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Home My WebLink About2006/10/24 Item 8 ~{~ iii!I!ii!ii ~~~~ - - COUNCIL AGENDA STATEMENT ellY OF CHUlA VISTA Item No. ';{ Meeting Date 10/24/06 Reviewed By: RESOLUTION APPROVING AN AMENDMENT TO THE MASTER LICENSE AGREEMENT WITH SPRINT PCS FOR THE INSTALLATION AND OPERATION OF AS MANY AS 50 WIRELESS TELECOMMUNICATIONS FACILITIES OR SUBSTANTIALLY SIMILAR FACILITIES ON CITY-OWNED AND CONTROLLED PROPERTY, SUBJECT TO ALL NECESSARY APPROVALS, FOR A PERIOD OF 5 YEARS WITH AN OPTION TO RENEW FOR AS MANY AS TWO ADDITIONAL 5-YEAR TERMS; AND AUTHORIZING THE MAYOR TO EXECUTE THE AMENDMENT Director of Conservation & Environmental Services ~ /J City Manager ,jI (4/5thS Vote: Yes_ Noll Item Title: Submitted by: SUMMARY Staff is submitting a Master License Agreement (MLA) renewal for the City Council's review and consideration. The MLA renewal would extend the existing MLA between the City and Sprint PCS Assets, L.L.C. (Sprint), for the installation of as many as 50 total wireless telephone facilities (WTF) on property owned or controlled by the City. The proposed Amendment includes mutually beneficial and agreed upon terms including but not limited to: Sprint's requests to formally incorporate Sprint's change in name from Cox PCS Assets, L.L.C., accommodate two of Sprint's affiliates (Sprint PCS Assets LLC & Nextel of California, Inc.) and extend the lease for five years with two additional five-year options that are subject to the City's review and approval. The City retains its preferred technical conditions and will receive a market annual lease adjustment for current sites dating back to November 2004, and future sites. RECOMMENDATION That Council adopt the resolution approving an amendment to the Master License Agreement with Sprint for the installation and operation of as many as 50 total WTF or substantially similar facilities on property owned or controlled by the City for a period of five years, subject to all necessary approvals, with an option to extend the agreement for two additional five-year terms. BOARDS/COMMISSIONS RECOMMENDATION Not applicable. BACKGROUND The City Council approved Resolution 18601 on March 18, 1997, conceptually approving the marketing of City properties for use by telecommunications companies. On September 16, 1999, the City Council approved Master License Agreements (MLA) 8-1 . PAGE 2, ITEM ~ MEETING DATE 10/24/06 with AT&T and Cox PCS, Assets, LLC, for installation and operation of as many as 50 wireless communication sites on property owned or controlled by the City. The City also approved an MLA with Cingular for as many as 35 sites in November 2002, and Cricket for as many as 35 sites in February 2006. In 1998, when the City began negotiations, Council originally directed staff to negotiate rates that would provide wireless carriers an incentive to come to Chula Vista. It was Council's desi~e at that time to see Chula Vista commercial and residential consumers have the opportunity to be early adopters of the technology and benefit from the competition of multiple carriers. Staff reached out to the industry, held workshops and invited them to the City to structure "master" agreements that would provide prompt entry at below-market rates. Five years later, now that the technology is readily available and provides competitive options, Council has asked staff to ensure that the City is receiving market rates for its sites. Additionally, over a relatively short period of time, the technology has evolved from a unique business tool, used by a few people, primarily in commercial areas, to a common business and household convenience used almost everywhere. That has put tremendous demand on sites in predominantly residential areas with few site options. The increase in sites to cover the varied topography of a growing geographic area increases exponentially by: 1) the limitations that each site can carry during peak periods, 2) the increased intensity of bandwidth use for items such as video and internet versus voice, 3) and the desire to accommodate more carriers with the expectation of fostering greater consumer choice, competition for price and service quality. The public demand for these services continues to grow and all of these issues place a greater demand on sites, particularly in residential neighborhoods. Federal and state law does not allow cities to deny permits for property the City does not own such as residential, commercial or institutional property, based on health or aesthetics. The Council and staff have worked on a Master License Agreement approach to reduce the pressure on siting these facilities in less appropriate areas. The Master License Agreements provide the City with an opportunity to work cooperatively with the carriers to expedite their projects, provide adequate volume and coverage needed to meet public demand, provide incentives to pursue sites that have the least impact to residents and meet the aesthetic and safety goals of the community, while capturing revenue that helps the City fund public services at no additional cost to the ratepayer. Staff has been working on a renewal agreement with Sprint to accommodate their request for a change in name, to add affiliates and execute an extension. Sprint is an existing mobile phone service provider that is seeking to expand and improve its coverage in the region and accommodate affiliates' customer base and technologies. Staff is recommending that the City execute the First Amendment to the existing Agreement between the City and Cox PCS Assets L.L.C., (Sprint), (Attachment 1) which outlines mutually beneficial terms. 8-2 PAGE 3, ITEM g MEETING DATE 10/24/06 DISCUSSION MASTER LICENSE AGREEMENT: The MLA allows Sprint to install as many as 50 total WTF's on property owned and/or controlled by the City and to operate within the scope of this Agreement for a period of five years. Sprint hOld approximately 7 sites installed during the first term and approximately another seven that-are installed or are at various stages of the plan review process since the end of the first term. The Agreement allows for as many as two additional five-year terms, each with the written request of Sprint and the subsequent written approval of the City Manager. Prior to the renewal of each five-year term, the annual license fee is subject to renegotiation to ensure that the City is receiving market value for its facilities. Sprint has completed that negotiation on what staff considers to be mutually beneficial terms. Sprint's annual license fees for the use of property owned or controlled by the City varies based on the number of cabinets and antennae at each WTF site. The annual fee for each WTF site that includes as many as 7 equipment cabinets and 12 antennas would be adjusted as follows: Sprint Sprint has also agreed to make a 15% rate adjustment to bring rents in line with market rates for comparable sites in the region. Additionally, Sprint has agreed to make the increase applicable to all sites established after November 2004, effective upon Council's execution of the Amendment. The 15% increase is reflected in the 2005 line item increases. The other line items reflect the annual 3% increase. In some instances, Sprint will require a site for antennas or cabinets only. The annual license fee for those facilities will be less than a full site as identified in the table above. Staff is also proposing to reduce these rates by as much as 40% with Sprint and other 8-3 T PAGE 4, ITEM ~ MEETING DATE 10/24/06 contractors if they propose projects that under ground the cabinets and pedestals or take other similar measures to reduce the impacts to land use. Council approved a similar clause in an agreement established with two other wireless carriers; Cingular in 2002 and Cricket in 2006. Sprint is required to comply with all local, state an(:l federal applicable laws. The Schedule of Premises shall be administratively approved for each site and contain specific conditions that must be satisfied and maintained in order to use the wireless facility. The Schedule of Premises will be submitted to the Zoning Administrator and circulated to all appropriate departments. Sprint shall continue to pay the appropriate full staff costs for processing each submittal. All of Sprint's construction, installation, maintenance and removal of the WTF facilities will be at their sole responsibility and cost. If Sprint causes any damage to the public right of way or City property, they are required to repair it promptly at their sole cost. Sprint will not be allowed to activate their site until the City signs off on final construction. The original MLA, the Schedule of Premises for each site and City Municipal Code provide for a number of risk mitigation measures for the City including: indemnity; insurance requirements; limitation on remedies available to Sprint in the event of a City breach; and reservation of the City's emergency and police powers. IMPACTS ON CITY PROPERTY: The installation will vary depending on the site Sprint needs. As mentioned, all installations will be required to receive all applicable permits and Sprint will work closely with Planning, General Services, Engineering, Conservation & Environmental Services and a representative from the host department to assure that they do not interfere with City operations or facility maintenance. The three primary types of installations are building mounted, ground mounted and light standard mounts. Building mounted installations generally involve mounting antennas on the facade or on the roof of the building, in addition to accommodating equipment cabinets on the ground or on the roof. Ground mounted applications involve construction of a "monopole" or more stealth applications where the monopole is disguised within artificial palm or pine trees, flagpoles or complimentary structures. In this case the cabinets are generally mounted on a concrete slab adjacent to the antenna structure. The largest size cabinet systems use an area of approximately 10 by 20 feet. Both applications will require some trenching and cabling. The installations will require maintenance and administration on a limited basis. All proposed facilities would be required to secure all necessary land use, building and engineering permits. Staff will encourage Sprint to take advantage of reductions in monthly site payments by undergrounding the cabinets and other structures whenever possible. FINANCIAL BENEFITS: Sprint will be compensating the City for use of each site by paying an annual license fee to the City General Fund for each system installed. Sprint's annual license fee for a typical site that includes both antennas and cabinets is approximately $23,000. The MLA authorizes as many as 50 WTF facilities by Sprint. The annual fee increases by 3% a year beginning January 2006, and is subject to renegotiation prior to the renewal of each five-year term to ensure the City is receiving market rate rent. Staff