 Sole and Only Agreement This Agreement constitutes the entire agreement and understanding between Licensor and Licensee respecting the Property, the licensing of the Property to Licensee, or the license Term herein specified, and correctly sets forth the obligations of Licensor and Licensee to each other as of its date. Any agreements or representations respecting the Property or their licensing between the parties not expressly set forth in this instrument are null and void. This Agreement or any part of it may not be changed, altered, modified, limited or extended orally or by any Agreement between the parties, unless such Agreement is expressed in writing, signed and acknowledged by Licensor and Licensee, or their successors in interest. Section 10.18 Additional Wireless Carriers Licensee acknowledges that it is the intent of the Licensor to locate the facilities of several wireless carriers at this location. Licensee shall make all reasonable efforts to locate and relocate its equipment and facilities in such a manner so as to accommodate any and all additional carriers licensed by the Licensor to use the Property. Licensee will work in a timely and cooperative fashion to assist the Licensor and any and all additional wireless carriers that are licensed by the Licensor, to locate and operate a wireless facility on the Licensor's Property. [Signature Page Follows] 07-1228.002/28812 24 DO NOT RECORD IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. OMNIPOINT COMMUNICATIONS, INC., a subsidiary of T-MOBILE USA, INC., a Delaware corporation. By: 4of Re tonal y. print name IT ((" e/'1 cAChairman/President/Vice President it❑ r ---print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer Approved as to form Tania B. Oao Corporate Counsel Exhibits CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California INITIATED AND APPROVED: Director of Economic evelopment nl.ATED AND APPROVED: it ctor of C mmunity rvices Administrator ROVED AS TO FORM: i J ity Attorney �tV /a-3.ny I.(� v � 9 Exhibit A Legal Description Exhibit B Premises/Licensee's Facilities 07-1228.002/28812 25 DO NOT RECORD SITE LICENSE AGREEMENT Exhibit "A" Legal Description Page 1 of 2 The land referred to herein is situated in the State of California, County of Orange, described as follows: All that portion of the East half of the Southwest quarter of Section 20, Township 5 South, Range 11 West, as shown on a map recorded in Book 51, Page 13 of Miscellaneous Maps, Records of Orange County, California, described as follows: Beginning at the Southwesterly corner of the land described in deed to the Ocean View School District of Orange County, recorded June 6, 1963 in Book 6577 Page 545 of Official Records of said Orange County; thence along the Westerly extension of the Southerly line of said land of the Ocean View School District, South 890 38' 50" West 60.00 feet to the Southeast corner of the land described as Parcel 2 in deed to the State of California, recorded May 14, 1970 in Book 9289, Page 612 of said Official Records, said point being the True Point of Beginning; thence along the Southerly line of said land of the State of California; South 890 38' 50" West 20.00 feet to the Southwest corner thereof; thence North 00 40' 09" West 148.00 feet along the Westerly line of said land of the State of California to the Northwest corner thereof; thence along the Northerly line of said land and the Northerly line of the land described as Parcel 2 in deed to the State of California, recorded May 14, 1970 in Book 9289, Page 608 of said Official Records, North 890 38' 50" East 80.00 feet to the Westerly line of said land of the Ocean View School District; thence North 00 40' 09" West 177.00 feet along said last mentioned Westerly line to the Southerly line of the land described as Parcel 1 in deed to the State of California; recorded May 14, 1970 in Book 9289, Page 608 of said Official Records; thence South 890 38' 50" West 232.09 feet along said last mentioned Southerly line and the Southerly line of the land described as Parcel 1 in deed to the State of California, recorded May 14, 1970 in Book 9289, Page 612 of said Official Records, to the Southwest corner of said last mentioned land of the State of California; thence along the Westerly line of said last mentioned land, North 00 40, 09" West 305.00 feet to the Northerly line of the land described as Parcel 1 in deed to Lincoln Property Company No. Twenty -Seven, recorded December 31, 1968 in Book 8831 Page 697 of said Official Records; thence along the boundary line of said land of Lincoln Property Company No. Twenty -Seven, South 890 38' 50" West 48.67 feet, more or less, to the beginning of a tangent curve concave Southeasterly and having a radius of 30.00 feet; thence Southwesterly along said curve through a central angle of 890 55' 35" an arc distance of 47.09 feet to the Easterly line of Saybrook Lane as described in deed to the Continued on next page 07-1228.002/28812 EXHIBIT A DO NOT RECORD SITE LICENSE AGREEMENT Exhibit "A" Legal Description Page 2 of 2 City of Huntington Beach, recorded May 6, 1965 in Book 7511, Page 149 of said Official Records; thence tangent to said curve along said Easterly line of Saybrook Lane, South 00 16' 45" East 262.40 feet to the most Easterly Northeast corner of Tract no. 5360, as shown on a map recorded in Book 200, Pages 6 to 14 inclusive, of said Miscellaneous Maps; thence along the Easterly line of said Saybrook Lane and along the Easterly boundary line of said Tract No. 5360, South 00 16[' 45" East 30.00 feet to the beginning of a tangent curve concave Easterly and having a radius of 1420.00 feet; thence Southerly along said curve through a central angle of 220 05' 09" an arc distance of 547.37 feet to the beginning of a compound tangent curve concave Northerly and having a radius of 20.00 feet; thence Easterly along said curve through a central angle of 980 17' 39" an arc distance of 34.31 feet; thence tangent to said curve North 590 20' 27" East 56.29 feet, more or less, to the beginning of a tangent curve concave Northwesterly and having a radius of 150.00 feet; thence Northeasterly along said curve through a central angle of 600 00' 36" an arc distance of 157.11 feet to a point in a line which bears South 00 40' 09" East from the True Point of Beginning; thence tangent to said curve North 00 40' 09" West 77.45 feet to the True Point of Beginning. End of Legal Description Licensor `s Initials Licensee's Initials 15- 07-1228.002/28812 EXHIBIT A DO NOT RECORD P 1G65 SITE LICENSE AGREEMENT Exhibit "B" The location of the Premises within the Lessor's property together with access, ingress, egress, easements and utilities are more particularly described or depicted as follows: See attached Sheets A-1, A-2, A-3, and B-1 for site LA 13156A, Harbour View Park. A final drawing or copy of a property survey depicting the above will replace this Exhibit "B" when initialed by Lessor and Lessee. Notes 1. This Exhibit may be replaced by a land survey or Site Plan of the Premises once it is received by Lessee. 2. Setback of the Premises from the Lessor's boundaries shall be the distance required by the applicable governmental authorities. 3. Width of access road shall be the width required by the applicable governmental authorities, including police and fire departments. 4. The type, number and mounting positions and locations of antennas and transmission lines are illustrative only. Actual types, numbers, mounting positions may vary from what is shown in the site sketch. Licensor `s Initials Licensee's Initials EXHIBIT B 07-1228.002/28812 sITE.nm�Iems 1. ff.NI� W dMlFlf fllI ffMaM¢HaIX� PSIAIL 11¢T H 1¢M1m N 1 W IIX FIIMIH a HIU®>DES HI¢p M R04PM Mfl OR MA9: INFS IIIt6 91rolWIR MRRaFA NMNO4nMM �Np ILA S W NR RY//I��Epp//NppapMHC HEIM06 iN11 NMINR � � mOfaw PIwP m mPlEllal ffCi tlY SH. WVGX .Y�p ME 6 � IMYwYIW RM6 4 IgYSYSIM 91YL H IlaMlfli XOMS Aw NA®4 .V-IN6wL9H aIRMo a NNOa aNlww.ND mm W AWnla/ONIm N mnWd ff INMCI. a ILL e>SIF YIDR; Ra11R assaq N¢ MN OMaal6 NNNI a nNe INN ®I Nam mu a mm nc v �ax,mPm�ff ni PMmIa�Nnw ¢I M RP6 al M W11EM ff MN H,IONL a NMnTMM. GI,IRN:IOR 9W1 H N4p®F mM m¢SmMN DNOI WTWw ff NL ONIM: Mll1i NN f1Y>nO INMN m SaR ff mIaR1Tw LONIMntm sru AID OMGw law Ga unnr fOWNN awm INMaoI ISIAnc ro seas sNpsa N¢ ,mm ff IENAs a asmsN eels unnu a mnsNms aru NRPr u eINIIN unna asx loemnxtx xN NWnsv mm m SPa 61W¢aCIIX al06aBY116S H mN¢ a W M MNw1FnRW 6 PLY6 E YmaGr NWMR9 m M NrnaTA,oaM Id ®RIW n0 M6NWIGA NN M i1NRA MaN 9Nl H PGIOIa911RL M OSO6M. 6 M®® N¢ m961® :H M aO11�DNo6A wall A 5¢,1F Aal s¢aa01 ,ENM aaRaIMIH u 11aF —,IR WN NIX- m; aMGMCINI FnNL IffA. ¢01A MI UE fA UMY N Hr.NI RAl A 9NR ff NI¢M.CIII.II t. �m6HC1¢Y 9VlL HH NY¢M¢ W w91ffGkWYB PROM m 11YL 166'I¢N 6 SORC 6 M NNYN OBWIIBII ®NN M NNOIN IwIN SIWL E NW!W W IaST INI IOYW �1®MM�M 6NINmaWSVA&RNM ®[OMNII leR s. NNNNff MSM INa AaA¢m ESAmx MI CEWMa6N sac MN¢m RAnm 0¢Iw WaS N M NYaC Im 16 KL IOMaPNN DGMIIl6 M M F6IMLMRII ff WMDGNMS YIIRlS E10. 91AL H PRaWY VW BIH M BMaD N Ian1pVE NM 011N.T aaPAlaa 9NETi NN IEA1X /an611Y0W (mIp Namsaa 1,. SiRULMWI Rln SNGIIN DNNFXIs 9WL H a',flGlm W IM ff 1YdMIN SawVW msam ON YOHN. ,L OlIla6 NaM NA010.YN ¢09SIIIWAIaH AN11WHM�®HiMi NM MRM®MW RL ND ONP/L'Im W ®6 54PM0IWCNP HIHI1. IS Md WISH �FHYR�OPCIm�nM� ¢Iprt MH��III IIIIII�M ®I�.W L IA RN RL9 0.1® al kIDls 9aFS 11NI AN SIBIVI iNNI IS NC�IOL W f 1BRICh 91YL H flaBMY ®Om Mm M mCli 9OH a �m H A RaRCICa fNNEat to MO NIH11B®Mro¢MEAH�MM]®¢/MNC¢N UFM MLW AR1BIYff Nmm�IWm Ns/gr\¢aac f� �wM® SaF II�O i 8� suvw�It MK A>sals flfN wH MY me la msMNTa sPu MDw tWa sR NRM mmRialN ssN is b PFP04 Haul MkF$ NISI a MN NINI NW915 pL IEIPIL ML WM3WG o•IBIm NMW aFMt MW11116 91ML H NR� ff �.9M a M 61WL nl10PGaI \ \ \ LDD N�Nw / SECTOR 'C' 7 � \ ` � J� - vMOrosn ussNNas mm L�- / Di RAiaas \ ` 01 AseNis lar f9 �kWIN— Ibd PRffFRIY ME IT. PIL NLLSMG51N16MIMENOfNHFLIWMlC1MMNROiWIM9WLH NYED a RwMO PIN RWRCIa N R,1H N M mvlL mxMY.roa In oaaW'tn¢aM.11a1 aeoe x¢ NIAIYH Nsa swL mMpN m aMmN NPNIIMMT 6 WYNNMWA SIMWNN 90W01 IW Ip0 AIN NNH MaRIMaf, W44 Pa¢a, xN xn NNuxE PNA®6 ff Iota mAni aYNMan 1M. RRWLEM H9E1®IIYffM HwmL tMIW.TUA ®wl 1pG. YW w1AM HI-1®ML�L NPORI TOR bGl NpdT RIE ILL Np.ffiM NMI 3M ¢iV¢ 9NL H IAAYmOA N M ffIN110111W.iW ND NL NNOIIIMaiN4 tlMIN.¢16 aNiE 9NNNN H M QAl®ICyblf GMIHA 91YL H ARW®M N M aMHCM NYm MSH¢ff MR FSYOOI� RawN aNIHI6 rt9NlHM sm v mmwcioL mw wmll sPRHa �IIIiNNSP�c �Imlaa ooNx Plm W IP®IC Nlx PUH,aII ff Pa RRM AN/OM IIRGAN.a m rtsPUHMsfsw�nff Mmsrw mllwnaMA Ka¢NN NSHL NL NI�aIWal FMia aim M DYR WINYI. 5� MNNIPi NN IOn4NL w6 m61FYG IFs H HpHn Ma,R NR NE Im IMMRn m. M Wuslsa MS la® NNL 'a sM esn soL e NRFNM G,INaIIN mPLLW14N 16A N OPf6R � / As � H w1sroM aNssY i - 77 _— SECTOR 'A' 0° � I! I � I Rom® ra mro wlanc il�' 'r RWPasn T-,0E IWH ,IHA NN OA IssawN ,NE (�Isay n RNI I I I HY-e LQJ 7 7 SECTOR 'B' i 20° `(Q 9SWH 7 RI I 1 I I I 1 I I I I I II DATE -.- CIVIL ENGINEER: COG DRAWN B/: MC CHECKED BY: in REVISIONS ,a,sm, °M ms ,1/Le/m RM m's M PROPRIETARY INFORMATION dPc T R .Mobile- J IMPERIAL PROMENADE, SUITE 1100 SANTA ANA. CA 92707 PR°NLT IYlIIaDC `GONNELL OESIGN GROUP, LLC r ITNrt. CD t. 00 p0 M wH HARBOUR VIEW PARK snE rAMeOe IA1315M sM ,rPe RAW LAND ANTENNA INSTALLATION AAmN 1INGT SABEACH, LANE HUMICOUNT BEACH, O N 92¢49 COUNTY OF ORANGE NRL TYPE SIZE PI.W, SITE DEVEIOPEMENT NOTES A-1 I SECTOR 'A' 0° Pd r� (4 M 3 PFII T-ID9 PMQ MGDMR 9311R. sEcmn mvy ��T�109E J N]I m3 NDFNA 'C' SECTOR NDeonO re Ww s�E 'B' 240 KLI (i�D YF1IET FI9Cf ILCUd SECTOR 120° ANTENNA LAYOUT 12 MDIC WRNr Arnw asv umur ao NOsnw PRIWI Rl1 INI{T DvaLxa er mIE✓6 alaE wmNenox Nf IW W A UORII— wA rma m vYEI N] Yty NYLT� NIDNU ��� � I I WLLi IKTDI I vmNsn r-mE Prs � T O DsaaE s wIUE1 ( �,. � \L Ie l Y yy 4 1 I � I I IgW.49 r�lml[ , PIC NO iDW G�Er A A NOmgO NTII NG EW 00 wEr EQUIPMENT LAYOUT E E/- p[NSD U4Niu1ED J Mn ENLARGED SITE PLAN PEDPOIf IAi _ (0 A1N0R 7 DATE ,/n/. CML ENGINEER: CDG DRAWN BY: MC CHECKED W. JPC REVISIONS REV G1E pfSCNPiIgI 10/13/P! WA: CP'S e PROPRIETARY INFORMARON 3 IMPERIAL PROMENADE, SUITE 1' SANTA ANA, CA 92707 Z"-7Pw)xcr Krwiae EAR y ` , CONNELL DESIGN GROUP, LLC m.r v vv:r�,�reiv�rv�Ro,r�r �Ty •W' WMULT/tIF. s>rt HWBOUR VIEW PARK Aug LA1315M snE rrrc RAW LAND ANTENNA INSTALLATION _ N _ ou 16598 SABEACH. LANE NDNDIOUNT REACH, 92849 N COUNTY OF ORANGE APPI. TYPE RL ENLARGEDSITE PLAN $ APfIfNNA LAYOUT E AD �E "J A-2 LVA DATE: II/x/m CIVIL ENGINEER: COG PxT6v0 MItTLN DRAWN Ri: MC MaPoao TEE Mxfl AVRNut os AVRNx CHECKED W: JPC I ({ PtR 9i'NR ! 