TO: HONORABLE MAYOR & MEMBERS OF THE CITY COUNCIL
FROM: ASSISTANT CITY MANAGER/CITY CLERK
DATE: SEPTEMBER 5, 2006
SUBJECT: REVISED LICENSE AGREEMENT WITH T-MOBILE
1) Approve a Revised License Agreement with T-Mobile for the installation and maintenance of a telecommunications facility at Robert E. Ryan Park; and, 2) Authorize the Mayor and City Clerk to execute said agreement.
On April 18, 2006, City Council approved a License Agreement with T-Mobile to install two antennae mounted on an existing light standard located in the parking lot and the support equipment on the adjacent slope. The Planning Commission had previously approved a Conditional Use Permit for the project and, as no appeal was filed, the planning approval became final on February 28, 2006.
Following the Council’s action, staff learned that T-Mobile’s legal department had not reviewed the draft agreement, although the project manager made representations to the contrary to staff. As a result, T-Mobile has requested additional minor changes to the agreement, which have been reviewed and approved by the City Attorney’s Office. All of the basic provisions of the agreement, such as term, extension options and escalations, remain unchanged from the agreement presented to Council in April 2006.
The first year’s rent of $18,000 will be prorated as of July 1, 2006, and will be subject to a 3.5% increase on each July 1 thereafter.
Assistant City Manager/City Clerk
Revised License Agreement
CITY OF RANCHO PALOS VERDES
LOS ANGELES COUNTY, CALIFORNIA
WIRELESS TELECOMMUNICATIONS ANTENNA FACILITIES
THIS LICENSE AGREEMENT FOR WIRELESS TELECOMMUNICATIONS ANTENNA FACILITIES (“License”), effective as of the date specified below in Section 34, is entered into by the CITY OF RANCHO PALOS VERDES, a municipal corporation (“Licensor”), and OMNIPOINT COMMUNICATIONS, INC., a subsidiary of T-MOBILE USA, INC., a Delaware corporation (“Licensee”).
A. Licensee seeks to construct, operate and maintain radio transmitting and receiving antennas, together with other associated electronic equipment, in connection with its wireless communications business as needed to expand and to improve its wireless telecommunications service.
B. Licensor desires to improve services available to the public, to enhance communications systems within the City, and to augment its revenues by making City properties available for wireless communications infrastructure in a manner that is consistent with other public uses of its property.
C. Licensee acknowledges that City properties can provide desirable locations for the placement of antenna sites if the cost is competitive and the process for the approval of sites is expedited.
D. Licensor has determined to make certain of its properties available to wireless communications companies, on a fair and equitable basis, for use as antenna sites.
THE PARTIES AGREE AS FOLLOWS:
THE PARTIES AND REQUIRED NOTICES
A. The parties to this License, and their designated representatives, are as follows:
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
Designated Representative: City Manager
T-Mobile USA, Inc.
12920 S.E. 38th Street
Bellvue, Washington 98006
Designated Representative: PCS Lease Administrator, Site No. IE05375C
With a copy to: Attn: Legal Department, Site No. IE05375C
With a copy to:
Omnipoint Communications, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, California 92707
Attn: Lease Administration Manager, Site No. IE05375C
B. Any notice required to be given under the provisions of this License must be in writing and may be delivered personally, by overnight delivery service, or by certified or registered mail with postage prepaid and return receipt requested, addressed to the other party as set forth above in paragraph A.
PREMISES AND LICENSEE’S FACILITIES
A. The interests in Licensor’s property, both real and personal, that are subject to this License consist of the following:
1. (a) A portion of Licensor’s unimproved real property located within the Robert E. Ryan Community Park in the City of Rancho Palos Verdes, Los Angeles County, California, the legal description of which is set forth in the attached EXHIBIT A. The location and dimensions of the portion to be licensed to Licensee are delineated on the Site Diagram attached as EXHIBIT B.
(b) Space upon an existing support facility owned by Licensor and referred to as a light standard. The location and dimensions of the portion of the support facility to be licensed to Licensee are delineated on the Site Diagram attached as EXHIBIT B-1. The number, location, and orientation of the wireless telecommunications antennas that Licensee is authorized to install upon this support facility are delineated on the attached EXHIBIT C. Licensee may replace existing equipment on the light standard with substantially similar equipment, subject to the prior written approval of the Director of Planning, Building and Code Enforcement, which approval shall not be unreasonably withheld, conditioned, or delayed. Licensee has the burden of demonstrating, to the satisfaction of the Director of Planning, Building and Code Enforcement, the substantial similarity of any proposed replacement equipment. Licensee may modify its ground-mounted support equipment only if the modification (i) does not require any changes in the dimensions of the support equipment cabinet or the concrete pad; (ii) does not generate noise levels in excess of 65 DBA; and (iii) is otherwise consistent with all Conditions of Approval for Licensee’s Conditional Use Permit subject to prior written approval of the Director of Planning, Building and Code Enforcement, which approval shall not be unreasonably withheld, conditioned, or delayed.
