HomeMy WebLinkAboutStaff Report 377-07City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
7
FROM:CITY MANAGER DEPARTMENT: ADMINISTRATIVE
SERVICES
DATE:OCTOBER 22, 2007 CMR: 377:07
SUBJECT:APPROVAL OF A LICENSE AGREEMENT "~VITH T-MOBILE, FOR
PLACEMENT OF TELECOMMUNICATIONS FACILITIES ON CITY
O’~VNED PROPERTY LOCATED AT 1082 COLORADO AVENUE
RECOMMENDATION
Staff recommends that Council hold a public hearing, and subsequently approve and authorize the
City Manager to execute the attached license from the City of Palo Alto to T-Mobile, for the
development and operation of telecommunications facilities near a Pacific Gas & Electric (PG&E)
tower on City-owned property located at 1082 Colorado Avenue (on the south side of Colorado
Avenue near the intersection of Colorado Avenue and Simkins Court).
BACKGROUND
On November 17, 1997, Council approved a set of four telecommunications policy statements
(Attacbanent A). Policy 4, which adda’esses the use of City-owned and leased property for
telecommunications infrastructure, reco~zizes that City land and facilities could be used to support the
competitive delivery oftelecormrmnications services and also reduce the adverse impacts associated
with the development of the necessary infrastructure by reducing the total number of sites needed by
wireless service providers. This policy encourages qualified outside parties to use designated City-
ov~aaed or leased property and facilities for siting telecommunications infrastructure when these are
compatible with the primary use of the property, and are used in a manner that is consistent with City
real estate policy, zoning, legal, environmental and other requirements as necessary.
On May 8, 2000, Comaci! approved leases with Sprint Spectrum L.P. (Sprint), for the construction and
operation of Personal Communications Service (PCS) wireless antenna facilities at the Rinconada
Park and Mitchell Park Fire Stations. On December 19, 2000, Counci! approved a license with AT&T
Wireless for placement of telecomrnunications facilities on property located under a Pacific Gas &
Electric Tower on City property at 1082 Colorado Avenue. On December 1,2003, Council approved
a lease with Cingular Wireless for development and operation of telecommunications facilities at the
Mayfield fire station. On September 19, 2005, Council approved a license with Metro-PCS for
development and operation of telecommunications facilities located near a Pacific Gas & Electric
Tower at 1082 Colorado Avenue.
CMR: 377:07 Page 1 of 3
DISCUSSION .
The T-Mobile wireless facilities proposed to be placed on the site consist of: 1) eight antennas
mounted on the existing PG&E tower; and 2) ground equipment, consisting of enclosed equipment
pads and cabinets, covering an area of approximately 200 square feet to be placed 46.5 feet from the
tower. The land is owned by the City and PG&E has an easement for its power lines on the City’s
propelS,. T-Mobile has obtained a license from PG&E for the antenna on the tower, and the attached
license is for the ground equipment on the City’s land. The equipment cabinet is fully self-serviced,
containing an independent air conditioning unit, heating unit, electrical supply, telephone hook up and
back up power supply. In accordance with the intent of Telecommunications Policy #4 to reduce
adverse impacts of telecommunications infrastructure, use of this site by T-Mobile has the advantage
of using an existing tower, which eliminates the need for an additional tower in the area.
The site, zoned Public Facility (PF), is cm-rently used for utility facilities including the City substation,
the PG&E lines and two wireless can’iers previously approved by Council. Because of the City’s new
Zoning Ordinance amendments that became effective on March 7, 2007, the project no longer requires
a Conditional Use Permit. The project was approved for staff level Architecmra! Review on May 7,
2007, subject to conditions.
License
The terms of the license are summarized in Attachment B. Maj or terms include a 5-year term with the
option to renew for two additional terms of five years each; annual rent of $20,000 to be adjusted
annually in proportion to the CPI; and conditions of use to accommodate both the needs of the
licensee and other occupants/users of the property.
License conditions require the use to comply with applicable laws and regulations regarding
electromagnetic emissions and to meet all other applicable federal, state and local laws and regulations
regarding environmental and occupational safety. An engineering firm has been retained on behalf of
T-Mobile to evaluate the proposed facility for compliance with appropriate guidelines limiting human
exposure to radio frequency (RF) electromagnetic files. Results of the study conclude the facility wil!
comply with the prevailing standards for limiting public exposure to RF energy and that the highest
calculated level in publicly accessible areas is much less than the prevailing standards allow for
exposures of unlimited duration. Specifically, given "worst-case" assumptions, for a person an?~’here
at ground, the maximum anabient RF exposure level due to the proposed T-Mobile facility by itself is
0.20 percent of the applicable pub!~c exposure limit. The maximum calculated cumulative level at
ground for the simultaneous operation of T-Mobile, Metro-PCS and the existing AT&T Wireless
facility is 3.1 percent of the public exposure limit; the maximum calculated cumulative level at the
second floor elevation of any nearby building is 6.1 percent of the public exposure limit.
RESOURCE IMPACT
The proposed license will generate annual income to the City in the amount of $20,000 per year,
adjusted annually with changes in the Consumer Price Index. This rent is consistent with what other
local agencies charge for similar rental uses.
CMR: 377:07 Page 2 of 3
POLICY IMPLICATIONS
The proposed license is consistent with Policy #4 of the Teleconmaunications Policy Statements
approved by Council on November ! 7, 1997 and with City Policies and Procedures 1-11, Leased Use
of City Land/Facilities.
TIMELINE
Construction and operation of the facility will begin shortly following execution of the License and
approval of all required permits.
ENVIRONMENTAL REVIEW
The project is categorically exempt from the requirements of the California Environmental Quality
Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA guidelines. On July 20,
2005, the Zoning Administrator approved a conditional use permit for the proposed use at the
proposed location, after making the required determination that the use will not be detrimental or
ic onJnUxllie°n~ 2 :: eP; rm° lP~ t hr t Yat° trtl ~Prro;VoesI:~ nut ~21 n~t" lhlebV2,~ lC io cniatty~22~ ;hoen~UubcltieCdhienal: ~ 2 n na fee~’ i ng :I~ :~ldV~2 lce fa~: i ~--
~DONNA HARTMAN
Senior Financial Analyst
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
CARL YEATS r
Director, Aiministrati’, e Services
EMILY HARRISON
Assistant City Manager
ATTACHMENTS
Attact~ment A: Telecommunication Policy-Statements
Attachment B: Summm’y of Temps of the License
Attact~nent C: License with T-Mobile
cc: T-Mobile
CMR: 377:07 Page 3 of 3
ATTACHMENT A
~enerai - it ~.s the nOtiCv OZ me Cityo,_ ra~o >2to to i~acilitate the comneuUve deliver,,
conveFltionai and advanced telecommumcations serAces tMoughout Paio A!to in mn
environmentally sound msmmer; wiile ensuing ~ost recove<,, and ein_.ancemeni of
revenues derived ,.~om ~e use of the Cib"s assets.
