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HomeMy WebLinkAbout2007/12/04 Item 12 CITY COUNCIL AGENDA STATEMENT ~f:. CITY OF -~ CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: DECEMBER 4, 2007, Item~ RESOLUTION ESTABLISHING A MASTER COMMUNICATIONS SITE LICENSE AGREEMENT WITH OMNIPOINT COMMUNICATIONS INC., (T-MOBILE) FOR THE INSTALLATION AND OPERATION OF AS MANY AS 25 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 FIVE ADDITIONAL 5-YEAR TERMS; AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT DIRECTOR ~ONSERVATION & ENVIRONMENTAL SERVICES ~ ~ ASSISTANT CITY l~r~ S J CITY MANAGER r10 V 4/STHS VOTE: YES D NO ~ SUMMARY Conservation & Environmental Services Department (CES) is submitting a Master Communications Site License Agreement (MLA) for the City Council's review and consideration. Adoption of the proposed resolution would establish a MLA between the City and Omnipoint Communications, Inc., a Delaware Corporation ('T-Mobile") for the installation of as many as 25 total wireless telephone facilities (WTF) on property owned or controlled by the City. The City and T-Mobile are parties to an existing Master Site Communications License Agreement (MLA), dated November 5, 2002, which was entered into by Pacific Bell Wireless, LLC, T-Mobile's predecessor. The City and T- Mobile mutually desire to terminate the 2002 MLA and replace it with the proposed MLA, effective upon the payment of $77,000 to the City by T-Mobile that will relieve Omnipoint Communications, T-Mobile and PacBell Wireless of all annual fee obligations under the 2002 MLA. 12-1 DECEMBER 4, 2007, Item~ Page 2 of6 The proposed MLA includes mutually beneficial and agreed upon terms that are consistent with those provided to other wireless carriers including, but not limited to: accommodating T-Mobile's requests to formally incorporate T-Mobile's change in name subsequent to their disengagement from Pacific Bell Wireless, LLC, and establishing a new MLA for one five-year term with up to five additional five-year options that are subject to the City's review and approval. The MLA also provides an additional rent reduction incentive for a smaller site option. The City retains its preferred technical conditions and will receive an annual fee adjustment of 3% that brings the fees up to current market value and makes them comparable to other City MLA carriers. 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) 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 Pacific Bell Wireless, LLC for as many as 25 sites in November 2002, with Cricket for as many as 35 sites in February 2006 and with the New Cingular (AT&T) for as many as 25 sites in July 2007. 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 desire 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. Nine 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 city 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 music, video and internet uses versus the original voice functions, and 3) 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 based on health or solely on aesthetics issues. The Council and staff have worked with industry for many years on a "master license agreement" approach to reduce the pressure on siting these facilities in less appropriate areas. The MLAs 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 12-2 DECEMBER 4, 2007, Item~ Page 3 of6 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. Above all, the wireless industry values rapid deployment, and works with the City to accommodate the community's objectives based predominantly on our ability to demonstrate a record of timely zoning and construction approvals that support that goal. The City Attorney's Office, Finance, Planning and Risk Management have provided critical assistance to CES in developing and securing the MLA terms needed to protect the public interest while meeting the objectives of the communications industry. T-Mobile is an existing mobile phone service provider that is seeking to expand and improve its coverage in the region and accommodate a name change. Staff has been working on establishing a new MLA with T-Mobile, subsequent to their disengagement from the Pacific Bell Wireless MLA and to accommodate their request for a change in name. Staff is recommending that the City execute an MLA between the City and T- Mobile Wireless PCS, LCC, (Attachment 1) which outlines mutually beneficial terms based predominantly on the terms and conditions currently in place with other City MLA partners. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity, approval of a Master Licensing Agreement, for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060 (c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Although environmental review is not necessary at this time, each individual wireless telecommunication facility will have environmental review once the projects are further defined and a CEQA determination will be completed prior to installation of any new facilities. RECOMMENDATION That Council adopt the resolution approving the new Master Communications Site License Agreement with T-Mobile for the installation and operation of as many as 25 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 MLA for up to five additional five-year terms. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION MASTER LICENSE AGREEMENT: The MLA allows T-Mobile to install as many as 25 total WTF's on property owned and/or controlled by the City and to operate within the scope of this MLA for a period of five years. The MLA allows for as many as five additional five-year terms, each with the written request of T-Mobile and the subsequent 12-3 DECEMBER 4, 2007, Item~ Page 4 of 6 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. T -Mobile has completed that negotiation on what staff considers to be mutually beneficial terms. T-Mobile's annual license fees varv based on the number of cabinets and antennae at each WTF site and the footprint of the site. The annual fee for each WTF site that includes as many as 7 equipment cabinets and 12 antennas would be adjusted as follows: * Maximum lO'x20' area or enclosure ** Maximum 1 Q'x 16' area or enclosure reduced fee by 25% *** Approximately 3'x3'x3' or 27 cubic feet cabinet T-Mobile has also agreed to make a 3% rate adjustment to bring rents inline with market rates for comparable sites in the region. The 3% increase is reflected in the 2007 line item increases. The other line items reflect the standard 3% annual increase. T-Mobile will make a payment to the City of $77 ,000 prior to the final execution of the agreement that will relieve Omnipoint Communications, T-Mobile and Pacific Bell Wireless of any obligations for fees under the previous agreements. In some instances, T-Mobile will require a site for antennas or cabinets only. Staff has also accommodated T-Mobile's request for a rent option for a smaller site configuration that they expect to use frequently. The annual license fee for those facilities will be less than a full site as identified in the table above. The MLA would also continue to include a clause that reduces these rates by as much as 40% with T -Mobile and other contractors if they propose projects that underground the cabinets and pedestals or take other similar measures to reduce the impacts to land use. Council approved a similar clause in the 2002 Pacific Bell Wireless, 2006 Cricket and Sprint and the 2007 New Cingular License renewals. T-Mobile is required to comply with all local, state and 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 the Director of Conservation & Environmental Services and all other appropriate departments. T -Mobile shall continue to pay the appropriate full staff costs for processing each submittal. 12-4 DECEMBER 4, 2007, Item~ Page 5 of6 All of T-Mobile's construction, installation, maintenance and removal of the WTF facilities will be at their sole responsibility and cost. If T -Mobile causes any damage to the public right of way or City property, they are required to repair it promptly at their sole cost. T -Mobile 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 T-Mobile 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 T-Mobile needs. As mentioned, all installations will be required to receive all applicable permits and T-Mobile will work closely with Planning, Engineering & General Services, CES 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 camouflaged as an artificial pine, broadleaf or palm tree, flagpoles or complimentary structures such as clock towers or facility signs. 