2. Easements for ingress, egress, access, and utilities required by the Licensee to construct, install, operate, repair, or replace the wireless telecommunications antenna facilities referenced below in paragraph C, when agreed upon by the parties, will be described in the attached EXHIBIT D.
B. The portions of the real and personal property described above in paragraph A that are subject to this License are collectively referred to as the “Premises.”
C. The wireless telecommunications antenna facilities, and the supporting structures and improvements to be constructed or installed by Licensee on the Premises, are more fully described in the attached EXHIBIT E and are collectively referred to in this License as “Licensee’s Facilities.” Licensee’s Facilities must be constructed or installed in compliance with P.C. Resolution No. 2006-7 authorizing Conditional Use Permit Case No. ZON2004-00174, a copy of which is set forth in the attached EXHIBIT F and incorporated by this reference.
LICENSEE’S USE OF THE PREMISES
A. The Premises are authorized to be used by Licensee for any lawful activity in connection with the provision of wireless telecommunications services, including, without limitation, the transmission and reception of radio communication signals on various frequencies, and the construction, operation and maintenance of Licensee’s Facilities described in EXHIBIT E. Licensee’s use of the Premises must comply with all conditions imposed by P.C. Resolution No. 2006-7 authorizing Conditional Use Permit Case No. ZON2004-00174, and with all ordinances, laws, and regulations of any governmental entity having jurisdiction to regulate that use.
B. Prior to the due date of the first annual license fee payment, as specified in Section 5.A., Licensee must apply for and obtain all licenses, permits, and approvals required by all governmental agencies for Licensee’s intended use of the Premises. Licensor will, at no expense to Licensor, cooperate with Licensee in providing such information concerning this License as may reasonably be requested in Licensee’s efforts to obtain the required licenses, permits, and approvals.
C. Licensee has the right to construct, operate, and maintain on the Premises unmanned wireless telecommunications antenna facilities, including but not limited to radio frequency transmission lines, radio transmitting and receiving antennas, and any support equipment and improvements that are described in EXHIBIT E. Licensee acknowledges that it is the policy of Licensor to encourage, whenever possible, the co-location of wireless telecommunications antenna facilities on both City-owned property and privately-owned property. If there is unused space on any support structure described in EXHIBIT E, that excess space may be made available to other wireless telecommunications service providers if joint use of the support structure is technically feasible. Any determination by the Licensee that such joint use and co-location is not technically feasible will be reviewed and approved by the City Engineer. Any disputes between the Licensor and Licensee regarding any proposed co-location will be resolved at a hearing to be conducted by the Planning Commission. If the co-location of facilities on any support structure subject to this License is determined to be technically feasible, appropriate amendments will be made to this License to accommodate that co-location of facilities, including adjustments in the annual license fee payable by Licensee.
D. Licensee must not hinder the joint use of the Premises by another service provider. Licensee may permit third parties to occupy space on facilities constructed by Licensee only with Licensor’s prior written permission, which shall not be unreasonably withheld, conditioned or delayed. Licensee may not allow the use of space on any portion of the Premises which, in Licensor’s reasonable opinion, will result in interference with Licensor’s public safety operations, communications systems, microwave antennas, or other equipment. Licensee may charge a fee for the use by third parties of space on a support structure or building, under written agreements with those third parties that are within the usual parameters of industry practice. Copies of all agreements between Licensee and third parties must be provided to Licensor. For third-party co-locations situated entirely within the Premises (a “Sub-Use”), Licensee will pay Licensor fifty percent (50%) of the gross rental amount paid by the third party to Licensee (excluding the amount charged to the third party to compensate Licensee for all or any portion of its construction and installation costs, including engineering and entitlement expenses), or an amount equal to fifty percent (50%) of the then current License Fee, whichever is greater. For third-party co-locations that require the use of City-owned property in addition to the Premises (a “Direct-Use”), Licensor will enter into a separate license agreement with the third party for those premises, the term of which will coincide with Licensee’s License. Any third party seeking to co-locate with an existing licensee on the Premises, whether under a Sub-Use or a Direct-Use, will be required to comply with all of the Licensor’s review procedures and to obtain all necessary approvals.
E. Licensee’s use of Licensee’s Facilities is limited to the provision of wireless telecommunications services using wireless telecommunications antenna facilities. The term “wireless telecommunications services,” as used in this License, means the following: the transmission and reception of radio communications signals on various frequencies, and the construction, maintenance, and operation of related communications facilities. If other or different services are proposed to be provided by Licensee, the parties will meet and confer to determine whether those services may be authorized and, if so, whether any renegotiation and amendment of this License may be required.
A. The term of this License is ten years, commencing on February 14, 2006, which was the approval date of P.C. Resolution No. 2006-7 authorizing Conditional Use Permit Case No. ZON2004-00174. That date is referred to in this License as the “Commencement Date.” This license is not revocable except in accordance with the terms of this Agreement.