-)$:~-’-"a e!ecommun,.catmns The c~t,,, is the ox~er~..ng ana installation of New ~" "r~-’~°~r*~ .~,,~s -"
of the public right-of-way over wNch it has conU-ol ~d the regulatory body for the
deve!opment of z~cilities ~thin its jurisdictional boundaies, tt is the policy of the
to re~uiate~ the" location ana’ m~mer of consU~action., mana~, ~ r.h~ sat%., orderly and ~e~_~c~en~
use of Palo .Allo’s public right-of-way, and ~o r~cilitate fimeiy insta!lation of
telecommunications ....mnras~mcmre in enviro~entalty sound mamner.
Use of Utilities infrastructure - The City allows the use of Utilities infrastpacture mud
Uti!ities-owned or-!eased facilities *.o promote the delivery of te!ecommunications
se~ices provided that any telecorm’-nunications use does not impinge upon the City’s
abi!i~ to provide safe and reiiable electric, gas, water, wastewater, and storm drainage
services and does not interfere with the Civ’s ptamned use of the faciiRy or prope~);.
Use of City Facilities and Property - The City ovms and leases propeKy and facilities,
in addition to Utilities facilities, that could be used to support the deployment of
ar2%rdable te!ecommunications se~’ices while iimiting the potential adverse impacts
associated with the deve!opmem of the necessary infrastructure. !t is the policy of the
City to encourage qua!ified outside parties to use designated CiV-owned or -leased
property and facilities for siting of telecommunications infrastructure that is compatible
with the primar2 use of the prope~y, and in a manner that is consistent with Civ real
estate po!icy, zoning, legal, environmental, and other requirements as necessary.
Approved by the Palo Alto Ci7 Council on November 17, !99,7
ATTACHMENT B
Summary of Terms of the License
Licensor:
City of Palo Alto
Licensee:
Omnipoint Communications, Inc., a Delaware corporation, d/b/a T-Mobile
Premises:
200 square feet of land located 46.5 feet from an existing PG&E tower on the south side of
Colorado Avenue near the intersection of Simkins Court.
Purpose:
To provide for the installation, maintenance and operation, at Licensee expense, of a
communications site (Cell Site).
Term:
Five years with the option to extend for ttn’ee additional terms of five years, but with the right
of either party to terminate at any time with one year’s notice.
Consideration/Rent:
$20,000/year, adjusted ammally in proportion to the Consmner Price Index.
Allowable Use:
A communications site for fiarnishing telephone, radio and telecommunications services to
the public, subject to the following conditions:
Use to comply with applicable laws and regulations regarding electromagnetic emissions
and shall meet all other applicable federal, state, and local laws and regulations regarding
environmental and occupational safety.
Licensee shall not permit any unreasonable odors, smoke, dust gas, substances, or noise
or vibration to emanate from the facility nor take any action which would disturb,
obstruct or endanger may other occupants or use of the site or interfere with their use.
Operation of site shall not cause interference to city or other users of the site, including
any irrigation system installed by city. Prior to consmaction on the site, Licensee shall
coordinate placement of its facilities so as to not conflict with city’s irrigation systems.
License shall repair any damage to city’s property caused by construction of facilities.
4.Operations to be conducted in compliance with FCC requirements and all law and
regulations regarding environmental and occupational safety requirements.
5.Prior to construction on the site, Licensee shall provide the Real Estate manager evidence
that ail permits from ant" and aii agencies having pre-construction jurisdiction are
o
authorized and are available, including but not limited to building permits and street
opening permits.
Licensee shall post a notice on tt~e Premises listing its emergency procedures, warnings
and contracts.
7. Licensee to maintain all improvements it places on the Premises.
Construction or Alteration by Licensee:
Licensee may not make any changes to the property without prior city review and approval.
Maintenance and Repair:
Licensee shall maintain all improvements to the licensed premises.
Assignment/Subletting:
The License conveys no property rights to Licensee; therefore, assignment or encumbrance is
prohibited; however, Licensee has the right to assign its rights under the License to any of
Licensee’s subsidiaries, affiliates or successor legal entities or any entity acquiring all of
Licensee’s assets.
Termination of License:
City may terminate the License upon any of the following events:
1.Breach or default by Licensee of any condition of the License which is not corrected
within 3 0 days of receipt of written notice from City.
2.Licensee’s inability to obtain or maintain any required certificate, license easement or
other approval from PG&E.
3. Any time upon one year notice.
4. Bankruptcy by Licensee.
Taxes, Assessments and Utilities:
Licensee shall be responsible for all utilities supplied to the facility and for taxes and
assessments for the Premises.
Insurance:
Tenant shall
protection.
maintain insurance meeting the City’s standard requirements for insurance
City Telecommunication Policy:
License agrees it will abide by all lawful terms and conditions of any Telecommunications
Policy adopted by City to the extent it relates to Licensee’s communications facility on the
Premises.
ATTACHMENT C
LICENSE #
This License A~eement is entered into this day of ,200__ between the City
of Palo Alto, a chartered municipal corporation, (CITY) and Omnipoint Communications, Inc., a
Delaware corporation, d/b/a, T-Mobile (LICENSEE).
RECITALS
A.CITY owns a strip of property adjacent to 1082 Colorado Avenue, commonly referred to
as the Sterling Canal (PROPERTY).
Pacific Gas and Electric Company (PG&E), under an easement a~eement with CITY,
installed and operates a transmission tower and electric transmission lines along
PROPERTY;
Co The CITY and AT&T entered into a License Ageement in December 2000, for the use of
a 160 square foot portion of the PROPERTY, to operate a communications site within the
footprint of the PO&E transmission tower (TO~rER) along the Sterling Canal.
The CITY and MetroPCS entered into a License Agreement in October 2005, for the use
of 140 square foot portion of the PROPERTY, to operate a communications site within
20’ from the legs of the TOWER along the Sterling Canal.
