HomeMy WebLinkAboutT-Mobile West Corporation - 2012-01-09 (2) Council/Agency Meeting Held: / — 9
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Council Meeting Date: January 9, 2012 Departm ID Number: 11-013
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Bob Hall, Deputy City Manager
Jennifer McGrath, City Attorney
SUBJECT: Approve Lease Agreement With T-Mobile West Corporation For
Wireless Telecommunications Facilities at Springdale Pump Station
Statement of Issue: The City Council is asked to approve a lease agreement with T-Mobile
West Corporation for wireless telecommunication facilities at the Springdale Pump Station,
located at 18401 Springdale.
Financial Impact: Under the lease terms, T-Mobile assumes all responsibility for any
costs associated with the installation, maintenance, and liability of their telecommunication
facilities. This lease will initially generate $12,000 a year in revenue to the City.
Recommended Action: Motion to:
Authorize the Mayor and City Clerk to approve and execute "Site Lease Agreement Between
the City of Huntington Beach and T-Mobile West Corporation, A Delaware Corporation at the
Springdale Pump Station."
Alternative Action(s):
Do not approve the lease agreement.
HB - 267 Item 2® ® I
REQUEST FOR COUNCIL. ACTION
MEETING DATE: 1/9/2012 DEPARTMENT ID NUMBER: 11-013
Analysis: Since 2009, T-Mobile and the City have been in litigation in two suits regarding
whether mobile phone antennas may be installed at Harbour View Park and Bolsa View
Park: Omnipoint Communications, Inc. v. City of Huntington Beach, U.S. District Court Case
No. 09-3777, Ninth Circuit Case Nos. 10-56877 and 10-56944 (7-Mobile P'), and T-Mobile
West Corporation v. City of Huntington Beach, U.S. District Court Case No. 10-1471 ("-
Mobile I/"). The City has an opportunity to settle the litigation regarding Bolsa View Park on
the basis of approving an alternate antenna site at the City Pump Station at Springdale and
the Wetlands.
In September 2007, the Planning Department administratively approved land use
entitlements, known as a "Wireless Permit," for an antenna at Bolsa View Park. In January
2009, the City Council approved a 10 year license agreement for the Park site. In late April
2009, the City learned that the construction cost for the antenna exceeded the $100,000 limit
of Measure C. The City Attorney then notified T-Mobile that voter approval was necessary
before the project could proceed.
Instead of seeking voter approval, in May 2009, T-Mobile sued the City in T-Mobile I. On
July 9, 2010, the Federal District Court determined that application of Measure C to the
antennas violated the Federal Telecommunications Act of 1996 (the "TCA"). The Court then
remanded the matter to the City Council so that it could either authorize the antenna or deny
it in a manner consistent with Federal law.
In response, the City Council took two actions. First, on August 30, 2010, the City Council
revoked the Wireless Permit, on the ground that T-Mobile's 2007 application materially
misrepresented mobile phone coverage in the relevant area of Bolsa View Park. Second, the
City Council submitted the Bolsa View antenna and another antenna at Harbour View Park
for voter approval pursuant to Measure C. The voters rejected the antennas at the
November 2010 election.
In response to the revocation, T-Mobile filed T-Mobile ll.
On November 7, 2011, the City Council approved a Settlement Agreement that would resolve
the Bolsa View Park antenna if the City approves a lease and a Conditional Use Permit
("CUP") for an alternative T-Mobile antenna at the Springdale Pump Station.
The original rent for the Bolsa View Park site was $2,500/m, with a 4% per year annual
increase, plus a signing fee of $20,000, which amounts to total rent to the City of $386,673
over ten years. By comparison, the total payments of the Lease that Staff and T-Mobile have
agreed to for the Pump Station are $1,000/m for the first five (5) years, plus $1,500/m
beginning in year 6, subject to an annual 4% escalator beginning in year 7, amounting to total
payments of$157,488 over ten years.
(tern 2® ® 2 HB - 268
REQUEST FOR COUNCIL ACTION
MEETING DATE: 1/9/2012 DEPARTMENT ID NUMBER: 11-013
The Settlement Agreement requires that the City Council conduct public hearings on the
Springdale site. The Council retains full discretion to approve or deny the CUP, as well as
the Pump Station Lease.
If the City approves the CUP and Lease for use of the City storm drain pump station, then T-
Mobile's claims regarding Bolsa View Park are withdrawn. If either or both are denied, then
T-Mobile I and /l proceed. Trial in T-Mobile /l is set to begin on January 31, 2012.
There are two alternatives possible if the litigation proceeds. If the City is successful on
appeal in T-Mobile / and/or at trial in T-Mobile ll, then no antenna is built at Bolsa View Park,
and the Site License for use of the Park is canceled. If the City loses T-Mobile I and T-
Mobile Il, then the City may be ordered to allow installation of the antenna at Bolsa View
Park. In this case, the Site License will go into effect, and the City is paid $30,000 per year
for the antenna.
Environmental Status: Not applicable.
Strategic Plan Goal: Maintain, improve and obtain funding for infrastructure and equipment
Attachment(s):
o r -
1. Lease Agreement between the City of Huntington Beach and T-Mobile West at the
Springdale Pump Station
2. Settlement Agreement
HB - 269 Item 2® - 3
ATTACHMENT # 1
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SITE LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH AND
T-MOBILE WEST CORPORATION, A DELAWARE
CORPORATION AT THE SPRINGDALE PUMP STATION
THIS LEASE ("Lease") is made and entered into this 9tn of January, 2012, by and between
the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, herein
referred to as "City," and T-MOBILE WEST CORPORATION, a subsidiary of T-MOBILE USA
INC., a Delaware corporation, hereinafter referred to as "T-Mobile." The City and T-Mobile (the
"Parties") agree as follows:
ARTICLE 1 —TERM OF LEASE
Section 1.01 Property and Use
(a) City is the owner of that certain real property located at 18401 Springdale Street in
the City of Huntington Beach, County of Orange, State of California as more particularly described
in Exhibit "A" (Grant Deed), attached hereto and incorporated herein by reference ("Property").
The Property is commonly known as Bolsa Chica Flood Control Pump Station and is located at
Assessor's Parcel Number 159-188-05.
(b) T-Mobile is a provider of communication services which require the transmission
and reception of radio communication signals on various frequencies.
(c) T-Mobile desires to install and operate a mobile/wireless telecommunications
facility, including a 55 foot tall monopalm antenna on the Property.
(d) The Property is improved with a block wall pump building with three pump engines
and operating controls. The building is served with utilities (gas, electric and water) and a 1,000
gallon LPG tank is available to serve the pumps. A SCADA communications antenna permits
communications between the Pump Station and off-site locations. The Property is partially paved
with asphalt, with the reminder covered by decomposed granite. The Property is landscaped with
palm trees, and a block wall surrounds the perimeter. Finally, the United State Geological Service
maintains a seismometer on the Property.
(e) Subject to the terms and conditions contained herein, City leases the Property to T-
Mobile the right 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 the "Facilities," and more specifically described in Exhibit "B" attached
hereto and made a part hereto. The Facilities include that area identified in Exhibit B as the
"Premises" for T-Mobile's exclusive use.
(f) Because this Lease is subordinate to the prior and paramount right of City to use the
Property in its entirety for public purposes to which now it is and may, at the option of City, be
devoted, the City may terminate this Lease prior to the expiration of its Term and each Renewal
Term pursuant to the terms of this Lease. T-Mobile undertakes and agrees to use the Property and
to exercise this Lease at all times in such manner as will not unreasonably interfere with the full
use and enjoyment of the Property by City, including by not emitting radio frequencies that may
affect City public safety communications. Notwithstanding the foregoing, City agrees to use good
faith efforts to carry out its public purposes in a manner that will, whenever feasible, continue to
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accommodate T-Mobile's use of the Property as set forth herein.
(g) City represents and T-Mobile hereby acknowledges title to the Property is vested in
City and T-Mobile agrees never to challenge or dispute the same.
(h) Subject to Section 4 below: (i) T-Mobile acknowledges that it is the intent of the City
to collocate the facilities of several wireless carriers at this location; (ii) T-Mobile shall make
reasonable efforts to locate its Facilities in such a manner so as to accommodate any and all
additional carriers licensed by the City to use the Property; (iii) T-Mobile will work in a timely and
cooperative fashion to assist the City and any and all additional wireless carriers that are licensed
by the City, to locate and operate a wireless facility on the Property.
(i) T-Mobile may not independently enter into a collocation agreement and/or physically
collocate third-party carriers on its Facilities without the prior written consent of City, which consent
may not be unreasonably withheld. The Parties agree that collocation on T-Mobile's Facilities shall
be subject to the City entering into an agreement with third-party carriers, including payment to the
City of a portion of the rent from the third-party carrier.
Section 1.02 Governmental Approvals
(a) This Lease is conditioned upon the following "Approvals":
(1) T-Mobile receiving a license, or already having a license, from the Federal
Communications Commission ("FCC").
(2) T-Mobile obtaining a conditional use permit, a coastal development permit, a
building permit, and/or any other use or other necessary City permits and
conditions of approval for the Facilities.