also works with Sprint and other carriers to implement basic 8-4 PAGE 5, ITEM cg MEETING DATE 10/24/06 facility improvements at each site when the construction and demolition or site programming warrant it. For example, it is common for WTF equipment shelters to provide extra storage for Recreation, a pad for water fountains, vending machines or other amenities not currently available in that part of the facility. It is also common for light standards to be replaced or upgraded when antennae are added. These improvements are typically in addition to the lease payments. The MLA authorizes as many as 50 WTF facilities at a yearly rate of as much as $23,069 per WTF site. If Sprint where to execute all the remaining full sites (approximately 36) it would generate approximately $800,000 in additional revenue per year and be subject to the annual 3% increase each January. Although it is difficult to identify development trends in the rapidly changing telecommunications field, staff projects at least 3-5 sites per year for the immediate future. DECISION MAKER CONFLICTS: Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. FISCAL IMPACT Sprint will increase the annual fee paid the City for all sites developed since November 2004 by 15%. Staff believes that will ultimately be approximately 7-10 sites at the end of this year. The one time 15% increase also applies to all future sites. The sites established before November 2004 will continue to be subject to the 3% increase and all new sites are subject to the 3% annual increase beginning January 2006. Additionally, the City is reimbursed for staff time spent on review and approval of each site application submitted for the planning process. There will be some staff time associated with monitoring and ensuring compliance with the Agreement, which is budgeted as part of the Conservation & Environmental Services Department annual responsibility. The Finance Department also plays a key role in tracking and assisting with the collection of annual wireless telephone revenues. Attachments: (First Amendment to the Agreement) Original Agreement 8-5 T --- MASTER COMMUNICATIONS SITE LICENSE AGREEMENT Page 1 THIS MASTER COMMUNICA nONS SITE LICENSE AGREEMENT ("License") dated as of AIr..)- / b f<. ,]999 ("Effective Date"), is entered into between COX PCS ASSETS, L.L.C., a Delaware limited liability company ("Cox PCS") whose sole member is Cox Communications PCS, L.P, a Delaware limited partnership ("Cox L.P.") and the CITY OF CHULA VISTA, A 'MUNICIPAL CORPORATION ("City") with reference to the following facts. ' A. Cox PCS wishes to attach, install, operate, and maintain up to fifty (50) personal communications service system facilities ("PCS") or substantially similar facilities, on public property under the ownership and/or control of the City for purposes of providing wireless phone service. B. City is willing to allow Cox PCS to attach, install, operate and maintain the PCS equipment subject to the terms and conditions set forth herein. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: I. Definitions: A. Licensed Premises or Premises: The City owns and/or controls through easement rights certain real property, and certain light standards and poles. Once such property is described in a Schedule (as defined below), approved by the City and attached hereto, such property shall constitute and be described and collectively referred to as the "Licensed Premises" or "Prem ises." This term includes any property the City owns on which Cox PCS installs utility and transmission lines with City's approval pursuant to Section Il. D. 1. or II. F. below. B. Schedule: Attached hereto and incorporated herein by reference shall be various Schedules of Licensed Premises. Each Schedule shall be substantially in the form attached hereto as Attachment I and shall include the description of one or more Licensed Premises and the specific Cox PCS Improvements and configuration of same which shall be allowed on each Licensed Premises. Both parties agree that Schedules may be added or deleted by administrative action by City from time to time subject to and in accordance with the provisions of this License, including but not limited to Section V.B. regarding Governmental Approvals. C. Pre-existing Communications: "Pre-existing Communications" shall be defined as those communications configurations, equipment and frequencies which exist on City's property or are in use by the City within or around City limits on the Commencement Date of this License or of an applicable Schedule. D. Cox PCS Improvements or Cox PCS's Improvements: Cox PCS Improvements shall be defined to be those PCS or substantially similar wireless telephone communication facilities, including but not limited to radio frequency transmitting and receiving equipment, antennas, cables, conduits, wires, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements, which are approved by the City and which are located or proposed to be located per this License, on Licensed Premises. Cox PCS Improvements shall exclude light standards or poles located in City rights-of-way, whether or not said light standards or poles are installed by City or Cox PCS, which shall be owned by City. Chula Vista Final Form Dec.15, 1999 8-6 fZ /q6~d. T - Page 2 E. Commencement Date: Upon execution hereof by all parties hereto the Commencement Date of this License shall be the effective date. The Commencement Date of individual Schedules hereunder shall be as specified in each Schedule. II. PREMISES AND LICENSED USES A. Grant or Lieewe. Subject to the following terms and conditions, City hereby licenses to Cox PCS the Premises as depicted in the Schedules attached hereto and incorporated herein. Each Schedule executed hereunder shall be substantially in the form of Attachment I. B. Use. The Premises may be used by Cox PCS for the provisions of mobile/wireless communications services, including without limitation, the transmission and reception of radio communication signals on various frequencies and the construction, maintenance and operation of related non-franchised wireless telephone communications facilities and related antennas, cables, conduits, wires and electronic and other equipment. City agrees, at no expense to City, to cooperate with Cox PCS in making application for and obtaining all licenses, permits and any and all other necessaty approvals that may be required for Cox PCS's intended use of Premises under each Schedule. C. Pre-Construction; Testing. ]. Cox PCS shall have the right (but not the obligation) at any time following the full execution of this License and prior to the Commencement Date under each Schedule to enter the Premises for the purpose of making necessary inspections, engineering surveys (and soil tests where applicable) and other reasonably necessaty tests (collectively ''Tests'') to determine the suitability of the Premises for Cox PCS's Improvements (as defined herein) and for the pUrpose of preparing for the construction of Cox PCS's Improvements at no expense to City. During any Tests or pre- construction work, Cox PCS shall have the insurance coverage set forth in Section IVD., Insurance. Cox PCS will noti/)' City of any proposed Tests or pre-construction work and will coordinate the scheduling of same with City. Cox PCS, at Cox PCS's sole cost and expense, will restore the Premises to the same condition as existed prior to any such Tests or pre-construction work by Cox PCS. 2. Cox PCS agrees to noti/)' immediately the Director of Public Works of the City of any changes in Cox PCS's frequencies to be used at the Premises. D. Cox PCS Improvements. 1. Cox PCS has the right to construct, maintain and operate Cox PCS Improvements on the Licensed Premises. In connection therewith, Cox PCS has the right upon obtaining City's written approval following a review of Cox PeS's plans which approval shall not be unreasonably withheld and shall be deemed given by the City initialing a copy oCCox PCS's construction plans and upon issuance of any required permits, to do all work necessary to prepare, add, maintain and alter the Licensed Premises for Cox PCS's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers, conditioned upon plan review and approval of City, which approval shall not be unreasonably withheld or delayed. All of Cox PCS's construction and installation work shall be performed at Cox PCS's sole cost and expense and in a good and workmanlike manner. Subject to Section II. J. 1&2. Below, title to Cox PCS's Improvements shall be held solely by Cox PCS or Cox L.P., and all of Cox PCS's Improvements shall remain the personal property of Cox PCS or Cox L.P. and shall not be treated as real property ehula Vista Final Form Dec. 15, 1999 8-7 T Page 3 or become a part of any Premises even though affixed thereto. All street light standards or poles on property owned or controlled by the City, whether installed pursuant to this License by City or Cox PCS, shall be owned by the City. 2. Maintenance of the Cox PCS Improvements shall be the sole responsibility of Cox PCS during the entire term of this License and COX PCS agrees to keep all Cox PeS Improvements in good condition and repair. . 3. In the case of installations on street light standards or mast arms, Cox PCS shall comply with all applicable City regulations On the installation of street lights. If the installation is to be done via replacement of an existing standard andlor mast arm, said replacement shall meet the same regulations as were applied to the existing standard andlor mast arm. Said regulations shall include, but not be limited to, the form, size, strength and construction materials specified tor City street lights. Consistent with the City's lawful exercise of police powers, such regulations may be amended at the City's sole and absolute discretion including, but not limited to, allowing for additional space for internal wiring of City andlor Cox PCS or, altered foundation requirements to accommodate joint City and Cox PCS uses, or other technical reasons; provided that (i) City shall pay costs to modify street light standards or mast arms which it oWns in accordance with such amended regulations and (ii) Cox PCS shall pay all costs to modify Cox PCS' Improvements as required by such amended regulations. In making any such amendments, City shall use reasonable efforts to accommodate and not materially adversely impact the functioning of existing facilities. In the event the amended regulations make an existing facility unusable by Cox PeS, then City shall use reasonable efforts to provide a suitable alternate location. 4. Installation of improvements in or near the public right of way shall meet the requirements of the Americans with Disabilities Act with regard to minimum clearance and public use of sidewalk areas. 