Eo LICENSEE desires to use a 200 square foot portion of the PROPERTY, the PREMISES
(as defined in Clause I), to operate a communications site 46.5 from the footprint of the
Tov~q~R along the Sterling Canal. LICENSEE intends to install certain antennas and
cables on the TOWER pursuant to a separate License A~eement with PG&E (PG&E
LICENSE), which antennas w~ll be connected to equipment cabinets to be located on the
PREMISES pursuant to the terms and conditions of this License.
E.CITY a~ees to permit LICENSEE’s use of the PREMISES, under the terms and
conditions set forth below-.
Now, therefore, in consideration of these covenants, terms and conditions, the parties hereto
mutually agree as follows:
I.PREMISES
9906301~ C8142982.1 1
Subject to the terms and conditions set forth in this License, CITY gants to LICENSEE the right
to use 200 square feet of the PROPERTY, more particularly described as a ten (10) foot by
twenty (20) foot parcel of land located approximately 46.5’ from the legs of the TOWER upon
which LICENSEE will construct certain communications facilities consisting of an equipment
shelter for placement of LICENSEE’s base station equipment, a back-up emergency power
generator and/or batteries and coaxial cables and other conduits connecting LICENSEE’s
equipment shelter to the antennas to be placed on the TO\VER. CITY ~ants to LICENSEE the
right to a portion of the PROPERTY, for the sole purpose of constructing and installing cabling
and associated hardware including utilit3, runs incidental to the communications facilities
described earlier in this Clause I, together with the right to in~ess and egess thereon. The
LICENSED areas are referred to collectively as the PREMISES. The PREMISES are described
and shown in "Exhibit B". Exhibit B is attached to and, by this reference, made a part of this
LICENSE.
CITY hereby consents to LICENSEE’s use of the TOWER for placement of LICENSEE’s
antennas and related equipment on the TOWER pursuant to PG&E LICENSE.
II.PURPOSE
The pro-pose of this License is to provide for the installation, removal, replacement, maintenance,
modification, upgrade and operation, at LICENSEE expense, of a communications site (a Cell
Site as defined in Clause III, A).
III. ALLOWABLE SERVICES AND USES
In furtherance of the purposes stated above, the following services and uses shall be permitted:
Throughout the term of this License LICENSEE shall use the PREMISES for the purpose
of installing, removing, replacing, maintaining, modifying, upgading and operating, at its
expense, one of LICENSEE’s communications sites (a "Cell Site") for furnishing
telephone, radio and telecommmaications services to the public. A Cell Site is a site at
which radio, telephone and communications equipment and antermas are installed and
used to send and receive radio signals to and from cellular telephones and other mobile
devices and to connect those signals to radio, telephone or other communications
facilities either directly, by means of cables or indirectly, by means of transmitting and
receiving facilities (including microwave antennas and GPS antenna) located at the Celt
Site. LICENSEE’s use shall be subject to the following conditions:
1.LICENSEE’s use of the PROPERTY shall be non-exclusive but its use of the
9906301~ C8142982,1 2
PREMISES shall be exclusive and irrevocable other than as set forth herein.
o LICENSEE’s operations on the PREMISES shall comply at all times with all
applicable federal laws and regulations regarding electromagnetic emissions.
LICENSEE shal! conduct reasonably necessary tests after its Cell Site facilities
are constructed on the PREMISES to ensure that its facilities are in compliance
with those laws and regulations. The tests shall be conducted by a licensed
professional engineer, and the results shall be provided to CITY.
In constructing and operating its Cell Site facilities, LICENSEE shall comply with
and include the following items in its plans and operating procedures for its
facilities:
go
co
LICENSEE shall not permit any unreasonable odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the PREMISES, nor take
any action which would constitute a nuisance or would disturb, obstruct or
endanger any other occupants or use of the site or interfere with their use
of their respective premises.
LICENSEE shall operate the communications site in a manner that wil!
not cause interference to CITY or other licensees or lessees of the site
present on the PROPERTY as of the COMMENCEMENT DATE (defined
below) of this A~eement, including but not limited to any irrigation
system installed by CITY and the Bay Area Cellular Telephone Company,
doing business as AT&T Wireless cell site. Prior to construction on the
site, LICENSEE shall coordinate LICENSEE’s placement of its facilities
to ensure that placement does not conflict with CITY’s irrigation systems.
LICENSEE shal! repair any damage to CITY’s property caused by
construction of LICENSEE’s facilities, including but not limited to any
damage caused to City’s irrigation system and landscaping.
LICENSEE’S operations shall at all times be conducted in compliance in
all applicable federal, state and local laws and regulations, including but
not limited to laws and regulations regarding environmental and
occupational safety and all Federal Communications Commission (FCC)
requirements. LICENSEE shall submit all required hazardous materials
filings and obtain all required approvals prior to installing its batteries or
any other hazardous materials.
Prior to construction on the site, LICENSEE shall have provided CITY’s
Manager, Real Property, evidence that any and all permits including, but
not limited to building permits and street opening permits from any and all
9906301~ C8142982,1 3
eo
agencies having pre-construction jurisdiction over the proposed
development have been authorized and are available.
LICENSEE shall post a prominent notice on the PREMISES listing its
emergency procedures, warnings and emergency contacts.
LICENSEE shall maintain all improvements that it places on the
PREMISES.
No Restricted Uses. The above listed services and uses, shall be the only services and uses
permitted upon or from the PREMISES. LICENSEE a~ees not to use the PREMISES
for any other purpose nor to engage in, or permit, any other business activity within or
from the PREMISES.
IV. TERM
The term of this License shall be for a period of five (5) years, commencing on the date
LICENSEE receives the last permit required for installation of the Cell Site facility (the
"COMMENCEMENT DATE")
V.OPTION TO EXTEND
Subject to the CITY’s right of early termination under Clause XVIII (TERMINATION),
LICENSEE shall have the option to extend this License A~eement for an additional three (3)
terms of five (5) years each if the following conditions have been satisfied:
LICENSEE is not in default hereunder (beyond any all applicable ~ace or cure periods)
at the time of LICENSEE’s exercise of the right to extend.
B°LICENSEE has submitted to CITY, a v~Mtten notice of LICENSEE’S intent to extend the
License in accordance with the tel~ns of this clause, on or before six (6) months prior to
the end of the License term set forth in Clause IV (TERM) or any subsequent term under
this Clause V (OPTION TO EXTEND).
This option shall be void if more than three defaults have been noticed during any single yea’,
even if the defaults were corrected during the 30-day period allowed m~der Clause XIX
(TERMINATION).