(b) In the event T-Mobile, despite good faith efforts to do so, has not been able to
obtain any the Approvals within one hundred eighty (180) days after the full execution of this
Lease, T-Mobile may terminate this Lease without penalty or further liability by providing written
notice to City prior to the expiration of the one hundred eighty (180) day period.
(c) The installation, operation, maintenance and any upgrades of the Facilities are
subject to all applicable ordinances and regulations now in effect or subsequently enacted
including, but not limited to those concerning encroachment permits, business licenses, zoning and
building.
(d) T-Mobile agrees that any upgrades, additions, alterations, or new construction to the
Facilities must be re-reviewed and approved in writing by City prior to the addition or construction
taking place, including obtaining new Approvals.
Section 1.03 Administrative Approvals of Facilities
(a) Apart from obtaining the Approvals described at Section 1.03, prior to
commencing construction of the Facilities, T-Mobile shall obtain City's approval of T-Mobile work
plans, which approval shall not be unreasonably withheld, conditioned, or delayed (the
"Administrative Approvals"). The Administrative Approvals shall not be unreasonably withheld,
delayed or conditioned. T-Mobile agrees to submit architectural and engineering drawings
("Plans") of the Facilities to be installed to the Director of the Public Works or his/her designee..
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City shall give such approval or provide T-Mobile with its requests for changes, which changes
must comply with all applicable building codes, in writing within fifteen (15) working days of City's
receipt of T-Mobile's work plans. If T-Mobile does not receive such approval or request for
changes in writing within such fifteen (15) working day period, CITY shall be deemed to have
disapproved the plans. City shall not be entitled to receive any additional consideration in
exchange for giving its approval of T-Mobile's plans.
Section 1.04 Use
(a) T-Mobile shall use the Property for the purpose of constructing, maintaining and
operating the Facilities. All improvements shall be at T-Mobile's sole expense and the installation
of all improvements shall be at the discretion and option of the T-Mobile, T-Mobile agrees that the
installation and maintenance of the Facility shall be effected with all reasonable diligence and
precaution to avoid damage to the land, property or personnel.
(b) The Facilities shall be constructed and maintained in a manner and with materials
that are consistent with the Approvals and the Administrative Approvals. The materials actually
used must match up with the proposed materials and artistic renderings. Except in cases of
emergency, T-Mobile agrees to provide twenty-four hours notice to City before any installation,
maintenance, replacement or repair is to take place on the Property. In the event that
maintenance is required, such as the replacement of missing branches or the repainting of the
monopalm, such maintenance must be completed by T-Mobile within thirty (30) days.
(c) Once installed, T-Mobile may replace, substitute, upgrade and expand the Facilities
for the purpose of repairing or upgrading their communications capabilities, provided T-Mobile
gives the City prior notice and the Facilities remain within the original physical parameters of the
Premises, Approvals and the Administrative Approvals. T-Mobile shall not make any physical
and/or aesthetic changes to the Facilities that are materially different than the Approvals without
the prior approval of City, which shall not be unreasonably withheld. Any such changes are subject
to the provisions of Section 13 contained herein below.
(d) T-Mobile shall be responsible for the cost of any and all damage to the City Pump
Station, including but not limited to turf, concrete and/or asphalt, buildings and/or accessories
caused by T-Mobile regardless of negligence. City at its discretion may require T-Mobile to repair
and or replace said damages to the Pump Station.
Section 1.05 Terra
(a) The term of the Lease 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 City by T-Mobile of
T-Mobile's intent to commence installation of the Facilities on the Property, or (ii) the first day of the
month following the issuance of a local building permit allowing T-Mobile 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 Lease
("Commencement Date").
(b) The Term of the Lease 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. City may withhold consent for Renewal Terms, if at its sole discretion, City determines that
the Property will be used for public purposes that are inconsistent with this Lease. Each Renewal
Term shall be on the same terms and conditions set forth herein.
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Section 1.06 Suspension Due To Emergency
The City may suspend this Lease in the event of public emergency threatening the health or safety
of persons or property without any liability to T-Mobile. An event of public emergency shall be
determined by the reasonable discretion of the City Manager. Such suspension will immediately
terminate when the public necessity or emergency no longer exists. Notwithstanding the foregoing,
during any such suspension, City shall give T-Mobile notice of the suspension as soon as is
reasonably practicable given the state of the emergency and Rent shall abate during the term of
suspension.
Section 1.07 Limitation on Renewal
(a) Following the expiration of the Initial Term, City may, upon six (6) months prior
written notice to T-Mobile, terminate this Lease without liability to T-Mobile when either: (i) public
necessity so requires, or (ii) City desires to redevelop the Property in such a manner as is
inconsistent with T-Mobile's continued use of the Premises as set forth herein.
(b) Upon T-Mobile's receipt of notice of termination as set forth above, T-Mobile shall
have the right to propose alternative locations on the Property, as potential candidates for the
relocation of T-Mobile's Premises and facilities for City's consideration (herein referred to as the
proposed "Revised Facilities"). City and T-Mobile shall thereafter promptly meet in good faith to
discuss the feasibility of the proposed Revised Facilities for T-Mobile's continued use as a wireless
communications facility. In the event T-Mobile and City agree on a Revised Facilities, T-Mobile
shall have the right, at its sole cost and expense (and subject to T-Mobile obtaining all necessary
permits and approvals), to relocate the Premises and its facilities located thereon to the Revised
Facilities as mutually agreed upon. Such relocation shall be accomplished in a manner that does
not interfere with either City's public use of the Property or its redevelopment thereof as the case
may be. Subject to the foregoing, T-Mobile shall have the right to utilize a COW on the Property in
a location as mutually agreed upon at T-Mobile'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 Facilities, T-Mobile and City shall amend this Lease to reflect the new
Revised Facilities and all references herein to the Premises shall thereafter refer to and mean the
Revised Facilities.
(c) Notwithstanding the foregoing, in the event T-Mobile and City cannot agree upon a
Revised Facilities prior to the expiration of the six (6) month period, this Lease shall terminate at
the expiration of such time period without further obligation thereafter on the part of either Party
unless otherwise set forth herein.
(d) Furthermore, City 's right to terminate pursuant to (i) or (ii) above shall be
conditioned on City and T-Mobile first adhering to the following relocation procedure during the six
(6) month notice period.
Section 1.08 Rent
(a) For the Term of the Lease and any Renewal Term, Rent shall be due on the
Commencement Date, and on the first day of each month thereafter.
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(b) For the first five (5) years of the Lease (the first sixty (60) months), the T-Mobile
shall pay the City monthly Rent in the amount of One Thousand and 00/100 Dollars ($1,000.00)
("Rent") per month,
(c) Beginning in Year Six of the Lease, Rent shall increase to One Thousand Five
Hundred and 00/100 Dollars ($1,500.00) per month. The Rent shall increase upon the beginning
of Year Seven of the Lease by four percent (4%) per month, to One Thousand Five Hundred Sixty
and 00/100 Dollars ($1,560.00) per month, and by the same amount for Years Eight through Ten
as follows:
® Year Eight- One Thousand Six Hundred Twenty Two and 00/100 Dollars
($1,622.00) per month.
• Year (Vine- One Thousand Six Hundred Eighty Seven and 00/100 Dollars
($1,687.00) per month.
o Year Ten- One Thousand Seven Hundred Fifty Five and 00/100 Dollars ($1,755.00)
per month.
(d) Any portion of the Rent unpaid as of the first day of each month shall incur: (i) A
late charge of ten percent (10%); and (ii) One and a half percent (1-'/z%) interest per month for
each month payment the Rent is due but unpaid.
(e) Any holding over after the expiration of the Term and following notice from City of its
intent not to renew or extend the Term of this Lease shall be construed to be an extension from
month to month at 1-'/2 times the then current Rent (which shall include the annual increase herein
specified) and shall otherwise be on the conditions herein specified, so far as applicable.
(f) Rent for any Renewal Term shall be in the amount agreed to by the Parties.
Section 1.09 Non-Possessory Interest
City retains full possession of the Property and T-Mobile will not acquire any interest temporary,
permanent, irrevocable, possessory or otherwise by reason of this Lease, or by the exercise of the
permission given herein. T-Mobile will make no claim to any such interest. Any violation of this
provision will immediately void and terminate this Lease.
Section 1.10 Non-Recording
T-Mobile may not record this Lease or a memorandum of this Lease.
ARTICLE 2—TAXES AND UTILITIES
Section 2.01 Taxes
T-Mobile shall pay before they become delinquent all taxes, assessments or other charges levied
or imposed by any government entity, including City, on the Facilities or the Property attributable to
the Facilities. If such taxes are not assessed separately to T-Mobile, City shall timely provide T-
Mobile with evidence, reasonably acceptable to T-Mobile, of such tax assessment and the amount
due, which is attributable to the Facilities, sufficient to allow T-Mobile to consent to or challenge
such assessment.
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Section 2.02 Utilities
(a) T-Mobile shall pay for all utilities attributed to the use, operation and maintenance of
the Facilities during the Term of this Lease, or any extension thereof at the rate charged by the
service provider and hold City free and harmless from all utilities furnished to the Property. The
term "utilities" means electricity, gas, water, telephone and waste removal.