4E1018 TPxU REVISIONS - i-WI®E 1S41WX H %OiD T�IOpF 1'Nll. MRM1K (1 tFll YCIMI J 9c1O61flxy q.V d1E t�N�� m/A/� Pt1L fD'9 - IpD�W M4® lYd Np to/t'J/aT N°9 61 tOvi cUS J Pin MamOD PROPRIETARY INFORIMTON PRO PNL iFID -E Spa pm x�ilax srnicnv anon®rtEo. rrnoei�[�c b p wr. IT x -Mobile- A W W 3 IMPERIAL PROMENADE, SUITE 1100 w — xERatR 8 b SANTA ANA, CA 92707 - ' _ td 9xNp R19]¢p Xp VMLT HNd WSFIIIICE Txm I - 4FxEPAId RRSPMF Np 91x18f It 9YEtl1 _ Np VNRi Hlid Mp RC GIDII F WN®0 .5 glIXER (I1CYMNf. MNpQ 121fYf9D T-IFI®£ M1LI tElx Wad t0 Ox]d9NE F� TiWlf R! �(I h991t ! FlRlxb T-Y091E W W Cx4 kNOMO]t NORTH ELEVATION 12 EAST ELEVATION ® 1 CONNELLOESLGN GROUP, LLc, tot/: m PxYGSID OS NPD1N1{ AExN® OS AVIFNN i-IpBIE MILL NIIiMMS CONlUIUNF. 4q PO1Rl4o T-M9E PNEL M110WS ({ P61 fft oR ] 4CIg61N/u ({ PFN 9TTOL 3 9LIOR! i1RNJ 00 i CIE DS 1RO5 PRlPD4D i-IIo9iE !Rd wW _ WAYNY- - fW'® i-u®[ x'd Nol -T� - _ W •tl£Zji U. 2Nv. rc' I _ wx ggg It b W § (O 1RE lffwlo) r _ (E) iIEE sRE &RDOUR VIEW PARK Nl ppmxN 17 !fli 6Nd m olOfaxE _. - 74 Nuu atrz ppER{lpN RSffi(nE _ LA15156A Np 9MIp Tt 90Ep TOY V.xILT M11N _ Mp 9R1� m �I I®1' WLII Ntid = TYPE RAW LAND ANTENNA INSiAlUT10N wcaxxt 1659E SAYE a _ CH. A 92649 HUMICOUNTY CwxEI OF ORANGE f1Nip iY[9f BIS � PP➢Pf3➢ i�l!®E x! C1tlIER (t�CllEllt ! DIM1PE) �TYPE GBING! (1�CUOPM. iyIORE ! RINOG MYLT Mp Mid D! FNCIx9lR: TiN9EWlU\ ELEVATION6 .� NIIYBEA. �. A-3 SOUTH ELEVATION io '�, ,. 2 WEST ELEVATION >� ® 2 1s`-i L l 5/ /r / Sr r/ /r PROPOSED L / PALM TREES — r (TYP. OF 2) r Sr PROPO� r T-MOBILE 55'-0" HIGH— M/ONH ALM TREE W/ ANTENNAS / /yr ,rr ,r SITE PLAN u DATE: 11/06/08 CIVIL ENGINEER: CDG DRAWN BY: JPC CHECKED BY: JPC REVISIONS REV I DATE I DESCRIPTION p 111/06/081 LEASE EXHIBIT THEINFORMATION CONTAINS INTHISSET OF DRAWINGS IS PROPRIETARY BY NATURE. ANY USE CR DISCLOSURE OTHER THAN THAT WHICH RELATES TO T OBILE IS TREES STRICTLY PROHIBITED. CLIENT: 3 IMPERIAL PROMENADE, SUITE SANTA ANA, CA 92707 PROJECT MANAGER: CIVIL ENGINEER: IE AREA FT.) d?!t-- [> C CONNELL DESIGN GROUP, LLC Cl11M1'L'LTIVC.CIFIL EtifI:VEEAt 16SI IGCARTHL9 COCRT ATlE{fAVCWMRtBE4CHG 9:BE0 0<9133880'OFFICT (49)153483 A CDG#: 06-9072 CONSULTANT: SEAL PROPOSED T-MOBILE SITE NAME: EQUIPMENT VAULT AND LEASE AREA Harbour View Park (APPROX 30'x21' = 630 SQ. FT.) SITE NUMBER: LA13156 SITE TYPE: RAW LAND ANTENNA INSTALLATION LOCATION: 16600 SAYBROOK HUNTINGTON BEACH, CA 92649 COUNTY OF ORANGE APPL. TYPE: LEASE EXHIBIT TITLE: LEASE EXHIBIT SHEET NUMBER: B-1 DO NOT RECORD SITE LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California AND OMNIPOINT COMMUNICATIONS, INC., a subsidiary of T-Mobile USA, Inc., a Delaware corporation AT HARBOUR VIEW PARK Table of Contents Page ARTICLE 1 — TERM OF LICENSE Section 1.01 Property and Use............................................................................ 1 Section 1.02 Condition Precedent....................................................................... 2 Section1.03 Term................................................................................................. 2 Section 1.04 License fee...................................................................................... 4 Section 1.05 Additional Rent............................................................................... 4 Section 1.06 Non -Possessory Interest................................................................ 4 Section 1.07 Non-Recording................................................................................4 ARTICLE 2 - TAXES AND UTILITIES Section2.01 Taxes............................................................................................... 4 Section2.02 Utilities............................................................................................. 4 ARTICLE 3 -- IMPROVEMENTS AND ACCESS Section 3.01 Licensee's Facilities...................................................................... 5 Section3.02 Liens................................................................................................ 8 ARTICLE 4 - INTERFERENCE Section 4.01 Interference..................................................................................... 8 ARTICLE 5 — INDEMNITY AND INSURANCE Section 5.01 Indemnification, Defense, Hold Harmless .................................... 11 Section 5.02 Worker's Compensation and Employers' Liability Insurance..... 11 Section 5.03 General Liability Insurance............................................................ 12 Section 5.04 Property Insurance......................................................................... 12 Section 5.05 Certificates of Insurance; Additional Insured Endorsements..... 13 Section 5.06 Insurance Proceeds........................................................................ 14 Section 5.07 Insurance Hazards.......................................................................... 14 DO NOT RECORD DO NOT RECORD Table of Contents, continued Page No. ARTICLE 6 - TERMINATION AND DEFAULT Section 6.01 Termination in the Event of Casualty or Condemnation ............. 14 Section6.02 Termination..................................................................................... 15 Section 6.03 Relocation and Assistance............................................................ 16 ARTICLE 7 - ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 7.01 Permitted Assignment.................................................................... 16 Section 7.02 Abandonment by Licensee............................................................ 16 Section 7.03 Default by Licensee........................................................................ 17 Section 7.04 Insolvency of Licensee................................................................... 17 Section 7.05 Cumulative Remedies..................................................................... 17 Section 7.06 Waiver of Breach............................................................................ 18 ARTICLE 8 - QUIET ENJOYMENT Section 8.01 Quiet Enjoyment............................................................................. 18 ARTICLE 9 - HAZARDOUS MATERIALS Section 9.01 Hazardous Materials....................................................................... 18 ARTICLE 10 - MISCELLANEOUS Section 10.01 Force Majeure - Unavoidable Delays .......................................... 19 Section10.02 Notice............................................................................................. 19 Section 10.03 Contract Administrator................................................................. 20 Section 10.04 Compliance with Laws................................................................. 20 Section 10.05 Binding on Heirs and Successors ............................................... 20 Section 10.06 Interpretation of this Agreement ................................................. 20 Section 10.07 Waste or Nuisance........................................................................ 21 Section10.08 Repairs........................................................................................... 21 Section 10.09 Time of Essence........................................................................... 21 Section 10.10 Governing Law..............................................................................21 Section10.11 Survival..........................................................................................21 Section 10.12 Public Necessity........................................................................... 21 Section 10.13 Conflict of Interest........................................................................ 22 Section 10.14 Attorney's Fees............................................................................. 23 Section 10.16 Duplicate Original......................................................................... 23 Section 10.17 Sole and Only Agreement............................................................ 23 Section 10.18 Additional Wireless Carriers........................................................ 23 SignaturePage..................................................................................................... 24 DO NOT RECORD ii ATTACHMENT #2 DO NOT RECORD SITE LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND OMNIPOINT COMMUNICATIONS, INC., A SUBSIDIARY OF T-MOBILE USA, INC., A DELAWARE CORPORATION AT BOLSA VIEW PARK THIS SITE LICENSE AGREEMENT ("Agreement") is made and entered into this AQ 71" of 200__�?_, by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, herein referred to as "Licensor", and OMNIPOINT COMMUNICATIONS, INC., a subsidiary of T-MOBILE USA, INC., a Delaware corporation, hereinafter referred to as "Licensee." The parties hereto agree as follows: ARTICLE 1 — TERM OF LICENSE Section 1.01 Property and Use (a) Licensor is the owner of certain real property located in the City of Huntington Beach, County of Orange, State of California as more particularly described in Exhibit "A" (Legal Description), attached hereto and incorporated herein by reference ("Property"). The Property is commonly known as the Bolsa View Park, 5741 Brighton Dr., Huntington Beach, CA 92649 (Bolsa View Park, Site #LA13157B). (b) Licensee is a provider of communication services which require the transmission and reception of radio communication signals on various frequencies. (c) Licensee desires to place its equipment in an underground vault; install antennas mounted to a new monopalm, coax cable runs from equipment to panel antennas; a 200A electrical and telephone service to equipment. (d) Subject to the terms and conditions contained herein, Licensor hereby grants to Licensee the privilege to install, upgrade, operate and maintain a mobile/wireless telecommunications facility, and other communication equipment, structures and improvements as may be approved, hereinafter referred to as "Licensee's Facilities" or "Premises," and more specifically described in Exhibit "B" attached hereto and made a part hereto. (e) The right and permission of Licensee is revocable as set forth herein for the Term and each Renewal Term and is subordinate to the prior and paramount right of Licensor to use the Property in its entirety for public purposes to which now it is and may, at the option of Licensor, be devoted. Licensee undertakes and agrees to use the Property and to exercise this license at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Property by Licensor including emitting frequencies that may affect City public safety 07-1228.001 /28810 1 DO NOT RECORD communications. Notwithstanding the foregoing, Licensor agrees to use good faith efforts to carry out its public purposes in a manner that will, whenever feasible, continue to accommodate Licensee's use of the Property as set forth herein. (f) Licensor represents and Licensee hereby acknowledges title to the Property is vested in Licensor and Licensee agrees never to assail or resist the same, and further agrees that Licensee's use and occupancy of the Property shall be referable solely to the permission herein given. (g) Subject to Section 4 below: (i) Licensee acknowledges that it is the intent of the Licensor to collocate the facilities of several wireless carriers at this location; (ii) Licensee shall make reasonable efforts to locate its equipment and facilities in such a manner so as to accommodate any and all additional carriers licensed by the Licensor to use the Property; (iii) Licensee will work in a timely and cooperative fashion to assist the Licensor and any and all additional wireless carriers that are licensed by the Licensor, to locate and operate a wireless facility on the Licensor's Property. Licensee acknowledges that it shall have no right to independently negotiate and/or physically collocate additional carriers on its facilities or equipment without the prior written consent of Licensor. Licensee and Licensor acknowledge that such consent may be conditioned upon Licensor entering into an agreement with such additional carriers for the placement of their equipment. In such event the parties will enter into a third party agreement whereby the Licensor and Licensee will share rent at a percentage to be agreed upon in the future. Section 1.02 Condition Precedent This Agreement is conditioned upon Licensee receiving a license, or already having a license, from the Federal Communications Commission ("FCC") and all applicable governmental permits and approvals, including any conditions of approval thereto, (collectively "Approvals") enabling Licensee to construct and operate Licensee's Facilities. In the event Licensee, despite good faith efforts to do so, has not been able to obtain any such Approvals within one hundred eighty (180) days after the full execution of this Agreement, Licensee may terminate this Agreement without penalty or further liability by providing written notice to Licensor prior to the expiration of the one hundred eighty (180) day period. The installation, operation and maintenance and any upgrades of Licensee's Facilities on the Property are subject to all ordinances and regulations of general application now in effect or subsequently enacted including, but not limited to those concerning encroachment permits, business licenses, zoning and building. Licensee agrees that any additions, alterations, or new construction to the Property or Licensee's Facilities, other than that set forth in Exhibit B, must be re -reviewed and approved in writing by Licensor prior to the addition or construction taking place. 