VI.CONSIDERATION/RENT
License Fee. As consideration for use of the PREMISES, LICENSEE a~ees to pay to
CITY an annual fee (hereinafter referred to as "Rent") of Twenty Thousand Dollars
9906301~ C8142982.1 4
($20,000) per year, subject to adjustment as provided in Clause VII, payable in advance in
accordance with Clause VIII (RENT PAYMENT PROCEDURE).
VII. REVISION OF RENT
The rental specified in Clause VI (CONSIDERATION/RENT) shall be subject to automatic
annual adjustments in proportion to changes in the Consumer Price Index, All Urban Consumers,
(base years 1982-1984 = 100) for San Francisco-Oakland-San Jose CSMA published by the U.S.
Department of Labor, Bureau of Labor Statistics or any replacement index published by said
Bureau (INDEX).
The automatic adjustment shall be effective on each anniversary of the commencement date of
the term of this License and shall be calculated in accordance with the following formula:
X=A (B/C)
Where:
Adjusted rental.
Rental at the Commencement of the License.
INDEX for the second calendar month prior to the month in which that rental rate
adjustment is to become effective (or, if the INDEX is not published for that
month, the INDEX for the third calendar month prior to the month in which the
rental rate adjustment is to become effective)
Monthly index for the second calendar month prior to the date of this License (or,
if the INDEX was not published for that month, the INDEX for the third calendar
month prior to the date of this License).
VIII.RENT PAYMENT PROCEDURE
No Within fifteen (15) days of the COMMENCEMENT DATE of this License, LICENSEE
shall pay to CITY Rent for the first year of the term as set forth in Clause VI
(CONSIDERATION/RENT).
No Commencing on the first anniversary- of the COMMECEMENT DATE, on or before
each subsequent anniversary of the COMMENCEMENT DATE LICENSEE shall pay to
CITY Rent as set forth in Clause VI (CONSIDERATION/RENT), as revised pursuant to
Clause VII.
Rental payments shall be delivered to the Revenue Collections Division, 250 Hamilton
Avenue, PO Box 10250, Palo Alto, CA 94303. The designated place of payment may be
changed at any time by CITY upon ten (10) day’s w-ritten notice to LICENSEE. Rental
990630 lsj C8142982.!5
pa?~nents, may be made by check made payable to the City of Palo Alto, however,
LICENSEE assumes all risk of loss ifpay~nents are made by mail.
Do Acceptance of Late or Incorrect Rent: LICENSEE specifically a~ees that acceptance of
any late or incorrect rentals submitted by LICENSEE shall not constitute an acquiescence
or waiver by CITY and shall not prevent CITY from enforcing Clause IX (CHARGE
FOR LATE PAYMENT) or any other remedy provided in this License.
IX. CHARGE FOR LATE PAYMENT
If any payment of Rent as specified in Clause VI (CONSIDERATION/RENT) or of any other
sum due CITY is not received by CITY, within five (5) business days of the due date, a late
charge equal to two percent (2%) of the payment due and unpaid plus an administrative fee of $
45.00 shall be added to the payment, and the total sum shall become immediately due and
payable to CITY.
Acceptance of late charges and/or an?, portion of the overdue payment by CITY shall in no event
constitute a waiver of LICENSEE’S default with respect to such overdue pa?a-nent, nor prevent
CITY from exercising any of the other rights and remedies granted hereunder or by any provision
of law.
X.MAINTENANCE AND REPAIR
LICENSEE at its expense, shall perform all maintenance and repairs, including all painting, and
all maintenance of landscaped areas necessary to keep the PREMISES and all improvements
thereto in first-class order, repair and condition, and shall keep the PREMISES in a safe, clean,
wholesome, and sanitary- condition to the complete satisfaction of CITY, and in compliance with
all applicable laws, throughout the term of this License. In addition, LICENSEE shall maintain,
at its expense, all equipment, trade fixtures and any- other improvements installed by LICENSEE
upon the PREMISES required for the maintenance and operation of a Cell Site to be operated
pursuant to Clause III. LICENSEE waives the right to make repairs at the expense of CITY and
the benefit of the provisions of Sections 1941 and 1942 of the Civil Code of California relating
thereto; and further aN’ees that if and when any repairs, alterations, additions or betterments shall
be made by it as required by this para~aph, it shall promptly pay for all labor done or materials
furnished and shall keep the PREMISES free and clear of an?, lien or encumbrance of any kind
whatsoever. Should LICENSEE fail to make any repairs or perform any maintenance work for
which it is liable within ten (10) calendar days of receipt of written notice from CITY, CITY
shall have the option to make the repairs, and LICENSEE shall within ten (10) days of receipt of
a bill therefore from the Real Property- Manager, reimburse CITY for the cost of such repairs,
including a fifteen percent (15%) administrative overhead fee. The making of such repairs or
performance of maintenance by CITY shall in no event be construed as a waiver of the duty of
LICENSEE to make repairs or perform maintenance as provided in this clause.
9906301~ C8142982.1 6
XI.CONSTRUCTION AND/OR ALTERATION BY LICENSEE
No
No
CITY’S Consent. No structures, hnprovements, or facilities shall be constructed, erected,
altered, or made within the PREMISES without the prior written consent of the CITY (by
action of the City Council if required by City of Palo Alto procedures or ordinances, or
otherwise by the City- Manager or designee). LICENSEE shall have the right to construct
the Cell Site (including the base station radio equipment) in approximately the
configuration shown on the plans attached as Exkibit B (subject to all necessary
architectural review, zoning approvals and building permits). Any conditions relating to
the manner, method, design, and construction of the structures, improvements, or
facilities established by CITY shall be conditions of this clause as though originally stated
herein. LICENSEE may, at any time and at its sole expense, install and place business
fixtures and equipment within any structure on the PREMISES, provided such fixtures
and installation have been previously noticed to the City Manager.
Strict Compliance with Plans and Specifications. All improvements constructed by
LICENSEE within the PREMISES shall be constructed in an efficient and workmanlike
manner and in strict compliance with detailed plans and specifications approved by the
CITY (by action of the City Council if required by City of Palo Alto procedures or
ordinances, or otherwise by the City Manager or designee), and applicable City of Palo
Alto codes and ordinances.
Co
XII.
Buildin~ Permit Final Inspection. Upon completion of construction of any building,
LICENSEE shall submit to the Real Property Manager, a copy of the Building Permit
showing the final inspection has been completed and is signed off.