5. If any Portland Concrete Cement (PCC) sidewalk is disturbed in the course of installation, Cox PCS shall replace said sidewalk from cold joint to cold joint from each direction from the disturbed area. 6. If any existing landscaping, irrigation systems, utilities or other City facilities are disturbed in the Course of installation, Cox PCS shall replace and restore said property to its pre-installation condition. E. Access. I. Cox PCS, Cox PCS's employees, agents, contractors and subcontractors shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week, at no charge to Cox PCS, subject to the conditions set forth in each Schedule. City hereby I icenses to Cox PCS all rights of ingress and egress held by City to the extent required to construct, maintain, install and operate Cox PCS's Improvements on the Premises. Cox PCS's exercise of such rights shall not cause undue inconvenience to City. 2. In connection with installations on light standards, mast arms or poles, Cox PCS shall provide at least seven (7) days notice to City of installation date and time. Cox PCS shall pay any and all costs associated with City shut off and reconnect of power to Premises, installation oversight andlor inspections if City reasonably deems necessary. Chula Vista Final Form Dec. 15. 1999 8-8 T Page 4 3. In connection with Cox PCS's maintenance of Cox PCS Improvements on street light standards, mast anns or poles, Cox PCS shall provide at teast twenty four (24) hours notice to City and pay City any and all costs associated with City shut off and reconnect of power to Premises, maintenance oversight and/or inspections if City deems reasonably necessary. In case of need for emergency maintenance of Cox pes Improvements, Cox pes need not give prior notice to City but shall notifY City.of such work as promptly as reasonably possible after the work is commenced. . 4. In connection with City maintenance to street lights which share a standard or mast arm with such installations, City shall use its best efforts to provide Cox PCS at least twenty four (24) hours notice of said maintenance. If City desires to have a technician of Cox PCS's on site during said maintenance, Cox PCS shall provide said technician upon at least twenty four (24) hours notice. In case of need for emergency maintenance of City's street lights which share a standard or mast ann with such installations, City need not give prior notice to Cox PCS but shall notilY Cox PCS of such work as promptly as reasonably possible after the work is commenced. F. Utilities. Cox PCS shall have the right to install utilities which are necessary for the operation of Cox PCS Improvements, at Cox PCS's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency back-up power), subject to the prior approval of City, which approval shall not be unreasonably withheld or delayed and shall be deemed given by the City initialing a copy of Cox PCS's construction plans and upon issuance of any required permits and the prior approval of all utility companies or agencies with jurisdiction. Subject to City's approval of the location, which approval shall not be unreasonably withheld or delayed, Cox PCS shall have the right to place utilities on (or to bring utilities across) City's property necessary to service the Premises and Cox PCS's Improvements. Such right to install utilities shall be subject to the conditions set forth in the relevant Schedule. Cox PCS shall fully and promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of Cox PCS's Improvements. Upon the termination of this License or applicable Schedules, unless otherwise agreed to in writing between the two parties, said utilities shall be deactivated or removed. Payment of all costs for said utilities' deactivation or removal, including any costs which would survive the term of said License or Schedule, shall be the exclusive obligation of Cox PCS. G. Location of Cox PCS Improvements. The location of Cox PCS Improvements on Licensed Premises shall be subject to City's prior approval, which shall not be unreasonably withheld or delayed and shall be deemed given by the City initialing a copy of Cox PCS's construction plans and upon issuance of any required permits. Absent such approval, Cox PCS shall have recourse to an appeal to the City Manager. It is understood and agreed that antennas shall be located at the optimum location on the Licensed Premises to provide sufficient radio frequency coverage, but shall in no way interfere with existing antennas on or structural loading of any buildings, poles or other facilities existing on said Premises on the date the Schedule for said Premises is executed. H. Interference with Communications. 1. Cox PCS's Improvements at any given Premises shall not interfere with Pre-existing Communications (determined with respect to such Premises at the date the Schedule for such Premises is executed). Cox PCS's Improvements shall also comply with all noninterference rules of the Federal Communications Commission ("FCC"). 2. Any radio equipment installed by Cox PCS on the Premises shall be frequency compatible with all radio transmitting and receiving equipment existing and in use on the Premises at the time initial installation of such equipment is made. In the event Cox PCS's installation electronically or physically interferes with City's installation already existing on the Premises, Cox PCS shall take Chuta Vista Final Form Dec.15, 1999 8-9 T ~ Page 5 all necessary steps, at its own cost and expense, to eliminate such interference, whether so required by the FCC or not. City shall endeavor to include this language in any subsequent agreement with another provider. 3. Except to the extent necessary to install, operate or maintain public improvements, or in the event of an emergency, the City shall not knowingly. interfere with the location, configuration, frequency of operation of Cox PCS's Improvements, nor shall the City knowingly permit any use by a third party of facilities owned or controlled by the City which use interferes with the location, configuration, frequency or operation of Cox PCS's Improvements, except in the case of Pre- Existing Communications that do not measurably change from their power level, frequency or location. 4. In the event of an emergency, City shall have the right to take such action as it determines is necessary under the circumstances to address the emergency, even though such actions may cause interference with Cox PCS Improvements or the operation thereof. If City must take action which causes or may cause interference, City shall endeavor to (a) give Cox PeS oral notice of such action as quickly as practicable and (b) to the extent practicable under the circumstances, upon notice by Cox PCS of the existence of interference, minimize the duration and extent of such interference. 5. City shall have the responsibility to cooperate with Cox PCS to identity and remedy to the extent reasonably necessary, any interference with the communications operations of Cox PCS described in Section 3&4, above. 6. In the event any equipment installation by City made subsequent to Cox PCS's installation causes interference with the location. configuration, frequency or operation of Cox PeS's Improvements, City shall exercise reasonable best efforts to eliminate such interference after learning of such interference, whether so required by the FCC or not. 7. For purposes of this Section H, the existence of electronic and physical interference shall be reasonably determined by Cox PCS. Notwithstanding the foregoing, Pre-existing Communications operating on the Commencement Date that do not measurably change from the power level, frequency or location on the Commencement Date shall not be deemed interference at any time. I. Liens. Cox PCS shall keep the Premises free and clear of any and all liens or claims of liens and charges on account ofJabar and materials used in or contributing to any work performed by or related to Cox PCS, failing which City shall have the right, but shall not be obligated, to discharge any or all such liens or claims and Cox PCS shall, upon demand therefor, reimburse City for all costs and expenses incurred by City. J. Removal of Cox PCS Improvements I. Upon expiration, cancellation or termination of this License or any Schedule hereunder, Cox PCS shall be responsible for: (a) removing from the Premises subject to such expiration, cancellation, or termination, at its sole cost, all Cox PCS Improvements except those which the parties agree shall not be removed or shall be transferred to City, (b) repairing at its sole cost, all damage caused by such removal, and (c) surrendering the Premises to City in the Premises' original condition, ordinary wear and tear and damages caused by factors beyond Cox PCS' control excepted. Said return of Premises in their original condition shall include remediation of any hazardous or toxic material discharge at the Licensed Premises caused by Cox PCS and shall be to the reasonable Chula Vista Final Form Dec.15, 1999 8-10 T Page 6 satisfaction of the City. 2. Within 45 days after the date this License or an applicable Schedule expires or otherwise terminates, Cox PCS at its expense shall remove from the affected Premises all Cox PCS Improvements required to be removed; provided that if ten or more Schedules expire or terminate contemporaneously, then Cox PCS shall have a reasonable amount of additional time to remove the affected Cox PCS Improvements so long as Cox PCS is diligently proceeding with removal. Any Cox PCS Improvements remaining on affected Premises beyond the time period available for removal as set forth above shall, at the sole discretion of the City, either (a) in whole or in part become City property or (b) in whole or in part be removed and disposed of by City, with the reasonable costs of said removal and disposal, including reasonable administrative overhead, except the costs of removing and disposing of improvements not required to be removed, to be reimbursed to City by Cox PCS within ten days after Cox PCS receives a request for reimbursement together with reasonable evidence of the cost. 3. If the Premises consist of a light standard, mast arm or pole and the same is damaged, knocked down or destroyed from any cause, the following provisions shall apply: a. If the damage or destruction, renders Cox PCS's or Cox L.P. unable to conduct normal operations and a temporary site is not available per subsection b. below, the fee for such Premises shall abate in full from the date such damage or destruction occurs until Cox PCS or Cox L.P. is able to commence normal operations; provided that Cox PCS shall have no right to abatement if the damage or destruction is caused by Cox PCS's negligence or willful misconduct. b. Non-replacement in case of damage. If Cox PCS is rendered unable to conduct normal operations due to damage or destruction, City shall use reasonable efforts to identify and make available to Cox PCS, within ten days following the damage or destruction, a temporary site owned or controlled by City which in Cox PCS's judgment is equally suitable for Cox PCS's intended uses. Cox PCS may construct and operate