(b) T-Mobile shall have the right to keep current utilities and to improve the present
utilities on or near the Property and to maintain all at T-Mobile's sole cost and expense. Subject to
City's contracting power, and at the reasonable discretion of the City Attorney, City agrees to
execute such documentation as may be required by the servicing utility provider in order for T-
Mobile to acquire necessary utility service at no cost to City. Notwithstanding the foregoing, the
Parties acknowledge that such documentation must be commercially reasonable and nothing
herein will waive City's right to determine in consultation with the servicing utility provider the route
of T-Mobile's utility easements.
(c) T-Mobile shall, wherever practicable, install separate meters for utilities used on the
Property by T-Mobile. In the event separate meters are not utilized, T-Mobile shall pay the charges
identified herein for all utilities attributable to T-Mobile's use. T-Mobile shall have the right to place
utilities on City's Property in order to service the Property and the Facilities, provided that T-Mobile
obtains prior consent from the City of the location of such utilities 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 T-Mobile.
(d) T-Mobile shall be responsible to relocate its utilities or other substructures, at T-
Mobile's sole cost and expense, within forty-five (45) days after receiving written notice to do so by
City. City shall only require relocation of T-Mobile's utilities or other substructures if City reasonably
determines that relocation is necessary to permit City's ordinary use of the Property for public
purposes. T-Mobile shall comply with all requirements to underground utilities.
ARTICLE 3— IMPROVEMENTS AND ACCESS
Section 3.01 The Facilities
(a) During the Term or any Renewal Term, T-Mobile shall have the right, at its sole cost
and expense, to maintain and operate the Facilities. After obtaining all necessary City permits and
approvals, T-Mobile shall have the right to perform all work necessary to prepare, maintain and
alter the Property for the Facilities. City shall endeavor to approve within forty-five (45) days, all
plans and specifications for such work, in writing, before any work, except technician maintenance
or repair, may begin and does not require plan approval.
(b) City reserves the right to add additional telecommunication or other equipment as
may be needed by City 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 the Facilities. City reserves the exclusive right to negotiate and collect all rents,
Lease fees or any other payments from any arrangements it enters into with such third party.
(c) Except as provided herein, City shall not have the right to install equipment on the
Facilities or within the area depicted on Exhibit B as designated for T-Mobile's exclusive use.
(d) Any and all modifications to the Property must meet all applicable structural
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engineering, building and safety standards for this type of public facility.
(e) T-Mobile shall hold title to the Facilities and any equipment placed on the Property
by T-Mobile. The Facilities shall remain the personal property of T-Mobile and are not fixtures.
(f) T-Mobile shall remove all of the Facilities at its sole cost and expense on or
before the expiration or termination of this Lease; 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 City or any of City's
T-Mobiles, assignees or T-Mobiles. T-Mobile 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.
(g) T-Mobile shall be required to remove all of its Facilities and improvements,
including antennas, and restore the Property within ninety (90) days of the Termination of the
Lease. T-Mobile may request a time extension from the City, which may not be unreasonably
denied. Should T-Mobile fail to timely remove it Facilities and restore the Property, the City may
elect to do so at T-Mobile's sole cost and expense or elect to not remove its Facilities, in which
case, such Facilities shall become the property of City, at City's option, in their "AS IS" and
"WHERE IS" condition without representation or warranty of any kind or nature.
(h) Rent shall not cease, unless and until all the Facilities are removed or City has
taken title to them as set forth herein.
(i) T-Mobile shall be required to provide for electrical service including separate sub-
metering as provided herein to and through the Property at T-Mobile's sole cost and expense.
Any encroachment necessary for such utility service will be at a location reasonably acceptable to
City and the servicing utility.
(g) Upon the granting of all Approvals, City shall provide T-Mobile and its employees,
agents, contractors and subcontractors access to the Premises and the Facilities twenty-four (24)
hours a day, seven (7) days a week or as designated in permit approvals. Except in the case of
emergencies, T-Mobile shall give City twenty-four(24) hours notice prior to entry into the Property.
City represents and warrants that it has full rights of ingress and egress to and from the Property,
and hereby grants such rights to T-Mobile to the extent required to construct, maintain, install, and
operate the Facilities on the Property. T-Mobile's exercise of such rights shall not cause undue
inconvenience to City nor shall any such exercise interfere with the use of the premises by City or
its lessees, guests, or assignees. City shall contact T-Mobile's emergency hotline at the telephone
number listed under the notice provision of this Lease in the event of an emergency threatening
the health or safety of persons or property. Upon receiving such notice, T-Mobile 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, City shall be
notified prior to the change.
(h) Unless caused directly by City, its agents, employees or contractors, T-Mobile shall,
at its sole cost and expense, maintain and repair the Facilities including, but not limited to, the
removal of all trash, debris and graffiti therefrom. City may exercise its right to self-help and bill T-
Mobile in the event trash, debris and graffiti are not removed within forty-eight (48) hours of notice
to T-Mobile. If T-Mobile 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. T-
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Mobile shall provide contact names for damage/graffiti control. In addition, should changes be
made to the contact names and telephone number, City shall be notified prior to the change.
(i) Entry and Inspection. City may at any time, without any obligation to do so, enter the
Facilities for the purpose of viewing and ascertaining the condition of the Facilities, or to protect its
interests in the Property, or to inspect T-Mobile's operations conducted on the Property, provided
that City gives T-Mobile forty-eight (48) hours notice to reasonably allow T-Mobile to accompany
City on such inspection to help assure the safety of the visitors and to minimize any accidental
interference with the Facilities. If City's entry or inspection discloses that the Facilities are not in a
decent, safe, healthy, and sanitary condition, City may, after thirty (30) days written notice to T-
Mobile, have any necessary maintenance work done in order to keep the Facilities in a decent,
safe, healthy, and sanitary condition, all at T-Mobile's sole cost and expense, and T-Mobile shall
promptly pay any and all commercially reasonable costs incurred by City in having the necessary
maintenance work done. If at any time City determines that the Property is not in a decent, safe,
healthy, and sanitary condition, City may, with notice, require T-Mobile to file with City 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 City's reasonable opinion to correct the
unsatisfactory condition but shall not exceed Ten Thousand Dollars ($10,000.00). T-Mobile shall
pay the cost of the bond. The rights reserved in this Section shall not create any obligation on City
or increase City's obligations elsewhere in this Lease.
0) Upon the expiration or termination of this Lease, T-Mobile shall cease operations of
the Facilities. T-Mobile shall remove the Facilities from the Property, including restoring the
Property to its original condition, reasonable wear and tear excepted.
Section 3.02 Liens
T-Mobile shall not permit any mechanic's, material men, or other liens, or stop notices, to stand
against the Property by reason of any use or occupancy by T-Mobile, or any person claiming under
T-Mobile. If T-Mobile 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, T-Mobile shall furnish City with a bond to secure the
payment of such obligation and obtain City's prior written approval of the bond. City hereby waives
any and all lien rights it may have, statutory or otherwise, concerning the Facilities or any portion
thereof, which shall be deemed T-Mobile's personal property.
ARTICLE 4— INTERFERENCE
Section 4.01 Interference
(a) T-Mobile shall operate the Facilities in such a manner that will not cause signal
interference to communication equipment operated by City in the normal course of operating the
existing storm water pump station on the Property, including the SCADA radio antenna and related
communications system currently located on the Property, as well as any other communications
equipment the City may install on the Property to support the pump station.
(b) T-Mobile's operations shall not interfere with any of City's communications
operations on a City-wide 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 the Facilities. The final determination of this interference rests solely with City, based
upon sound engineering principles through an independent source. In the event T-Mobile causes
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signal interference, all costs to remedy the interference shall be borne by T-Mobile. All
communication systems operations, operating in the same manner as of the time of installation of
the Facilities and in compliance with all applicable Federal Communications Commission
requirements and other applicable laws, shall not be deemed interference to T-Mobile. All
operations by T-Mobile shall be lawful and in compliance with all applicable laws, including all
applicable Federal Communications Commission requirements.
(c) T-Mobile shall provide initial proof of compliance with original transmission
tolerance and interference analysis by a certification through an independent source.
(d) City shall not permit installation of any use of the Property which is unrelated to the
storm water pump station or public safety communication operations that interferes with the
communication operations of T-Mobile. In the event City reasonably determines that a third
party's operations contained within City's Property do not interfere with T-Mobile's communications
operations, but T-Mobile claims otherwise, City shall have the right to hire, at T-Mobile'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 the Facilities. Both T-Mobile and the City shall follow the
recommendation of the Expert.
(e) Subsequent to the installation of the Facilities, City and T-Mobile shall notify each
other thirty (30) days prior to the use or installation of any equipment on the Property, which may
likely interfere with the Facilities, the City's pump station, or the facilities or equipment of any other
licensee, assignee or sublicensee of City.
(f) If T-Mobile or City 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 T-Mobile breaches its
obligation, T-Mobile 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 T-Mobile cannot correct such harmful interference within thirty (30) days, T-Mobile
shall have the right, in addition to any other rights that it might have at law or in equity, to
terminate this Lease. Upon such termination, City shall return any unearned Rent for that month
only to T-Mobile after final inspection and acceptance of the Property from T-Mobile.
(g) T-Mobile agrees that under no circumstances will its Facilities interfere 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 City, the T-Mobile is
deemed to have interfered with the use or operation of the police and fire department's radio
equipment, and T-Mobile cannot cure said interference within the time provided in paragraph (f),
City, without liability to T-Mobile, shall have the right to take whatever steps are necessary to
temporarily cease and shut down the Facilities and operations. If reasonably possible, City shall
endeavor to give prior notice to T-Mobile of any impending shut down.