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 T-Mobile to take advantage of reductions in montWy site payments by undergrounding the cabinets and other structures whenever possible. FINANCIAL BENEFITS: T-Mobile 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. T- Mobile's annual license fee for a typical site that includes both antennas and cabinets is approximately $26,000. The MLA authorizes as many as 25 WTF facilities by T-Mobile. The annual fee increases by 3% a year beginning January 2008, 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 T-Mobile and other carriers to implement basic facility improvements or enhancements at each site to help them compliment the facilities' function 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 or the Library, 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. With the addition of aT-Mobile MLA, the City now has an estimated 60% to 70% of the regional mobile communications business under an MLA agreement that contains terms that the City believes are important to protecting the 12-5 DECEMBER 4, 2007, Item-.l.b.- Page 6 of6 public interest. CES will be working with the City Attorney and Finance Department to actively engage the remaining major carrieres) in MLA discussions over the next few months. DECISION MAKER CONFLICT 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 I 8704.2(a)(l) is not applicable to this decision. FISCAL IMPACT T-Mobile will increase the annual fee paid the City for all future sites by 3%. Staff believes there will ultimately be I site at the end of this year. The MLA authorizes as many as 25 WTF facilities at a yearly rate of as much as $25,706 per WTF site at the current annual rate. If T-Mobile were to execute all the remaining full sites (approximately 24) it could generate up to approximately $650,000 in 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 the addition of at least 2 sites per year for the immediate future. Staff has also secured a payment of approximately $77,000. 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 MLA, 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 license revenues. ATTACHMENTS Master Communications Site License Agreement Prepared by: Michael Meacham, Director, Conservation & Environmental Services 12-6 RESOLUTION NO. 2007- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A MASTER COMMUNICATIONS SITE LICENSE AGREEMENT WITH OMNIPOINT COMMUNICATIONS INC. ("T -MOBILE") FOR THE INSTALLATION AND OPERATION OF AS MANY AS 25 WIRELESS TELECOMMUNICATIONS FACILITIES OR SUBST ANTIALL Y 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 FIVE ADDITIONAL 5- YEAR TERMS; AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT WHEREAS, the City Council approved Resolution 1860 I 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 Master License Agreements ("MLA") 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; and WHEREAS, on November 5, 2002, and March 1,2006, the City also approved MLAs with Pacific Bell Wireless, LLC, for as many as 25 sites, and Cricket for as many as 35 sites, respectively; and WHEREAS, T -Mobile is an existing mobile phone service provider that is seeking to expand and improve its coverage in the region and accommodate a name change; and WHEREAS, staff has been working on establishing a new MLA with T -Mobile, subsequent to their disengagement from the Pacific Bell Wireless MLA, and to accommodate their request for a change in name; and WHEREAS, staff is recommending that the City enter into a new Master Communications Site License Agreement with T-Mobile to install and operate up to 25 wireless telecommunication facilities or substantially similar facilities on property owned or controlled by the City for a period of up to five years, with an option to extend the agreement for up to five additional five-year terms. NOW, THEREFORE, BE IT RESOLVED the City Council ofthe City ofChula Vista does hereby approve and authorize the Mayor to execute the Master Communications Site License Agreement with Omnipoint Communications Inc. ("T-Mobile"), a copy of which is attached to this Resolution. . . . . 1 ?-7 J:\AttomeyIRESO\AGREEMENTS\Qmnipoml CommumcaIIOlla{T-Moblle) MLA \2-04-0~..foc Resolution No. 2007- Page 2 BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute the Master Communications Site License Agreement with T -Mobile, for and on behalf of the City of Chula Vista. Presented by Approved as to form by Michael Meacham Director, Department of Conservation & Environmental Services J:\Attomey\RESO\AGREEMENTS\Omnipoint Communicationa (T .;t.2rre~LA _12-04-07 .doc 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 Dated: l\ /1/11.[ 01 ( Master Communications Site License Agreement Between City of Chula Vista and Ornnipoint Communications, Inc. ("T-Mobile") For T-Mobile to attach, install, erect, operate, and maintain up to twenty-five(25) various unmanned wireless telecommunications facilities, or substantially similar facilities, on public property under the ownership and/or control of the City for purposes of providing wireless communications services. 12-9 MASTER COMMUNICATIONS SITE LICENSE AGREEMENT THIS MASTER COMMUNICATIONS SITE LICENSE AGREEMENT C'License") doted as of . 2007 ("Effective Date"). is entered into between Omnipoint Communications, Inc., a Delaware Corpora[ion ("T~Mobile"). and the CITY OF CHULA vrST A, A MUNICIPAL CORPORATION ("City") with reference to the following f.,cts; A. T-MobLle wishes to attach, install, erect. operate, and maintain up to twenty-five (25) vatious unmanned wireless telecommunications facilities, or substantially similar facllities, 011 public property under the ownership and/or control of the City for purposes of providing wireless communications selvices. B. City is willing to allow T-Mobile to attach, install, erect, operate and maintain the Facilities subject to the terms and conditions set forth herein and in the site specific Scheduie of Premises. C. City and T-Mobile are palties to an existing Master Site Communications License Agreement, dated November 5, 2002, which was entered into by and between the City and Pacific Bell Wireless, LLC, T- Mobile's predecessor-in.interest. (the "'2002 License"). The City and T-Mobile mutuaIfy desire to terminate the 2002 License and replace it with this License. The City and T -Mobile acknowledge that T- Mobile owes the City certain fees under the 2002 License, and desire to terminate the 2002 License, effective upon the payment of those fees. The City and T~Mobile further desire to have this License take effect immediately upon the termination oftbe 2002 License. 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: 1.1. Licensed Premises OJ' Premises: The City owns in fee, or controls through easement rights, certain real property located in the City of Chula Vista, California. Portions of such property shall be described in a Schedule (as defined below) approved by the City and attached hereto. The property described in such Schedules shall constitute and be described and collectively referred to herein as the "Licensed Prcmisesn Of "Premises." Licensed Premises shall include any appurtenant property the City owns, or conb'Ols on which T~Mobile installs utility and transmission lines with City's prior approval pursuant to Section 2.4 below. 1.2. Schedule: Attached hereto and incorporated herein by reference shall be v8I'ious Schedules of Licensed Premises (hereinafter llSchedule"), Each Schedule shaH be substantially in the form attached hereto as Exhibit B and shall include the description of the specific T-Mobile Improvements (described below) or light standards allowed on the Licensed Premises, its configuration, and the site specific conditions necessary for approval (hereinafter I'Conditions of Approval"). Both paliies 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 5.3 regarding GovemmentaJ Approvals. No more than 25 Schedules may be in effect at anyone time. Both parties also agree that the City may add to, delete or modify the Conditions of Approval at any time during the term of this License to advance a legitimate and reasonable governmental interest. 1.3. 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 the City as of the Effective Date of this License or as of a Commencement Date of an applicable Schedule. 104. T~Mobile Improvements or T-Mobile's Improvements: T-Mobile Improvements shaH be defined to be those unmanned wireless telecommunications facilities comprised of radio frequency transmitting and receiving equipment, antennas, cables~ conduits, wires, batteries, utility lines. Page I of20 12-10 transmission lines, radio frequency transmitting and receiving antennas and supporting stl'Uctul'es and improvements, whtch are approved by the City and which are located or proposed to be located per this License, on Licensed Premises. A typical example of the facilities comprising the T-Mobile Improvements is set forth in Exhihit A, attached hereto. T-Mobile 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 T -Mobile. Such excluded improvements shall be owned by City. 1.5. Commencement D~te: Upon execution hereof by all parties hereto the Commencement Date of this License shall be the Effective Date, The Commencement Date of this License with respect to each individual Licensed Premise shall be as specified in each related Schedule. 