B. Prior to expiration of the 10-year term of this License, Licensee may request from the Planning Commission an extension of the Conditional Use Permit. As specified in Condition No. 15 of Exhibit A that is attached to Resolution No. 2006-7, this extension will be granted upon a demonstration by Licensee that the antennas and related equipment are not using obsolete technology and are still in use. If the Planning Commission grants the extension, then the term of this License may, upon Licensee’s request, be extended for a period commensurate with the extension of the Conditional Use Permit.
A. The first annual license fee in the sum of Eighteen Thousand Dollars ($18,000) will be paid to Licensor upon the date of issuance of a building permit by Licensor’s Building Official that authorizes construction of Licensee’s Facilities on the Premises. This payment will be prorated from the payment date through July 1, 2007. Thereafter, Licensee will make an annual license fee payment of Eighteen Thousand Dollars ($18,000) on each July 1 commencing in 2007. The July 1, 2007, payment, and subsequent annual license fee payments, will be adjusted as provided for in paragraph C below. Payment must be mailed to Department of Finance, 30940 Hawthorne Boulevard, Rancho Palos Verdes, California 90275.
B. If legally permissible, the parties may agree to substitute services for the monetary consideration provided herein if Licensor determines that such substitution is in its best interests.
C. Commencing on July 1, 2007, and thereafter on each July 1 during the term of this License, the annual license fee will be automatically increased by multiplying the annual license fee for the preceding year by three and one-half percent (3.5%).
D. If Licensee fails to pay the annual license fee within twenty (20) days of the due date, the past-due license fee will bear interest from the date due until paid at the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum rate permitted under California or federal law, if the 12% rate exceeds that maximum.
E. If Licensee occupies the Premises for ten years, then prior to the commencement of the eleventh year (assuming an extension by the Planning Commission of Licensee’s Conditional Use Permit) the parties will renegotiate the base annual license fee to reflect the fair market value of the Premises. However, in no event will the annual license fee be less than it was in the immediately preceding year. If the parties cannot agree on a new base annual license fee, the matter will be submitted to a mutually agreeable appraiser who is a Member of the Appraisal Institute (“MAI”) for a binding determination.
F. Upon the expiration or other termination of this License, Licensee must peacefully vacate the Premises and leave them in as good condition as the same were on the Commencement Date, except for reasonable wear and tear and damage not caused by Licensee. If Licensee fails to promptly remove all of its facilities and equipment from the Premises within 45 days after expiration or earlier termination of the term, Licensor may, after five days’ prior written notice to Licensee, remove the same. Any such removal will be without any liability to Licensor for any damage to such equipment or facilities that may result from reasonable efforts of removal. Licensee must pay to Licensor, upon written demand, all reasonable costs incurred by Licensor in removing and storing such equipment and facilities prior to their retrieval by Licensee. Licensor has no obligation to store such equipment and facilities, and Licensee will have no claim if Licensor destroys any equipment or facilities that are not removed by Licensee.
G. If Licensee continues in possession of the Premises after the termination of this License, whether the termination occurs by lapse of time or otherwise, such holding over, unless otherwise agreed to by Licensor in writing, will constitute and be construed as a tenancy at will. The monthly license fee for that tenancy will be equal to twelve and one-half percent (12.5%) of the annual license fee paid during the preceding year and will be subject to all other terms of this License, including the annual percentage increase.
TAXES AND ASSESSMENTS
Licensee must pay all real estate taxes, possessory interest taxes, and other taxes, fees, and assessments attributable to Licensee’s use of the Premises and to all equipment and facilities placed on the Premises, as well as any improvements constructed by Licensee on the Premises.
Licensee has the right, at Licensee’s sole cost and expense, to install utilities on the Premises, and to bring utilities across Licensor’s adjacent real property, in order to service the Premises and Licensee’s Facilities, subject to Licensor’s approval of proposed utility routes and the manner of installation which approval will not be unreasonably withheld, conditioned or delayed. Licensee must obtain electrical power directly from Licensor’s established power source and promptly pay for all utilities furnished to the Premises. Licensee must pay for the installation of a separate meter.
ACCESS FOR INSPECTIONS, CONSTRUCTION, AND MAINTENANCE
A. At any time following the execution of this License and prior to the due date of the first annual license fee payment as provided for above in Section 5.A., Licensee has the right to enter the Premises for the purpose of conducting inspections, environmental reviews, engineering surveys, soil tests, and any other tests (collectively “Tests”) that Licensee deems desirable to determine the suitability of the Premises for Licensee’s Facilities and for the purpose of preparing for the construction of Licensee’s Facilities. During any Tests or preconstruction work, Licensee will have insurance coverage as required by Section 15. Licensee will notify Licensor of any proposed Tests or preconstruction work and will coordinate the scheduling of same with Licensor. If, prior to the due date of the first annual license fee payment, Licensee determines that the Premises are unsuitable for Licensee’s intended use, then Licensee may elect to terminate this License on not less than 30 days’ prior written notice to Licensor. Based upon these rights of access, inspection, and termination afforded to Licensee, Licensor makes no representations or warranties concerning the presence of hazardous materials, hazardous substances, or hazardous wastes on or near the Premises. To the best of Licensor’s knowledge, no such materials, substances, or wastes exist on or near the Premises as of the Commencement Date of this License.