(h) If City breaches its obligation, City shall, without limitation, promptly enforce
provisions in any Lease or other agreement between City and the persons or entities causing such
harmful interference, pursuant to which City 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, licensed and/or managed by City on the Property. If City
cannot promptly correct such harmful interference, T-Mobile shall have the right, in addition to any
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other rights that it may have at law or in equity, enforce such provisions on City's behalf and/or to
terminate the Lease as per Article 6 contained within this Lease. Upon such termination, City shall
return any unearned Rent.
(i) T-Mobile shall maintain radio-frequency radiation within the levels allowed by
Federal Regulations stated in Section 1.1310 of CFR 47 and OET Bulletin 65 or as amended.
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. T-Mobile shall
report to City or responsible federal or state agency any areas discovered by T-Mobile to exceed
such federally mandated limits. T-Mobile shall not hold City responsible for radiation levels found
to exceed such limits unless caused by City. 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) T-Mobile hereby agrees to protect, defend, indemnify and hold harmless City, 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) arising out of T-Mobile's (or
its contractors, agents or employees) use of the Property or performance of this Lease, except
such loss or damage which was caused by the sole negligence or willful misconduct of the City
and its employees and contractors. The City shall be reimbursed by T-Mobile for all reasonable
costs and attorney's fees incurred by City in enforcing this obligation. T-Mobile 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 T-Mobile.
(b) City hereby agrees to protect, defend, indemnify and hold harmless T-Mobile, 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 City's
(or its contractors, agents or employees) sole negligence or willful misconduct.
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. T-Mobile agrees that it shall comply with such provisions prior to the
commencement of this Lease and shall obtain and furnish to the City proof of its workers'
compensation and employers' liability insurance in amounts not less than the State statutory limits
T-Mobile shall require all agents and contractors to provide such workers' compensation and
employers' liability insurance for all of their employees as required by law. T-Mobile shall furnish
the City 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
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waive subrogation.
Section 5.03 General Liability Insurance
In addition to the workers' compensation and employers' liability insurance and T-Mobile's
covenant to defend, hold harmless and indemnify City, T-Mobile shall obtain and furnish to City, a
policy of general commercial liability insurance, including motor vehicle coverage against any and
all claims to the extent directly caused by T-Mobile's use of the Property. This policy shall provide
coverage for T-Mobile, 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 T-Mobile'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 Five Million Dollars ($5,000,000.00) per occurrence; such limit may be
satisfied by a combination of primary and umbrella policies. If coverage is provided under a form
which includes a designated general aggregate limit, the aggregate limit must be no less than Five
Million Dollars ($5,000,000.00) for the Property. By way of an insurance endorsement, this policy
shall name City , 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 Lease shall be deemed excess coverage and that T-Mobile's insurance shall be
primary with respect to T-Mobile's negligence.
Under no circumstances shall said above-mentioned insurance contain a self-insured retention on
the required coverage with respect to T-Mobile's negligence in excess of Two Hundred Fifty
Thousand Dollars ($250,000.00).
Section 5.04 Property Insurance
T-Mobile shall provide before commencement of this Lease and shall obtain and furnish to City, at
T-Mobile'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
replacement value of the Facilities and all Improvements, Trade Fixtures, personal property
installed thereon by T-Mobile, 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 T-Mobile as the insured and shall not contain a coinsurance penalty
provision. The policy shall contain the following endorsements:
(1) The insurer shall not cancel or reduce the insured's coverage amount without (30)
days prior written notice to City;
(2) City 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 City prior to the Commencement Date of this Lease. At least thirty (30) days prior to
the expiration or termination of any such policy, a signed and complete insurance endorsement
showing that coverage has been renewed shall be filed with City.
Section 5.05 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 City, the
amount and/or scope of general public liability insurance and/or property insurance coverage
above at that time is not adequate, T-Mobile shall increase such liability coverage amounts as
reasonably required by City during in an amount not exceed an increase greater than twenty
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percent (20%) of the then current coverage amount.
Section 5.06 Certificates of Insurance; Additional Insured Endorsements
Prior to the Commencement Date of this Lease, T-Mobile shall furnish to City commercially
reasonable certificates of insurance subject to approval of the City Attorney evidencing the
foregoing insurance coverages as required by this Lease; 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 City; 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.
T-Mobile shall maintain the foregoing insurance coverages in force during the entire Term of the
Lease or any renewals or extensions thereof or during any holdover period. The requirement for
carrying the foregoing insurance coverages shall not derogate from T-Mobile's defense, hold
harmless and indemnification obligations as set forth in this Lease. T-Mobile shall pay, in a
prompt and timely manner, the premiums on all insurance hereinabove required to be carried by
T-Mobile pursuant to this Lease.
Section 5.06 Insurance Proceeds
Any insurance proceeds received by City because of the total or partial destruction of said
Property or any buildings on said Property shall be the sole property of City.
Section 5.07 Insurance Hazards
T-Mobile shall not commit or permit the use or commission of any acts on the Property by itself, or
its contractors, agents or employees which will increase the existing rates for or cause the
cancellation of any property, liability or other insurance policy insuring the Property or the
Facilities. T-Mobile 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 Facilities.
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 T-Mobile's use as reasonably determined by T-
Mobile, T-Mobile shall have the right, but not the obligation, to terminate the Lease with respect to
the Property by giving written notice to City 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, should T-Mobile elect to continue this Lease despite such
damage or casualty, City agrees to work in good faith with T-Mobile and make available to T-
Mobile, if reasonably available in City'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, Rent shall be abated from the
date of the damage, destruction or condemnation but only until such time as T-Mobile's
commences installation of the COW.
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(b) In the event of condemnation, unless T-Mobile is allowed by the condemning
authority to continue its operations on the Property, the Lease shall terminate as of the date title to
the Property vests in the condemning authority or T-Mobile is required to cease its operations,
whichever is earlier. T-Mobile shall be entitled to any and all awards, payments and relocation
benefits afforded to them through local, State or Federal eminent domain and condemnation laws.
Section 6.02 Termination
(a) In addition to other rights of termination as specifically set forth herein, this Lease
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 T-
Mobile loses its license to provide mobile wireless services from the Property for any reason
subject to any applicable appeals period, or (3) by T-Mobile if T-Mobile 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) After a period of seven (7) years, City may terminate this Lease at any time upon
twelve (12) months prior written notice to the T-Mobile due to the implementation of a revitalization
plan or any reconfiguration or major maintenance of the Property affecting T-Mobile's operations.
T-Mobile 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 T-Mobile meets City's requirements
pursuant to such process.
(c) City may terminate this Lease at any time upon thirty (30) days written notice to T-
Mobile should the signal from the Facilities materially interfere, as objectively determined by a
qualified independent engineer, with City 's normal and customary operations and maintenance of
it's the Pump Station, provided, however that in the event T-Mobile solves the interference and/or
discontinues use of equipment causing the interference during such thirty (30) day period, this
Lease shall not terminate.
Section 6.03 Relocation and Assistance
In the event this Lease is terminated for cause, T-Mobile 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 Lease is terminated pursuant to this Section 6
(City's Default), T-Mobile shall be entitled to reimbursement of fifty percent (50%) of the rent
actually paid the City for the previous one year.
Section 6.04 Removal Upon Termination
T-Mobile, upon termination of the Lease, shall, within ninety (90) days, remove all of T-Mobile's
fixtures, structures, equipment, antenna and all personal property and restore the Premises
substantially to its original condition, at T-Mobile's sole expense, reasonable wear and tear
excepted. Underground conduits and foundations may remain at City's option. City agrees and
acknowledges that all of the Facilities shall remain the personal property of the T-Mobile and the
T-Mobile shall have the right to remove the same, whether or not said items are considered
fixtures and attachments to real property under applicable law. If such time for removal causes T-
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Mobile to remain on the Premises after termination of this Lease, T-Mobile shall pay Rent at the
then existing monthly rate, until such time as the removal of the building, antenna structure,
fixtures and all personal property are completed. Antenna support structure and all utilities
cabling and wiring shall remain at City's option.
ARTICLE 7—ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY
Section 7.01 Permitted Assignment
T-Mobile may assign this Lease to any wholly-owned affiliate or subsidiary of T-Mobile or T-
Mobile's parent company provided such assignee can provide City commercially reasonable
evidence of its ability to perform the financial requirements under this Lease. Any other
assignment, sublicense, collocation or transfer of T-Mobile's rights pursuant to this Lease requires
City's prior written consent which may be in the form of a tri-party agreement in reasonable
discretion. Except as provided above, this Lease is personal to T-Mobile, and T-Mobile will not
assign, transfer sublicense or sell this Lease 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 T-Mobile
Should T-Mobile breach this Lease and abandon the Property prior to the expiration of the Term or
any Renewal Term, City may:
(1) Continue this Lease in effect by not terminating T-Mobile's right to the Property, in
which event City shall be entitled to enforce all its rights and remedies under this
Lease, including the right to recover the Rent specified in this Lease as it becomes
due under this Lease; or
(2) Terminate this Lease and recover from T-Mobile the cost of removing the Facilities,
plus the cost of restoring the Property to its original condition, plus fifty percent
(50%) of the Rent due for the remainder of the Lease.