2. PREMISES AND LICENSED USES 2.1. Grant of License. Subject to the following terms and conditions and each Schedule's site specific Conditions of Approvnl, City hereby grants to T.Mobile a non-exclusive license to the Premises as depicted in the Schedules attached hereto and incorporated herein from time to time. Each Schedule executed hereunder shall be substantially in the fonn of Exhibit B. 2.2. Use. The Premises may be used by T-Mobile solely for the transmission and reception of non- franchised wireless telecommunication signals on various frequencies and the construction, maintenance and operation of City-approved T-Mobile Improvements. 2.3. Pre-Construction; Testing. T-Mobile 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 necessary tests (collectively Wfestsl1) to determine the suitability of the Premises for T-Mobile Improvements and for the purpose of preparing for the construction ofT. Mobile Improvements at no expense to City. During any Tests or pre-construction work, T-Mobile shall have the insurance coverage set forth in Section 4.4, Insurance. T-Mobile shall provide the City with priOI' notice of any proposed Tests or pre.col1struction work and will coordinate the scheduling of same with City. T-Mobile, at T-Mobile'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 T-Mobile. 2.4. Installation ofT-Mobile Improvements. 2.4,1. In General. This License grants to T-Mobile the right to construct, maintain and operate T -Mobile Improvements on the Ucensed Premises subject to the tenns and conditions set forth herein and those Conditions of Approval found in each Schedule. All T-Mobile constmction and installation work shall be performed at T-Mobile's sole cost and expense and in a good and workmanlike manner. Title to T -Mobile Improvements shall be held solely by T- Mobile, and all T-Mobile Improvements shall remain the personal property ofT-Mobile and shall not be treated as real property or become a part of any Premises even though affixed thereto. All street light standards on pl'Opelty owned or controlled by the City, whether installed pursuant to this License by City or T-Mobile, shall be owned by the City. Prior to instaiJation and operation of each set of T -Mobile Improvements, T -Mobile must obtain any and all required federal, state and local pennits required for such installation and operation. City permits required include, without limitation, building permits and an approved Schedule. City shall exercise its best efforts to pl'Ocess Improvements applications within furty-five (45) days after the submittal of a completed application. In addition, an work shall be scheduled in advance and coordinated with parks operations personne~ OIlSite recreational staff, Public Works, Engineering or other City staff as appropriate prior to commencemellt of the WOl'k to minimize the potential for conflicts with recreation and other City programs or activities occurring on the site. T-Mobile agrees that the site will not be activated until the City has signed off on final constmction, which sign off shall not be unreasonably withheld or delayed. Absent such sign off, T -Mobile shall have Page 2 0[20 12-11 recourse to an appeal to the City Manager. 2,4.2, Location ofT-Mobile Impl'ovements. The location ofT-Mobile Improvements on Licensed Premises shall be subject to the Zoning Administrator's prior approval. In deciding whether to approve a location, the Zoning Administrator will take into consideration City's goal to assure that wireless telecommunication networks are completed with the fewest possible facilities, in the least visible fashion, and with the least disruptive impact on neighborhoods and communities within the Cit)' of Chula Vista. For example, denying or conditionally approving a location to preserve and enhance the aesthetic qualities of the City of Chula Vista shall not be deemed unreasonable. City approval shall be deemed given once the Zoning Administrator has approved the Schedule of Licensed Premises with associated Conditions of Approval. If a schedule is denied, T~Mobile shall have recourse to appeaJ to the City Manager, whose decision will be final. It is understood that both parties will work together to find the optimum location fOI'T-Mobile's antennas on the Licensed Premises that have the least impact to City and private property. T ~Mobi1e agrees to reimburse City for the reasonable costs, including reasonable administrative overhead. of processing the approval of each Schedule. The process for reimbursement shaH be conducted in the same 01' similar manner as the City's processing of a non-administrative conditional use permit. 2.4.3. Utilities. T-Mobile shall have the right to install utilities which are necessary for the operation ofT-Mobile Improvements, at T-Mobile expense. and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency back~up power). Such utilities sha.1I be subject to City approval and removal in the same manner as other T-MobiJe Impl"Ovements as provided in Section 2.4.2, and 2.10, respectively. T-Mobile shall fully and p!'Ornptly pay for all utilities furnished to the Premises for the use, operation and maintenance ofT-Mobile Improvemenbi., Payment of all costs for said utilities' deactivation and removal, including any costs, which would survive the term of said License or Schedule, shall be the exclusive obligation of T-Mobile. T-Mobile Improvements shall inchlde separate utility meters. 2.4.4. Street Light Standards. In the case of installations on street light standards or mast arms, T-Mobile shall comply with aU applicable City regulations for the installation of streetlights. If the installation is to be done via replacement of an existing standard and/or mast aIm, said replacement shall meet the same regulations as were applied to the existing standard and/or mast ann and be completed to the satisfaction of the Zoning Administrator. Said regulations shall include, but not be limited to, the form, size, strength and construction materials specified for.City street lights. Consistent with the City's lawful ex.ercise 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 and/or T-Mobile or, altered foundation requirements to accommodate joint City and T~Mobile uses, or other technical reasons; pl"Ovided that (i) City shall pay costs to modifY street light standards or mast arms which it C,)wos in accordance with such amended regulations and (ii) T-Mobile shall pay all costs to modify T-Mobile's 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 T -Mobile Improvements. In the event the amended regulations make existing T-Mabile Improvements unusable by T-Mobile, then City shall use reasonable efforts to provide a suitable alternate location. Upon reasonable notice and written J'equest by the Zoning Administrator, Licensee shall provide a replacement pole that is pre-approved by the City Engineer and shall deliver the existing pole to the City Corporation Yard or some other suitable site within the City designated by the Clty Engineer. The design of the pole, method of attachment for Licensee's equipment and all other connections shall meet the specifications reasonably required by the Zoning Administrator. Page 3 of20 12-12 2.4.5. Compliance with Laws. T-Mobilc's Installation and operations of Improvements must comply with any and all applicable federal, state and local laws. 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. 2.4.6. Restol'ation. If any City sidewalk is disturbed in the course of installation, T -Mobile shall replace said sidewalk from cold joint to cold joint from each direction from the disturbed area and to the satisfaction of the City Engineer. If any ex.isting landscaping, irrigation systems, utilities or other City facilities are disturbed in the course of installation, T-Mobile shaH replace and restore said property to its pre-installation condition. 2.4.7. Maintenance. Maintenance of the T-MobiJe Improvements shall be the sole responsibility ofT~Mobi!e during the entire term of this License, and T-Mobile agrees to keep all T-Mobile Improvements in good condition and repair. 2.5. Access. 2.5.L T-Mobile and T-Mobile 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 T-Mobile, subject to the conditions set forth in each Schedule. City hereby licenses to T-Mobile all rights of ingress and egress held by City to the extent requjred to construct, maintain, install and opel'ate T-Mobile Improvements on the Premises. T-Mobile's exercise of such rights shall not cause undue inconvenience to City. 2.5.2. In connection with installations on light standards, mast arms or poles, T-Mobile shall provide at least seven (7) days written notice to the City Engineer of installation date and time. T-Mobile shall pay any and all costs associated with City shut off and reCQnnect of power to Pl'emises, installation oversight and/or inspections if City reasonably deems necessary. 