B. In connection with the construction, operation, and maintenance of Licensee’s Facilities, Licensee has the right to do all work necessary to prepare the Premises for the construction and installation of Licensee’s Facilities, including the installation of utility lines and transmission lines connecting antennas to transmitters and receivers. This work will be performed between 7:00 a.m. and 7:00 p.m., Monday through Saturday. Licensee may perform emergency repairs on a 24-hour basis; provided, however, that Licensee and Licensor will agree upon the use of keys and locks with regard to access during hours when the gate to the parking lot is locked. All of Licensee’s construction and installation work will be performed at Licensee’s sole expense, in a good and workmanlike manner, in compliance with approved plans and specifications, and in accordance with all applicable governmental permits, laws, ordinances, and regulations.
C. Licensor will provide access to the Premises to Licensee, its employees, agents, contractors and subcontractors, twenty-four hours a day, seven days a week, at no charge to Licensee. Licensor represents that it has full rights of ingress to and egress from the Premises, and Licensor grants those rights to Licensee to the extent required to construct, install, operate, and maintain Licensee’s Facilities on the Premises. Licensee’s exercise of these rights must not cause undue inconvenience to Licensor.
D. Licensor will maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to provide access. Licensor is responsible for maintaining these roadways, at its sole expense, except for any damage caused by Licensee’s use of these roadways, which damage must be promptly repaired by Licensee.
CONDITIONS FOR CONSTRUCTION OF LICENSEE’S FACILITIES
A. Licensee must provide to Licensor detailed plans of the proposed initial construction, and such other information as may be required in writing by Licensor’s authorized representatives, in accordance with the Conditions of Approval attached to P.C. Resolution No. 2006-7.
B. Licensee will, at its sole expense, construct Licensee’s Facilities and will pay to the Licensor all costs incurred by Licensor in connection with that construction, including, without limitation, costs and fees for building permits, plan checking, inspections, water used for construction, location of utilities, and any repairs made by Licensor due to construction damage caused by Licensee. Licensee is responsible for any damage caused by the construction, including but not limited to damage to public right-of-way, private property, streets, existing utilities, curbs, gutters, sidewalks, and any premature deterioration of the above. Licensee will pay Licensor any costs incurred, and will complete the restoration or repair of any damage caused by the construction within 30 days from the date of written notice from Licensor.
C. Licensee’s installation, and any subsequent alteration, of Licensee’s Facilities must comply with all applicable local, state, and federal laws and regulations, including construction standards and uniform codes. All structural work or reinforcement on an improvement must be approved by a licensed structural engineer at Licensee’s sole cost and expense. During construction, Licensee must perform all work in such a manner as not to interfere with services provided by Licensor or by any pre-existing third parties.
D. It is Licensee’s responsibility to verify the location of all existing utilities. Licensee must exercise due caution to ensure that underground irrigation systems, electrical systems, and other utilities are not damaged during construction. During any authorized excavation, appropriate techniques must be employed that safeguard all existing utilities and underground facilities, including contacts with Underground Service Alert (“U.S.A.”).
E. Licensee guarantees the first-class quality of all construction and of all materials and equipment used or installed.
F. Licensee may, at its sole expense, contract with a third party (“Contractor”) for the construction of Licensee’s Facilities. Any such Contractor must construct Licensee’s Facilities in accordance with the terms of this License. Notwithstanding any contractual arrangement that Licensee may enter into with a Contractor, Licensee will remain responsible for compliance with the terms of this License.
G. Licensee must keep the Premises free from all liens and stop notices arising from any work performed, materials furnished, or obligations incurred by or at the request of Licensee. If any lien or stop notice is filed against the Premises as a result of the acts or omissions of Licensee, or Licensee’s employees, agents, or contractors, Licensee must discharge, bond, or otherwise secure the same to Licensor’s reasonable satisfaction within 30 days after Licensee has notice that the lien or stop notice has been filed. If Licensee fails to commence steps to discharge, bond or secure any lien or stop notice within such 30-day period, then, in addition to any other right or remedy, Licensor may, at its election, upon five days’ prior written notice to Licensee, discharge the lien or stop notice by either paying the amount claimed to be due, or obtaining the discharge by deposit with a court or a title company, or by bonding. Licensee must pay on demand any amount so paid by Licensor to discharge or satisfy any lien or stop notice, and all reasonable attorneys’ fees and other legal expenses of Licensor incurred in defending any action or in obtaining the discharge of such lien, together with all reasonable disbursements.
MAINTENANCE OF LICENSEE’S FACILITIES
During the term of this License, Licensee must, at its sole cost and expense, maintain the Premises and all improvements in good condition and repair, ordinary wear and tear excepted, and in compliance with all applicable laws, rules, ordinances, orders, and regulations of (i) federal, state, county and municipal governmental agencies having or claiming jurisdiction, and their respective departments, bureaus, and officials; and (ii) all insurance companies insuring all or part of the Premises, or the improvements thereon, or both.