07-1228.001 /28810 2 DO NOT RECORD Section 1.03 Terra The term of the Agreement for the Property ("Term") shall be ten (10) years commencing on the earlier to occur of: (i) the first day of the month following written notice to Licensor by Licensee of Licensee's intent to commence installation of Licensee's Facilities on the Property, or (ii) the first day of the month following the issuance of a local building permit allowing Licensee to construct its mobile/wireless communications facilities on the Property, or (iii) the first day of the month following the twelve (12) month anniversary of the date written in the first paragraph of this Agreement ("Commencement Date"). The Term of the Agreement for the Property may be extended for two (2) additional five (5)-year terms (each additional term shall be a "Renewal Term") upon the mutual consent of the parties. Licensor may withhold consent for Renewal Terms, if at its sole discretion, Licensor determines that the Property will be used for public purposes that are inconsistent with this Agreement. Each Renewal Term shall be on the same terms and conditions set forth herein. Section 1.04 License Fee (a) Within thirty (30) days of the Commencement Date, and on the first day of each month thereafter during the Term or Renewal Term ("Payment Date"), Licensee shall pay Licensor a monthly license fee in the amount of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) ("License Fee") adjusted in accordance with paragraphs below. The parties agree that this is a net Agreement intended to assure Licensor the License Fee reserved on an. absolute net basis. In addition to the License Fee, Licensee shall pay to the parties entitled thereto all taxes, assessments, insurance premiums, maintenance charges, and any other charges, costs and expenses to the extent attributable to Licensee's use of the Property or Licensee's Facilities. Any portion of the License Fee shall incur the following additional charges in the event it remains unpaid within ten (10) days following Licensor's written notice of late payment: (i) A late charge of ten percent (10%); and (ii) One and a half percent (1 1/2%) interest per month for each month payment hereunder is due but unpaid. (b) Licensor and Licensee agree that the License Fee shall annually adjusted each year beginning on the first anniversary of the Commencement Date such that the Licensee Fee shall be increased by four percent (4%). (c) Any holding over after the expiration of the Term or Renewal Term and following notice from Licensor of its intent not to renew or extend the Term of this Agreement shall be construed to be an extension from month to month at 1 '/2 times the then current License Fee (which shall include the annual increase herein specified) and shall otherwise be on the conditions herein specified, so far as applicable. 07-1228.001 /28810 3 DO NOT RECORD Section 1.05 Additional Rent Within thirty (30) days after the full execution of this Agreement, Licensee shall deposit with Licensor the sum of Twenty Thousand Dollars ($20,000) to be retained by Licensor as additional consideration for this License. Notwithstanding the foregoing, Licensor agrees that, pursuant to Section 1.02, Licensor shall refund Licensee fifty percent (50%) of the additional rent deposit should Licensee not be able to obtain Approvals to construct Licensee's Facilities despite good faith efforts to do so as required herein. This section shall not apply to upgrades or any future construction on the Premises. Section 1.06 Non -Possessory Interest Licensor retains full possession of the Property and Licensee will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. Section 1.07 Non -Recording Licensee may record a memorandum of this Agreement in the office of the County Recorder wherein the Property is located provided that Licensee first supplies Licensor with a fully executed Quit Claim Deed which Licensor may similarly record immediately. upon the expiration or earlier termination of this Agreement thereby removing from record the memorandum of this Agreement. ARTICLE 2 — TAXES AND UTILITIES Section 2.01 Taxes Licensee shall pay before they become delinquent all taxes, assessments or other. charges levied or imposed by any government entity, including Licensor, on Licensee's Facilities or the Premises. If such taxes are not assessed separately to Licensee, Licensor shall timely provide Licensee with evidence, reasonably acceptable to Licensee, of such tax assessment and the amount due, which is attributable to Licensee's Facilities, sufficient to allow Licensee to consent to or challenge such assessment. Section 2.02 Utilities (a) Licensee shall pay for the following at the rate charged by the service provider and hold Licensor free and harmless from: (1) all utilities furnished to the Property for the use, operation and maintenance of Licensee's Facilities during the Term of this Agreement, or any extension thereof, and (ii) for the removal of garbage and rubbish, from the Premises and, to the extent caused by Licensee or its contractors, employees or 07-1228.001 /28810 4 DO NOT RECORD agents, the Property, during the Term of the Agreement, or any extension thereof. (b) Licensee shall have the right to install utilities and to improve the present utilities on or near the Property and to install a temporary above ground emergency back-up power generator, all at Licensee's sole cost and expense. Subject to Licensor's contracting power, and at the reasonable discretion of the City Attorney, Licensor agrees to execute such documentation as may be required by the servicing utility provider in order for Licensee to acquire necessary utility service at no cost to Licensor. Notwithstanding the foregoing, the parties acknowledge that such documentation must be commercially reasonable and nothing herein will waive Licensor's right to determine in consultation with the servicing utility provider the route of Licensee's utility easements. Licensee shall, wherever practicable, install separate meters for utilities used on the Property by Licensee. In the event separate meters are not utilized, Licensee shall pay the periodic charges for all utilities attributable to its use. Licensee shall have the right to place utilities on Licensor's Property in order to service the Property and Licensee's Facilities provided the location of such utilities is pre -approved by Licensor and the servicing utility provider, which approval shall not be unreasonably withheld and shall be given within thirty (30) days of a request to locate utilities from Licensee. Licensee shall be responsible to relocate its utilities or other substructures, at Licensee's sole cost and expense, within forty-five (45) days after receiving written notice to do so by Licensor. Licensor shall only require relocation of Licensee's utilities or other substructures if Licensor reasonably determines that relocation is necessary to permit Licensor's ordinary use of the Property for public purposes. Notwithstanding the foregoing, Licensor shall not require the relocation of Licensee's utilities of other substructures more than one (1) time during the Term of this Agreement or any extension thereof. Licensee shall comply with all requirements to underground utilities. ARTICLE 3 — IMPROVEMENTS AND ACCESS Section 3.01 Licensee's Facilities (a) During the Term or any Renewal Term, Licensee shall have the right, at its sole cost and expense, to construct, maintain and operate Licensee's Facilities on the Property. In connection therewith, Licensee, through the appropriate permit or approval process, shall have the right to perform all work necessary to prepare, maintain and alter the Property for Licensee's Facilities. Licensor shall endeavor to approve within thirty (30) days, all plans and specifications for such work, in writing, before any work, except technician maintenance or repair, may begin. 07-1228.001 /28810 5 DO NOT RECORD (b) Licensor reserves the right to add additional telecommunication or other equipment as may be needed by Licensor and/or enter into additional agreements with any third party to install and operate additional telecommunication equipment on the Property so long as the equipment does not interfere with . Licensee's Facilities. Licensor reserves the exclusive right to negotiate and collect all rents, license fees or any other payments from any arrangements it enters into with such third party. (c) Except as provided herein, Licensor shall not have the right to install equipment on the Licensee's Facilities or within the area depicted on the attached Exhibit B which is designated for Licensee's exclusive use. (d) During the installation of Licensee's Facilities, Licensee shall cooperate with Licensor's representatives, which may monitor the installation of Licensee's Facilities, at Licensor's sole cost and expense. (e) All of Licensee's construction/installation work shall be performed at Licensee's sole cost and expense and completed in a good and workmanlike manner by licensed and bonded contractors and shall not materially interfere with Licensor's then existing facilities and operations. Any and all modifications to the Licensor's property must meet all applicable structural engineering, building and safety standards for this type of public facility. (f) Licensee shall hold title to Licensee's Facilities and any equipment placed on the Property by Licensee. All of Licensee's Facilities shall remain the personal property of Licensee and are not fixtures. Licensee has the right to remove all of Licensee's Facilities at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a workmanlike and careful manner and without interference or damage to any other equipment, structures or operations on the Property, including the use of the Property by Licensor or any of Licensor's licensees, assignees or Licensees. Licensee shall repair any damage to the Property caused by such removal and will leave those portions of the Property impacted by License's use in the same condition they existed in prior to the Commencement Date, reasonable wear and tear and casualty excepted. Licensee shall be required to remove all of Licensee's Facilities and improvements, including antennas, and if Licensee fails to do so within ninety (90) days, Licensor may elect to do so at Licensee's sole cost and expense or elect to not remove its Facilities, in which case, such Facilities shall become the property of Licensor, at Licensor's option, in their "AS IS" and "WHERE IS" condition without representation or warranty of any kind or nature. Rent shall not cease, unless and until all the Licensee's Facilities that Licensee must remove, are removed or Licensor has taken title to them as set forth herein. (g) Licensee shall be required to provide for electrical