Section 7.03 Default
Should T-Mobile, beyond any applicable grace or cure period, default in the performance of any of
the terms, conditions or obligations contained in this Lease, City may, in addition to any remedy
specified herein, re-enter and regain possession of the Property and require T-Mobile, at its sole
cost and expense, to remove the Facilities in a workmanlike and careful manner and without
interference or damage to any City equipment, structures or operations on the Property, including
the Pump Station. T-Mobile shall repair any damage to the Property caused by such removal and
will leave the Property in its original condition, reasonable wear and tear excepted, subject to City's
reasonable acknowledgement in writing that such conditions have been satisfied. If T-Mobile fails
to remove its Facilities within ninety (90) days, City may elect to do so at T-Mobile's sole cost and
expense or elect to not remove its Facilities, in which case, such Facilities shall become the
property of City, at City's option. Any personal property, equipment or other improvements that are
not removed within the ninety (90) day period shall become the property of City, at City's option in
conformance with Section 3.01(e).
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Section 7.04 Insolvency of T-Mobile
The insolvency of T-Mobile as evidenced by a receiver being appointed to take possession of all or
substantially all of the property of T-Mobile, or the making of a general assignment for the benefit
of creditors by T-Mobile, or the filing of a petition in bankruptcy by T-Mobile shall terminate this
Lease and entitle City to re-enter and regain possession of the Property.
Section 7.05 Cumulative Remedies
The remedies given to City and T-Mobile in this Lease 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 Lease.
Section 7.06 Waiver of Breach
The waiver by City or T-Mobile of any breach by the other Party of any of the provisions of this
Lease shall not constitute a continuing waiver or a waiver of any subsequent breach either of the
same or another provision of this Lease.
ARTICLE 8 —QUIET ENJOYMENT
Section 8.01 Quiet Enjoyment
City warrants that: (1) City owns the Property in fee simple and has rights of access thereto; (2)
City has full rights to make this Lease; and (3) City covenants and agrees with T-Mobile that upon
T-Mobile paying Rent and not being in default of this Lease beyond any applicable grace or cure
periods, T-Mobile may peacefully and quietly enjoy the Property; subject, nevertheless, to the
terms and conditions of this Lease.
ARTICLE 9 — HAZARDOUS MATERIALS
Section 9.01 Hazardous Materials
(a) City represents that the engines for the Storm Water Pump Station use natural gas
for fuel. A three inch natural gas service line feeds the station, with a 1,000 gallon LPG tank at the
north/east corner of the Property used for a back up fuel source. The engines have approximately
50 gallons of oil in each crankcase.
(b) Subject to the above representation, the City has no knowledge, and will not store or
dispose, of any other hazardous substance on the Property in violation of any applicable federal,
state or local law, rule or regulation. T-Mobile and City represent they shall not introduce, transport
or use any hazardous substance on the Property in violation of any applicable law.
(c) T-Mobile agrees to clean-up and remediate any hazardous substance on the
Property released by T-Mobile or its agents, and to hold City harmless from and indemnify City
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).
(d) "Hazardous substance" shall be interpreted broadly to mean any substance or
material defined or designated as hazardous or toxic waste, hazardous or toxic material,
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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 release into the environment will or may reasonably be
anticipated to cause sickness, death or disease. T-Mobile and City 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 Lease to be performed by either City or T-
Mobile 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 Rent by T-Mobile as required by this Lease or the
performance of any act rendered difficult solely because of the financial condition of the party
required to perform the act.
Section 10.02 Notice
Any written notice or required submittals, given under the terms of this Lease, shall be delivered
personally, or mailed, certified mail, postage prepaid, addressed to the Party concerned as follows:
TO CITY : TO T-MOBILE:
City of Huntington Beach T-Mobile USA Inc.
Attn: City Manager 12920 SE 38th Street
2000 Main Street Bellevue, WA 98006
Huntington Beach, CA 92648 Attn: PCS Lease Administrator/ LA13157
Phone: (714) 536-9465
with a copy to:
with a copies to:
T-Mobile West Corporation
City of Huntington Beach 2008 McGaw Avenue
Attn: Real Property Agent Irvine, CA 92614
2000 Main Street Attn: Lease Administration Mgr. / LA13157
Huntington Beach, CA 92648
with a copy to: Attn: Legal Dept. / LA13157
Huntington Beach City Attorney
2000 Main Street
Huntington Beach, CA 92648
Phone: (714) 536-5555
T-MOBILE'S EMERGENCY CONTACT NUMBER: 1-888-662-4662.
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City or T-Mobile 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 City's Real Property Agent, or his/her designee, shall be City's Contract Administrator for this
Lease and all approval and notices required to be given herein shall be so directed and addressed.
Section 10.04 Compliance with Laws
(a) T-Mobile shall, at T-Mobile's sole cost and expense, comply with all applicable
statutes, ordinances, regulations, and requirements of all governmental entities, including federal
and state and county and municipal, required by T-Mobile's use and occupancy of the Property and
the Facilities, whether such statutes, ordinances, regulations and requirements be now in force or
hereinafter enacted. T-MOBILE EXPRESSLY AGREES TO COMPLY WITH ALL APPLICABLE
CALIFORNIA PUBLIC UTILITIES CODE SECTIONS CONCERNING PAYMENT OF ELECTRIC
COST INCLUDING BUT NOT LIMITED TO RULE 18.
(b) The City may terminate the Lease should T-Mobile admit in any legal proceeding, or
should any court of competent jurisdiction (subject to the right of appeal) find that T-Mobile has
violated any such statute, ordinance, regulation or requirement.
Section 10.05 Binding on Heirs and Successors
This Lease 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 Lease
The language of all parts of this Lease 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 Lease 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 Lease. No
covenant or provision shall be deemed dependent upon any other unless so expressly provided
here. As used in this Lease, 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 Lease 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
T-Mobile shall not commit or permit the commission by its agents or contractors of any waste on
the Property. T-Mobile 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
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Property; and T-Mobile shall not use or permit the use of the Property for any unlawful purpose.
Section 10.08 Repairs
T-Mobile shall not be required to make any repairs to the Property, except for damages to the
Property to the extent caused by T-Mobile, its employees, agents, contractors, and subcontractors.
Section 10.09 Time of Essence
Time is expressly declared to be the essence of this Lease.
Section 10.10 Governing Law
This Lease shall be governed under the laws of the State of California, and any and all actions
initiated under this Lease shall be brought solely and exclusively in a State or Federal 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 Lease which by their sense and context survive the termination or
expiration of this Lease, shall so survive.
Section 10.12 Conflict of Interest
T-Mobile warrants and covenants that, to the best of its knowledge, no official or employee of City
nor any business entity in which an official or employee of City is interested (1) has been employed
or retained to solicit or aid in the procuring of this Lease; or (2) will be employed in the performance
of this Lease without the immediate divulgence of such fact to City. In the event City 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 City,.T-Mobile, upon request of City,
shall terminate such employment immediately. For material breaches or violations of this Section,
City shall have the right both to annul this Lease without liability, and, in its sole discretion, recover
the full amount of any such compensation paid to such official, employee or business entity.
Section 10.13 Attorney's Fees
In the event suit is brought by either Party to enforce the terms and provisions of this Lease or to
secure the performance hereof, each Party shall bear its own attorney's fees.
Section 10.14 Captions
Captions used in this Lease are for ease of reference only and shall not affect the construction or
interpretation of this Lease.
Section 10.15 Duplicate Original
The original of this Lease 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.
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Section 10.16 Sole and Only Lease
This Lease constitutes the entire agreement and understanding between City and T-Mobile
respecting the leasing of the Property to T-Mobile. Any agreements or representations respecting
the Property not expressly set forth in this instrument are null and void. This Lease 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 City and
T-Mobile, or their successors in interest.
Section 10.17 Additional Wireless Carriers
T-Mobile acknowledges that it is the intent of the City to locate the facilities of several wireless
carriers at this location. T-Mobile 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 City to use the Property. T-Mobile will work in a timely and cooperative fashion to
assist the City and any and all additional wireless carriers that are licensed by the City, to locate
and operate a wireless facility on the City's Property.
IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by and
through their authorized officers the day, month and year first written above.
T-MOBILE WEST CORPORATION, a CITY OF HUNTINGTON BEACH, a
subsidiary of T-MOBILE USA, INC., a municipal corporation of the State of
Delaware corporation". California
By:
Mayor
print name
ITS: (circle one)Chairman/President/Vice President
City Clerk
AND
By: INITIATED-AND APPROVE->
print name _
ITS: (circle one) Secretary/Chief Financial
Officer/Asst. Secretary-Treasurer
APPROVED AS TO FORM:
REVIE D APPROVED:
//(sy Administrator City Attorney
Exhibits:
A: Legal Description
B: Site Sketch
Page 19 of 21
74416.docx-1/4/2012
DO NOT RECORD
SITE LEASE AGREEMENT
Exhibit"A"
LEGAL DESCRIPTION OF CITY'S PROPERTY
The Licensor's property of which Premises are a part is legally described as follows:
Street address 18401 Springdale Street
City, State, Zip Huntington Beach, CA. 92648
APN: 159-188-05
All that real property located in the State of California, County of Orange, described in the attached
Grant Deed.