TITLE AND QUIET ENJOYMENT
A. Title to Licensee’s Facilities placed on the Premises will be held by Licensee, and Licensee’s Facilities will not be deemed to be fixtures. Licensee must remove all of Licensee’s Facilities at its sole expense on or before the expiration or termination of the License, and restore the Premises to their original condition, ordinary wear and tear excepted.
B. At all times during the term of this License, Licensee’s quiet enjoyment of the Premises will not be disturbed so long as Licensee is not in default beyond any applicable cure period.
C. Licensor represents to Licensee that (i) it has good and unencumbered title to the Premises, free and clear of any liens or mortgages, except those disclosed to Licensee that will not interfere with Licensee’s intended use of the Premises; and (ii) execution and performance of this License will not violate any laws, ordinances, or covenants, or the provisions of any mortgage, lease, or other agreement binding on Licensor.
A. Except as authorized by this License, Licensee must not use the Premises in any manner that materially interferes with the Licensor’s use of adjacent real property, or with lessees and licensees of Licensor having rights prior in time to the date of this License. Specifically, Licensee’s Facilities must not materially disturb the communications configurations, equipment, or frequencies existing on Licensor’s real property on the Commencement Date, and Licensee’s Facilities must comply with all noninterference rules of the Federal Communications Commission.
B. After the Commencement Date, Licensor will not authorize the use of any portion of Licensor’s real property in a manner that materially interferes with the wireless telecommunications services provided by Licensee’s Facilities, as described in Section 3. Any such material interference with Licensee’s wireless telecommunications services may be deemed a material breach by Licensor, and Licensor will be responsible for the prompt termination of that interference. In addition to its other remedies, Licensee may elect to terminate this License on not less than 30 days prior written notice to Licensor.
REMOVAL OF LESSEE’S FACILITIES
If all or any portion of Licensee’s Facilities are no longer in service, Licensee must notify Licensor within 30 days and must promptly remove those Facilities at its own expense, in the manner set forth in Section 5.F. of this License. A security deposit equal to the license fee for one month will be paid to Licensor by Licensee to secure this obligation. This security deposit will be paid to Licensor within five days after the due date of the first annual license fee payment.
A. Licensee will indemnify, defend, and hold Licensor harmless from and against any and all claims, actions, damages, liability and expense (including reasonable attorneys’ fees, costs and disbursements) in connection with the loss of life, personal injury, or damage to property, attributable to or arising out of: (i) the equipment that Licensee installs on Licensor’s property and Licensee’s Facilities; (ii) any occurrence in, upon or at the Premises, or elsewhere on the property of which the Premises are a part, to the extent caused by the negligent or willful misconduct of Licensee, or its employees, agents, or contractors; (iii) any occurrence occasioned by the violation of any law, regulation or ordinance by Licensee or its agents, employees, or contractors; or (iv) Licensee’s default under this License. Licensee is not liable for any damage or any actions attributable to or arising out of the negligent or willful misconduct of Licensor, or its employees, agents or contractors. The provisions of this Section 14.A. will survive the expiration or termination of this License with respect to any damage, personal injury, or death that occurs before such expiration or termination.
B. Licensee specifically agrees to indemnify, defend, and hold Licensor, its officers, agents, and employees, harmless from all claims of injury or damage arising from Licensee’s equipment and operations, including all claims allegedly attributable to Maximum Permissible Exposure (“MPE”), as defined and regulated by the Federal Communications Commission, caused by Licensee’s equipment or operations.
A. Licensee must obtain and maintain during the term of this License, at its own cost and expense, the following insurance:
1. “All Risk” insurance for Licensee’s property located at the Premises.
2. Commercial general liability insurance having a minimum limit of liability of $5,000,000 for each injury or death arising out of one occurrence and $5,000,000 for damage to property from any one occurrence, and excess/umbrella coverage of $5,000,000. These required limits may be satisfied by a combination of primary and umbrella coverage.
3. A comprehensive automobile liability insurance policy with limits of not less than $1,000,000 per occurrence;
B. Licensee must maintain the insurance policies required in paragraph A above during the term of this License. The commercial general liability insurance policy must name the Licensor, its officers and employees, as additional insureds. Each policy of insurance must provide primary coverage on an occurrence basis and be issued by a company admitted in California and rated at least “A-” in the latest Best’s Insurance Guide. Each policy must provide that it will not be canceled or reduced in coverage without 30 days’ prior written notice to Licensor. Each policy must also provide that if Licensor, or its officers or employees, have other insurance against loss covered by Licensee’s policy, the Licensor’s insurance will be solely excess insurance.
C. Licensee must comply with all State requirements relating to Workers’ Compensation Insurance and provide it to Licensee’s employees.
D. Licensee will obtain and maintain during the term of this License Employer’s Liability Insurance having a limit of not less than $1,000,000 for each accident.