2.5.3. In connection with T-Mobile's maintenance of T-Mobile Improvements an street light standards, mast arms Qr poles, T-MQbile shall provide at least twenty fQur, (24) hours nQtice tQ the City Engineer and pay City any and all costs associated with City shut off and reconnect of power to Premises, maintenance oversight and/or inspections jf City deems reasonably necessary. In case of need for emergency maintenance ofT-Mobile Improvements, T~MobiIe shall use its best efforts to give prior notice to City Engineer but shall notify City of such work as promptly as reasonably possible after the work is commenced. 2.5.4. In connection with City's maintenance to street lights which share a standard or mast ann with such installatiQns, City shall use it' best effQrts tQ provide T-MQbile at least twenty four (24) hours notice of said maintenance. If City desires to have a technician of T-Mobile on site during said maintenance, T-MobiJe shall pl"Ovide 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 arm with such installations, City need not give prior notice to T-Mobile but shall notify T-Mobile of such work as promptly as reasonably possible after the work is commenced. 2.6. Interference with Communications. 2.6.1. T-Mobile Improvemellts 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). T~Mobi1e Improvements shall also comply with all noninterference 1lI1es of the Federal Communications Commission ("PCC"). 2.6.2. Any radio equipment installed by T-Mobile on the Premises shall be fi'equency compatible with all radio transmitting and receiving equipment existing and in use on the Page 4 <Jf20 12-13 Premises at the time initial installation of such equipment is made. In the event T-Mobile installation electronically or physically interferes with City's installation already existing on the Premises, T-Mobile shall take all necessary steps. at its own cost and expense) to eliminate such interference, wbether so required by the FCC or not. 2.6.3, 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 or operation of T-Mobile Improvements ex-cept in the case of Pre-Existing Communications that do not materially change their power level, frequenc)' or location. In the event any equipment instaUation by City made subsequent to T -Mobile's installation causes interference with the location, configuration, fi'equency or operation ofT-Mobile Improvements, City shall exercise reasonable best efforts to eliminate such interference after learning of such interference, whether required by the FCC or not, 2.6.4. Notwithstanding any other provision in this License to the contrary, in the event of an emergency, City shall have the right, in its sole discretion, to take such action it detennines in its sole discretion is necessary under the circumstances to address the emergency, even though such actions may CRllse interference with T-Mobile Improvements or the operation thereof. If City mllst take action which causes or may cause interference, City shall endeavor to (a) give T- Mobile oral notice of such action as quickly as practicable and (b) to the extent practicable under the circumstances. upon notice by T-Mobile of the existence of interference, minimize the duration and extent of such interference. 2.6.5. City shall have the responsibility to cooperate with T-Mobile to identify and remedy to the extont reasonably necessary, any interference with the comml1nications operations of T~ Mobile described in Sections 2.6.3 and 2.6.4, above. 2.6.6. Subsequent to the installation of T -Mobile TmpJ'ovements~ City shall not permit its licensees or future Hcensees to mstall new equipment on the Licensed Premises or pl'Opert)' contiguous thereto owned or controlled by City, if such equipment IS likely to cause interference with T-Mobile's operations. T-Mobile shall cooperate in good faith with City to detelmine whether such interference is likely to be caused by the prospective future licensee. For purposes of this Section 2.6, the existence of electronic and physical interference shall be reasonably determined by City and T -Mobile. In the event T-Mobile reasonably determines the likelihood of interference by newly installed facilities~ City shall direct the party installing sllch facilities to meet and confer with T-Mobile in order to develop an approach or design that eliminates or materially reduces the potential for interference. Notwithstanding the foregoing, Pre-existing Communications operating on the Commencement Date that do not measurably change from this power leve~ frequency or location an the Commencement Date shall not be deemed to be interfering at any time. 2.6.7, T-Mobile agrees to notifY immediately the Director of Public Works ofilie City of any changes in T -Mobile frequencies to be used at the Premises. 2.7. Liens. T-Mobile shall keep tbe Premises free and cleal' of any and alltie"s 01' claims ofliens and charges on account of labor and materials used in or contributing to any work perfOInlCd by or related to this License, failing which City shall have the right, but not the obligation, to discharge any or all such liens or claims~ and T -Mobile shall, upon demand therefor, reimburse City for all costs and expenses incurred by City. 2.8. Removal ofTRMobile Improvements; Damage 01' Destruction. 2.8.1. Upon expLration, cancellation or termination of this License OJ' any Schedule hereunder, T -Mobile shall be responsible for: (a) l'emoving from the Premises subject to such expiration, Page 5 of20 12-14 cancellation, or termination, at its sole cost, all T-Mobile Improvements except those which the parties agree shall not be removed 01' 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 damage. cau.ed by third pa1ties excepted. Said return of Premises in their original condition shall incLude T~Mobile's remediation of any hazardous or toxic material discharge at the Licensed Premises caused by T-Mobile or its agents and shall be to the reasonable satisfaction of the City. 2.8.2. Within 30 days after the date this License or an applicable Schedule expires or otherwise terminates, T.Mobile at its expense shall remove all T-Mobile Tmprovements from the affected Premises; provided that if five or more Schedules expire or terminate contemporaneously, then T- Mobile shall have a reasonable amount of additional time to remove the affected T-Mobile Improvements .0 long as T-Mobile is diligently proceeding with removal. Any T-Mobile 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 (b) in whole or in part be removed and disposed of by City. with the reasonable costs of said removal and disposa~ including reasonable administrative overhead, to be reimbursed to City by T-Mobile within ten days after T-Mobile receives City's request for reimbursement togethe1' with reasonable evidence of the cost. 2.8.3. 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 T ~Mobile unable to conduct nonna] operations and a temporary site is not available per subsection E below, the fee for such Premises shall abate in full from the date slIch damage or destruction occurs until T-Mobile is able to commence nDlmsl operations; provided that T- Mobile shall have no right to abatement ifthe damage 01' destructioll is caused by T MMobile or its agents' negligence or willful misconduct b, Non-replacement in case of damage. 1fT-Mobile chooses to tennillate the use of any Licensed Premises suffering such damage, T-Mobile shall notify the City Engineer of such decision withIn ten (10) days after notice of such damage. T. Mabile shaH comply with all terms of this License concerning removal of T. Mobile improvements. T.Mobile 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 T-Mobile, T-Mohile .hall 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 exorcise its best eff0l1s to notify T -Mobile in writing thereof and shall commence and Ihereafter 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 ann or pole if (i) the City, determines, ill good faith, that the facility is 110 longer required or desirable to serve tbe public health, safety and welfare and that the City has no existing or foreseeable intention of replacing or repairing the facility, or (ij) the damage or destruction occurs during the last 12 months of the Term aT any Renewal Term, and T-Mobile does not, within 10 days after receiving City notice of such destruction, exercise any option to extend or renew which may then be available regarding the subject Premises hereunder. d. If within ten days after written notice from T-Mobile of damage City has not commenced to repair or replace, then T~Mobile shall have the right, but oot the Page 60f20 12-15 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 similal' facilities); provided that T-MobiIe shall have no obligation to restore any City operations served by the light standard, mast arm or pole unless the damage or destruction is caused by T-Mobile or its agent's negligence or wlllfu( misconduct. T-Mobile shall perfonn such work using only contractors approved by the City. T~Mobile shan complete such work as expeditiously as reasonably possible, subject to complying with the provision of Section 2.4. above. e. If T-Mobile repairs and replaces pursuant to subsection d. above, then the City shaJl reimburse T-Mobile for all its reasonable costs of repair and I'eplacement. 