substitute Cox PCS's Improvements thereon until the Premises are fully repaired and available to Cox PCS. Cox PCS shall be responsible for any removal or replacement of wiring, foundation or other associated facilities that may be required to accommodate the replacement facilities. If this option is chosen by Cox PCS, Cox PCS shall not be obligated to replace or pay to replace the damaged light standard, mast arm or pole. c. Immediately following the damage or destruction, City shall commence and thereafter continue diligent efforts to repair or replace the light standard, mast arm or pole; provided that City shall have no obligation to repair or replace the light standard, mast arm or pole if (i) the City, within 10 days following the damage or destruction, affirmatively determines, in good faith, and delivers to Cox PCS written notice of its determination, that the light standard, mast arm or pole is no longer required or desirable to serve the public health, safety and welfare and that accordingly the City has no existing or foreseeable intention of replacing or repairing the light standard, mast arm or pole, or (ii) the damage or destruction occurs during the last 12 months of the Term or any Renewal Term, and City delivers to Cox PCS written notice of its decision not to repair or replace within] 0 days following the damage or destruction and Cox PCS does not, within 10 days after receiving such notice, exercise any option to extend or renew which may then be available regarding the subject Premises. Chula Vista Final Form Dec.15, 1999 8-11 T - Page 7 d. If the City does not immediately commence to repair and replace, then Cox PCS shall have the right, but not the obligation, to repair or replace the pole or light standard to the conditions existing immediately prior to the damage or destruction (or to any better condition consistent with the City's then-existing standards and regulations for design and construction of similar facilities); provided that Cox PCS shall have no obligation to restore any City operations served by the light standard, mast ann or pole unless the damage or destruction is caused by Cox PCS's negligence or willful misconduct. Cox PCS shall perfonn such work using only the contractors listed on Attachment II attached to this License or other contractors approved by the City. Cox PCS shall complete such work as expeditiously as reasonably possible, subject to complying with the provision of Sections II. D. 3. through 6 above. e. If Cox PCS repairs and replaces pursuant to subsection d. above, then the City shall reimburse Cox PeS for all its reasonable costs of repair and replacement, provided that (i) City shall have no obligation to reimburse if the City timely decides in good faith not to repair or replace pursuant to subsection c. above or if the damage or destruction is caused by Cox PCS's negligence or willful misconduct, and (ii) City shall not be required to pay more than the cost of repair and replacement the City would have incurred had the City contracted for the work using its customary method of procurement and customary time mme for the type of work in question. Reimbursement shall be due and payable within 30 days after receiving Cox PCS's request for reimbursement together with reasonable evidence of the costs. Cox PCS shall have the right to offset license fees under all Schedules by the amount of any reimbursement owing but not timely paid. If the City timely decides in good faith not to repair or replace pursuant to subsection c. above, then all such work by Cox PCS shall be at its sole expense, but Cox PCS shall have the option to remove or leave in place any new or replacement light standard, mast arm or pole upon expiration or tennination of the applicable Schedule. K. Termination. J. Neither this License nor any Schedule shall be revoked or tenninated during the Tenn or any Renewal Tenn except as expressly stated in this License. 2. This License may be tenninated by either party for any or no reason by delivering to the other party, at any time after the initial five (5) year tenn of this License, written notice of exercise of this right to tenninate (the "Exercise Notice"). [fthis right to terminate is exercised, termination of this License shall be effective 12 months after the Exercise Notice is delivered to the other party. From and after the date the Exercise Notice is delivered to the other party until the effective date of termination, Cox PCS shall have no right to receive any further Schedule not executed prior to delivery of the Exercise Notice. Notwithstanding the foregoing, City retains the right to disapprove extensions of this License beyond the first five year term as provided in Section IlIA hereof. 3. Cox PCS shall have the right to tenninate a Schedule on 30 days prior written notice to City (or any shorter notice expressly set forth below), if: a. Cox PCS delivers to City such 30-day written notice at any time prior to the Commencement Date under such Schedule for any reason or no reason; b. Cox PCS determines at any time after the Commencement Date under such Schedule that Chula Vista Final Form Dec.15, 1999 8-12 T ~ ~ Page 8 any governmental or non. governmental license, permit, consent, approval, easement or restriction waiver that is necessary to enable Cox PCS or Cox L.P. to install and operate Cox PCS's Improvements cannot be obtained at acceptable expense or in an acceptable time period; c. Cox PCS determines at any time after the Commencement Date under such Schedule that the Premises are not appropriate or suitable fof its or Cox L.P.'s operations for economic, environmental or technological reasons, including without limitation, any ruling or directive of the FCC or other governmental or regulatory agency, or problems with signal strength or interference not encompassed by subsection 3.d. below; provided that if Cox PCS exercises the right to terminate under this subsection 3.c., Cox PCS shall pay City (or City may deduct from any rebate due Cox PCS under Section IVA.5 below) as a termination fee 25% of the then Annual Fee for the subject Premises; d. Any Pre-existing Communications, or any communications facilities or other structures of any kind now or hereafter located on or in the vicinity of the subject Premises, interfere with the location, configuration, frequency or operation of Cox PCS's Improvements and Cox PCS is unable to correct such interference through reasonably feasible means; e. City commits a default under this License with respect to such Schedule (other than under Section II. E. I. or Section II. H. 3. 6 above) and fails to cure such default within the 30-day notice period, provided that if the period to diligently cure takes longer than 30 days and City commences to cure the default within the 3D-day notice period, then City shall have such additional time as shall be reasonably necessary to diligently effect a complete cure; or City commits a default under Section II. E. 1 or Section II. H. 3. or 6 above and fails to cure such default within in five (rather than 30) days after receiving written notice of such default; or f. The Premises under such Schedule are totally or partially damaged, knocked down or destroyed from any cause (other than due to Cox PCS's negligence or willful misconduct) so as, in Cox PCS'sjudgment, to hinder Cox PCS's or Cox L.P.'s normal operations and City does not provide to Cox PCS within ten days after the casualty occurs a suitable temporary location site for Cox PCS's Improvements pending repair and restoration of the subject Premises. 4. City shall have the right to terminate a Schedule if: a. Cox PCS commits a default under this License Agreement with respect to such Schedule and fails to cure such default within (i) ten business days after Cox PCS receives written notice of the default where the default is a failure to pay the Annual Fee for the subject Premises when due, or (ii) 30 days after Cox PCS receives written notice of any other default and fails to cure such default, provided that if the period to cure takes longer than 30 days and Cox PCS commences to cure the default within the 3D-day notice period, then Cox PCS shall have such additional time as shall be reasonably necessary to diligently effect a complete cure; b. The Premises are wholly or partially damaged or destroyed so as to interfere witb Cox PCS's normal operations, City has no obligation to repair under II. J. 3.C above and neither party elects to repair pursuant to Section II. J. 3. above; or Chula Vista Final Form Dec.15, 1999 8-13 T Page 9 c. The City Manager determines in good faith that there exists an immediate and substantial threat to public health and safety due to particular circumstances affecting the Premises which cannot be rectified through means less onerous than termination ( such as temporary emergency cessation of use by Cox PCS pending corrective work), in which case termination shall take effect 48 hours after the Cox PCS receives written notice of termination setting forth the City Manager's determination and the reasons therefor. , 5. A Schedule shall automatically terminate as of the date when possession is delivered to any governmental authority pursuant to the exercise of its power of eminent domain over the subject Premises of such portion thereof as is sufficient, in Cox PCS'good faith opinion, to render the Premises unsuitable for Cox PCS's normal operations, or pursuant to a transfer of the subject Premises or such portion thereof under threat or in lieu of exercise of such power. 6. Upon termination of this License, neither party shall have any further rights, obligations or liabilities to the other except: (a) with respect to provisions of the License which by their sense and context survive termination (as provided in Section V.I. below); and (b) with respect to the rights and remedies of the parties relating to the period prior to termination. Upon termination of any Schedule, neither party shall have any further rights, obligations or liabilities to the other respecting such Schedule or the Premises thereunder except: (i) with respect to provisions of this License applicable to such Schedule which by their sense and context survive termination; (ii) where termination is by reason of breach or default of the other party; and (iii) with respect to the rights and remedies of the parties relating to the period prior to term ination. L. Proscribed Premises. City and Cox PCS hereby agree that the City properties and rights-of-way identified in Attachment 1/1, or as said Attachment may from time to time be amended by City in its sole discretion, shall not be included in any Schedules or be available for placement of any Cox PCS Improvements; provided that properties and rights-of-way shall not be proscribed due to the amount of the Annual Fee or the facilities of a third non-government party. This provision shall not apply to any Licensed Premises for which Schedules have been executed at or prior to the effective date of amendment. III. TERM; CONDEMNATION A. Term. I. The initial term of this License shall begin on the Commencement Date of this License and shall expire on the date which completes five (5) years after the Commencement Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this License may be renewed up to three (3) additional successive terms of five (5) years each (each a "License Renewal Term") upon the written notice by CoxPCS to the City Manager of its intention to renew not less than sixty (60) calendar days prior to the commencement of the relevant License Renewal Term and, the City Manager's written approval thereof. Prior to the renewal of subsequent terms, Cox PCS and City will meet and confer regarding the Annual Fee, and each such License Renewal Term shall be at such Annual Fee as Cox PeS and City may mutually approve in good faith. Each License Renewal Term shall be on all the terms and conditions of this License, except as the Annual Fee may be adjusted herewith. 