E. Licensee must file Certificates of Insurance with the Licensor, in a form reasonably satisfactory to Licensor’s City Attorney, evidencing the insurance coverage required by this Section 15, prior to Licensee’s exercise of any rights under Section 8 above.
F. Licensee has the right to self-insure with respect to any of the insurance requirements referenced above, subject to the approval of the Licensor’s City Attorney. The required limits may be satisfied by a combination of primary and umbrella policies.
If either Licensor or Licensee is delayed in or prevented from the performance of any act required hereunder by reason of acts of God, governmental restrictions, regulations or controls (except those reasonably foreseeable in connection with the uses contemplated by this License), or by any other cause that is without fault and beyond the control of the party obligated (excluding financial incapacity), then the performance of that act will be excused for the period of the delay, and the period for the performance of that act will be extended for a period equivalent to the period of that delay. Nothing in this section will excuse Licensee from the prompt payment of any license fees, taxes, insurance premiums, or any other charges that are required of Licensee.
DEFAULT BY LICENSEE
The occurrence of any one or more of the following events constitutes an event of default and breach of this License by Licensee: (i) The abandonment (as defined by California law) of the Premises by Licensee; (ii) The failure by Licensee to make any payment of the license fee or any other payment required to be made by Licensee hereunder, as and when due, where that failure continues for a period of five business days after written notice is sent by Licensor to Licensee; (iii) The failure by Licensee to observe or perform any of the covenants, conditions or provisions of this License to be observed or performed by the Licensee, other than described in subsection (ii), where that failure continues for a period of 30 days after written notice thereof by Licensor to Licensee; provided, however, that if the nature of Licensee’s default is such that more than 30 days are reasonably required for its cure, then Licensee will not be deemed to be in default if Licensee commences that cure within the 30-day period and thereafter diligently prosecutes that cure to completion; (iv) The making by Licensee of any general assignment or general arrangement for the benefit of creditors; or unless prohibited by Bankruptcy Law or other paramount law, the filing by or against Licensee of a petition to have Licensee adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Licensee, the same is dismissed within 60 days); or the appointment of a trustee or a receiver to take possession of substantially all of Licensee’s assets located at the Premises or of Licensee’s interest in this License, where possession is not restored to Licensee within 30 days; or the attachment, execution or other judicial seizure of substantially all of Licensee’s assets located at the Premises or of Licensee’s interest in this License, where that seizure is not discharged within 30 days.
REMEDIES ON DEFAULT BY LICENSEE
Upon any default or breach by Licensee as referenced in Section 17, Licensor may at any time thereafter, in its sole discretion, with written notice and without limiting Licensor in the exercise of a right or remedy which Licensor may have by reason of that default or breach: (i) Terminate Licensee's right to possession of the Premises by any lawful means, in which case this License will terminate and Licensee will immediately surrender possession of the Premises to Licensor. In that event, Licensor is entitled to recover from Licensee all damages incurred by Licensor by reason of Licensee's default including, but not limited to, the cost of recovering possession of the Premises; expenses of relicensing, including necessary renovation and alteration of the Premises; and reasonable attorney's fees; or (ii) Pursue any other remedy now or hereafter available to Licensor under the laws or judicial decisions of the State of California.
LICENSEE’S REMEDIES AND LIMITED TERMINATION RIGHTS
A. Licensor will not be in default unless Licensor fails to perform obligations required of Licensor within 30 days after written notice by Licensee to Licensor specifying wherein Licensor has failed to perform such obligation; provided, however, that if the nature of Licensor’s obligation is such that more than 30 days are required for performance, then Licensor will not be in default if Licensor commences performance within that 30-day period and thereafter diligently prosecutes the same to completion. Except as provided in Sections 8.A, 11.B, 12.B, 19.B, 19.C, and 21 of this License, Licensee has no right to terminate this License as a result of Licensor’s default, and Licensee’s remedies are limited to damages or an injunction, or both.
B. Upon 30 days prior written notice to Licensor, Licensee may terminate this License without further liability at the following times or under the following circumstances: (i) prior to the due date of the first annual license fee payment, for any reason or for no reason, provided that Licensee timely delivers to Licensor its written notice of termination; or (ii) if Licensee, having exercised due diligence, is unable to obtain all licenses, permits, or other approvals required for the continued operation of Licensee’s Facilities. Upon any termination by Licensee under subparagraph (i) above, Licensor will be entitled to retain any deposit or fee previously paid by Licensee as compensation for costs and expenses incurred in negotiating and preparing this License Agreement or processing any application therefor. Upon any termination by Licensee under subparagraph (ii) above, Licensor will be entitled to retain any prepaid annual license fee as liquidated damages for early termination.
C. Additionally, this Agreement may be terminated by Licensee as follows:
(i) upon thirty (30) days written notice by Licensee if the Premises or Licensee’s Facilities become unacceptable under Licensee’s design or engineering specifications for its facilities or the communications system to which the facilities belong.