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74416.docX
DO NOT RECORD
SITE LEASE AGREEMENT
Exhibit"B" Site Sketch
The location of the Facilities within the City's Property together with access, ingress, egress,
easements and utilities are more particularly described or depicted as follows:
a. Site Plan, Roof Plan and Elevations, Sheet Number A-1 dated attached.
b. Electrical Routing Plan, Sheet Number E-1 dated attached.
A final drawing or copy of a property survey depicting the above will replace this Exhibit "B" when
initialed by City and T-Mobile.
Notes
1. This Exhibit may be replaced by a land surveyor Site Plan of the Property once it is
received by T-Mobile.
2. Setback of the Facilities from the City's boundaries shall be the distance required by
the applicable governmental authorities.
3. 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 site sketch.
Page 21 of 21
74416.docx
SITE LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND T-MOBILE USA, INC., A DELAWARE CORPORATION
AT CIVIC CENTER ROOFTOP
Table of Contents
Page No.
ARTICLE1 —TERM OF LEASE..................................................................................................1
Section 1.01 Property and Use......................................................................................................1
Section 1.02 Governmental Approvals..........................................................................................2
Section 1.03 Administrative Approvals of Facilities........................................................................2
Section1.04 Use...........................................................................................................................3
Section1.05 Term.........................................................................................................................3
Section 1.06 Suspension Due to Emergency ................................................................................4
Section 1.07 Limitation on Renewal. .............................................................................................4
Section1.08 Rent .........................................................................................................................4
Section 1.09 Non-Possessory Interest..........................................................................................5
Section1.10 Non-Recording .........................................................................................................5
ARTICLE 2 - TAXES AND UTILITIES...........................................................................................5
Section2.01 Taxes .......................................................................................................................5
Section2.02 Utilities......................................................................................................................6
ARTICLE 3 -- IMPROVEMENTS AND ACCESS...........................................................................6
Section3.01 The Facilities............................................................................................................6
Section3.02 Liens.........................................................................................................................8
ARTICLE 4 - INTERFERENCE.....................................................................................................8
Section4.01 Interference..............................................................................................................8
ARTICLE 5—INDEMNITY AND INSURANCE..............................................................................10
Section 5.01 Indemnification, Defense, Hold Harmless.................................................................10
Section 5.02 Worker's Compensation and Employers' Liability Insurance.....................................10
Section 5.03 General Liability Insurance.......................................................................................11
Section 5.04 Property Insurance...................................................................................................11
Section 5.05 Certificates of Insurance; Additional Insured Endorsements.....................................12
Section 5.06 Insurance Records ...................................................................................................12
Section 5.07 Insurance Hazards ...................................................................................................12
ARTICLE 6 - TERMINATION AND DEFAULT...............................................................................12
Section 6.01 Termination in the Event of Casualty or Condemnation............................................12
Section6.02 Termination. .............................................................................................................13
Section 6.03 Relocation and Assistance .......................................................................................13
Section 6.04 Removal Upon Termination......................................................................................13
ARTICLE 7 -ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY.................................14
Section 7.01 Permitted Assignment. .............................................................................................14
Section 7.02 Abandonment by T-Mobile........................................................................................14
Section7.03 Default......................................................................................................................14
Section 7.04 Insolvency of T-Mobile..............................................................................................15
i
Table of Contents (Continued)
Pape No.
Section 7.05 Cumulative Remedies ..............................................................................................15
Section 7.06 Waiver of Breach......................................................................................................15
ARTICLE 8 -QUIET ENJOYMENT ..............................................................................................15
Section 8.01 Quiet Enjoyment.......................................................................................................15
ARTICLE 9 - HAZARDOUS MATERIALS .....................................................................................15
Section 9.01 Hazardous Materials.................................................................................................15
ARTICLE 10 - MISCELLANEOUS.................................................................................................16
Section 10.01 Force Majeure - Unavoidable Delays......................................................................16
Section10.02 Notice. ....................................................................................................................16
Section 10.03 Contract Administrator............................................................................................17
Section 10.04 Compliance with Laws............................................................................................17
Section 10.05 Binding on Heirs and Successors...........................................................................17
Section 10.06 Interpretation of this Lease.....................................................................................17
Section 10.07 Waste or Nuisance. ................................................................................................18
Section10.08 Repairs...................................................................................................................18
Section10.09 Time of Essence.....................................................................................................18
Section10.10 Governing Law.......................................................................................................18
Section10.11 Survival. .................................................................................................................18
Section10.12 Conflict of Interest...................................................................................................18
Section 10.13 Attorney's Fees.......................................................................................................19
Section10.14 Captions.................................................................................................................19
Section 10.15 Duplicate Original ..................................................................................................19
Section 10.16 Sole and Only Lease ..............................................................................................18
Section 10.17 Additional Wireless Carriers ...................................................................................19
SignaturePage.............................................................................................................................19
Exhibits
Exhibit „A„ Legal Description ........................................................................................................20
Exhibit „B„ Site Sketch .................................................................................................................21
ii
ATTACHMENT #2
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release(the"Agreement") is made and entered
into by and among the City of Huntington Beach (the"City") and T-Mobile West Corporation
("T-Mobile"). The City and T-Mobile are referred to herein individually as a"Party"and
collectively as"the Parties." This Agreement is made pursuant to the following terms and
conditions:
RECITALS
A. On August 14, 2007 and September 7, 2007,the City issued T-Mobile Wireless
Permits pursuant to the City Zoning Code authorizing installation and operation of
telecommunications facilities ("Wireless Telecommunications Facilities") at two City-owned
parks in the City of Huntington Beach: (1) 16600 Saybrook Lane,Huntington Beach, California,
also known_as Huntington Harbour Garden Club Park("Harbour View"), and (2) 5741 Brighton
Drive,Huntington Beach, California, also known as Bolsa View Park("Bolsa View").
B, On January 20,2009, the City Council approved Site License Agreements with T-
Mobile with respect to the installation and operation of the Wireless Telecommunications
Facilities at Harbour View and Bolsa View. On April 1,2009,the City issued building permits
to T-Mobile with respect to the Wireless Telecommunications Facilities at Harbour View and
Bolsa View.
C. Section 612 of the Huntington Beach City Charter("Measure C") provides that
voter approval is required before any structure with a total construction valuation of more than
$I00,000 may be built in any City-owned park. After the building permits were issued for the
Harbour View Wireless Telecommunications Facilities and the Bolsa View Wireless
Telecommunications Facilities,the City took the positions that the total construction value for
each of the Wireless Telecommunications Facilities exceeded$100,000. Consequently,the City
suspended T-Mobile's authority to construct the Wireless Telecommunications Facilities until
voter approval was obtained.
D. In response,T-Mobile filed the suit entitled Omnipoint Communications, Inc. v.
City of Huntington Beach and City Council of the City of Huntington Beach, United States
District Court for the Central District of California,.Case No. CV-09-3777, which alleged that
the Federal Telecommunications Act (the"Act")preempts the voter approval requirement of
Measure C.
E. The City moved to dismiss the Complaint, contending that proprietary decisions
of local government regarding its own property are outside the scope of the Act. The Court
.denied the motion by way of its October 8, 2009 Minute Order. The parties then filed cross-
motions for partial summary judgment,which resulted in the July 9,2010 Order of the District
finding that the Act preempts Measure C. As part of that same Order,the District Court then
"[gave] the city ... a chance to either grant the permits or articulate in writing the basis of denial
in a way that comports with the Act."
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Item ® ® 28 AB - 294
F. On August 30, 2010,the City Council revoked the Wireless Permits.
G. On November 12, 2010,the District Court entered judgment in favor of T-Mobile
with respect to its claim for declaratory judgment as set out in the July 9, 2010 Summary
Judgment Order.
H. On December 1,2010,the City appealed the Judgment, and on December 10,
.2010,T-Mobile filed a cross-appeal of the Judgment. Together,the appeals are entitled
Omnipoint Communications, Inc. v. City of Huntington Beach and City Council of the City of
Huntington Beach, Ninth Circuit Case Nos. 10-56877 and 10-56944. (For purposes of this
Agreement,District Court Case No..CV-09-3777,and the related Ninth Circuit appeals will be
referred to as"T-Mobile I.")
I. Prior to the District Court issuing the Judgment in T-Mobile I,T-Mobile filed on
September 29,2010, a lawsuit to challenge the revocation of the Wireless Permits,entitled T-
Mobile West Corporation v. City of Huntington Beach, Case No. CV 10-1471 ("T-Mobile IF').
For purposes of this Agreement,.T-Mobile I and T-Mobile II will be referred to as the"Actions."
J. The Parties have vigorously litigated the Actions. The Parties now wish to avoid
the expense, delay and uncertainty of litigation and to settle the disputes among them.
K. The basis of the Settlement is to permit T-Mobile to locate the Wireless
Telecommunications Facilities at alternative sites,with the Wireless Telecommunications
Facilities being located at the Huntington Harbour Mall, 16897 Algonquin, Huntington Beach,
California(the"Mall") in place of Harbour View, and the Wireless Telecommunications
Facilities being located at the City-owned, Bolsa Chica Flood Control Pump Station, 18401
Springdale Street,Huntington Beach(the"Pump Station") in place of Bolsa View.