2. Subject to the overall License term set forth above, the term of any Schedule shall be as follows: A Schedule shall continue in effect for five years from said Schedule's Commencement Date, Chula Vista Final Form Dec.15, 1999 8-14 T ,.- Page 10 provided that Cox PCS shall have the right to extend the Term of such Schedule for additional successive periods of five years each (the "Renewal Term") but not beyond the end of the term of the License, including all License Renewal Terms. The Renewal Term shall be on the same terms and conditions as the Term. Such Schedule shall be automatically extended for the Renewa( Term unless Cox PCS notifies the City in writing of Cox PCS's intention not ttrextend such Schedule at least 90 days prior to expiration of such Schedule's Term. B. Condemnation. In any condemnation proceeding each party shall be entitled to make a claim against the condemning authority for just compensation. Sale of all or part of the Premises to a purchaser with the power of eminent domain, shall be treated as a taking by a condemning authority. [v. COMPENSATION AND LIABILITY A. Payment. 1. [n consideration for the use of each Licensed Premises, Cox PCS agrees to pay City an annual fee ("Annual Fee") per Licensed Premises during the initial term of this License as follows: a. for PCS facilities that include up to seven (7) equipment cabinets and up to twelve (12) antennas approximately 52 inches in height, in addition to necessary transmission cables, electrical power, telephone service, and other necessary fixtures for the period from the Commencement Date of this License through December 31, 2000, in the amount of$16,800 ($1400 per month); and/or b. PCS facilities that include only up to seven (7) equipment cabinets, in addition to necessary transmission cables, electrical power, telephone service, and other necessary fixtures for the period from the Commencement Date of this License through December 31, 2000, in the amount of $7,200 ($600 per month); and/or c. for PCS facilities that include only up to twelve (12) antennas approximately 52 inches in height, in addition to necessary transmission cables, electrical power, telephone service, and other necessary fixtures for the period from the Commencement Date of this License through December 3] 2000, in the amount of $9600 ($800 per month); and d. for each calendar year thereafter throughout the initial term, an amount equal to 103% of the Annual Fee for the immediately preceding calendar year. 2. The Annual Fee for the first License Renewal Term shall equal the then fair market rental rate that a willing licensee would pay and a willing licensor would accept for the use of similar installation locations for similar telecommunications equipment for the same five year period (the "FMRR"). The FMRR shall be in the same amount for each of the Licensed Premises. If the City and Cox PCS are unable to agree on the FMRR within 180 days prior to expiration or then Renewal Term of the initial term of this License, then at the request of either party, both parties shall attempt in good faith to appoint a single real estate appraiser with at least five years' experience in the area in which the Licensed Premises are located to appraise and set the FMRR. If the parties are unable to agree upon such an appraiser within 15 days after either party requests appointment, then either party can apply to the Superior Court for San Diego County for the appointment of a neutral appraiser, who shall certify that he or she has not acted in any capacity for either party within the Chula Vista Final Form Dec. 15, 1999 8-15 . ~ Page 11 last three years. Within 30 days after the appraiser is selected, he or she shaIl investigate and report to the parties in writing his or her determination of the FMRR. During the investigation the appraiser may in his or her sole discretion choose to meet with the parties and take testimony, and may extend the time for determining the FMRR by not more than 15 days. The appraiser's determination shaIl be final and non-appealable, a~sent fraud. If Cox PCS is dissatisfied with the determination of FMRR, then Cox PCS shall have, aS,its sole and exclusive remedy, the right to rescind its exercise of the option to renew and aIlow this License and the then-existing Schedules to expire at the later of the end of the initial term of this License or 90 days after the appraiser issues his or her report on determination of the FMRR (the "Delayed Expiration Date"). The Annual Fee during the period, ifany, from and after expiration of the initial term of this License to the Delayed Expiration Date shall be the FMRR, prorated for such time period. If the FMRR is not yet determined by expiration of the initial term of this License, then Cox PCS shaIl pay the Annual Fee at the immediately preceding year's rate pending such determination; and promptly after such determination the parties shall adjust such payment as necessary to the Annual Fee rate as determined by the appraiser, or, if Cox PCS elects to rescind its exercise of its right to renew, City shall make a rebate as provided in Section IV.A.5 below. The parties shaIl share equally the costs and fees ofthe appraiser. 3. The Annual Fee for each Licensed Premises shall commence on the Commencement Date of the Schedule respecting such Licensed Premises, initially shall be set at the rate in effect for the calendar year in which the Commencement Date for such Schedule occurs, and shall be adjusted on January I of each year thereafter during the term of the Schedule, Beginning January 1, 200 I, according to the adjustment provisions of Sections IV. A. I and 2 above. If the Commencement Date occurs other than January I, and/or ifthe term of the schedule or final schedule Renewal Term ends on a date other than December 31, the Annual Fee shall be prorated for the first and last partial calendar years during the term of the schedule or final schedule Renewal Term, based on a 360 day year and 12 months of30 days each. The Annual Fee shall be payable in advance on each January I, except that any partial Annual Fee for the first partial calendar year during the term of the Schedule shaIl be payable in advance on the Commencement Date of the subject Schedule. 4. If payment is not received by 45 days after January I, or the respective Commencement Date, a late fee of 5% of the balance due will be assessed in addition, interest will accrue at a rate of 6% per anum until paid. 5. If a Schedule is terminated prior to December 31 of any year for any reason other than Cox PCS's default, City shall rebate to Cox PeS the unearned portion of the AnnuaJ Fee for the calendar year in which termination occurs, provided that City may reduce any such rebate by (a) any termination fee owing to City under Section II. K. 3.c. above and (b) those sums, if any, due from Cox PCS under Section IIJ. above. City shaIl pay such rebate within 60 days after the effective date of termination. Whenever Cox PeS is entitled to abatement of an Annual Fee under this License or any Schedule, City shall credit the amount of such abatement against the next Annual Fees due from Cox PCS; provided that if the amount of the abatement exceeds the total next Annual Fee (if any) due for the Premises respecting which the abatement has arisen, City instead shaIl rebate to Cox PCS the full abatement amount within 30 days after Cox PCS delivers to City written request for such rebate. 6. Payments shall be made to The City of Chula Vista, Finance Department, 276 Fourth Avenue, Chula Vista, CA 91910, or to such other place as City may from time to time designate by written notice to Cox PCS. Chula Vista Final Form Dec.15, 1999 8-16 T ~ Page 12 B. Service Provision. I. Upon the commencement of this License, the City shall receive ten (10) Qualcomm 1920 (or the equivalent) phone packages free of charge (the "Phone Equipment") and any number of service subscriptions at Cox L.P.'s gov~rnment price plan. . 2. The Phone Equipment is provided with the manufacturer's warranty, but without representation or warranty, express or implied, by Cox PCS or Cox L.P. Without limiting the foregoing, Cox PCS and Cox L.P. make no representation or warranty as to the condition, performance or fitness for purpose of the Phone Equipment. City shall look solely to the manufacturer(s) of the Phone Equipment in the event of any defects, substandard performance or equipment failure. No such defects, substandard performance or equipment failure shall in any way constitute a failure of consideration, nonpayment of rent or default under this License. Neither Cox PCS nor Cox L.P. has any obligation whatsoever to replace the Phone Equipment. 