OWNERSHIP OF IMPROVEMENTS
A. Improvements to Realty.
All improvements constructed, erected or installed upon the PREMISES must be free and clear
of all liens, claims, or liability for labor or material. Upon expiration or termination of the
License, CITY may at its option require LICENSEE to remove LICENSEE constructed
improvements including, but not limited to, the foundations, and may further require LICENSEE
to repair to the satisfaction of CITY any damage to the PREMISES caused by such removal;
provided, that LICENSEE may, but shall not be required to, remove underground conduit
installed by it during the term of this License.
B.Personal Property.
Title to all equipment, furniture, furnishings and trade fixtures placed by LICENSEE upon the
990630 !~ C8142982.1 7
PREMISES (inc_luding without limitation the Cell Site facility) shall remain in LICENSEE, and
replacements, substitutions and modifications thereof may be made by LICENSEE tln’oughout
the term of this License. LICENSEE may remove such fixtures and furnishings upon expiration
of this License, provided that LICENSEE shall repair to the reasonable satisfaction of CITY any
damage to the PREMISES and improvements caused by such removal. LICENSOR
ac’knowledges that LICENSEE may enter into financing arrangements including promissory
notes and financial and security agreements for the financing of LICENSEE’s equipment (the
"Collateral") with a third party" financing entity and may in the future enter into additional
financing arrangements with other financing entities. In connection therewith, LICENSOR (i)
subject to the provisions of Clause XI.A, consents to the installation of the Collateral; (ii)
disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the
Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any
Rent due or to become due and that such Collateral may be removed at any time without recourse
to legal proceedings.
XIII.AS BUILT PLANS
Upon completion of an?, major LICENSEE-constructed improvements, LICENSEE shall provide
the Real Property Manager with a complete set of reproducible "as built plans" reflecting actual
construction within or upon the PREMISES.
XIV. DAMAGE TO OR DESTRUCTION OF Ig~ROVEMENTS
If the PREMISES are, in whole or in part, damaged or destroyed then: (1) if wholly damaged or
destroyed so that the PREMISES are rendered pelTnanently unusable for reconstruction of a Cell
Site facility, this License shall then terminate and LICENSEE shall be liable for the Rent only up
to the time of such destruction and any Rent prepaid by LICENSEE shall be returned to
LICENSEE; but (2) if only partially destroyed and still usable for construction of a Cell Site
Facility, LICENSEE shall, within a reasonable time, not to exceed thirty (30) days from the date
of the damage or destruction, notify CITY in writing of its intent either (i) to terminate the
License, in which case a proportional amount of any Rent prepaid by LICENSEE (prorated from
the date notice is received by CITY) shall be returned to LICENSEE, or (ii) to continue operating
under the License, in which case, LICENSEE shall, within a reasonable time, repair the
PREMISES and the Cell Site facility, with a reasonable reduction of Rent from the date notice is
received by CITY until the date the PREMISES and the facility are usable.
XV.UTILITIES
LICENSEE shall be responsible for and shall pay, prior to delinquency, all charges for utilities
supplied to the PREMISES at the rate charged by the servicing utility provider.
XVI. INSURANCE
990630 lsj C8142982.1 8
LICENSEE, at its sole expense, shall maintain insurance meeting the following requirements in full
force and effect throughout the term of this License.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1)
3)
4)
Insurance Services Office Commercial General Liability coverage (occurrence form
CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile
Liability, code 1 (any auto).
Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
Course of Construction insurance form providing coverage for "all risks" of loss.
The policy or policies of insurance maintained by LICENSEE shall provide the following limits and
coverages:
POLICY MINIMUM LIMITS OF LIABILITY
(1)WORKERS’
COMPENSATION
(2)Business
AUTOMOBILE
LIABILITY,
including owned,
hired, and non-owned
automobiles
Statutory
Bodily Injury
Property Damage
$1,000,000
$1,000.000
$1,000,000
ea. person
ea. occurrence
ea. occurrence
(3)Commercial
GENERAL
LIABILITY
including
products and
completed operations,
broad form contractual,
and personal injury.
Bodily Injury
Property Dmnage
Personal Injury
B. Deductibles and Self-Insured Retentions
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
ea. person
ea. occurrence
ag~egate
ea. occurrence
ea. occurrence
Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the
990630 lsj C8142982.1 9
option of the CITY either: the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the CITY, its officers, officials, employees and volunteers; or the LICENSEE
shall provide a financi!l guarantee satisfactory to the CITY guaranteeing payment of losses and
related investigations, claim administration and defense expenses.
Insurance shall be in full force and effect commencing on the COMMMENCEMENT DATE of the
term of this License. Each insurance policy required by this License shall contain the following
provisions:
Each insurance policy required shall be endorsed to state that coverage shall not be
suspended, voided, canceled by either party, reduced in coverage or in limits except
after thirty (30) days’ prior written notice by certified mail, return receipt requested,
has been given to the CITY provided that only (10) days notice w-ill be required for
cancellation due to a failure to pay premiums.
o All rights of subrogation are hereby waived against the CITY OF PALO ALTO and
the members of the City Council and elective or appointive officers or employees,
when acting within the scope of their emplo3~nent or appointment.
o The CITY, its officers, officials, employees, agents and volunteers are to be covered
as additiona! insureds as respects: liability arising out work or operations of activities
performed by or on behalf of the LICENSEE; products and completed operations of
the LICENSEE; PREMISES o’,~ned, occupied or used by the LICENSEE; or
automobiles owned, licensed, hired or borrowed by the LICENSEE. The coverage
shall contain no specia! limitations on the scope of protection afforded to the CITY,
its officers, officials, emp!oyees, agents or volunteers.
°For any claims related to this License, the LICENSEE’s insurance coverage shall be
primax3~ insurance as respects the CITY, its officers, officials, employees, agents and
volunteers. Any insurance or self-insurance maintained by the CITY, its officers,
officials, employees, agents or volunteers shall be excess of the LICENSEE’s
insurance and shall not contribute with it.
Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the CITY, its officers,
officials, employees, agents or volunteers.
o The LICENSEE’s insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer’s
liability.
C. Acceptability of Insurers
9906301~ C8!42982.1 10
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-VII
D. Evidence of/Changes
LICENSEE agees to deposit with the Real Property Manager, on or before the effective date of this
License, certificates of insurance reasonably evidencing that the insurance provisions of this License
have been complied with, and to keep such insurance in effect and the certificates therefore on
deposit with CITY during the entire term of this License. Should LICENSEE not provide evidence
of such required coverage at least three (3) days prior to the expiration of any existing insurance
coverage, CITY may purchase such insurance, on behalf of and at the expense of LICENSEE to
provide six months of coverage.