L. The Parties acknowledge that T-Mobile's ability to obtain leases for either the
Mall or the Pump Station is dependent on discretionary decisions of the Mall owner and the
Huntington Beach City Council,respectively. The City makes no commitment that either Lease
will be agreed to.
M. The Parties further acknowledge that even if T-Mobile obtains the leases for the
Mall and the Pump Station,the City Council must approve a conditional use permit("CUP")
pursuant to the Zoning Code for each site and that notwithstanding any term or condition of this
Agreement,the City Council retains its full discretion to deny either or both CUPS.
N. Given the multiple discretionary decisions involved in this Settlement Agreement,
the Parties agree that if only one site is fully approved,then T-Mobile will withdraw and release
its claims against the City regarding the relocated site from the Actions,and only prosecute the
Actions as to the Wireless Telecommunications Facilities that was not relocated.
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AGREEMENT
For and in consideration of the commitments made herein,City and T-Mobile agree as
follows:
1. Settlement Does Not Bind Or Commit The Future Actions Of The Huntington Beach
City Council.
Neither the Mall nor Pump Station Antenna may be constructed unless and until the City
Council has approved a CLIP and any related environmental review pursuant to the California
Environmental Quality Act. By entering into this Agreement,the City only agrees to present
CUP applications for the Antennas to the City Council for approval. City Staff retains its
discretion to recommend denial of the applications, and the City Council retains its discretion to
deny the applications. Neither of the Wireless Telecommunications Facilities shall-be
approved until the City and the City Council has followed all legally required procedures. .
II. Continuance Of The Actions Is A Condition Precedent To This Agreement.
1. Presently,trial is scheduled to begin in T-Mobile Hon December 6,2011. As of
the date of this Agreement, it appears that the earliest that the City Council will be able to
consider approval of the CUP and Lease for the Pump Station Antenna is December 6,2011.
The date by which the City Council will be able to consider the Mall Antenna is uncertain,
because the Mall Owner has yet to agree to the necessary Lease. Consequently,the City
Council likely will not be able to consider the Mall CUP until early 2012,assuming that the
Mall owner and T-Mobile agree to a Lease.
2. The Parties acknowledge that the Settlement of the Actions cannot be completed
unless and until the Court continues the trial of T-Mobile II.
3. The Parties shall immediately ask the Court to continue or stay T-Mobile 11 to
allow this Agreement to be effectuated. The Court shall retain jurisdiction until: (a)all permits
and approvals to install and operate the Antennas have been issued; (b)the Antennas have been
fully constructed;and(c) the time for legal challenge to the approvals for the Antennas has
expired.
4. If the Court should fail to grant the continuance or stay, or grant it in a manner
that either Party finds unacceptable, either Party terminate this Agreement. By way of separate
letter agreement, Counsel for the Parties may modify this termination provision in response to
the actions of the Court.
III. The Mall.
1. The City, through its Staff, shall provide its assistance in obtaining the agreerent
by the Owner of the Mall to enter into a lease with T-Mobile to install and operate a Wireless
Telecommunications Facilities at the Mall.
2. If and when T-Mobile obtains the necessary authorization from the Mall owner
to apply to the City for land use approval of the Mall Wireless Telecommunications Facilities,
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Item2® m 30
T-Mobile shall promptly apply to the City for the necessary CUP. The City shall not charge T-
Mobile any fees in connection with the permits for Wireless Telecommunications Facilities at
the Mall,except its out-of-pocket expenses of Seven Hundred Fifty Dollars($750.00).
3. Once T-Mobile submits a CUP application for the Mall Wireless
Telecommunications Facilities,the City,through its Staff, shall conduct a public meeting to
present the Wireless Telecommunications Facilities at the Mall to the neighboring community.
4. Within seven (7)weeks of T-Mobile submitting a CUP application for the Mall
Wireless Telecommunications Facilities,City Staff shall cause to be noticed a public hearing
before the City Council to consider the CUP.
5. If the City approves the CUP application for the Mall Wireless
Telecommunications Facilities,and the time for filing any legal challenge to the approval has
expired,then T-Mobile shall as soon as reasonably possible,remove the vault and shoring at
Harbour View. The City shall then,at its own expense, demolish or cover the base,backfill the
hole,repair the irrigation, oversee the turf area and provide any other landscaping the City
wishes. T-Mobile shall leave the utilities in place.
IV. The Pump Station. ;
1. The Parties have preliminarily agreed to the terms of a Lease to locate Wireless
Telecommunications Facilities at the Pump Station. �(
ibis*. T-Mobile agrees to promptly execute the Lease immediately upon approval of this /t
Agreement by the Huntington Beach City Council. The City Council shall consider whether to
approve the Lease concurrently when it considers whether to approve a CUP for the Pump
Station Antenna. By entering into this Agreement, the City retains its discretion to reject the
Pump Station Lease.
2. Promptly upon both Parties executing this Agreement, T-Mobile shall apply to
the City for a CUP for the Pump Station Wireless Telecommunications Facilities. The City
shall not charge T-Mobile any fees in connection with the permits for Wireless
Telecommunications Facilities or lease for the Pump Station, except its out-of-pocket expenses
of Seven Hundred Fifty Dollars($750.00).
3. Once T-Mobile submits a CUP application,City, through its staff,shall schedule
a public meeting to present the Pump Station Antenna to the neighboring community.
4. Within seven (7)weeks of T-Mobile submitting a CUP application for the Pump
Station Wireless Telecommunications Facilities, City Staff shall cause to be noticed a public
hearing before the City Council to consider the CUP.
V. Effect Of Settlement If Neither Antenna Is Approved, Or Only One Wireless
Telecommunications Facilities Is Approved.
1. If despite T-Mobile's good faith efforts, it is unable to enter into a lease with the
owner of the Mall allowing T-Mobile to install and operate Wireless Telecommunications
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HB - 297 Stem 2® o 31
Facilities at the Mall on terms acceptable to T-Mobile, then this Agreement shall be null and
void as to the Wireless Telecommunications Facilities at the Mall.
2. Should the City Council approve the CUP and Lease for the Pump Station,but
deny the CUP for the Mall, then T-Mobile agrees to file all necessary pleadings to withdraw and
release its claims concerning Bolsa View from.the Actions. Further, the Parties agree that T-
Mobile may either resume litigating the Actions regarding Harbour View,or that it will dismiss
with prejudice the Actions and.instead file a new action in either State or Federal Court to
challenge the City's decision to deny the CUP for the Mall. Alternatively, if T-Mobile chooses
to resume litigating the Actions regarding Harbour View,it agrees to waive and not pursue any
claims it may possess regarding the Mall site.
3. Should the Mall owner enter into a lease with T-Mobile,and the City-Council
approve the CUP for the Mall,but the City denies the CUP or Lease for the Pump Station,then
T-Mobile agrees to file all pleadings necessary to withdraw its claims concerning Harbour View'
from the Actions. Further, T-Mobile agrees that it will not file any actions in either State or
Federal Court to challenge the City's decision to deny the CUP and/or Lease for the Pump
Station. Rather,T-Mobile may proceed to litigate the Actions only regarding the Bolsa View
site.
4. If T-Mobile is only able to obtain full approval of the Mall Wireless
Telecommunications Facilities or the Pump Station Wireless Telecommunications Facilities,
and then pursues the Actions as to the denied Wireless Telecommunications Facilities ,then the
claim for costs of the Party that prevails in the Actions as to the rejected Wireless
Telecommunications Facilities shall be reduced by one-half for the time between initial filing
of the Actions through the date the Actions were recommenced after this Agreement was
executed.
5. If(1) T-Mobile is unable to obtain a Lease with the Mall Owner or the City.
Council denies approval of the Mall CUP; and(2)the City Council denies approval of the Pump
Station Lease and/or the Pump Station CUP,then this Agreement terminates and shall be of no
force and effect.
VI. Release If Both Mall And Pump Station Wireless Telecommunications Facilities
Approved.
In the event that both the.CUPs and Leases are agreed to for the Mall and Pump Station
Wireless Telecommunications Facilities,then the Parties agree to a full release of their claims,as
set forth below:
1. In consideration of the recitals, covenants and agreements set forth in this
Agreement, and other good and valuable consideration,receipt and
sufficiency of which is hereby acknowledged, each Party to this
Agreement hereby irrevocably and unconditionally mutually release and
forever discharge each other and each of their respective trusts,trustees,
successors, assigns, executors and administrators, agents,employees,
representatives, attorneys,principals, affiliates, and all persons acting by,
5
DwT 18330406VI 0048172-OOo388n2o17.D0C
Item 2® - 32 HB - 298
through,under or in concert with any of them, or any of them, of and from
any and all claims, demands, actions, causes of action, suits, liens,debts,
obligations,promises, agreements,costs, damages, liabilities, and
judgments of any kind, nature, or amount whether in law or equity,
whether known or unknown, anticipated or unanticipated, liquidated or
unliquidated, including any and all claimed or unclaimed compensatory
damages, consequential damages, interest,costs, expenses and fees
(including reasonable or actual attorneys' fees), arising from or related to
the events as described in the Actions.