(ii) immediately upon written notice by Licensee if the Premises or Licensee’s Facilities are destroyed or damaged so as, in Licensee’s reasonable judgment, to substantially and adversely affect the continued use of Licensee’s Facilities. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction, and Licensee shall be entitled to the pro rata reimbursement of any license fees prepaid by Licensee. If Licensee elects to continue this License, then all prepaid license fees shall abate on a pro rata basis until the Premises or Licensee’s Facilities, or both, are restored to the condition existing immediately prior to such damage or destruction; or
(iii) upon thirty (30) days written notice by Licensee if Licensee determines that the Premises or Licensee’s Facilities are inappropriate or unnecessary for Licensee’s operations due to economic reasons.
D. If Licensee terminates this License under either subparagraph (i) or (iii) of paragraph C above, then Licensee must pay to Licensor, as liquidated damages, a termination fee in an amount equivalent to three (3) months of the then-current annual license fee.
E. Upon any termination by Licensee authorized under Sections 8.A, 11.B, 12.B, 19.B, or 21, the written notice of termination sent to Licensor by Licensee must be accompanied by a release and reconveyance of all of Licensee’s interest in Licensor’s Premises.
A. The following activities are prohibited on the Premises:
1. Unlawful use or storage of any hazardous substance or hazardous chemical, as those terms are used in CERCLA [42 U.S.C. §9601 (14)] or SARA [42 U.S.C. §110211 (e)] or any similar federal or state law, or any pesticide, petroleum product, or fuel; except materials that are packaged and purchased for consumer use in containers not exceeding one gallon, or fuel in a vehicle fuel tank. Use of pesticides must be minimized, and may be applied only by authorized personnel and in accordance with all applicable laws, regulations, and label instructions. All aerial applications are prohibited. Back-up generators, and the storage of fuel for those generators, will only be allowed if specifically authorized in this License.
2. Accumulation, storage, treatment, or disposal of any waste material; excepting only temporary storage, not to exceed 14 days, of nonhazardous solid waste generated by activities on the Premises for pick up by municipal or licensed commercial refuse service, and lawful use of sanitary sewers, if any, for domestic sewage.
3. Maintenance of equipment (excluding communications equipment and back-up power sources, such as batteries and generators, operated pursuant to this License, or vehicles); the installation or construction of vessels, tanks (stationary or mobile), dikes, sumps, or ponds; and any activity for which a license or permit is required from any government agency for (1) transportation, storage, treatment, or disposal of any waste, or (2) discharge of any pollutant, including but not limited to discharge to air or to water or sewer systems.
B. Any spill attributable to Licensee’s equipment or Facilities that results in a release of a hazardous material to the air, soil, surface water, or groundwater in violation of applicable law must be immediately reported to Licensor, as well as to appropriate government agencies. That spill must be promptly cleaned up and the Premises (including soils, surface water, and groundwater) restored to its condition as it existed immediately prior to such spill or release, all in accordance with applicable law.
C. If Licensee desires to use pesticides on the Premises (either herbicides, rodenticide, or insecticides), then all applicable Environmental Protection Agency (EPA) standards must be met, and prior approval must be received from Licensor. Licensor reserves the right to disapprove the use of any pesticide. Licensee must obtain all required county, state or federal permits, and must comply with all conditions of those permits. Licensee must submit to the Licensor a copy of all such permits.
A. If all or any part of the Premises is taken or appropriated by any authority under the power of eminent domain, either party has the right, at its option, within 60 days after that taking, to terminate this License upon 30 days’ prior written notice. If neither party elects to terminate as herein provided, the license fee thereafter to be paid will be equitably reduced. In the event of any taking or appropriation whatsoever, Licensor is entitled to all awards or settlements that may be given (other than awards for the taking of Licensee’s Facilities or other personal property), and Licensee will have no claim against Licensor for the value of any unexpired term of this License.
B. As of the Commencement Date of this License, Licensor represents to Licensee that it has no knowledge of any governmental agency that intends to exercise its power of eminent domain for any public project that would present Licensee from using the Premises as contemplated by this License.
Failure on the part of either party to enforce any provision of this License may not be construed as a waiver of the right to compel enforcement of that provision, or any other provision.
LICENSOR’S CONSENT OR APPROVAL
Neither Licensor’s execution of this License nor any consent or approval given by Licensor under this License in its capacity as Licensor will waive, abridge, impair, or otherwise affect Licensor’s powers and duties as a governmental entity. Any requirements under this License that Licensee obtain consents or approvals of Licensor are in addition to and not in lieu of any requirements of law that Licensee obtain approvals or permits. However, Licensor will endeavor to coordinate its procedures for giving contractual and governmental approvals so that Licensee’s requests and applications are not unreasonably denied or delayed.
If either party is represented by a real estate broker in the negotiation or consummation of this License, that fact has been disclosed to the other party, and the party using that broker is solely responsible for any fee due the broker and will hold the other party harmless from any claims from that broker for commissions or other compensation.
SUCCESSORS AND ASSIGNS
This License is binding upon and inures to the benefit of each of the parties and their authorized successors, assigns, and transferees.