CITY shall retain the right at any time to review the coverage, form, and amount of the insurance
required hereby. If, in the opinion of the Risk Manager, the insurance provisions in this License do
not provide adequate protection for CITY, the Real Property Manager may require LICENSEE to
obtain insurance sufficient in coverage, form, and amount to provide adequate protection as
determined by the Risk Manager. CITY’S requirements shall be reasonable and shall be designed to
assure protection from and against the kind and extent of risk which exists at the time a change in
insurance is required.
The Real Property Manager shall notif)7 LICENSEE in w-riting of changes in the insurance
requirements. If LICENSEE does not deposit w-ritten evidence with the CITY that its insurance
coverage incorporates such changes within sixty (60) days of receipt of such notice, or in the event
LICENSEE fails to maintain in effect any required insurance coverage, LICENSEE shall be in
default under this License without further notice to LICENSEE. Such failure shall constitute a
material breach and shall be wounds for irmnediate termination of this License at the option of
CITY.
The procuring of such required policy or policies of insurance shall not be construed to limit
LICENSEE’S liability hereunder nor to fulfill the indemnification provision and requirements of this
License. Notwithstanding the policy or policies of insurance, LICENSEE shall be obligated for the
full and total amotmt of any danage, injury, or loss to the extent caused by license with its use or
occupancy of the PREMISES.
XVII. ASSIGNING, SUBLETTING, AND ENCUMBERING
This License conveys no property rights to LICENSEE. Therefore, any attempted mortgage, pledge,
hypothecation, encumbrance, transfer, sublicense, or assignment (collectively referred to as
ENCUMBRANCE) of LICENSEE’S interest in the PREMISES, or any part or portion there of, shall
be void and of no effect; provided, however, that LICENSEE shall have the right to assign its rights
under this License in whole or in part to any of its parent companies subsidiaries, affiliates or
990630 Isj C8142982.1 11
successor legal entities or to any entity acquiring substantially all the assets of LICENSEE.
XVIII. TERMINATION OF LICENSE
A.Termination of the License by CITY.
Notwithstanding the provisions of Clause IV and Clause V, CITY may terminate this
License upon the occurrence of any of the following events:
Upon a breach or default by LICENSEE of any covenant, condition or ageement
contained in this License, which is not corrected within thirty (30) days of receipt of
written notice of default from CITY;
o Upon LICENSEE’s inability to obtain or maintain any required certificate, license,
easement or other approval, including, but not limited to, a license for the Sterling
Canal site from PG&E, and which is not remedied or corrected within thirty (30)
days of receipt of written notice of default from CITY;
3.At any time upon one year’s prior written notice to LICENSEE.
If LICENSEE files a petition under any- chapter of the U.S. Bankruptcy Code, (or
any similar petition under any insolvency law of any jurisdiction), or has filed against
it any such petition which is not dismissed within sixty (60) days of the date filed, or
is LICENSEE proposes any dissolution, liquidation or composition, with creditors,
makes an assignment for the benefit of its creditors, or if a receiver, trustee,
custodian or similar agent is appointed with respect to or takes possession of any
materia! portion of the property or business of LICENSEE.
Upon the occurrence of any of the events described in para~aphs 1 and 2 of this Clause,
CITY may:
At CITY’S sole option, cure any such default by performance of any act, including
payment of money, and the cost thereof, plus reasonable administrative cost, shall
become immediately due and payable by LICENSEE to CITY;
Seek an action or suit in equity to enjoin any acts or things which may be unlaw-ful or
in violation of the rights of CITY;
Seek a mandamus or other suit, action or proceeding at law or in equity to enforce its
rights against LICENSEE and any of its officers, agents, and employees and its
assigns, and to compel it to perform and carry out its duties and obligations under the
law- and its covenants and a~eements with CITY as provided herein; or
990630 lsj C8142982.1 12
Pursue any other remedy available by law or specifically provided in other clauses of
his License.
Notwithstanding anything to the contrary contained herein however, in the event of a default
which carmot reasonably be cured v¢ithin thirty (30) days, LICENSEE shall have a
reasonable period of time (as determined by the City Manager) to cure the default. Each and
all of the remedies given to CITY hereunder or by any law now or hereafter enacted, are
cumulative and the exercise of one right or remedy shall not impair the right to CITY to
exercise any or all other remedies. In case any suit, action or proceeding to enforce any right
or exercise any remedy shall be brought or taken and then discontinued or abandoned, then,
and in every such case, CITY and LICENSEE shall be restored to its and their former
position and rights and remedies as if no such suit, action or proceedings had been brou~at
or taken.
In addition to a violation or breach of any other provision of this License, LICENSEE shall
be considered to be in default under this License should LICENSEE:
voluntarily file or have involuntarily filed against it any petition under ar~y
bankruptcy or insolvency act or law; or
2.be adjudicated a bankrupt.
Termination of the License by LICENSEE.
LICENSEE may terminate this License at any time upon 180 days prior written notice to
CITY; provided that in the event of such early termination, no portion of the then current
year’s rent shall be refunded to LICENSEE.
XIX.CITY TELECOMMUNICATIONS POLICY
LICENSEE acknowledges that CITY has commenced evaluation and preparation of comprehensive
telecommunications policies, procedures and implementation materials related to
telecommunications uses within the CITY (collectively referred to herein as the
"Telecommunications Policy"). LICENSEE acknowledges receipt of the City o ’Manager s report
dated March 6, 2000 which recommended for approval a consultant contract between the CITY and
an independent firm for preparation of documents related to the Telecommunications Policy, and
understands that the City Council approved that contract. LICENSEE acknowledges that the
Telecommunications Policy may include (among other things) the establishment of guidelines
and/or ordinances governing the siting of telecommunications facilities within the City of Palo Alto,
including facilities on private land and on City-owned land. In light of the pending
Telecommunications Policy, LICENSEE and CITY agree as follows:
990630 lsj C8142982.1 13
No LICENSEE a~ees that it will abide by all lawful terms and conditions of the
Telecommunications Policy adopted by CITY to the extent they relate to LICENSEE’s
communications facility on the PREMISES. In this regard, the following procedures shall
apply:
Within ninety (90) days of the adoption Qfthe Telecommunications Policy, if CITY
finds that LICENSEE’s facility on the PREMISES is not in compliance with the
Telecommunications Policy, then CITY shall deliver to LICENSEE a w-ritten notice
(:’compliance notice") specifying the items of non-compliance. Such notice shal!