service to and through Licensor's property at Licensee's sole cost and expense. Any 07-1228.001 /28810 6 DO NOT RECORD encroachment necessary for such utility service will be at a location reasonably acceptable to Licensor and the servicing utility. (h) Licensor shall provide Licensee and its employees, agents, contractors and subcontractors access to the Premises and Licensee's Facilities twenty-four (24) hours a day, seven (7) days a week or as designated in permit approvals. Except in the case of emergencies, Licensee shall give Licensor twenty-four (24) hours notice prior to entry into the Property. Licensor represents and warrants that it has full rights of ingress and egress to and from the Property, and hereby grants such rights to Licensee to the extent required to construct, maintain, install, and operate Licensee's Facilities on the Property. Licensee's exercise of such rights shall not cause undue inconvenience to Licensor nor shall any such exercise interfere with the use of the premises by Licensor or its licensees, guests, or assignees. In the event of an emergency threatening the health or safety of persons or property, Licensor shall contact Licensee's emergency hotline at the telephone number listed under the notice provision of this Agreement whereupon Licensee shall promptly address the issue and take such actions as are reasonably required given the nature of the emergency. Should changes be made to the contact names and telephone number, Licensor shall be notified prior to the change. (i) Unless caused directly by Licensor, its agents, employees or contractors, Licensee shall, at its sole cost and expense, maintain and repair the Premises and Licensee's Facilities including, but not limited to, the removal of all trash, debris and graffiti therefrom. Licensor may exercise its right to self-help and bill Licensee in the event trash, debris and graffiti are not removed within forty-eight (48) hours of notice thereof to Licensee. If Licensee causes any damage to the Property, or to access roadways or other nearby facilities, it shall properly repair same to the condition in which it existed prior to the damage. Licensee shall provide contact names for damage/graffiti control. In addition, should changes be made to the contact names and telephone number, Licensor shall be notified prior to the change. (j) Entry and Inspection. Licensor may at any time, without any obligation to do so, enter the Property for the purpose of viewing and ascertaining the condition of the Property, or to protect its interests in the Property, or to inspect the operations conducted on the Property provided that Licensor gives Licensee enough prior written notice to reasonably allow Licensee to accompany Licensor on such inspection to help assure the safety of the visitors and to minimize any accidental interference with Licensee's Facilities. If Licensor's entry or inspection discloses that the Property is not in a decent, safe, healthy, and sanitary condition, Licensor may, after twenty (20) days written notice to Licensee, have any necessary maintenance work done in order to keep the Property in a decent, safe, healthy, and sanitary condition, all at Licensee's sole cost and expense, and Licensee shall promptly pay any and all commercially reasonable 07-1228.001 /28810 7 DO NOT RECORD costs incurred by Licensor in having the necessary maintenance work done. If at any time Licensor determines that the Property is not in a decent, safe, healthy, and sanitary condition, Licensor may, without additional notice, require Licensor to file with Licensor a faithful performance bond to assure prompt correction of any condition which is not decent, safe, healthy, and sanitary. The bond shall in an amount adequate in Licensor's reasonable opinion to correct the unsatisfactory condition but shall not exceed $10,000.00. Licensee shall pay the cost of the bond. The rights reserved in this section shall not create any obligation on Licensor or increase Licensor's obligations elsewhere in this License Agreement. Upon the expiration or termination of this Agreement, Licensee shall surrender the Property to Licensor in good and clean condition, less ordinary wear and tear, and as approved in writing within ten (10) business days from Licensee's vacate date by Licensor. Section 3.02 Liens Licensee shall not permit any mechanics' or materialmen's, or other liens, or stop notices, to stand against the Property by reason of any use or occupancy by Licensee, or any person claiming under Licensee. If Licensee desires to contest or withhold any payment which would lead to the placement of any such liens or stop notices, or contest any such lien, or stop notice, then prior to commencing such contest and withholding, Licensee shall furnish Licensor with a bond to secure the payment of such obligation and obtain Licensor's prior written approval of the bond. Licensor hereby waives any and all lien rights it may have, statutory or otherwise, concerning Licensee's Facilities or any portion thereof, which shall be deemed Licensee's personal property. ARTICLE 4 - INTERFERENCE Section 4.01 Interference (a) Licensee shall operate Licensee's Facilities in such a manner that will not cause signal interference to communication equipment operated by Licensor in the normal course of providing public services and other previously authorized users of the Property and shall not disturb the communications equipment, configuration or frequency that exists on the Property on the Commencement Date of operation of Licensee's Facilities. Licensee's operations shall not interfere with any of Licensor's communications operations on a citywide basis, either current or future nor with any third party's communications operations provided that the third party's communications operations were installed prior the installation of Licensee's Facilities. The final determination of this interference rests solely with Licensor. In the event Licensee caused signal interference should occur, all costs to remedy the interference shall be borne by Licensee. All communication systems operations, operating in the same 07-1228.001 /28810 8 DO NOT RECORD manner as of the time of installation of Licensee Facilities and in compliance with all applicable laws, including all applicable Federal Communications Commission requirements shall not be deemed interference to Licensee. All operations by Licensee shall be lawful and in compliance with all applicable laws, including all applicable Federal Communications Commission requirements. (b) Licensee shall provide initial proof of compliance with original transmission tolerance and interference analysis by a certification through an independent source. (c) Subsequent to the installation of Licensee's Facilities, Licensor shall not permit use of the Property in a manner which interferes with the communication operations of Licensee and shall cause any such interference to promptly cease unless said interference is caused by public safety communication operations. In the event Licensor reasonably determines that a third party's operations contained within Licensor's Property do not interfere with Licensee's communications operations, and Licensee is still experiencing interference, Licensee shall have the right to hire, at Licensee's sole cost and expense, a non-affiliated, third -party consultant that is an expert in radio frequency interference issues ("Expert") to determine the source of such interference. This Expert shall determine the source of such interference, and will recommend in writing an appropriate course of action to eliminate the interference with Licensee's Facilities. If the Expert determines that a third party's operations interfere with Licensee's communications operations, Licensee shall provide Licensor with the Expert's written recommendation, and Licensor shall enforce the provisions of this Section, and promptly mandate the elimination of the third-party's interference which is contained within the Licensor's Property. (d) Subsequent to the installation of Licensee's Facilities, Licensor and Licensee shall notify each other thirty (30) days prior to the use or installation of any equipment on the Property, which may likely interfere with Licensee's Facilities, Licensor's facilities or its equipment, or the facilities or equipment of any other licensee, assignee or sublicensee of Licensor. Within ten (10) business days from Licensee's notification to Licensor, Licensor will forward Licensee contact information to any existing communications, licensee, assignee or sublicensee of Licensor's. (e) If Licensee or Licensor breaches its obligations under this Article 4, the party breaching its obligations, upon receiving written notice from the other party of any such breach, shall take all steps necessary to promptly correct and eliminate such interference. If Licensee breaches its obligation, Licensee shall without limitation modify its equipment and/or antennas and/or shut down its equipment and/or antennas from any facilities or towers which are causing the prohibited interference. If Licensee cannot correct such harmful interference within thirty (30) days, 07-1228.001 /28810 9 DO NOT RECORD Licensee shall have the right, in addition to any other rights that it might have at law or in equity, to terminate this Agreement. Upon such termination, Licensor shall return any unearned Rent for that month only to Licensee after final inspection and acceptance of the Property from Licensee. (f) Licensee agrees that under no circumstances will its facilities, operations or services interfere in any way or manner with the use or operation of police and fire department's radio equipment, including but not limited to the 800 Megahertz radio system. If, in the sole but reasonable discretion of the Licensor, the Licensee is deemed to have interfered with the use or operation of the police and fire department's radio equipment, and Licensee cannot cure said interference within the time provided in paragraph (e), Licensor, without liability to Licensee, shall have the right to take whatever steps are necessary to temporarily cease and shut down the Licensee's facilities and operations. If reasonably possible, Licensor shall endeavor to give prior notice to Licensee of any impending shut down. (g) If Licensor breaches its obligation, Licensor shall, without limitation, promptly enforce provisions in any license or other agreement between Licensor and the persons or entities causing such harmful interference, pursuant to which Licensor may compel such persons or entities to cease operation, modify their equipment and/or antennas, or remove their equipment and/or antennas from any facilities or towers owned or Licensed and/or managed by Licensor on the Property. If Licensor cannot promptly correct such harmful interference, Licensee shall have the right, in addition to any other rights that it may have at law or in equity, enforce such provisions on Licensor's behalf and/or to terminate the Agreement as per Article 6 contained within this Agreement. Upon such termination, Licensor shall return any unearned License Fee and twenty-five percent (25%) of the additional rent deposit to Licensee after final inspection and acceptance of the Property from Licensee. Notwithstanding the foregoing, in the event such termination occurs after the expiration of the Initial Term of this Agreement, no reimbursement of the additional rent deposit shall be due or owning. (h) Radio -Frequency Radiation. Licensee shall maintain radio -frequency radiation within the levels allowed by Federal Regulations stated in Section 1.1310 of CFR 47 and OET Bulletin 65. Any area casually accessible by the general public or by any worker at ground level shall be maintained below limits stated for General Population/Uncontrolled Exposure. Licensee shall report to Licensor or responsible federal or state agency any areas discovered by Licensee to exceed such federally mandated limits. Licensee shall not hold Licensor responsible for radiation levels found to exceed such limits unless caused by Licensor. The parties hereto acknowledge Hazardous RF radiation levels may be encountered when climbing on antenna structures [Refer to FCC OET 07-1228.001 /28810 10 DO NOT RECORD Bulletin 65]. Protection of employees performing service on buildings, roofs, air-conditioning equipment, water tanks, communications equipment, or any other maintenance work is of primary concern. Any areas in which such employees may be subjected to radiation levels that exceed the General Population/Uncontrolled limits must be clearly identified as required by CAL -OSHA. ARTICLE 5 — INDEMNITY AND INSURANCE Section 5.01 Indemnification, Defense, Hold Harmless (a) Licensee hereby agrees to protect, defend, indemnify and hold harmless Licensor, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every kind or nature) to the extent caused by Licensee's (or Licensee's subcontractors, if any) negligent use of the Property or performance of this Agreement or its breach of a representation or warranty contained in this License by Licensee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of Licensor. Licensor shall be reimbursed by Licensee for all costs and attorney's fees incurred by Licensor in enforcing this obligation. Licensee will conduct all defenses at its sole cost and expense. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by the Licensee. (b) Licensor hereby agrees to protect, defend, indemnify and hold harmless Licensee, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every kind or nature) to the extent caused by Licensor's (or Licensor's subcontractors, if any) gross negligence or willful misconduct and/or Licensor's breach of a representation or warranty as set forth herein. Section 5.02 Worker's Compensation and Employers' Liability Insurance The parties hereto respectively acknowledge awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Licensee covenants itself that it shall comply with such provisions prior to the commencement of this Agreement and shall obtain and furnish to the other proof of its workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Licensee shall require all sublicenses and contractors to provide such workers'. compensation and employers' liability insurance for all of the sublicenses' and contractors' employees as required by law. 07-1228.001 /28810 11 DO NOT RECORD Licensee shall furnish a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and shall similarly require respective sublicenses and contractors to waive subrogation. Section 5.03 General Liability Insurance In addition to the workers' compensation and employers' liability insurance and Licensee's covenant to defend, hold harmless and indemnify Licensor, Licensee shall obtain and furnish to Licensor, a policy of general commercial liability insurance, including motor vehicle coverage against any and all claims to the extent directly caused by Lessee's use of the Property. This policy shall provide coverage for Licensee, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with Licensee's activities on the Property, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00) for the Property. This policy shall name Licensor, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to this Agreement shall be deemed excess coverage and that Licensee's insurance shall be primary with respect to Licensee's negligence. Under no circumstances shall said above -mentioned insurance contain a self -insured retention on the required coverage with respect to Licensee's negligence. Section 5.04 Property Insurance Licensee shall provide before commencement of this License and shall obtain and furnish to Licensor, at Licensee's sole cost and expense, property and fire insurance with extended coverage endorsements thereon, by a company licensed to conduct insurance business in the State of California and having an A.M. Best's rating of no less than A- VII, in an amount insuring for the full insurable value of the Premises, Licensee's Facilities and all Improvements, Trade Fixtures, personal property installed thereon by Licensee, and all trade inventory in or on the Property against damage or destruction by fire, theft or the elements. This policy shall contain a full replacement cost endorsement naming Licensee as the insured and shall not contain a coinsurance penalty provision. The policy shall contain a special endorsement that such proceeds shall be used to repair, rebuild or replace any such Improvements, Trade Fixtures, personal property whether or not owned or Licensed by Licensee, and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding any insurance proceeds for Trade Fixtures, personal property whether or not owned or Licensed by Licensee, and trade inventory, but only to the extent the insurance proceeds specifically cover those items) shall be paid to Licensor. The policy shall also contain a special endorsement that if the Premises are so destroyed and either party elects to terminate the License, the entire amount of any insurance proceeds shall be paid to Licensor to the extent necessary to repair the Premises. The proceeds of any 07-1228.001 /28810 12 DO NOT RECORD such insurance payable to Licensor may be used, in the sole discretion of Licensor, for rebuilding or repair as necessary to restore the Premises. This policy shall also contain the following endorsements: (1) The insurer shall not cancel or reduce the insured's coverage amount without (30) days prior written notice to Licensor; (2) Licensor shall not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with Licensor prior to the Commencement Date of this Agreement. At least thirty (30) days prior to the expiration or termination of any such policy, a signed and complete certificate of insurance showing that coverage has been renewed shall be filed with Licensor. Increase in Amount of General Public Liability and Property Insurance Not more frequently than once every five (5) years, if, in the sole but reasonable opinion of Licensor, the amount and/or scope of general public liability insurance and/or property insurance coverage above at that time is not adequate, Licensee may increase such liability coverage amounts as reasonably required by Licensor during the Term or any Renewal Term of this Agreement to comply with telecommunications industry standards. Notwithstanding the foregoing, such increases may not exceed an increase greater than twenty percent (20%) of the then current coverage amount and must be universally applied to all similar telecommunications tenants, licensees and lessees located on the Property. Section 5.05 Certificates of Insurance; Additional Insured Endorsements Prior to the Commencement Date of this Agreement, Licensee shall furnish to Licensor commercially reasonable certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: (1) provide the name and policy number of each carrier and policy; (2) state that the policy is currently in force; and (3) promise to provide that such policies shall not be canceled or modified without thirty (30) days' prior written notice of Licensor; however ten (10) days' prior written notice in the event of cancellation for nonpayment of premium, which 10-day notice provision shall not apply to property insurance set forth above. 07-1228.001 /28810 13 DO NOT RECORD Licensee shall maintain the foregoing insurance coverages in force during the entire Term of the License or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Licensee's defense, hold harmless and indemnification obligations as set forth in this License. Licensee shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required to be carried by Licensee pursuant to this Agreement. Section 5.06 Insurance Proceeds Any insurance proceeds received by Licensor because of the total or partial destruction of said Property or any buildings on said Property shall be the sole property of Licensor. Section 5.07 Insurance Hazards Licensee shall not commit or permit the commission of any acts on said Property by its agents or employees nor use or permit the use of said Property by its agents or employees in any manner that will increase the existing rates for or cause the cancellation of any property, liability or other insurance policy insuring the Property, said Property or the improvements on said Property. Licensee shall not do anything to violate the insurance policies that may now or in the future be kept in place on the Property, or the improvements located thereon, by Licensor in Licensor's sole discretion. ARTICLE 6 — TERMINATION AND DEFAULT Section 6.01 Termination in the Event of Casualty or Condemnation (a) In the event of any damage, destruction or condemnation of the Property, which renders the Property unusable or inoperable for Licensee's use as reasonably determined by Licensee, Licensee shall have the right, but not the obligation, to terminate the Agreement with respect to the Property by giving written notice to Licensor within thirty (30) days after such damage, destruction or condemnation whereupon the effective date of termination shall be the date of such damage, destruction or condemnation. In addition, in the event of such damage or casualty should Licensee elect to continue this Agreement, upon request from Licensee, Licensor agrees to work in good faith with Licensee and make available to Licensee, if reasonably available in Licensor's reasonable discretion, a temporary location on the Property, to install and operate temporary transmitting/receiving facilities, including a so-called cell -on -wheels or "COW" during the period of rebuilding. In such event, the License Fee shall be abated from the date of the damage, destruction or condemnation but only until such time as Licensee's commences installation of the temporary facility. 07-1228.001 /28810 14 DO NOT RECORD (b) In the event of condemnation, unless Licensee is allowed by the condemning authority to continue its operations on the Property, the Agreement shall terminate as of the date title to the Property vests in the condemning authority or Licensee is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, Licensee's entitlement to any award or payments, if any, shall be limited to relocation benefits afforded to Licensee pursuant to State or Federal eminent domain / condemnation laws. Licensee shall be entitled to any and all awards, payments and relocation benefits afforded to them through local, State or Federal eminent domain / condemnation laws. Section 6.02 Termination (a) In addition to other rights of termination as specifically set forth herein, this Agreement may be terminated on thirty (30) days prior written notice as follows: (1) by either party upon a default of any covenant or term, material or otherwise, hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of the default, provided that the grace period for any monetary default is fifteen (15) days from receipt of notice, or (2) automatically if Licensee loses its license to provide mobile wireless services from the Property for any reason subject to any applicable appeals period, or (3) by Licensee if Licensee is unable to occupy and utilize the Property due to any action of the Federal Communications Commission, including without limitation, a take back of channels or change in frequencies as set forth in Section 1.02 above. (b) Licensor may terminate this Agreement at any time upon twelve (12) months prior written notice to the Licensee due to the implementation of a revitalization plan or any reconfiguration or major maintenance of the Property affecting Licensee's operations. Licensee is hereby granted the right to participate in such process, and will be afforded the opportunity to continue to operate pursuant hereto so long as Licensee meets Licensor's requirements pursuant to such process. (c) Licensor may terminate this Agreement at any time upon thirty (30) days written notice to Licensee should the signal from Licensee's Facilities materially interfere, as objectively determined by a qualified independent engineer, with Licensor's normal and customary operations and maintenance of its facilities in place and operating on the Commencement Date, provided, however that in the event Licensee solves the interference and/or discontinues use of equipment causing the interference during such thirty (30) day period, this Agreement shall not terminate. (d) Licensee shall have the right to exercise a buyout option ("Buyout") in which Licensee desiring to terminate this