Any provision of this License that may be determined to be invalid, void, or illegal will in no way affect, impair or invalidate any other provisions of the License, and those other provisions will remain in full force and effect.
This License constitutes the entire agreement between the parties relating to its subject matter. There are no representations, agreements, or understandings, whether oral or written, between the parties relating to the subject matter of this License that are not fully expressed in this License. This License is deemed to be equally drafted by both parties.
A. This License may be modified by a writing signed by both parties.
B. This License is subject to such changes or modifications as may be required or authorized by any regulatory commission in the exercise of its lawful jurisdiction.
GOVERNING LAW AND ATTORNEYS’ FEES
A. Any disputes regarding this License will be resolved according to the laws of the State of California. Any legal proceedings will be initiated in the courts of the County of Los Angeles, State of California, irrespective of any other possible jurisdictional venues.
B. The prevailing party in any action brought to enforce the terms of this License, or in any action arising out of this License, may recover from the other party the costs and attorneys’ fees incurred in that action.
C. Licensee must comply with all applicable federal, state, and local laws and regulations, including, without limitation, all applicable laws and regulations relating to environmental protection, such as statutes or ordinances pertaining to noise, fire, hazardous wastes, traffic, visual impacts, and storm water runoff.
ASSIGNMENT AND SUBLETTING
This Agreement is personal to Licensee. Except as hereinafter provided, Licensee may not, without Licensor’s prior written consent, which consent may not be unreasonably withheld, conditioned, or delayed, assign or otherwise transfer this License or Licensee's interest in the Premises or any part thereof. Notwithstanding the foregoing, Licensee may assign this License, or Licensee's interest in the Premises or any part thereof, without Licensor’s consent, to any business entity that (i) controls, or is controlled by, or is under common control with, Licensee, or (ii) is merged or consolidated with Licensee or purchases a majority or controlling interest in the assets of Licensee. Licensor may assign this License, or convey its interest in the Premises or any part thereof, provided that the assignee will assume responsibility for the performance of all of the terms and conditions to be performed by Licensor under this Agreement. Such assumption of responsibility must be evidenced by a written document that is filed with the Licensor within 30 days after any authorized assignment, a copy of which will be transmitted to the Licensee.
MEMORANDUM OF LICENSE
Upon request of the Licensee, Licensor and Licensee will execute and have acknowledged a memorandum of license, in form and substance satisfactory to legal counsel for the respective parties, and suitable for recording. Licensee will bear the cost of all recording charges associated with recording all documents required or authorized to be recorded under this License.
From and after the Commencement Date of this License, each of the parties will promptly execute, acknowledge, and deliver, or cause to be executed, acknowledged and delivered, all instruments or documents that may reasonably be requested by the other party to carry out the purpose and intent of this License.
Licensor and Licensee each represent that the persons executing this License on their behalf have full power and authority to execute this License, and that each entity executing this License is duly authorized to enter into this License.
EFFECTIVE DATE OF THE LICENSE
This License will be deemed effective as of the Commencement Date on the date that it is executed by a duly authorized officer or employee of the Licensor, it being the intention of the parties that Licensee will first execute this License and thereafter submit it to Licensor. Two fully executed counterparts will be transmitted by Licensor to Licensee.
[Signature page follows]
TO EFFECTUATE THIS LICENSE, the parties have caused this License to be executed by their duly authorized representatives as of the dates set forth below their respective signatures.
CITY OF RANCHO PALOS VERDES
APPROVED AS TO FORM: Date__________________________
OMINIPOINT COMMUNICATIONS, INC., a subsidiary of T-MOBILE
USA, INC., a Delaware corporation
APPROVED AS TO FORM: Area Director
(Title of authorized representative)
LEGAL DESCRIPTION OF THE DESIGNATED
PORTION OF LICENSOR’S REAL PROPERTY
SUBJECT TO THE LICENSE
The area shown as the “Premises” on the Site Diagram attached as Exhibit B is legally described as follows:
[To Be Added]
The location and dimensions of the designated portion of Licensor’s real property subject to the License are depicted on the following Site Diagram:
[To Be Added]
The location and dimensions of that portion of the support facility to be licensed by Licensor to Licensee are depicted on the following Site Diagram:
[To Be Added]
EXHIBIT CAUTHORIZED ANTENNAS
The number, location, and orientation of the wireless telecommunications antennas that Licensee is authorized to install upon the licensed portion of Licensor’s support facility are described as follows:
[To Be Added]
The easements for ingress, egress, access and utilities required by the Licensee are described as follows:
[To Be Added]
The wireless telecommunications antenna facilities, and the supporting structures and improvements, to be constructed or installed by Licensee on the Premises in accordance with the License are described as follows:
[To be Added]
P.C. RESOLUTION NO. 2006-7, AS ADOPTED ON
FEBRUARY 14, 2006 APPROVING CONDITIONAL
USE PERMIT CASE NO. ZON2004-00174
[To be Attached]