include reasonably detailed items of non-compliance, a copy of the applicable
provision of the Telecommunications Policy and, if appropriate, actions required to
be undertaken by LICENSEE to bring its facility into compliance. LICENSEE
acknowledges that such notice may include a requirement to relocate LICENSEE’s
facility, if required, under the Telecommunication s Policy. If CITY fails to deliver
such compliance notice within said ninety day period, LICENSEE’s communications
facility on the PREMISES shall thereafter be deemed compliant with all of the terms
and conditions of the Telecommunications Policy, unless later actions of LICENSEE
cause its communications facility to become non-compliant.
o LICENSEE shall have six (6) months after its receipt of the’compliance notice to
bring its facility into compliance under the Telecommunications Policy. If
LICENSEE fails or refuses to bring it facility into compliance within such six month
period, CITY may terminate the LICENSE on thirty (30) days written notice to
LICENSEE, whereupon, LICENSEE shall remove its communications facility as
required under the LICENSE and the parties shall have no further obligations under
the LICENSE, except for those obligations which expressly survive the termination
of the LICENSE.
B. Condemnation Proceedings. LICENSEE a~ees that, if LICENSEE’s facility must be
relocated or modified to comply with the Telecommunications Policy or if the LICENSE is
terminated due to LICENSEE’s failure or refusal to comply with the Telecommunications Policy, as
set forth above, LICENSEE shall not initiate condemnation proceedings against the CITY for the
purpose of acquiring a license interest, lease interest or other right t° use the PREMISES previously
permitted for use by LICENSEE under the L ICENSE.
XX. NOTICES
All notices, statements, demands, requests, consents, approvals, authorizations, offers, ageements,
appointments or designations hereunder give by either party to the other, shall be in writing and
shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by
United States Certified mail, postage, prepaid, (3) sent by express delivery service, or (4) in the case
990630 lsj CS142982.1 14
of a facsimile, if sent to the telephone nmnber(s) set forth below during normal business hours of
the receiving par~y and followed within 48 hours by delivery of hard copy of the material sent by
facsimile, in accordance with (1), (2) or (3) above. Personal serv’ice shall include, without
limitation, service by delivery service and sen, ice by facsimile transmission. Deliver3, of notices
properly addressed shall be deemed complete when the notice is physically delivered to the Real
Property Manager or the City Clerk.
All notices pursuant to this License shall be addressed as set forth below or as either party may
subsequently designate by written notice.
TO: CITY TO: LICENSEE
Real Property Manager
City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
FAX: (650) 329-2468
with a copy to:
City Clerk, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
FAX: (650) 329-2646
And
City Attorney, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto CA 94303
FAX: (650) 329-2646
ATTACHMENT TO LICENSE
T-Mobile USA, Inc.
12920 SE 38th Street
Belle~nae, WA 98006
Attn: PCS Lease Administrator
with a copy to:
Attn: Legal Department
And with a copy to:
Omnipoint Communications, Inc. d/b/a T-Mobile
2380-A Bisso Lane
Concord, CA 94520
Atm: Lease Administration Manager:
with a copy to:
Attn: Legal Department
This License includes the following exhibits, .which are attached hereto and by this reference
incorporated into this License:
9906301~ C8t42982.1 15
Exhibit A - General Conditions
Exhibit B - Description of Licensed Premises
The inclusion of clauses in Exhibit A (OENERAL CONDITIONS) is not in any way intended to
lessen the in~portance of these clauses, but is merely done to enhance the organization of various
clauses and this License; provided, however, that in the event of a conflict between the foregoing
Clauses and the provisions of Exhibit A, the foregoing Clauses shall prevail.
IN WITNESS WHEREOF, the parties have executed this License the day and year first above
w-ritten.
CITY:LICENSEE:
CITY OF PALO ALTO (LICENSOR)OMNIPOINT COMMUNICATIONS, INC., a
Delaware corporation, d/b/a T-MOBILE
By:
Assistant City Manager
By:
David Gallacher
Its: Vice President. West Re~ion
ATTEST:
By:
City Clerk
By:
Christopher Eldridge
Its: Director of Re2ional Development I
APPROVED AS TO FORM:
By:
Senior Asst. City Attorney
RECOMMENDED FOR APPROVAL:
By:
Real Property Manager
990630 lsj C8t42982A 16
EXHIBIT A
GENERAL CONDITIONS
1.DEFINITIONS
CITY shall mean the City Council of the City of Palo Alto, a municipal corporation.
The City Manager is hereby authorized to take any actions under this License on behalf of CITY
except for termination of this License.
Clauses in this License refer to specific officers or employees of CITY. Should these positions be
eliminated or the title changes, it is understood and a~eed that such references shall be considered
to be to the new title for renamed positions or to the replacement official designated with the
responsibilities of any eliminated position. Any reference to a City officer or employee includes a
reference to the officer’s or employee’s designated representative.
2.PARTNERSHIP/CORPORATE AUTHORITY & LIABILITY
If LICENSEE is a partnership, each general partner:
A.represents and warrants that the parmership is a duly qualified partnership authorized to do
business in Santa Clara Count3,; and
B.shall be jointly and severally liable for performance of the terms and provisions of this
License.
If LICENSEE is a corporation, each individual signing this License on behalf of LICENSEE
represents and warrants that;
No he is duly authorized to do so in accordance with an adopted Resolution of LICENSEE’S
Board of Directors or in accordance with the Bylaws of the corporation; and
B.LICENSEE is a d~ly qualified corporation authorized to do business in State of California.
3.TIME
Time is of the essence of this License.
4.SIGNS
990630 lsj C8142982.1 17
LICENSEE agrees not to construct, maintain, or allow any sign to be placed upon the PR~MISES
except as may be approved by CITY. Unapproved signs, banners, etc., may be removed by CITY.
5.PERMITS AND LICENSES
LICENSEE shall be required to obtain any and all permits and!or licenses which may be required in
counection with the operation of.. and any approved LICENSEE construction upon, the PREMISES
as set forth in this License.
6.MECHANICS LIENS
LICENSEE shall at all times indemnify and save CITY harmless from al! claims for labor or
materials supplied in connection with construction, repair, alteration, or installation of structures,
improvements, equipment, or facilities within the PREMISES, and from the cost of defending
against such claims, including attorney fees. LICENSEE shall provide CITY with at least ten (10)
days written notice prior to commencement of any work which could give rise to a mechanics lien
or stop notice. CITY reselwes the right to enter upon PREMISES for the purposes of posting
Notices of Non-Responsibility.