Agreement shall remit to Licensor the sum of six (6) months' License Fees as liquidated damages. Upon Licensor's written acceptance, which will not be unreasonably 07-1228.001128810 15 DO NOT RECORD withheld, of the Buyout, this Agreement will be terminated. Licensee will be required to faithfully execute all terms and conditions as stated herein prior to termination. Section 6.03 Relocation and Assistance In the event this Agreement is terminated for cause, Licensee shall not be entitled to any relocation rights or benefits and expressly waives such benefits and rights under city, state or federal relocation assistance plans. In the event this Agreement is terminated pursuant to this Section 6 (Licensor's Default), Licensee shall be entitled to reimbursement of fifty percent (50%) of the additional rent deposit. In the event such default occurs after the Initial Term of this Agreement, Licensee shall not be entitled to the additional rent deposit. ARTICLE 7 — ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 7.01 Permitted Assignment Licensee may assign this Agreement to any wholly -owned affiliate or subsidiary of Licensee or Licensee's parent company provided such assignee can provide Licensor commercially reasonable evidence of its ability to perform the financial requirements under this Agreement. Any other assignment, sublicense, collocation or transfer of Licensee's rights pursuant to this agreement requires Licensor's prior written consent which may be in the form of a tri-party agreement in its sole and absolute discretion. Except as provided above, this Agreement is personal to Licensee, and Licensee will not assign, transfer sublicense or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party. Section 7.02 Abandonment by Licensee Should Licensee breach this Agreement and abandon the Property prior to the expiration of the Term or any Renewal Term, Licensor may: (a) Continue this Agreement in effect by not terminating Licensee's right to the Property, in which event Licensor shall be entitled to enforce all its rights and remedies under this Agreement, including the right to recover the License Fee/consideration specified in this Agreement as it becomes due under this Agreement; or (b) Terminate this Agreement and recover from Licensee: 1. The worth at the time of award of the unpaid License Fee which has been earned at the time of termination of the Agreement, or the sum of one (1) year's License Fee, whichever is greater, and 07-1228.001 /28810 16 DO NOT RECORD 2. The worth at the time of award of the amount by which the unpaid License Fee which would have been earned after termination of the Agreement until the time of award exceeds the amount of rental loss that Licensee proves could have been reasonably avoided; and 3. The worth at the time of award of the amount by which the unpaid License Fee for the balance of the term of this Agreement after the time of award exceeds the amount of rental loss that Licensee proves could be reasonably avoided; and 4. Any other reasonable amount necessary to compensate Licensor for all detriment proximately caused by Licensee's failure to perform its obligations under this Agreement. Section 7.03 Default Should Licensee, beyond any applicable grace or cure period, default in the performance of any of the terms, conditions or obligations contained in the Agreement, Licensor may, in addition to any remedy specified herein, re-enter and regain possession of the Property and require Licensee to remove all of Licensee's Facilities at its sole cost and expense a workmanlike and careful manner and without interference or damage to any other equipment, structures or operations on the Property, including the use of the Property by Licensor or any of Licensor's licensees, assignees or Licensees. Licensee shall repair any damage to the Property caused by such removal and will leave the Property in the condition required herein subject to Licensor's reasonable acknowledgement in writing that such conditions have been satisfied. If Licensee fails to remove all its Facilities, including antennas within forty-five (45) days, Licensor may elect to do so at Licensee's sole cost and expense or elect to not remove its Facilities, in which case, such Facilities shall become the property of Licensor, at Licensor's option. Any personal property, equipment or other improvements that are not removed within the forty-five day period shall become the property of Licensor, at Licensor's option in conformance with Section 3.01(e). Section 7.04 Insolvency of Licensee The insolvency of Licensee as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Licensee, or the making of a general assignment for the benefit of creditors by Licensee, or the filing of a petition in bankruptcy by Licensee shall terminate this Agreement and entitle Licensor to re-enter and regain possession of the Property. Section 7.05 Cumulative Remedies The remedies given to Licensor and Licensee in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. 07-1228.001 /28810 17 DO NOT RECORD Section 7.06 Waiver of Breach The waiver by Licensor or Licensee of any breach by the other party of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or another provision of this Agreement. ARTICLE 8 — QUIET ENJOYMENT Section 8.01 Quiet Enjoyment Licensor warrants that: (1) Licensor owns the Property in fee simple and has rights of access thereto; (2) Licensor has full rights to make this Agreement; and (3) Licensor covenants and agrees with Licensee that upon Licensee paying the License Fee and not being in default of this Agreement beyond any applicable grace or cure periods, Licensee may peacefully and quietly enjoy the Property; subject, nevertheless, to the terms and conditions of this Agreement. ARTICLE 9 — HAZARDOUS MATERIALS Section 9.01 Hazardous Materials Licensor represents that it has no knowledge, and will not store or dispose, of any hazardous substance on the Property in violation of any applicable federal, state or local law, rule or regulation. Licensee and Licensor represent they shall not introduce, transport or use any hazardous substance on the Property in violation of any applicable law. Licensee further agrees to clean-up and remediate any hazardous substance on the Property released by Licensee or its agents, and to hold Licensor harmless from and indemnify Licensor against, any release of any such hazardous substance and any damage, loss, or expense or liability to the extent caused thereby (including all attorneys' fees, costs and penalties). "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after reticence into the environment will or may reasonably be anticipated to cause sickness, death or disease. Licensee and Licensor shall each indemnify, defend and hold the other harmless from and against any and all losses, expenses or liabilities for their respective breach of the representations or warranties contained in this Section. 07-1228.001 /28810 18 DO NOT RECORD ARTICLE 10 — MISCELLANEOUS Section 10.01 Force Majeure — Unavoidable Delays Should the performance of any act required by this Agreement to be performed by either Licensor or Licensee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused. Provided, however, that nothing contained in this section shall excuse the prompt payment of the Licensee Fee by Licensee as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, Licensor or Licensee, required to perform the act. Section 10.02 Notice Any written notice or required submittals, given under the terms of this Agreement, shall be delivered personally, or mailed, certified mail, postage prepaid, addressed to the party concerned as follows: TO LICENSEE: T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: PCS License Administrator Omnipoint Communications, Inc., a Subsidiary of T-Mobile, USA, Inc. 3 MacArthur Place, #1100 Santa Ana, CA 92702 Attn: License Administration Mgr. T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: Legal Dept. AND Omnipoint Communications, Inc., a Subsidiary of T-Mobile, USA, Inc. 3 MacArthur Place, #1100 Santa Ana, CA 92702 Attn: Legal Dept. LICENSEE'S EMERGENCY CONTACT NUMBER: 1-888-662-4662. TO LICENSOR: City Of Huntington Beach Director of Economic Development 2000 Main Street Huntington Beach, CA 92648 Phone: (714) 536-5542 Licensor or Licensee may from time to time designate any other address for this purpose by written notice to the other party. All notices shall be deemed effective three 07-1228.001 /28810 19 DO NOT RECORD (3) days after deposit in U.S. mail, certified and postage paid, or upon receipt if personally delivered or sent by next -business -day delivery via a nationally recognized overnight courier to the address set forth above. Section 10.03 Contract Administrator The Real Estate Services Manager, or his designee, shall be City's Contract Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. Section 10.04 Compliance with Laws Licensee shall, at Licensee's sole cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state and county and municipal, required by Licensee's use and occupancy of the Property and Licensee's Facilities, whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. The final judgment of any court of competent jurisdiction, which shall include any right of appeal, or the admission by Licensee in a proceeding brought against Licensee by any government entity, that Licensee has violated any such statute, ordinance, regulation or requirement shall be conclusive as between Licensor and Licensee and shall be ground for termination of this Agreement by Licensor. Licensee shall, at Licensee's sole cost and expense, obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. Section 10.05 Binding on Heirs and Successors This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. Section 10.06 Interpretation of this Agreement The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and whenever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 07-1228.001 /28810 20 DO NOT RECORD Section 10.07 Waste or Nuisance Licensee shall not commit or permit the commission by its agents or contractors of any waste on the Property. Licensee shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Property; and Licensee shall not use or permit the use of the Property for any unlawful purpose. Section 10.08 Repairs Licensee shall not be required to make any repairs to the Property, except for damages to the Property to the extent caused by Licensee, its employees, agents, contractors, and subcontractors. Section 10.09 Time of Essence Time is expressly declared to be the essence of this Agreement. Section 10.10 Governing Law This Agreement shall be governed under the laws of the State of California, and any and all actions initiated under this Agreement shall be brought solely and exclusively in a court of competent jurisdiction in the County of Orange, State of California,, and no other court. Section 10.11 Survival Terms and conditions of this Agreement which by their sense and context survive the termination or expiration of this Agreement, shall so survive. Section 10.12 Public Necessity Following the expiration of the Initial Term, Licensor may, upon six (6) months prior written notice to Licensee, suspend or revoke this Agreement without liability to Licensee when either: (i) public necessity so requires, or (ii) Licensor desires to redevelop the Property in such a manner as is inconsistent with Licensee's continued use of the Premises as set forth herein; or (iii) in the event of public emergency threatening the health or safety of persons or property, suspend operation immediately hereunder without any liability to Licensee. An event of public emergency shall be determined by the reasonable discretion of the City Administrator. Such suspension will immediately terminate when the public necessity or emergency no longer exists. Notwithstanding the foregoing, during any such suspension, Licensor shall give Licensee notice of the suspension as soon as is reasonably practicable given the state of the emergency and the Licensee Fee shall abate during the term of suspension. Furthermore, Licensor's right to terminate pursuant to (i) or (ii) above shall be conditioned on Licensor and Licensee first adhering to the following relocation procedure during the six (6) month notice period. 