3. The service subscriptions under Cox L.P.'s government price plan shall be only those services and rates which Cox L.P. generally offers to governmental entities from time to time. The PCS telecommunications services offered by Cox L.P. under the government price plan shall be subject to all terms and conditions of service generally applicable to Cox L.P.'s government subscribers, including but not limited to Cnx L.P.'s right to permanently terminate its government price plan, to change the rate structure in such government price plan, and to permanently terminate service due tn the City's failure to pay amounts owing, breach of other obligations, fraud, court order or other cause. No such change in the terms of service and no such termination shall in any way constitute a failure of consideration, nonpayment of rent or default under this License. J n the event the government price plan is discontinued, the City and Cox L.P. will meet and confer in good faith to arrange another discount plan. C. Surety Bond. City shall have the right to require Cox PCS to furnish a performance bond to City, to cover the faithful performance by Cox PCS of its obligations under this License. If such a bond is required by City, it shall be deposited with the City; and shall not be subject to termination or cancellation except upon ninety (90) days' prior written notice by certified mail to City; shall be in such form and in such amount, not to exceed $10,000, as City shall specifY from time to time; and subject to termination or cancellation as foresaid, shall be maintained in full force and effect throughout the life of this License and until City, in its sole discretion, determines that Cox PCS has fulfilled all of its obligations under this License. If Cox PCS should default in any of its obligations under this License and such default shall continue for thirty (30) days after written notice thereof, City may, by a written notice to Cox PCS, forthwith terminate this License, according to the procedures set forth on Section II.L. (Revocable Use), and in addition to any other rights and remedies hereunder, exercise its rights under the performance bond. In lieu of a performance bond, Cox PCS may satisfY its obligations under this Section with a cash security deposit equal to two months rent of the then monthly rent obligation for each scheduled premises. D. Hold Harmless. I. Cox PCS shall defend, indemnifY, protect and hold harmless the City, its elected and appointed officers and employees (each a 'City Party'), from and against all claims fnr damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Cox PCS, or any agent or employee, subcontractors, or others acting under the direction or control of Cox PCS in connection with this License, except only to the extent of those claims arising from the sole negligence or willful misconduct of a City Party. Cox PCS's indemnification shall in- clude any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, Chula Vista Final Form Dec.15, 1999 8-17 y -- Page 13 agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Cox PCS at its own expense shall, upon written request by the City, defend any such claims brought against the City, its officers, agents, or employees. Cox PeS's indemnification of City shall not be limited by any prior or subsequent declaration by the Cox PCS. 2. [t is agreed between the parties that the City assumes no responsibility or liability for loss, damage, expenses or claims, direct or consequential, from (a) Cox PCS'S inability to use the Licensed Premises for its intended purpose, contributed to or caused by the failure of existing facilities on which Cox PCS Improvements may be placed, inability to use the site, or otherwise, (except for breach of contract damages arising from a City breach of this License) (b) the Cox PCS'S use ofany related access roads, or (C) the termination of the license by either party in accordance with this License. 3. Notwithstanding any contrary provision of this Lease, each party hereby waives any right to recover from the other party or other party's partners, affiliates, agents and employees any loss or damage resulting from any cause or hazard to the extent the loss or damage is covered by property insurance carried by the party suffering loss or damage, including any loss or damage resulting from loss of the use of any property and provided that at the time of Joss the property insurers for both parties have waived rights of subrogation. These waivers shall apply between the parties and to any property insurer claiming under or through either party as a result of any asserted right of subrogation, unless any property insurer has not waived its right of subrogation (in which case these waivers shall have no effect). E. Insurance. Cox PCS shall obtain and maintain at all times during the term of this License (including the period between the expiration hereof and Cox PCS's removal of its radios Or other equipment from the Public Way) commercial general liability insurance and commercial automobile liability insurance protecting Cox PCS in an amount not less than One Million Dollars ($1,000,000) per occurrence (combined single limit), including bodily injury and property damage, and in an amount not less than One Million Dollars ($ I ,000,000) annual aggregate for each personal injury liability and products-completed operations. Such insurance policies shall name the City, its council members, officers, and employees as additional insured as respects any covered liability arising out of Cox PeS's performance of work under this License. Coverage shall be provided in accordance with the limits specified and the Provisions indicated herein. Claims-made policies are not acceptable. When an umbrella or excess coverage is in effect, coverage shall be provided in following form. Such insurance shall not be canceled or materially altered to reduce coverage until the City has received at least thirty (30) days' advance written notice of such cancellation or change. Cox PCS shall be responsible for notifying the City of such change or cancellation. 1. Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this License, Cox PCS shall file with the City the required original certificate(s) of insurance with endorsements, subject to the City's prior approval, which shall clearly state all of the following: (a) the policy number; name of insurance company; name and address of the agent or authorized representative; name, address, and telephone number of insured; premises name and address; policy expiration date; and specific coverage amounts; (b) that thirty (30) days' prior notice of cancellation is required to the City; and (c) that Cox PCS's insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. Chula Vista Final Form Oec.15, 1999 8-18 T ~ Page 14 (d) City is a named additional insured. The certificate(s) of insurance with endorsements and notices shall be mailed to the City as the address specified in V.E. below: 2. Workers' Compensation Insurance. Cox PCS,shall obtain and maintain at all times during the term of this License statutory workers' compensation and employer's liability insurance in an amount not less than One Million Dollars ($1,000,000) and shall furnish the City with a certificate showing proof of such coverage. 3. Insurer Criteria. Any bond or insurance provider of Cox PCS shall be admitted and authorized to do business in California and"shall be rated at least A- in A.M Best & Company's Insurance Guide. Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 4. Severability of Interest. Prior to the execution of this License, any deductibles or self- insured retentions must be stated on the certificate(s) of insurance, which shaJJ be sent to and approved by the City. "Additional insured", "Cross liability," "severability of interest," or "separation of insured" endorsements/clauses shall be made a part of the commercial general liability and commercial automobile liability policies. 5. Contractors' and Subcontractors' Insurance. Cox PCS shall require that all contractors and subcontractors obtain insurance meeting the criteria set forth herein and shall furnish to the City copies of all certificates evidencing such pol icies of insurance. 6 Insurance and Indemnification Obligation. Cox PCS's compliance with the insurance requirements herein shall not excuse, replace, or otherwise affect Cox PCS' s duty to indemnifY and defend the City pursuant to Section lV. D. of this License. F. Nuisance. Cox PCS shall not use the Licensed Premises in any manner which, in the reasonable opinion of the City, creates a nuisance or disturbs the quiet enjoyment of the surrounding area by persons in said area. City reserves its rights to exercise its police powers and authority as they may apply to nuisance response and abatement, as provided by City ordinance exclusive of any contract provisions. v. M1SCELLANEOUS A. Possessory Interest. Cox PCS shall pay personal property taxes and possessory interest taxes, if any, assessed against Cox PCS's Improvements and City shall pay when due, if any, all real property taxes and all other taxes, fees and assessments attributable to the Premises and the applicable Schedule. Cox PCS recognizes and understands that this License may create a possessory interest subject to property taxation and that Cox PCS may be subject to the payment of property taxes levied on such interest. Cox PCS further agrees that such tax payment shaJJ not reduce any fee paid to City hereunder and that such tax shall be paid by Cox PCS before becoming delinquent. City has no responsibility or liability for any such tax. B. Potential Utility Usei'll' Tax Cox PCS acknowledges that the City may have a right to, and may in the future, impose a utility users tax ("Utility Tax") on users of PCS telecommunications services that are residents of the City. Cox pes agrees that, to the extent required by any applicable federal, state or local law, and to the extent that all similarly situated providers of such services are required by any such law to do so, Cox ehula Vista Final Form Dec.15, 1999 8-19 ,- Page 15 PCS will perform such collection of the Utility Tax as may be so required by such law from subscribers that are subject to the Utility Tax, C Governmental Approvals. Each Schedule under this License is conditioned upon Cox pes, or Cox PCS's assigns, obtaining all governmental permits and approvals enabling Cox PCS, or its assigns, to construct and operate Cox PCS's Improvements for that Schedule. CoX: PCS shall at its sole cost and expense comply with all the requirements of all municipal, state, and federal authorities now in effect or which may hereafter be in effect, which pertain to the Cox PCS's Improvements and use thereof. City shall have no responsibility or liability under this License for any such requirements. Cox PCS shall be responsible for obtaining any permits and approvals from any agency having jurisdiction over Cox PCS's activities. This License does not constitute governmental approval by City of this or any use. D. Governing LawNenue, This License shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this License shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City ofChula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. E. Signs. No signs shall be displayed on the Premises without the prior written consent of the City. F. License Administrators. For administrative purposes, any activity covered by this agreement which requires permission or consent of City shall be referred to the City Manager or Manager's duly designated representative at the following address: City Manager, City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Phone: (619) 69] -503l Fax: (619) 585-5612 The designated person, address, and phone number for serving official notice on the Cox PCS shall be: Cox PCS Assets, LLC c/o Sprint Spectrum, L.P. 4683 Chabol Drive, Suite 100 Pleasanton, CA 94588 Attn: Property Management Phone: (925) 468- 7800 Facsimile: (925) 468-7810 with a copy to: Sprint Spectrum L.P. 4900 Main Kansas City, MO 641]2 G. Successors and Assigus. I. Except as provided in subsection 2 below, Cox PCS shall not assign any rights granted by this License nor any inleresl therein without the prior written approval of the City. Approval of any such proposed Chula Vista Final Form Dec.15, 1999 8-20 y -, Page 16 assignment may be withheld in the sole and absolute discretion of the City, Except as provided in subsection 2 below, any assignment by operation of law shall automatically terminate this License. The terms and provisions of this License shall extend to and be binding upon and inure to the benefit of any successors and assigns of the respective parties hereto. 