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. a.bove or if the damage or destruction is caused by T~Mobile or its agent's negligence or willful misconduct, and (ij) 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 frame for the type of work in question. Reimbursement shall be due and payable within 30 days after receiving T -Mobile's request for reimbursement together with reasonable evidence of the costs. T -Mobile shaH 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 T-Mobile shall be at its sole expense, but T-MobiIe shall have the option to remove or leave in place any new or replacement light standard, mast ann or pole upon expiration or tennination of the applicable Schedule. f If T-Mobile is rendered unable to conduct normal operations due to damage or destruction, City shall use reasonable efforts to identify and make available to T- Mobile, within ten days foUowing the damage or destruction, a temporary site owned or controlled by City which in T-Mobilelsjudgment is equally suitable for T-Mobile's intended uses (subject to public safety issues). T-Mobile may construct and operate substitute T.Mobilc's Improvements thereon until the Premises are fully I'epaired and available to T -Mobile. 2.9. Termination. 2.9.1. Neither this License nor any Schedule shall be revoked or tenninated dming the Term or any Renewal Term except as expressly stated in this License, 2.9.2. This License may be terminated by either party for any or no reason by delivering to the other party, at any time after the initlal five (5) year tenn of this License, written notice of exercise of this right to terminate (the "Exercise Notice"). If this right to terminate is exel'Cised, 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 terminatioIl, T-Mobile shall have no right to receive any further Schedule attaclunents to add Licensed Premises that were 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 te1m as prcwided in Section 3.1 hereof. 2.9.3. T-Mobile shall have the right to terminate a Schedule on 30 days prior written notice to City (01' any shorter notice expressly set forth below), if. Pagc 7 of20 12-16 a. T-Mobile delivers to City such 3D-day written notice at any time prior to the Commencement Date under such Schedule for any reason or no reason; b. T ~Mobile determines at any time after the Commencement Date under such Schedule that any governmental or non.governmental license, permit, consent, approval, easement or restriction waiver that is necessary to enable T-Mobile to instalJ and operate T.MobiJe Improvements cannot be obtained at acceptable expel~e 01' in an acceptable time period; c. T-Mobile determines at any time after the Commencement Date under such Schedule that the Premises are not appropriate or suitable for T-Mobile 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 interfel'ence not encompassed by Section 2.9.3.d. below; provided that ifT-Mobile exercises the right to terminate under this subsection, T -Mobile shall pay City (or City may deduct from any rebate due T-MobiIe) 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 ai' in the vicinity oCthe subject Premises, interfere with the location, configuration, frequency or operation ofT- Mobile Improvements and T~Mobile is unable to correct such interference through reasonably feasible means; e. City commits a default under this License with respect to such Schedule and fails to cure such default within the 3D-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 30-day notice period, then City shail have such additionni timc as shail be reasonably necessary to diligently effect a complete cure. f. The Premises under such Schedule are totally 01' partially damaged, knocked down Of destroyed from any cause (other than due to TwMobile or its agenfs negligence or willful misconduct) so as, in TwMobile judgment, to hinder T- Mobile normal operations and City does not provide to T -Mobile within I D days after the casualty occurs a suitable temporary location site fOl' T-Mobile Improvements pending repair and restoration of the subject Premises. 2.9.4. City shall have the right to tenninnte a Sohedui. if: a. T-Mobile commits a default under this License Agreement with respect to such Schedule and fails to cure such default within (i) ten business days after T- Mobile 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 T-Mobile receives written notice of any other default and fails to cure such default, provided that if the period to CUI'. lakes longer thM 30 days and T-Mobil. commences to cure the default within the 30-day notice period, then T-MobHe shall have such additional time as shall be reasonably llecessalY to diligently effect a complete cure. A violation of the Schedule's Conditions of Approval shall be deemed a default for purposes of this subsectioni b. The Premises ore wholly or partially damaged or destroyed so as to interfere with T-Mobile1s normal operations, City has no obligation to repair under 2.8.3. above Page 8of20 12-17 and neither party elects to repair pursuant to Section 2,8.3, above; or 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 T -Mobile pending corrective work), in which case termination shall take effect 48 hours after T~ Mobile receives written notice of termination setting f0l1h the City Manager's detennination and the reasons therefor. 2,9.5. A Schedule shanautometically te.minate as of the dete 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 T-Mobile's good faith opinion> to render the Premises unsuitable for T~Mobile's norma! operations. or pursuant to a transfer of the subject Premises or S1.lch portion thereof under threat or in lieu of exercise ofsuch power, 2.9.6. Upon tennination ofthis License, neither patty 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 tennination; and (b) with respect to the rights and remedies of the parties relating to the period prior to termination. Upon tennination of any Schedule, neither party shall have aoy further rights, obligations or liabilities to the other respecting such Schedule or the Premjses 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 patty; and (iii) with respect to the rights and remedies of the parties relating to the period prior to termination, 3. TERM 3.1. Term. 3.1.1. The initial term of this License shall begin 011 the Effective Date and shall expire on the date which completes five (5) years after the Effective Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this License may be extended for up to five (5) additional successive terms of five (5) years (each a "Renewal Term") on the same terms and conditions as set forth herein, except as the Annual Fee may be adjusted as provided in Section 4.1, below. Subject to the termination rights set fmth in Section 2.9, above, this License shall automatically be extended for each successive Renewal Term unless T -Mobile notifies City of its intention not to renew prior to commencement of the succeeding Renewal Term, 3.1.2. Subject to Ihe maximum overall License term of30 years 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; provided that T-Mobile shaH have the right to extend the TCl'ffi of stlch Schedtlle for five (5) additional periods of five (5) years (the "Renewel Term"). The Renewal Terms shall be on the same terms and conditions as the frrst Term except that the Annual Fee may be adjusted as provided in Section 4.1, below. Each Schedule shall be automatically extended for each successive Renewal Term unless T-Mobile notifies the City in writing ofT-Mobile's intention not to extend such Schedule at least 90 days prior to expiration of such Schedule's Term. 4. COMPENSATION AND LIABILITY 4.1. Payment Page 9 of20 12-18 4.1.1. In consideration for the use of each Licensed Premises. T-Mobile agrees to pay City (to be deposited in the City's general fund) an annual fee ("Annual Fee'') per Licensed Premises during the initial tenn of this Ucense as follows: a. T~Mobile facilities that include five, six or seven equipment cabinets, and up to twelve (12) Antennas approximately 72 inches in height, in addition to necessary cables, electrical power. telephone service, and other necessary