07-1228.001 /28810 21 DO NOT RECORD (a) Upon Licensee's receipt of notice of termination as set forth above, Licensee shall have the right to propose alternative locations on the Property, or upon property owned by Licensor adjacent thereto, as potential candidates for the relocation of Licensee's Premises and facilities for Licensor's consideration (herein referred to as the proposed "Revised Premises"). Licensor and Licensee shall thereafter promptly meet in good faith to discuss the feasibility of the proposed Revised Premises for Licensee's continued use as a wireless communications facility. In the event Licensee and Licensor agree on a Revised Premises, Licensee shall have the right, at its sole cost and expense (and subject to Licensee obtaining all necessary permits and approvals), to relocate the Premises and its facilities located thereon to the Revised Premises as mutually agreed upon. Such relocation shall be accomplished in a manner that does not interfere with either Licensor's public use of the Property or its redevelopment thereof as the case may be. Subject to the foregoing, Licensee shall have the right to utilize a COW on the Property in a location as mutually agreed upon at Licensee's sole cost and expense in order to minimize any disturbance to its service provided from the Property during such relocation. Upon completion of the relocation to the Revised Premises, Licensee and Licensor shall amend this Agreement to reflect the new Revised Premises and all references herein to the Premises shall thereafter refer to and mean the Revised Premises. (b) Notwithstanding the foregoing, in the event Licensee and Licensor can not agree upon a Revised Premises prior to the expiration of the six (6) month period, this Agreement shall terminate at the expiration of such time period without further obligation thereafter on the part of either party unless otherwise set forth herein. Section 10.13 Conflict of Interest Licensee warrants and covenants that, to the best of its knowledge, no official or employee of Licensor nor any business entity in which an official or employee of Licensor is interested (1) has been employed or retained to solicit or aid in the procuring of this Agreement; or (2) will be employed in the performance of this Agreement without the immediate divulgence of such fact to Licensor. In the event Licensor determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of the Licensor, Licensee, upon request of Licensor, shall terminate such employment immediately. For material breaches or violations of this Section, Licensor shall have the right both to annul this Agreement without liability, and, in its sole discretion, recover the full amount of any such compensation paid to such official, employee or business entity. 07-1228.001 /28810 22 DO NOT RECORD Section 10.14 Attorney's Fees In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. Section 10.15 Captions Captions used in this Agreement are for ease of reference only and shall not affect the construction or interpretation of this Agreement. Section 10.16 Duplicate Original The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each of the parties hereto shall retain an originally signed copy hereof. Each duplicate original shall be deemed an original instrument as against any party who has signed it. Section 10.17 Sole and Only Agreement This Agreement constitutes the entire agreement and understanding between Licensor and Licensee respecting the Property, the licensing of the Property to Licensee, or the license Term herein specified, and correctly sets forth the obligations of Licensor and Licensee to each other as of its date. Any agreements or representations respecting the Property or their licensing between the parties not expressly set forth in this instrument are null and void. This Agreement or any part of it may not be changed, altered, modified, limited or extended orally or by any Agreement between the parties, unless such Agreement is expressed in writing, signed and acknowledged by Licensor and Licensee, or their successors in interest. Section 10.18 Additional Wireless Carriers Licensee acknowledges that it is the intent of the Licensor to locate the facilities of several wireless carriers at this location. Licensee shall make all reasonable efforts to locate and relocate its equipment and facilities in such a manner so as to accommodate any and all additional carriers licensed by the Licensor to use the Property. Licensee will work in a timely and cooperative fashion to assist the Licensor and any and all additional wireless carriers that are licensed by the Licensor, to locate and operate a wireless facility on the Licensor's Property. [Signature Page Follows] 07-1228.001 /28810 23 DO NOT RECORD IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. OMNIPOINT COMMUNICATIONS, INC., a subsidiary of T-MOBILE USA, INC., a Delaware corporation. By: Direct of Realonal �,.�rint name V ((circl dn1 � IT Hairman/President/Vice President U M Gallacher nt, West R 'Print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer Approved as to form � Tanie. Dao Corporate Counsel Exhibits Exhibit A Legal Description Exhibit B Premises/Licensee's Facilities 07-1228.001 /28810 24 CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Mayor ity Clerk INITIATED AND APPROVED: �9� Director of Economic Dev ent INITIATED AND APPROVED: APPR VED AS TO FORM: ily�� City Attorney A,V a It DO NOT RECORD SITE LICENSE AGREEMENT Exhibit "A" Legal Description The land referred to herein is situated in the State of California, County of Orange, described as follows: Lot 92 of Tract 7633, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 315, Pages 18 to 22 inclusive of Miscellaneous Maps, in the office of the County Recorder of said Orange County. End of Legal Description Licensor `s Initials Licensee's Initials EXHIBIT A 07-1228.001 /28810 DO NOT RECORD SITE LICENSE AGREEMENT Exhibit "B" The location of the Premises within the Lessor's property together with access, ingress, egress, easements and utilities are more particularly described or depicted as follows: See attached Sheets A-1, A-2, A-3, and B-1 for site LA 13157B, Bolsa View Park. A final drawing or copy of a property survey depicting the above will replace this Exhibit "B" when initialed by Lessor and Lessee. Notes 1. This Exhibit may be replaced by a land survey or Site Plan of the Premises once it is received by Lessee. 2. Setback of the Premises from the Lessor's boundaries shall be the distance required by the applicable governmental authorities. 3. Width of access road shall be the width required by the applicable governmental authorities, including police and fire departments. 4. The type, number and mounting positions and locations of antennas and transmission lines are illustrative only. Actual types, numbers, mounting positions may vary from what is shown the site sketch. Licensor `s Initials C Licensee's Initials EXHIBIT B 07-1228.001 /28810 SECTOR 'C' 240 Ap- SITE PLAN 041 SECTOR 'A' APX IBM" nMM AM 10"05-V AMM-01H BP MILT 0 "�o - - - - - - - - APM 189-26-09 1 APA "9-0*-(X - - L T�� I P--) SECTOR ' 8 AM woeAMMe" 120. M-03-M "mft-o" NORM 3 1— PROMD-F SU9E I IM S .Ak C. RIM IIANS PREPARED BY. <m e---- L--w Nftli dONN'ELL,DE3IGN GROUP, LLC "�ll Ml CD* MNSULTING GROUP. A ISEQ-UOIA L DATIU DESCRIPTION; I I O6/D5/OS PRELJMKARY FSK 2 011/21/08 PRELIMINARY ESK 3 07/20/07 IDD% ZD'S jPc 4 12/14/07 9DX CD'S ESK 5 12/19/07 1 ooX CDS ESK 5 11/26/08 IOOX CDS jPc LA1 3157B BOLSA VIEW PARK 5741 BRIGHTON DR, HUNTTNQTON BEACH, CA 926,19 SITE PLAN A-1 R1/Y ICIIIT. IOEIL iBID ND WIL INLf BAf!l111/ WILT ILN.WCfR1G 1 , I PIY6EB IfeBImR01NLT I I Ril i 7RID® BO3O91LG WM Alta I � P1Isf DDx ND oo .Lnl � I � � t7� I(1S9If®tR MIIDI I I I I 1 I I 11 y � QQ LYWIE 9NQ NPID � I } .1L1 IIf101 1 I � fIO® WLT 1111O1 I, l , 66 I I I I � I � I RDi�I PrRImL A -- A -- A A A A— rwD� YN iBLV LDOLf _ W �T 03 a \ T W 1fi Nm PlIJQPPL \ . w � _ R11PP® 111pr �` 01 Dart fMD]D SECTOR 'A' 0. )R 'B' rim ] LPfAVL ANLQLNE SUIIE 1/00 swD AILt a Leaf CONNELL DESIGN GROUP, LLC wl rw➢11!! • N1fl 1� � FlcAcafrew a,*[ S EOUOIA DE]LOY4]M SlLYICFf. INC. D6/05/08 PREUMINARY 06/21/08 PRELIMINARY 07/20/07 100% ZD'S 12/14/07 SOS CD'S 12/19/07 10OA CO'S 11/26/08 1ODX CO'S LA13157 B BOLSA VIEW PARK U4 BRIGN N OR. NUNIINOTON BEACH,CABLBGB W IUB fEdb badr.fVAtlLlm(t RaD QO baLb R.ab. L LLf � rHl rr.b1 a fLdLL., lift C. Pa.Y aw.a amm.] . oa Pa+b m fw°a llDe1 r u afineef e.l . / ♦ Bmra AyAagL:gN 1b ar �Ly,.� pl) 4 bbiq L. w a a.a®4 v W LLEtYL� y ft d 1 pr; mY� At a�tlmgf m b P�f a•vfBb N ----. I aka.,lbafLrtlbm.,L.��,La..�L.N�b.�..�a II f.W81ww1 n..wdr ma`­b. �slaurm.afr lfrdd adaPb re. fNSY. dd p4frbaL..a. ad i:tll d �L�ip aLbgi�imvY �� � .mwllbb �'f W _ _ SHEEP TfILE: ANTENNA & EQUIPMENT LAYOUT [SNMNUM6ER: ��� Ntxilil ENLARGED SITE PLAN an ESK JP rn Ci F� SOUTH ELEVATION /-S, o off' e' I 1 I EAST ELEVATION /a 1-o D� 1 2 1 NORTH ELEVATION /ec=iE o 0 ,Mar 1 3 1 WEST ELEVATION si :r,,... J MFDarL 1INIE11M S11B[ 11. SYRA ANA G 94)R! CO NELL DESIGN GROU . LLC rMuw iww »in Trt�raw�r��rvrxcn rzwn C%p OF�OGa JEQUOIA Dee�OVYTxT 5[Rv:Ce6. INC. 06/05/05 PRELIMINARY ESK 06/21/06 PRELIMINARY ESK '07/20/07 1DOx ZD'S JPC 12/14/07 9OX COS ESK 12/19/07 10OX CD'S ESK 11/26/08 100% CD'S JPC INFORMATION: LA13157B BOLSA VIEW PARK M BRIGWON DR. HUNTINGTON BEACH, CA 92W ELEVATIONS Exhibit B MIN'A (E) TREE PROPOSED VAULT ACCESS ' c '° W/ LANDSCAPE SCREENING PROPOSED ^ � : %' _ . — rt PROPOSED T—MOBILE ANTFNNW— = , ' e l: ? UNDERGROUND VAULT & (3 SECTORS, 4 EQUIPMENT CABINETS s'j ` ' ,� SECTOR) ^ ,, u` (APPROX 2 SO. FT.) PROPOSED 45' TALL BROADLEAF MONOPOLE J r A. PROPOSED U/G J k ^ J N J� (E) SCE VAULT ~ PEDAPPROX 380JSO. FT. PED PEDESTAL TREE LEASE AREA NEW T—MOBILE METER (E) SIDEWALK PEDESTAL --I y PROPOSED U/G TELCO CONDUIT (E) STREET LIGHT LEASE AREA: BRIGHT QRl EQUIPMENT — 202 SO. Fr. �N TREE - TOTAL — W2 SQ. Fr. I SITE,PLAN LEASE EXHIBIT 1 T` "Ff No 3 MPEPoAL PROMENADE, SUITE 1100 SANTA AN& CA 22707 CONNELL DESIGN GROUP, LLC CONSULTING Cl17L ENG4NEERS 4685 MACARTHUR COURT. SUITE 480, N£WPORT BEACH CA 97660 (949) 753-8807 OFFICE- (949) 753-8833 FAX CDO/: 05-9004 CONSULTING GROUP: tEQUOIA PLOYMENT SERVICES. INC. OK VdMW IM 20% RMIE G 0=8 NO. DATE: DESCRIPTION: BY: 1 05/24/O6 PRELIMINARY MC 2 11/06/08 1 EXHIBIT JPC LA13157 Bolsa View Park 5741 BRIGHTON DRIVE HUNTINGTON BEACH, CA 92649 LEASE EXHIBIT NUMBER: B®1 DO NOT RECORD SITE LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND OMNIPOINT COMMUNICATIONS, INC., A SUBSIDIARY OF T-MOBILE USA, INC., A DELAWARE CORPORATION AT BOLSA VIEW PARK Table of Contents Page ARTICLE 1 — TERM OF LICENSE Section 1.01 Property and Use............................................................................1 Section 1.02 Condition Precedent....................................................................... 2 Section1.03 Term................................................................................................. 2 Section 1.04 License fee...................................................................................... 4 Section 1.05 Additional Rent............................................................................... 4 Section 1.06 Non -Possessory Interest................................................................ 4 Section 1.07 Non-Recording................................................................................4 ARTICLE 2 - TAXES AND UTILITIES Section2.01 Taxes............................................................................................... 4 Section2.02 Utilities............................................................................................. 4 ARTICLE 3 -- IMPROVEMENTS AND ACCESS Section 3.01 Licensee's Facilities...................................................................... 5 Section3.02 Liens................................................................................................ 8 ARTICLE 4 - INTERFERENCE Section 4.01 Interference..................................................................................... 8 ARTICLE 5 — INDEMNITY AND INSURANCE Section 5.01 Indemnification, Defense, Hold Harmless .................................... 