2. Notwithstanding Section 1 above, Cox PCS may, without City's approval and in Cox PCS's sole discretion, from time to time, do any of the following: ' a) grant to any person or entity a security interest in some or all of Cox PCS's Improvements and/or other property used or to be used in connection with this License; b) assign or pledge Cox PCS's interest in this License or any Schedule to any person or entity to finance Cox PCS's equipment or operate Cox PCS's business; c) sublicense any Premises to Cox L.P. or otherwise permit Cox L.P. to use any Premises as provided in this License (in which case Cox PCS's Improvements are deemed to mean the communications equipment of Cox L.P. installed on such Premises); and d) assign (i) to Sprint Corporation or to any entity which has, directly or indirectly, a 30% or greater interest in COX PCS (a "parent") or in which COX PCS or a Parent has a 30% or greater interest (an "Affiliate"); (ii) to any affiliate of Sprint Corporation (a "Sprint Affiliate"); (iii) to any entity with which COX PCS, any Affiliate or Sprint Affiliate may merge or consolidate; (iv) to a buyer of substantially all of the outstanding ownership units or assets of Cox PCS, any Affiliate or Sprint Affiliate; or (v) to the holder or transferee of the Federal Communications Commission ("FCC") license under which Cox PCS's Improvements are operated, upon FCC approval of any such transfer. Any such assignment shall not be effective until the assignee signs and delivers to City a document in which the assignee assumes responsibility for all Cox PCS's obligations under this License arising from and after the effective date of assignment. H. Non-Waiver of Breaehes. The City's or Cox PCS's failure to insist, respectively, in anyone or more instances, upon strict performance of any of the covenants or conditions of this License shall not be considered as a waiver or relinquishment for the future of said covenants, terms or conditions, but the same shall continue and remain in full force and effect. I. Entire Agreement. This instrument and any Schedule added pursuant to Section LB. contain the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. No alteration or variation of this License shall be valid or binding unless made in writing and signed by the parties hereto. J. Duties aud Obligations Survive Any and all duties and obligations of the parties which by their sense and context are continuing obligations, including but not limited to the parties' respective obligations to indemnify under this License and COX PCS' obligations set forth in Sections [1.1. and 11.1.1&2 herein will remain operative and shall survive the term of this License and any Schedules and amendments to this License. K Time is of the Essence. Time is of the essence in performing each and all of the terms and provisions of this License. Chula Vista Final Form Dec.15, 1999 8-21 T Page 17 L. Waiver of Property and Relocation Rights. Cox PCS acknowledges and agrees that this License does not confer any of the following: a property right or interest or, a right to relocation or relocation assistance. M. Hazardous Materials. Cox PCS shall not bring any Hazardous Materials onto the Licensed Premises except for those contained in its back-up power batteries (e.g.I,ead-acid batteries) and properly stored, reasonable quantities of common materials used in telecommunications operation (e.g. cleaning solvents). Cox PCS shall handle, store and dispose of all Hazardous Materials it brings onto the Licensed Premises in accordance with all federal, state and local laws and regulations. "Hazardous Materials" means any substance, chemical, pollutant or waste that is presently identified as hazardous, toxic or dangerous under any applicable federal, state or local law or regulation and specifically includes but is not limited to asbestos and asbestos containing materials, polychlorinated biphenyl's (PCBs) and petroleum or other fuels (including crude oil or any fraction or derivative thereof). N. City Police Powers. Notwithstanding any provision in this Agreement to the contrary, Cox PCS acknowledges and agrees that City retains any and all police powers authority available at law or in equity to regulate the conduct of Cox PCS within the City or to otherwise act in accordance with the public health, safety and welfare of the City and that nothing in this Agreement is intended to or shall have the affect of condemning or limiting such authority in any way. O. . Limitation on City Liability. Notwithstanding any provision in this Agreement to the contrary Cox PCS's sole remedies for the City's breach of the License shall be (I) termination of the License or one or more Schedules, as appropriate; (2) specific performance; injunction or other equitable relief; or (3) the right to withhold amounts otherwise due and payable to City hereunder with respect to one or more Licensed Premises; provided that the foregoing limitation on liability does not apply to (a) City's rebate obligation under Section IV.A.S above, (b) any obligation or liability of City respecting its service subscriptions pursuant to Section IV. B. above. Except as expressly provided in the preceding sentence, in no event shall Cox PCS be entitled to monetary damages against the City for breach of contract hereunder. The Next Page is the Signature Page Chula Vista Final Form Dec.15, 1999 8-22 - Page 18 IN WITNESS WHEREOF, the parties hereto have executed this License as of the date first written above. City City of Ch u la Vista, a California Municipal Corporation 276 Fourth Avenue Chula Vista, CA 91910 BY:~~ Name: Shirley Horton Title: Mavor Approved as to form by John Mj. \ Chula Vista Final Form Dec.15, 1999 T Cox PCS Cox PCS Asset,s. L.L.c., a Delaware Company By: Cox Communications PCS, L.P. a Dela~are Llmlteyartn' Ip ItS only member By:~- Name: Title: 8-23 (Exhibit A) Attachment I Schedule of Premises Each Licensed Premises Should be described in a Schec;lule in the format outlined below and made part of this Attachment 1. Schedule: Date: March 6, 2002 Applicant's Site No: SD33XC014D Commencement Date: Location: 1178 East J Street, Chula Vista, CA. 91910 *VOYAGER PARK APN: 640-090-28,19 Description of Installation (Attach Site Plan): Description of Installation (Attach Site Plan): The proposed installation will remove a portion of the existing Patio Cover and replace with new architectural feature to house nine panel antennas of approximately 52 inches in height. The panel antennas will be behind the new architectural feature, which will be stucco finish and painted to match existing structure. The approximately 12' x 32' equipment area with up to seven equipment cabinets will be located to the North approximately 80' of the existing Patio Cover. The facility will have a design and orientation that compliments the area and shall be built using materials with the color, texture, quality and other details as necessary to make it compatible with the existing Patio Cover. Conditional Use Permit No: PCC-01-87 Building Permit No: Other: All work by Contractor shall be scheduled in advance and coordinated with parks operations personnel, onsite recreational staff or other City staff as appropriate prior to commencement of the work to minimize the potential for conflicts with recreation and other City programs occurring on the site. 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Please notify City ofChula Vista Traffic Engineering in the event work is needed, to acquire a vendor list, if available, or approval of the vendor selected by Cox PCS. City of Chula Vista Traffic Engineering Attn: Majed Al-Ghafry Mike Shau 276 Fourth Avenue Chula Vista, CA 91910 619-691-5021 8-33 . .- - Attachment III City Properties and Rights-of-Way That Shall Not Be Included In Any Schedules As Premises Licensed To Cox PCS At this time there are no such premises. Any such premises may be added at any time by the City of Chula Vista. Cox PCS will be notified if any properties or rights-of-way have been added to this list. 8-34 y RESOLUTION NO. RESOLUTION APPROVING AN AMENDMENT TO THE MASTER LICENSE AGREEMENT WITH SPRINT PCS FOR THE INSTALLATION AND OPERATION OF AS MANY AS 50 WIRELESS TELECOMMUNICATIONS FACILITIES OR, SUBSTANTIALLY SIMILAR FACILITIES ON CITY-OWNED AND CON,TROLLED PROPERTY, SUBJECT TO ALL NECESSARY APPROVALS, FOR A PERIOD OF 5 YEARS WITH AN OPTION TO RENEW FOR AS MANY AS TWO ADDITIONAL 5-YEAR TERMS; AND AUTHORIZING THE MAYOR TO EXECUTE THE AMENDMENT WHEREAS, the City Council approved Resolution 18601 on March 18, 1997 conceptually approving the marketing of City properties for use by telecommunications companies; and WHEREAS, on September 16, 1999 the City Council approved a Master License Agreement (MLA) with Cox PCS Assets, LLC, for installation and operation of up to 50 wireless communication sites on property owned or controlled by the City; and WHEREAS, the MLA provides the City with an opportunity to work cooperatively with the carriers to expedite its projects, provide adequate volume and coverage needed to meet public demand, provide incentives to pursue sites that have the least impact to residents and meet the aesthetic and safety goals of the community, while capturing revenue that helps the City fund public services at no additional cost to the ratepayer; and WHEREAS, staff has been working on an amendment to the MLA (the "Amendment") to: reflect the carrier's name change from Cox PCS Assets, LLC to Spring PCS Assets, LLC ("Sprint"); extend the MLA for five years; increase the fees paid by Sprint; and add two Sprint affiliates; and WHEREAS, Sprint is an existing mobile phone service provider that is seeking to expand and improve its coverage in the region and accommodate affiliates customer base and technologies; and WHEREAS, the Amendment allows Sprint to continue to install up to 50 total WTF's on property owned and/or controlled by the City and to operate within the scope of the MLA, as amended, for a period of five additional years; and WHEREAS, Sprint had approximately eight (8) sites installed during the first term and approximately another seven (7) that are installed or at various stages of the plan review process since the end of the first term; and 8-35 T WHEREAS, the Amendment allows for up to two additional five-year terms, each with the written request of Sprint and the subsequent written approval of the City Manager; and WHEREAS, Sprint has also agreed to increase the fee by 15% as to all sites established after November 2004; and WHEREAS, Sprint is required to comply with allflpplicable