fIxtures. in an area no more than ten feet by twenty feet, for the period from the Commencement Date of this License through December 31, 2007, in the amount of $25.706. ($2.142 per month); and/or b. T ~MobiJe facilities that include only up to seven (7) equipment cabinets, in addition to necessary transmission cables, electrical power, telephone service and other necessary fixtures fOT the period fium the Commencement Date of this License through December 31, 2007. in the amount of $14.009 ($1,167 per month); and/or c. T -Mobile facilities that include only up to twelve antennas approximately 72 inches in height, in addition to necessary transmission cables. electrical power. telephone service, and other necessary fixtures for the period from Commencement Date of this License through December 31, 2007, in the amount of$12.386 ($1.032 per month); and/or d. T-Mobile facilities that include up to four (4) cabinets and six (6) antennae approximately 72 inches in height in addition to necessary cables, eLectrical power. telephone service, and other necessary fixtures, in an area no more than ten (10) by sixteen (16) feet. for the period from the Commencement Date of this License through December 31, 2007, in the amount of $19,280 ($1,606 per month); and/or e. T -Mobile facilities that include only up to two antennas approximately 72 inches in height, in addition to necessary transmission cables, electrical power, telephone service. and other necessary fixtures and limited to one above ground cabinet/pedestal of not more than 27 cubic feet, for the period from commencement Date of this License through December 31, 2007. in the amount of $3,995 ($333 per month). f. The City may at its sole discretion decrease any of the fees listed above by up to 40% for under grounding cabinets or pedestals in a marmer that by the City's sole judgment reduces the impact to land use and/or aesthetics. g. For each calendar year thereafter throughout the initial term. an amount equal to 103% of the Annual Fee for the immediately preceding calendar year. 4.1.2. Upon written request of City or T ~Mobile, the Annual Fee for any Renewal Term so all equal the then fair market rental rate (the "FMRRJ that a willing licensee wOllld pay tlnd a willing licensor would accept for the use of similar installation locations for similar telecommunications equipment for the same five-year period. TIle FMRR shall be in the same amount for each of the Licensed Premises. If the City and T-Mobile are unable to agree on the FMRR within 180 days prior to expiration of the term preceding a Renewal Term of this License, then at the request of either party, both parties shall attempt in good faith to appoint a 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 Page 10 of20 12-19 within 15 days aftel' either party requests appointment. then the parties hereto agree that an appraiser shall be promptly determined in accordance with the rules of the American Arbitration Association. Within 30 days after the appraiser is selected, he or she shall investigate and report to the parties in writing his or her determination of the FMRR, The appraiser may in his or her sole discretion choose to meet with the parties and take testimony, and may extend the time for determ (ning the FMRR by not more than 15 days. The appraiseI~s determination shall be final and non-appealable, absent fraud. 1fT-Mobile is dissatisfied with the detem1ination ofFMRR, then T-Mobile shaH have, as its sole and exclusive remedy, the right to rescind its exercise of the option to renew and allow this License and the then-existing Schedules to expire at the later ofthe 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. iC any, 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 T.Mobile shan pay the Annual Fee at the at the immediately preceding year's rate pending such determination; and promptly after such determination the parties snail adjust such payment as necessary to the Annual Fee rate as determined by the appraiser, or, ifT-Mobile elects to rescind its exercise of its right to renew) City shall make a rebate as provided in Section 4.1.6 below. The palties shall share equally the costs and fees of the appraiser. Notwithstanding the foregoing, in no event shall the Annual Fee for Licensed Premises adjusted hereunder for any Renewal Term be Jess than 103% of the Annual Fee for the Licensed Premises in the last year of the preceding term. 4.1.3. The Annual Fee for each Licensed Premises shall be set at the rate in effect for the calendar year in which the Commencement Date for such Schedule OCellI'S, and shall be adjusted on January 1 of each year dlereafter during the term of the Schedule. beginning January 1,2008, according to the adjustment provisions of Sections 4.1.1 and 4.1.2 above. 4.1.4. The Annuat Fee shall be payable in advance on each January I, except that any p1:1l1ial Annual Fee for the fIrst partial calendar year dw'ing the Term of any Schedule snail be payable in advance on the Commencement Date of the subject Schedule. If the Commencement Date occurs other than January 1, andlor if the Term or final Renewal Term ends on a date othel' than December 31. the Annual Fee shall be prorated for the first and last partial calendar yeal's during the Term or final Renewal Term, based on a 360 day year and 12 months of30 days each. 4. J .5. Ifpayment is not received by 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 annum until paid. 4.1.6. Ifa Schedule is terminated prior to December 31 of any year for any reason other than T- Mobile's default, City shall rebate to T.Mobile the unearned portion of the Annual Fee for the calendar year in which termination occurs, provided that City may reduce any such rebate by (8) any termination fee owing to City under Section 2.93.c above and (b) those sums, if any, due from T-Mobile under Section 2.8 above. City shall pay such rebate within 60 days after the effective date of termination. Whenever T -Mobile is entitled to abatement of an Annual Fee under this License or any Schedule, City shall credit dIe amount of such abatement against the next Annual Fees due from T-Mobile; 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 shall rebate to T-Mobile the filll abatement amount within 30 days after T-Mobile deli ....el's to City written request faT slIch rebate. 4.1.7. Payments shall be made to The City of Chula Vista, Finance DepaJ1ment, 276 Fourth Avenue, ChuIa Vista, CA 91910, or to such other place as City may from time to time designate by written notice to T-Mobile. Payments shaH be accompanied by a description of payment, which identifies the sites for which payment is being made. Page II of20 12-20 4.2. Surety Bond. City shall have the right to require T~Mobile to furnish a bond. .or altemative acceptable to City, to cover the faithful performance by T-Mobile of its obligations under this License. If such a bond is required by City, it shall be issued by a commercial bonding company which is authorized to transact surety insurance business in the State of California and satisfactory to City; 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 $25,000, as City shall specify from time to time; and, subject to tennination 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 T-Mobile has fulfilled all of its obligations underthis License. 4.3. Hold Harmless, 4.3.1. T-Mobiie 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 fo\' damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the operation of the T-MobiJe Improvements or conduct of the T~Mobile, or any agent or employee, subcontractol's, or others acting under the direction or control of T -Mobile or the violation thereby of any hazardous materials laws or the release thereby of hazardous materials in connection with this License. except only to the extent of those claims arising from the sole negligence or sole willful misconduct of a City Party, T -Mobile IS indemnification shall include any and all costs, expenses, reasonable attorneys' fees and liability incurred by the City. its officers, agents, or employees in defe.l1ding against slIch claims, whether the same proceed to judgment or not Further, T~Mobile at its own expense shall, upon written request by the City, defend any such claims arising from T -Mobile's operations or conduct that are brought against the City, its officers, agents, or employees. T.Mobile also shall and does hereby agree to indemnifY, protect, defend and hold harmless the City, its elected and appointed officers and employees (each a 'City Party'), from and against all claims for damages, liability, cost and expense (including without Limitation attomeysl fees) incurred by the City arising, directly or indirectly. from (a) City's approval and issuance of Schedule and (b) City's approval or issuance of any other permit or action. whether discretionary or non-discretionary, in connection with the use contemplated herein" except only those claims arising from the sole negligence or sole willful misconduct of a City Patty. T-Mobile 's indemnification shall include any and all costs. expenses, reasonable attorneys' fees and liability incurred by the City. its officers, agents, or employees in defending against such claims, wherher the same proceed to judgment or not. 4.3.2. It is agreed between the parties that the City assumes no responsibility or liability for loss, damage, expenses or claims. direct or consequential, from (a) T-MoblJe's inability to use the Licensed Premises for its intended purpose, contributed to or caused by the failure of existing facilities on which T-Mobile Improvements may be placed, inability to use the site, or otherwise. (b) T-Mobile's use of any related access roads, (c) T-MohHe's operation of the T~Mobile Improvements, or (d) the termination ofthe License by either patty. 