- 2. To effect a full and complete release as described above, the Parties
expressly waive and relinquish all rights and benefits afforded to them by
Section 1542 of the Civil Code of the State of California,and do so
understanding and acknowledging the significance and consequence of
such specific waiver of Section 1542. Section 1542 of the Civil Code of
the State of California provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
by him or her must have materially affected his or her
settlement with the debtor."
Thus,notwithstanding the provisions of Civil Code Section 1542,and for the purpose of
implementing a full and complete release and discharge of the Parties, the Parties expressly
acknowledge that this Agreement is intended to include in its effect,without limitation, all
claims which they do not know or suspect to exist in their favor at the time of execution hereof,
and this Agreement contemplates the extinguishment of any such claims. The Parties warrant
that they have each read this Agreement, including this waiver of California Civil Code Section
1542, and that they understand the Agreement and the Section 1542 waiver, and so freely and
knowingly enter into this Agreement. The Parties each acknowledge that it may hereafter
discover facts different from or in addition to those it-knows or now believes.to be true with
respect to the matters released or described in this Agreement,and they agree that the releases
and agreements notwithstanding any later discovery of any such different or additional facts.
The Parties each hereby assumes any and all risk of any mistake in connection with the true facts
involved in the matters,disputes, or controversies described herein or with regard to any facts
which are now unknown to them relating thereto.
3. The Actions shall be dismissed,with prejudice,each party to bear its own fees
and costs.
4. Each Party shall each hear its own costs and expenses, including attorneys' fees,
including those incurred in connection with the Action or the negotiation and
execution of this Agreement. In the event of any proceedings to enforce this
Agreement, the prevailing Party shall be entitled, in addition to any other
appropriate relief,to recover its reasonable costs and attorneys' fees.
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DWT 18330406A 004 81 72-0003 8 8n2017.DOC
HB - 299 Item 2. - 33
VII. General Terms and Conditions.
I. If T-Mobile obtains a Lease and CUP for the Mall Wireless Telecommunications
Facilities,then the Site License Agreement for Harbour View is terminated,and the City shall-
refund all rent or other payments made by T-Mobile pursuant to the Site License Agreement. If
T-Mobile obtains a Lease and CUP for the Pump Station Wireless Telecommunications
Facilities,then the Site License Agreement for Harbour View is terminated, and the City shall
refund all rent or other payments made by T-Mobile pursuant to the Site License Agreement.
2. All parties acknowledge and warrant that their respective execution of this
Agreement is free and voluntary.
3. - It is understood and agreed that this Agreement and the consideration set forth
herein effect the settlement of claims which are denied and contested, and nothing in this
Agreement shall be construed as an admission by any Party of any liability of any kind to any
Parry to this Agreement or any other person, and such liability is expressly denied.
4. This Agreement constitutes and contains the entire Agreement and understanding
concerning this subject matter between the Parties and supersedes and replaces all prior
negotiations,proposed agreements or agreements,written or oral. Each of the Parties
acknowledges that no other Party or any agent or attorney of any other Party made any promise,
representation or warranty whatsoever,express or implied, or oral; not contained in this
Agreement, concerning its subject matter to induce any Party to execute this Agreement,and
each of the Parties acknowledges that it/he/she has not executed this Agreement in reliance on
any promise,representation or warranty that is not contained in this Agreement.
5. The Parties each acknowledge that they have had a full and unhindered
opportunity to consult with.legal, accounting,financial,tax and planning consultants of their
own choosing before entering into this Agreement.
6. The Parties represent that they have not heretofore assigned or transferred, or
purported to assign or transfer,to any person or entity, any claim or other matter herein related.
7. This Agreement is made and entered into in the State of California, and shall in
all respects be interpreted, enforced and governed under the laws of the State of California.
8. This Agreement sets forth the entire agreement between the Parties and fully
supersedes any and all prior agreements or understandings of any kind whatsoever, whether
written, oral,express, implied or otherwise,between City and T-Mobile, with respect to the
subject matter of this Agreement. Any modification or amendment to this Agreement must be
in writing and must be signed and dated by all of the Parties, and must explicitly state that it is
intended to be an amendment to or modification of this Agreement.
9. This Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and assigns of the Parties hereto.
10. The Agreement may be executed in counterparts and all such counterparts taken
collectively shall constitute one agreement.
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DWT 18330406v1 o048172-000388n2o17.DOC
HB - 300
Its ® - 34
11. Nothing in this Agreement shall be construed as an admission or estoppel on the
part of any Party as to any matter, including the legal necessity of the permitting process
specified in this Agreement. This Agreement may not be introduced into evidence in any action
or proceeding other than an action or proceeding to enforce the Agreement.
IN WITNESS 'WHEREOF, the Parties hereto have executed this Agreement.
CITY OF T GTON BEACH
November 21,2011
Dated: OvW// ,2011 By:
CITY COUNCIL OF THE CITY OF
HUNTING ACH
November 21;2 011
Dated: Vofol)6�/ 2011 By:
Its:
T BIL ST CO ORATION
Dated: October, 2011 By:
The undersigned attorneys at law for each of the respective Parties represent that they
have fully explained this Agreement to their respective clients,who have acknowledged an.
understanding of these terms and conditions and the legal effect thereof,
JENNIFER McGRA.TH, City Attorney
Dated: Getcbef-_�� By: , -- 4,704111
Scott Field, Assistant City Attorney
Attorneys for City of Huntington Beach and
City Council of the City of Huntington Beach
DAVIS GHT TREMA4NE LLP
Dated: October , 2011. By: '
Martin L, FinemW
Attorneys for T-Mobile West Corporation
8
DWT 18330406v1 0048172-000388/72017.DOC
HB - 301 Item 2. ® 35
0
�d CITY OF HUNTINGTON BEACH
Interdepartmental Memo
TO: Honorable Mayor and Members of the City Council
VIA: Fred A. Wilson, City Manager
FROM: Bob Hall, Deputy City Manager/Director of Economic Development
DATE: January 9, 2012
SUBJECT: Supplemental Information — Public Hearing Item #1 and #2
T-Mobile Request to Reduce Proposed Cell Tower Height and
T-Mobile Lease Agreement Signature Page
On January 9, 2012, T-Mobile submitted two late communication items relating to the
January 9, 2012 Special Meeting. These items are supplemental information for Public
Hearing Items #1 and #2 and are attached for City Council's review.
1. A letter from T-Mobile requesting to reduce the height of the proposed Springdale
Pump Station cell tower from 55 feet down to 45 feet.
C2. -Mobile signature page for the Springdale Pump Station Lease Agreement.
Attachment
SUPPLEMENTAL
COMMUNICATION
040ing Date:__
Agereda Item No. � /q0 �
Supplemental Communication Cell tower -1- 1/9/2012 11:49:00 AM
ATTACHMENT 1
oo
® DavisWright 5a 50 5 Montgomery Street
Tremaine LLP San Francisco,CA 94111 6533
Martin L,Fineman
415/276-6575 tel
415a76-6599 fax
martinfineman c@dwLeom
January 9,2012
Honorable Mayor Dale Hansen and
Members of the City Counsel
c/o Scott Field,Esq.
Assistant City Attorney
Box 190,2000 Main Street
Huntington Beach,CA 92648
Re: Pump Station Lease and Permits—January 9,2012 Agenda
Dear Honorable Mayor Hansen and Members of the City Council:
This letter is to confirm that in response to the City's request,T-Mobile West
Corporation agrees to reduce the height of the Pump Station Wireless Facility to 45 feet.
Respectfully yours,
Davis Wright Tremaine LLP
Martin L. Fineman
DWT 18814449Y100481 n-000465
Anchorage I Now York k Seattle
Be Howe ( Portland f SWnglwl
La;Angeles ` San Francisco ` Washington,D.C. iwnv.dwt,com
ATTACHMENT 2
III
DO NOT RECORD
I i
I
Section 10A6 Sole and Only Lease
This Lease constitutes the entire agreement and understanding between City and T-Mobile
respecting the leasing of the Property to T-Mobile. Any agreements or representations respecting
the Property not expressly set forth in this instrument are null and void. This Lease 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 City and
T-Mobile, or their successors in interest,
Section 10.17 Additional Wireless Carriers
T-Mobile acknowledges that it is the intent of the City to locate the facilities-of several wireless
carriers at this location. T-Mobile 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 City to use the Property. T-Mobile will work in a timely and cooperative fashion to
assist the City and any and all additional wireless carriers that are licensed by the City, to locate
and operate a wireless facility on the City`s Property.
IN WITNESS WHEREOF,the Parties hereto have caused this Lease to be executed by and
through their authorized officers the day, month and year first written above.
T-MOBILE WEST CORPORATION, a CITY OF HUNTINGTON BEACH, a
subsidiary of T-MOBILE USA, INC., a municipal corporation of the State of
Delaware corporation". California
By: ! '
174�h iC`�3r^'U' Mayor
print name
ITS: (circle one)ChakoaMf residenbVta—Rrmident
OF ell i-1���'�)' City Clerk
AND
By: -INITIATED AND APPROVED:
print name
ITS: (circle one)Secretary/Chief Financial
Officer/Asst.Secretary-Treasurer
REVIEWED AND APPROVED: APPROVED AS TO FORM:
City Administrator City Attorney
Exhibits:
A: Legal Description
B: Site Sketch
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