11 Section 5.02 Worker's Compensation and Employers' Liability Insurance..... 11 Section 5.03 General Liability Insurance............................................................ 12 Section 5.04 Property Insurance......................................................................... 12 Section 5.05 Certificates of Insurance; Additional Insured Endorsements..... 13 Section 5.06 Insurance Proceeds........................................................................ 14 Section 5.07 Insurance Hazards.......................................................................... 14 07-1228.001128810 DO NOT RECORD Table of Contents, continued Page No. ARTICLE 6 - TERMINATION AND DEFAULT Section 6.01 Termination in the Event of Casualty or Condemnation ............. 14 Section 6.02 Termination.....................................................................................15 Section 6.03 Relocation and Assistance............................................................16 ARTICLE 7 - ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 7.01 Permitted Assignment.................................................................... 16 Section 7.02 Abandonment by Licensee............................................................16 Section 7.03 Default by Licensee........................................................................17 Section 7.04 Insolvency of Licensee...................................................................17 Section 7.05 Cumulative Remedies..................................................................... 17 Section 7.06 Waiver of Breach............................................................................ 18 ARTICLE 8 - QUIET ENJOYMENT Section 8.01 Quiet Enjoyment.............................................................................18 ARTICLE 9 - HAZARDOUS MATERIALS Section 9.01 Hazardous Materials.......................................................................18 ARTICLE 10 - MISCELLANEOUS Section 10.01 Force Majeure - Unavoidable Delays .......................................... 19 Section10.02 Notice............................................................................................. 19 Section 10.03 Contract Administrator................................................................. 20 Section 10.04 Compliance with Laws................................................................. 20 Section 10.05 Binding on Heirs and Successors ............................................... 20 Section 10.06 Interpretation of this Agreement ................................................. 20 Section 10.07 Waste or Nuisance........................................................................ 21 Section10.08 Repairs...........................................................................................21 Section 10.09 Time of Essence........................................................................... 21 Section 10.10 Governing Law.............................................................................. 21 Section10.11 Survival.......................................................................................... 21 Section 10.12 Public Necessity........................................................................... 21 Section 10.13 Conflict of Interest........................................................................ 22 Section 10.14 Attorney's Fees............................................................................. 23 Section 10.16 Duplicate Original......................................................................... 23 Section 10.17 Sole and Only Agreement............................................................ 23 Section 10.18 Additional Wireless Carriers........................................................ 23 SignaturePage..................................................................................................... 24 07-1228.001 /28810 ii ATTACHMENT #3 r _. re ATE(MM DD YYYY) A C®R®TMEIS'TII� ICATE Il®15 CEO ° lo1v1zooa ,C9T'!I,ITI' r... �o- ..#d.. .... PRODUCERTHIS AonRisk Insurance Services West, Inc. CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY Seattle WA Office AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS 1420 Fifth Avenue CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE Suite 1200 COVERAGE AFFORDED BY THE POLICIES BELOW. Seattle WA 98101-4030 USA INSURERS AFFORDING COVERAGE NAIC # PHONE- 206 749-4800 FAX 206 749-4860 INSURED INSURER A: Greenwich Insurance Company 22322 T-Mobile USA, Inc. INSURER B: XL Specialty Insurance Co 37885 its Subsidiaries and Affiliates INSURERC: National union Fire Ins Co of Pittsburgh 19445 12920 SE 38th street Bellevue WA 98006 USA INSURER D: INSURER E: __ x iR a t COVERAm .;F:S er er. ii con i"dii"s o fit; c" THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED INSR LTR ADDIL INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS DATE(MM\DD\YY) DATE(MM\DD\YY) A ENERALLIABILITY RGD500006402 05/01/08 05/01/09 EACH OCCURRENCE $1,000,000 DAMAGE TO RENTED $1,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS MADE M OCCUR PREMISES (Ea occurence) MED EXP Any one person) $25,000 X Contractual Liability Incl. PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $2,000,000 E POLICY ❑ PRO- ❑ LOC ECT A AUTOMOBILE LIABILITY RADS00006602 05/01/08 05/01/09 COMBINED SINGLE LIMIT X ANY AUTO AOS (Ea accident) $1,000,000 A RAD500006702 05/01/08 05/01/09 BODILY INJURY ALL OWNED AUTOS MA SCHEDULED AUTOS ( Per person) BODILY INJURY HIRED AUTOS - NON OWNED AUTOS `v (Per accident) rr77�gg�� C7 0.. PROPERTY DAMAGE t& r% L: (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT ANY AUTO OTHER THAN EA ACC H AI,TO ONLY: AGG c EXCESS /UMBRELLA LIABILITY 5443136 05/01/08 05/01/09 EACH OCCURRENCE $5,000,000 OCCUR CLAIMS MADE AGGREGATE $5,000,000 DEDUCTIBLE RETENTION $25,000 B RWDS 1 5 X WC STATU- OTH- WORKERS COMPENSATION AND ADS T RY LIMITS ER E.L. EACH ACCIDENT $1,000,000 B EMPLOYERS'LIABILITY RWR500012401 05/01/08 05/01/09 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? WI E.L. DISEASE EA EMPLOYEE $1,000,000 Ifyes, describe under SPECIAL PROVISIONS E.L. DISEASE -POLICY LIMIT $1,000,000 below OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS site Number: LA131576, Site Name: Bolsa view Park, site Address: 5741 Brighton Dr., Huntington Beach, CA 92649. City of Huntington Beach and its Officers, elected or appointed officials, employees, agents and volunteers are Additional Insured for General Liability solely as respect to operations of the Named Insured at the above C RTIFICA T s fir. C IN - LA City Of Huntington Beach SHOULD ANY OY THEABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Attn: Risk Management DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 2000 Main street 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT Hunt6i ngton Beach CA 92648 USA FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ORD m2001108 `,.:: oX , x w A� C ' RAORATI a ., g zwe 99 5�A Attachment to ACORD Certificate for T-Mobile USA, Inc. The terms, conditions and provisions noted below are hereby attached to the captioned certificate as additional description of the coverage afforded by the insurer(s). This attachment does not contain all terms, conditions, coverages or exclusions contained in the policy. INSURED T-Mobile USA, Inc. its subsidiaries and Affiliates 12920 SE 38th street Bellevue WA 98006 USA INSURER INSURER INSURER INSURER INSURER ADDITIONAL POLICIES If a policy below does not include limit information, refer to the corresponding policy on the ACURD certificate form for policy limits. 1NSR LTR ADDT INSRD TYPE OF INSURANCEPOLICY POLICY NUMBER DESCRIPTION POLICY EFFECTIVE DATE POLICY EXPIRATION DATE LIMITS DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS location if required by contract. The attached Additional Insured Endt. includes C: In connection with completed operations. Certificate No : 570031372419 POLICY NUMBER: RGD500006402 COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. I, midImmmmAiiidddLE1 This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Persons Or Organization(s) City of Huntington Beach, its officers, elected or appointed official, employees, agents and volunteers Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II — Who Is An Insured is amended to in- clude as an additional insured the person(s) or organi- zation(s) shown in the Schedule, but only with respect to liability for "bodily injury', "property damage" or "personal and advertising injury' caused, in whole or in part, by your acts or omissions or the acts or omis- sions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. C.In connection with completed operation CG 20 26 07 04 . © ISO Properties, Inc., 2004 Page 1 of 1 A CO DTM , . DATE (MM/DD/YY) 10/27/08 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Aon Risk Insurance Services West, Inc. CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE Seattle WA Office DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 1420 Fifth Avenue POLICIES BELOW. Suite 1200 COMPANIES AFFORDING COVERAGE Seattle WA 98101-4030 USA COMPANY Fidelity & Deposit Company of MD A PHONE• 206 749-4800 FAX- 206 749-4860 INSURED T-Mobile USA, Inc. COMPANY Allianz Global Risks us Insurance Co. B and its Affiliates & subsidiaries 12920 SE 38th street Bellevue wA 98006 USA COMPANY C COMPANY D ° ° Mk.*, THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY) POLICY EXPIRATIOT, DATE (MM/DD/YY) COVERED PROPERTY LIMITS B X PROPERTY CLP3009346 05/01/08 05/01/09 BUILDING CAUSES OF LOSS PERSONAL PROPERTY BASIC BUSINESS INCOME (o Extra Expense BROAD EXTRA EXPENSE X SPECIAL BLANKET BUILDING EARTHQUAKE BLANKET PERS PROP $5,000,000 FLOOD X BLANKET BLDG &PP $100,000 X Deductible $45,000,000 X service INLAND MARINE TYPE OF POLICY CAUSES OF LOSS NAMED PERILS OTHER X CRIME TYPE OF POLICY BOILER & MACHINERY OTHER LOCATION OF PREMISES V DESCRIPTION OF PROPERTY Site Number: LA13156, Site Name: Huntington Harbor Garden, Site Address: 16000 Saybrook Huntington Beach, CA 92649. SPECIAL CONDITIONS / OTHER COVERAGES CE 4. E .-.•OLDER = � �„�"' n'u�,, _ _ ., y: ANCELI:A'k���T��;� .. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City Of Huntington Beach Attn: Risk Management EXPIRATION DATE THEREOF THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 2000 main Street BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY Huntington Beach CA 92648 USA OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE i7 "- �CC.ACORD�CnTtPnRk1� x Attachment to ACORD Certificate for T-Mobi 1 e USA, inc. The terms, conditions and provisions noted below are hereby attached to the captioned certificate as additional description of the coverage afforded by the insurer(s). This attachment does not contain all terms, conditions, coverages or exclusions contained in the policy. INSURED T-Mobile USA, Inc. and its Affiliates & Subsidiaries 12920 SE 38th Street Bellevue WA 98006 USA COMPANIES AFFORDING COVERAGE COMPANY COMPANY COMPANY COMPANY If a policy below does not include limit information, refer to the corresponding policy on the ACORD ADDITIONAL POLICIES certificate form for policy limits. Co Ltr Type of Insurance Policy Number Policy Eff. Date Policy Expir. Limits PROPERTY B CLP3009346 05/01/08 05/01/09 B&Machinery $45,000,000 B&Machinery $100,000 CRIME Crime Coverage LOCATION OF PREMISES \ DESCRIPTION OF PROPERTY SPECIAL CONDITIONS / OTHER COVERAGES Certificate Number : 570031372299 INITIATING DEPARTMENT: Economic Development Department SUBJECT: Approve Site License Agreements with Omnipoint Communications (a T-Mobile USA, Inc., subsidiary) for Wireless Telecommunications Facilities at Harbour View Park and Bolsa View Park. COUNCIL MEETING DATE: January 20, 2009 RCA ATTACHMENTS STATUS` Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attorney) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Not Applicable ❑ Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Attached ❑ Not Applicable Staff Report (if applicable) Attached ❑ Not Applicable Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable EXPLANAT�OH FOR HW�HG ATTACHMENTS' REVIEWED RETURNED FOR A DED Administrative Staff ( ) ) Deputy City Administrator (Initial) ( ) City Administrator (Initial) ( ) ( ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: RCA Author: T. Krause ext. 1529