4.3.3. Notwithstanding any contrary provision of this License, each party hereby waives any right to recover fl'OJn 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 pl'operty and provided that at the time of loss the propeliy insurers for both parties have waived rights of subrogation. These waivers shaH apply between Page 12 of20 12-21 the parties and to any pl'Operty 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). 4.4. Insurance. T-Mobile, at its sole cost and expense, shall maintain in full force and effect at aU times during the term of this License (including the period between the expiration nel'eof and T-Mobile's removal of the T.Mobile Improvements 01' other equipment from the Premises or appurtenant property), Comprehensive Genel-al Liability or Commercial General Liability insurance covering bodily injury (including death), personal injury and property damage. Limits shall be in an amount of not less than one million dollars ($1.000.000) per occurrence, and two million dollars ($2,000,000) aggregate if applicable. Such insurance shall name the City, its officers, agents and employees, individually and collectively, as additional insureds wi1h respect to any covered liability arising out ofT~Mobile's perfonnance of work under this License. Throughout the term of this License, T.Mobile, at its sole cost and eKj)ense, shall also maintain in full force and effect. insurance coverage for bodily injury (including death), and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned~ non-owned and hired vehicles. Additionally, T~Mobile shall maintain not less than fifty thousand dollars ($50,000) coverage for Damage to Rented Premises. T- Mobile shall also provide fire insurance on all personal property contained within or all the Licensed Premises. The policy shall be written on a standard "all risk" contract, excluding earthquake and flood. The contract shall insure for not less than (90) percent of the actual cash value of the personal property. 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 fann. Such insurance shall not be canceled or materially altered to reduce coverage below that required herein until the City has received at least thirty (30) dRYS' advance written notice of such cancellation or change. T ~Mobile shall be responsible for notifying the City of such change or cancellation. 4.4.1. Filing of Celtificates and Endorsements. Prior to the commencement of any work pursuant to this License, T-Moblle shall file with the City the required original certificate(s) of insurance in the form attached as Exhibit C, which shall clearly state all ofthe following: a. Provide on a form approved by the City's Risk Manager. an original plus one (1) copy of a. Certificate of Insurance certifying that coverage as required has been obtained and remains in force for the period required by the License. b. All policies shall contain a special provision for thirty (30) days l>rior written notice of any cancellation, or change to no longer meet the herein specified insurance requirements. to be sent to the City's Risk Manager, 276 Fourth Avenue, Chula Vista, Ca 91910, or to the address shown on the Certificate of Insurance.; and c. That T~Mobi1ets insurance is primary as respects any other valid or collectible insurance that the City may possess as to claims arising from the negligence or wiUful misconduct of T-Mobile, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shan not be required to contribute with this insurance. d. City is an additional insured on the commercial general liability policy. The certiticate(s) of insurance with endorsements and notices shall be mailed to the City as the address specified in 4.4.I.I1.above. 4.42. Workers' Compensation Insurance. Throughout the term ofthis License, T-Mobile, at its sole cost and expense, shall maintain in full furce and effect, insurance coverage for: Page 13 of20 12-22 a. Statutory California Workers' Compensation coverage including a broad form all-states endorsement b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence for all employees engaged in services or operations under this License. Policy is to include B wavier of subrogation. 4.4.3. Insurer Criteria. Any bond or insurance provider of T-Mobile shall be admitted and authorized to do business in California and shall be rated at least A-, V in A.A-f. ge.rl &; Conr..wny S /nslI/W1CI! Omoe. Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 4.4.4. Severability of Interest Prior to the execution of this License. "AdditionaJ insured", "Cross Iiability/' "severability of interest," or "sepm'ation of insured'" endorsernents/clmlses shall be made a part of the commercial general liability and commercial automobile liability policies. 4.4.5. Contractors' and Subcontractors' Insurance. T-Mobile 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 policies of insurance. 4.4.6 fnsurance and Indemnification Obligation. T-Mobile's compliance with the insurance requirements herein shall not excuse, I'eplace, or otherwise affect T-Mobile's duty to indemnify and defend the City pursuant to 4.4 of this License. 4.4.7 Except as may be specifically provided fOl' elsewhe,'e in tills License, City and T-Mobile hereby each mutually waive and all rights of recovery from the other in event of damage to the premises or property of either caused by acts of God, perils of fire, lightning, and extended coverage perils as defined in insurance policies and forms approved for use in the State of California. Each party shall obtain any special endorsements, if required by their insurer, to evidtmce compliance with the aforementioned wavier. 4.5. Nuisance. T-Mobile shall not use the licensed Premises in any maimer, 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. 5. MISCELLANEOUS 5.1. Possessory Interest T.Mobile shan pay personal property taxes and possessory interest taxes, if any, assessed against the T-Mobile Improvements or the Premises arising from the insL1I1ation of the T- Mobile Improvements. T -Mobile recognizes and understands that this license may create a possessory interest subject to propelty taxation and that T -Mobile may be subject to the payment of property taxes levied on such interest. T-Mobile further agrees that such tax payment shall not reduce any fee paid to City hereunder and that such tax shall be paid by T-Mobile before becoming delinquent. City has no responsibility or liability for any such tax. 5.2. Utility USCI'S. Tax. T-Mobile acknowledges and agrees that the wireless communication services utilizing the T -Mobile Improvements licensed hereunder are subject to the City's utility users' tax ("Utility TaxI!) pursuant to City1s Municipal Code. T-Mobile agrees to collect the tax front service users and remit such tax to the City in accordance with the Cit)ls Municipal Code. 5.3. Governmental Approvals. Each Schedule under this License is conditioned upon T~Mobile, or Page 14 of20 12-23 T-Mobile's assigns, obtaining all gnvernmental pennits and approvals enabling T-Mobile, or its assigns, to construct and operate mobile/wireless communications facilities on the T-MobHe Improvements for that Schedule. T-Mobile shall at its sole cost and expense comply with aB the requirements of all municipal, state, and federal authorities now in effect or which may hereafter be in effect. which pertain to T-MobiJe's lmprovements and use thereof. City shall have 00 responsibility or liability for any such requirements. T ~Mobile shall be responsible for obtaining any permits and approvals from any agency having jurisdiction over T-Mobtle's ac.tivities. 5.4. Governing LawNenue. This License shall be governed by and construed in accordance with the Jaws 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 License and performance hereunder, shall be the City of Chula Vista. 5.5. Signs. No signs shaH be displayed on the Premises without the prior written consent of the City in its sole discretion. 