local, state and federal laws; and WHEREAS, the Schedule of Premises shall be administratively approved for each site and contain specific conditions that must be satisfied and maintained in order to use the wireless facility; and WHEREAS, all of Sprint's construction, installation, maintenance and removal of the WTF facilities will be at their sole responsibility and cost; and WHEREAS, if Sprint causes any damage to the public right of way or City property, they are required to promptly repair it at their sole cost; and WHEREAS, Sprint will not be allowed to activate their site until the City signs off on final construction; and WHEREAS, the original MLA, the Schedule of Premises for each site and City Municipal Code provide for a number of risk mitigation measures for the City including: indemnity; insurance requirements; limitation on remedies available to Sprint in the event of a City breach; and reservation of the City's emergency and police powers; and WHEREAS, all installations will be required to receive all applicable permits and they will work closely with Planning, General Services, Engineering, Conservation & Environmental Services and a representative from the host department to assure that they do not interfere with City operations or facility maintenance; and WHEREAS, Sprint will be compensating the City for use of each site by paying an annual license fee to the City General Fund for each system installed; and WHEREAS, Sprint's annual license fee for a typical application including both antennas and cabinets is approximately $23,000; and WHEREAS, the annual fee increases by 3% a year beginning January 2006 and is subject to renegotiation prior to the renewal of each five-year term to ensure the City is receiving market rate rent; and WHEREAS, if Sprint were to execute all the remaining sites (approximately 35) it would generate approximately $800,000 in additional revenue per year and be subject to the annual 3% increase each January. 8-36 T NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the amendment to the Master License Agreement with Sprint PCS for the installation and operation of up to 50 wireless telecommunications facilities or substantially similar facilities on City-owned and controlled property, subject to all necessary approvals, for a period of 5 years with an option to renew for up to two additional 5-y~ar terms; and authorizes the Mayor to execute the Amendment. Presented by Michael Meacham Director of Conservation and Environmental Services 8-37 Approved as to form by THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL /~ o re City Attorney I ,=-- Dated: I D!la/ [Xo First Amendment to the Master Communications Site License Agreement Between the City ofChula Vista and Sprint PCS Assets, L.L.C. 8-'38 T FIRST AMENDMENT TO THE MASTER COMMUNICATIONS Sl~ UCENse AGREEMeNT BE1WEEN THe CITY OF CHOLA VlST A ANC SPRINT PeS ASSETS, LLC. WHEREAS. the City of Chllla VISta ("City") and Cox PCS Assets, L.LC. "Cox PCS"} entered into a Master Communica1ions Sila License A9,eement on November 11;, 199$ (!he "Ueanse'); WHEREAS. on March 20, 2002. Cox PCS filed an "Amli'nd"Cl Application for Registration, Foreign LimiWd L.isbility Company," with tile California Secr>;tary of Slate, by which it changeti its name 10: "Sprint PCS A.$sets, L.L.C.," ('Sprint PCS") and this Is the current nlSme of the entity which originally entered into the Weens,,; and '. , WHEREAS, the City and Splint peS (collecttvely. the .Parties"} wisl1 t\'l amend the Uc:enS$ by ~nterlng. into this 'FIrSt Amendment to the Wlster Communications Sile License Agreement between 1he City of Chula VIsta and Sporn PCS Assets, LLC' (1Ile 'Fir5t Amendment"). NOW, THEREFORE, the City end Sprint PCS agree as follows: SECTION 1. Pursuant to Secllon IliA of the Uoona.., the Initial te011 of the Lic;ense is renewed for an additional nve-yeer t~, The Initial live-year term of the License commenced on November 16. 1999. This additional five-year te011 shan continue the License in effect Trom Nowmber 16, 2004 through November 15, .2009. Any subsequent renewal of the License $haD bEl pUl'$uant to the pt'l)v1siOIl$ of Section IliA SECTION 2. Section IVA2. of Ihe License is re-numberoo to be Sl'lction NA3. and is amended as follows: i i f i i The Annual Fee for all subsequent weense Renewal Tenns shall equal the then fair market rentsl rate thBl a willing ftce\lsee would pay and a wilUng licensor would accept for the use of simile" installation locations for simiiar telecommunications equipment for the same frve-year period (the "FMRR1. The FMRR shaD be in the same amourn for each of the Lio"ru;cd Premises. If the City and Sprint pes are unable to agree on tho !"MRR within 180 day& prior \0 expiration or then Renewal Term of the Initial term or tills License, then at the reqll8$t of either party, both parties shall ilttempt in good faith to appoint a single real estate appraiser with at least flV9 years' experienoo in the area in which the L.lcensed Premises ere iocated to appraise and set the FMRR. If the parties are un;:lble to agree upon sllch an appraiser within 15 days afler either party requesl$ appOintment, then either party can apply to the Superior Court for Sil.n Diego County for the appointment of a nelltral appraiser, wh<> shall corttfy that he Or &00 has nol acte<i in any capacity for either party within the lasf I ~ AIucQmenl City I Sprlt>! pes Ma~r t.icetlse Page 1 of 4 V intials (Sprint) 8-39 I I i r , I I I I I i t7d'd 0H:S9Lt76,9: 01 1NI~dS:WOJ~ [,:[, 9002-6,-lJO T three yea~. Within 30 days after the appraiser is selected, he or she shall investigate and report to the parties in Wlitlng his or' her .delermination of the FMRR. During the investigation the o;ppraiser may In Ills or her SOle di!i:crelion choose 10 meet with the parties and take testimony. and may extend the time for determlrilng 1M FMRR by not more lhlll1 15 days. Tile appraiser's. dete.rmlnEl'Jon shall be flnal and non-appeaiable, absent fraud. If Sprtnt pes is dissatisfied with the determination of FMRR, then Sprint ~CS shall have. as lis 5,,1.. and exclusive n:lmedy, the rl>iht to rescind ill; exercise of the option to I'l'lnew and allow this License and Ihe then- existing Schedules to expire at the later of the end of the initial ierm of this License or 90 days <:1ft..,. the appraiser issues his or her report on cieterminatlon of th& FMRR (the "Delayed Expiration Date"). The Annual Fee during tne parioQ, if any, from and after expiration of the initial term of this Ucense to tile Delayed expiration Ollte shall be the FMRR, prorated flJr such time period. If the FMR.R is not yet determined by expiration of the initial telTTl of this License, then Sprint ?G;iJiMlI pay the Annual Fee rate as d<>.termined by the appraiser, or, If ~~ elecl5 10 rescind its exercise of its right to renew, City shall make a rebate as provided 1n Section IV.A.5 below. The parties shall share equa[!y the costs and fees of the appraiser." SECTION 3. A new Section IV.A.2. is ..dded as follows: 1. The annual rental rates for those Licensed Premises added during tile initial tElrm of this IJcense "re not affected by the new rates described below "nd shall continue to have annual 3% increases throughout the f':'lrst R.enewal Term or tile Master C()n'Imunlcatlons Site License Agreemenl Upon completion of tile Flret Rene-wel Term, new rates will be deiermin...:! PUf'S\lant to ihe terms of the Masler Communications Sit", Urenae Agreement The Annual Fee for any Ucen$ed Premises added to this License durinp the first Licen$e Renewal Term (November 16, 2004 through November 15, 200Q) shall be ;!l; follows, a. fur PCS facilities that include up to sellen \7l equipment ~hinell; and up to twelVE! (12) antennas approximately 52 Inches in heigh!, in addition 10 ne<::e$$ary lI'llIl$il1i$$ion cables, elllCbical power, telephone selVioe. and other necessary fixtures for !he period from November 16, 2004 through December 31,2005, in the amount of $21,744.83 ($1.812.07 per month); b. for pes fadlities that in<::lude on'l' up te seven (7) equipment f.'llbinds, in addiliol'l to necessary transmiSSlon cables, eteclrical power, telephone Service, and other necessary fixtures for U'lIit period from November 16. 2004 tilrcu\lh December 31, 20OS, in the :amount of $9.~1!;l.21 ($776.60 per month); c. for pes facilities that include only up to twelve (12) anCaronas approximately 5:2 inc:he5 in height, in addition to necessary transmission cables, electrical power, telephone selllica, and other necessary fixtures for the period from November 16, 2004lhroogh December 31,2005, in the amount of $12,425.62 (S1,035.41 per montl1; 1" Amendment City I Sprint PCS Master Lie"",," _":"k2 of 4 intiaJs (Sprint) i T I , I i b/2"d 0H:S9,Lb6,9: 01 8-40 1NI~d5:WOJj [,:[, 9002-6,-lJO T d. fur each Cdlendar year thereafter throughout the first Li(>6n~" Re,!ewal TelTll, an amount equal to 103% of U'l:l Annual Ftlfj for the Immediately preceding calen<lar year. SECTION 4. The Ciiyand Sprint pes further agree Ulat lhe fOllowing Section II. M. shall be added to the License, immediately following Section Il.L: ''M. Authorized Lic0nsoos 1. Sprint pes may allow lis Authorized LI~nsees, as defined below, to attach, iMEtall. operate or maintain PCS facilities on Licensed PremIses, pursuant to Schedules issued in connection with the License. In the event Sprint pes allows an Authorized Licensee to actin ff~ ~taad pursuant to this section II.M, Sprint pes remallS responsible for all of ns obfls"tions and liabilities srilllng under the License, including as to Schedulee !$sued la, and . Licensed premls$$ occupied by, Splil\t PCS' AuthQrlzed Licensees, unless and until the Authorized Licensee SJsns end delivers to City a document by Which the Authorized Licensee assume$ Sprint pes' contractual cblillmions and liabilities, 2. 'Authorized Licensee' means: Sprint PCS Assets, L.L.C.; and Nextel of Califonnia, Inc. and their successors in inicrest. ' SECTION 5. All Q\her terT1'l& and conditions of the License not specifically modified by this First Amendment shall remain In full force and effect [The Next Page is the Sisniillure Page) 1" AllJ~Ddment City I Sprint pes M~ Liccose "age 3 of4 V' inrial. (Sprim) tu['d 0lTS9.L176.9: 01 8-41 1NI~dS:WOJ~ [.:[. 9002-6.-1)0 T Signature Page to the First Amendment to the Master COf1)municatlons S!te License Agreement IN WITNESS WHEREOF, city ",nd Sprint pes have clroouled this 1" Amendment to the November 16, 1Ses Master L.icense Agreement, thereby indicating that they have read and understood same, and indicate their fuU and complete con~ent to its terms: Dated: ,2006 City of Chula Vista Ry: $ll;phen Padilla, Mayor Attest $us::m Sigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: By:L:- (Sian"lu ) Name: f." <:.l.:J l:>e<:!n....-'\..l;- ._._ (Print) Title; \/',c..e. ~ ,es;d",..,r,+ (Print) By: (Signature) l~ Amendment ~ISpri~PCSM.&erUc~ pa!\e~ intials (Sprn1t) 8-42 17/17 . d 0'tES91.17619: 01 1NI~dS:WO"j E1:E1 9002-61-1JO T