5.6. License Administrators. For administrative purposes, any activity covered by this License, which requires pel'mission or consent of City shall be referred to the City Manager 01' Manager's duly designated representative at the following address: City Manager, City ofChula Vista 276 Fourth Avenue Chula Vista, Cal ifornia 91910 Phone: (619) 691-5031 Fax: (619) 585-5884 The designated person, address, and phone number for serving official notice on T ~MDbile shaJ! be: lfto Tenant: T-Mobile USA, Inc. Attn: Lease Administrator Re: T -Mobile Wireless Cell Site #: _; Cell Site Name: 10180 Telesis Coun, Ste 333 San Diego, CA 92121 With a copy to: T-Mobile USA, Inc. Attn: pes Lease Administration Re: T -Mobile Wireless Cell Site #; ~ Cell Site Name: 12920 E. 38'h Street Bellevue, W A 98006 Local Market contact: T-Mobile USA, Inc. Attn: Lease Adrninistrato,. 10180 Telesis Conrt, Suite 333 San Diego, CA 92121 5.7. SUCCCSSOl"S and Assigns. 5.7.1. Except as provided in subsection 2 below, T-Mobile shall not assign any rights granted by Page 15 of20 12-24 this License nor any interest therein without the prior written approval of the City. Approval of any such proposed assignment !nay be wlthheld in the sole and absolute discretion of the City. 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. 5.7.2. Notwithstanding Section 1 above, T-Mobile may, without City's approval and in T- Mobile'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 aU of T-Mobile's Improvements and/or other property used or to be used in connection with this License; b, Assign or pledge T ~Mobile's interest in this License or any Schedule to any person or entity to finance T -Mobile's equipment or operate T-MobiJc's business; and c. Assign (i) to any entity which has, directly or indirectly, a 30% Dr greater interest in T- Mobile (a "parent") or in which T-Mobile or a Parent has a 30% or greater intel'est (an "Affiliate"); (ii) to any entity with which T-Mobile and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of T-Mobile or any Affiliate; or (iv) to the holder or h..nsferee of the Federal Communications (<<FCC") license under which T-Mobile's Impl'Ovements 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 T-Mobile's obligations under this License arising from and after the effective date of assignment. 5.8. NonRWaiver of Breaches. The City's or T-Mobile's failure to insist, respectively, in anyone or more instances, upon strict performance orallY 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 5.9. Entire Agreement. This instrument contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed, No alteration or variation of this License shaU be valid or binding unless made in writing and signed by the parties hereto. 5.10. Time is of the Essence. Time is of the essence in performing each and a]l of the terms and provisions of this License. 5.11. Waiver of Property, Relocation and Condemnation Rights. T~Mobile 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. 5. J 2. Hazardous Matelials. T-Mobile shall not bring any Hazardous Materials onto the Licensed Premises except for those contained in T-Mobile's back-up power batteries (e.g. lead-acid batteries) and properly stored~ reasonable quantities of common materials used in telecommunications operation (e.g. cleaning solvents). T-Mobile shall handle, store and dispose of all HazaJ'dous Materia]s it brings onto the Licensed Premises in accordance with all federal, state and local laws and regulations. IlHazal'dous Materials" means any substance, chemical~ pollutant or waste that is presently identified as hazardous. toxic or dangerous under any appHcable federal, state or local law or regulation and specifically includes but is not limited to asbestos and asbestos containing materials, polychlorinated biphenyl's (PCB,) and petroleum or other fuels (including crude oil or any fraction or derivative thereof). City makes no representation or warranty regarding the existence of hazaJ'dous materials on some or all of the Licensed Premises, whicb are being licensed to T~Mobile in an AS IS condition. T-Mobile is solely responsible for investigation of any and all Li censed Premises as it sees fit to determine the suitability of the Premises for Page 160f20 12-25 its intended use. 5.13. City Police Powers. Notwithstanding any provision in this License to the contrary, T-Mobile acknowledges and agrees that City retains any and all police powers authority available at Law or in equily to rogulate tlle conduct of T.Mobile within lbe Clty or to otherwise act in accordance with the public healrh, safety and welfare of the City and that nothing in this license is intended to or shall have the affect of condemning or limiting such authority in any way. 5.14. Umitation on City Liability. Notwithstanding any provision in this License to the contrary T- Mobile's sole remedies for the CitYs breach of the License shall be (1) termination orche License or one or more Schedules, as appropriate; (2) specific performance or injunction; or (3) the right to withhold amounts otherwise due and payable to City hereunder with respect to one or mare Licensed Premises; provided that; the foregoing limitation on Iiabilily does not apply to Cily's rebate obligation under Section 4.1.6 above. Except as expressly provided in the preceding sentence, in no event shall T-Mobile be entitled to monetary damages against the City for breach of contract hereunder. 5.15, Condemnation. If a condemning authority takes all of City's Property, or a portion. which in both parties' opinion is sufficient to render a Premise unsuitable for T -Mobile's use, then the applicable Schedule shall terminate as of the date when possession is delivered to the condemning authority. 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. 5.16 Authorized Signatory. By its signature below, each party: (i) agrees to the terms of this License; (ii) warrants and represents that it is authorized to enter into this License; and (Hi) warrants and represents that the person(s) executing dlis License on its behalf is duly authorized to do SOl without the need for any further action. 6. TERMINATION OF PRlOR LICENSE 6. I. The Master Communications Site License Agreement. dated November 5, 2002, between the City of Chula Vista and Pacific Bell Wireless, LLC, predecessor-in-interest to T-Mobile, dated November 5, 2002, shall terminate upon payment by T-Mobile to the City of all fees outstanding under the 2002 License. 6.2. The Effective Date of this License shall be the date on which T-Mobile delivers to the City payment of all fees due under tbe 2002 License. 6.3. The parties agree that the 2002 License shall be tenninated and replaced by this License, immediately upon T -Mobile's payment to the City of all outstanding fees due under the 2002 License. The parties expressly agree that the requirements for Termination as set forth in the 2002 License are amended pursuant to the telTI1S of this License. [The Next Page is the Signature Page) Page 17 of20 12-26 SIGNA TIJRE PAGE TO MASTER COMMUNICATIONS SITE UCENSE AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed this License thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms as of the date first written above, Dated: 2oo? City ofChu!a Vista By: Chet)'! Cox, Mayor Attest: Susan Bi!!elow Citv Clerk AODroved as to Foml: Ann Moore. City Attornev Dated: QD: Na - _..._",..VIC8_.AJ ... Title: Dated: to -Ib -Or Exh [bit List to Agreement (1) Exhibit A Sample lmprovements (2) Exhibit B Schedule of Premises App~ as to rarm .. P'J/J RegIonal Counsel Page IS of20 12-27 EXHIBIT A Sample T-Mobile Improvements [fa be hlSerted] Page 190r20 12-28 EXHTBIT B Attachment I Schedule of Premises Each Licensed Premises Should be described in a Schedule in the format outlined below and made palt of this Attachment !. Schedule: T-Mobile Site No: Commencement Date: Location: APN: Description of Installation (Attach Site Plan): Building Permit No: Conditions of Approval: Note: Violations of these conditions may result in the termination of the right to use this site for wireless communications (see Section 2.9.4a of the Mastel' Communications Site License Agreement). Also, pursuant to Section 1.2 of the Agreement the City may add to, delete or modifY this Schedule's Conditions of Approval at any time during the term of the Agreement to advance a legitimate governmental interest. Othe!: In additjon, all work shall be scheduled in advance and coordinated with parks operations personnel, onsite recreational staf4 City Engineer and Public Works 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. The applicant agrees that the site will not be activated until the City has signed off 011 final construction. CityofChula Vista Applicant's Authorized City Representatives Page 20 of 20 12-29