In the event a lien is imposed upon the PREMISES as a result of such construction, repair,
alteration, or installation, LICENSEE shall either:
A.Record a valid Release of Lien; or
Deposit sufficient cash with CITY to cover the amount of the claim on the lien in question
and authorize payment to the extent of said deposit to any subsequent judgment holder that
may arise as a matter of public record from litigation with regard to lienholder claim; or
Co Procure and record a bond in accordance with Section 3143 of the Civil Code, which
releases the PREMISES from the claim of the lien from any action brought to foreclose the
lien.
Should LICENSEE fail to accomplish one of the three optional actions within fifteen (15) days after
the filing of such a lien, the License shal! be in default and may be subject to immediate termination.
7.LICENSE ORGANIZATION AND RULES OF CONSTRUCTION
Words of the masculine gender shall be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context other~,v-ise indicates, words importing the singular
number shall include the plural number and vice versa, and words importing persons shall include
corporations and associations, including public bodies, as well as natura! persons.
The terms "hereby", "hereof", "hereto", "herein", "hereunder" and any sinailar terms, as used in this
agreement, refer to this agreement.
All the terms and provisions hereof shal! be construed to effectuate the purposes set forth herein,
and to sustain the validity hereof.
The titles and headings of the sections of this agreement have been inserted for convenience of
reference only, are not to be considered a part hereof and shall not in any way modify or restrict any
of the terms of provisions hereof or be considered or given any effect in construing this agreement
or any provision hereof in ascertaining intent, if any question of intent shall arise.
8.AMENDMENTS
This License sets forth all of the agreements and understandings of the parties and any modifications
must be written and properly executed by both parties.
9.UNLAWFUL USE
LICENSEE agrees that no improvements shall be erected, placed upon, operated, nor maintained
within the PREMISES, nor any business conducted or carried on therein or therefrom, in violation
of the terms of this License, or of any regulation, order of law-, statute, or ordinance of a
governmental agency having jurisdiction over LICENSEE’S use of the PREMISES.
10.NONDISCRIMINATION
LICENSEE and its employees shall not discriminate against any person because of race, color,
religion, ancestry, age, sex, national origin, disability, sexual preference, housing status, marital
status, fanailial status, weight or height of such person. LICENSEE shall not discriminate against
any employee or applicant for employment because of race, color, religion, ancestry, sex, age,
national origin, disability, sexual preference, housing status, marital status, familial status, weight or
height of such person. LICENSEE covenants that in all of the activities LICENSEE conducts or
allows to be conducted on the licensed PREMISES, LICENSEE shall accept and enforce the
statements of policy set forth in Palo Alto Municipal Code Section 9.73.010 regarding hmnan rights
and nondiscrimination. If LICENSEE is found in violation of the provisions of Palo Alto
Municipal Code Section ~.73.010 by a court or administrative body of competent jurisdiction or in
violation of the nondiscrimination provision of the State of California Fair Employment Practices
Act or similar provisions of federal law or executive order in the conduct of its activities under this
License by the State of California Fair Emplo?anent Practices Commission or the equivalent federal
agency or officer, it shal! thereby be found in .default under this License, and such default shall
constitute a material breach of this License. CITY shall then have the power to cancel or suspend
this License in whole or part.
990630 lsj C8142982.1 19
11.INSPECTION
CITY’S employees and agents shall have the right at all reasonable times to inspect the PREMISES
to determine if the provisions of this License are being complied with provided that reasonable prior
v,a’itten notice has been provided to LICENSEE to allow LICENSEE to accompany any such
inspection. Notwithstanding the foregoing, CITY shall not, and shall not have the right to, touch or
othel~ise interfere with an of LICENSEE’s equipment, fixtures, or improvements located within the
PREMISES.
12.HOLD HARMLESS
LICENSEE hereby agrees to indemnify, hold harmless and defend CITY, its officers, agents and
employees against any and all claims, liability, demands, damages and costs (including reasonable
attorneys’ fees (collectively "Claims") to the extent caused by LICENSEE except to the extent such
Claims are caused by the sole or gross negligence or w~llful misconduct of CITY, its officers,
agents and/or employee’s.
13.TAXES AND ASSESSMENTS
This License may create a possessory interest which is subject to the payment of taxes levied on
such interest. It is understood and agreed that all taxes and assessments (including but not limited to
the possessory interest tax) which become due and payable upon the PREMISES or upon fixtures,
equipment, or other property installed or constructed thereon, shall be the full responsibility of
LICENSEE and LICENSEE shall pay the taxes and assessments prior to delinquency.
14.SUCCESSORS IN INTEREST
Unless otherwise provided in this License, the terms, covenants, and conditions contained herein
shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties
hereto, all of whom shall be jointly and severally liable hereunder.
15.CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (FORCE MAJEURE)
If either party hereto shall be delayed or prevented from the performance of any act required
hereunder by reason of acts of God, restrictive governmental laws or regulations, or other cause
w-ithout fault and beyond the control of the party obligated (financial inability excepted),
performance of such act sha!l be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the period of such delay.
16. PARTIAL INVALIDITY
If may term, covenant, condition, or provision of this License is determined to be invalid, void, or
990630 lsj C8142982.1 20
unenforceable, b~v a court of competent jurisdiction, the remainder of the provisions hereof shall
remain in ful! force and effect and shall in no way be affected, impaired, or invalidated thereby.
17.WAIVER OF RIGHTS
The failure of CITY or LICENSEE to insist upon strict performance of any of the terms, covenants,
or conditions of this License shall not be deemed a waiver of any right or remedy that CITY or
LICENSEE may have, and shall not be deemed a waiver of the right to require strict performance of
all the terms, covenants, and conditions of the License thereafter, nor a waiver of any remedy for the
subsequent breach or default of any term, covenant, or condition of the License.
18.COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT
In the event either CITY or LICENSEE commences legal action against the other claiming a breach
or default of this License, the prevailing party in such litigation shall be entitled to recover from the
other cost of sustaining such action, including reasonable attorney fees, as may be fixed by the
Court.
19.RESERVATIONS TO CITY
The PREMISES are accepted "as is" and "where is" by LICENSEE subject to any and all existing
easements, and encumbrances. CITY reserves the right to install, lay, construct, maintain, repair,
and operate such sanitary sewers, drains, storm water sewers, pipelines, manholes, and connections;
water, oil, and gas pipelines; telephone and tele~aph power lines; and the applications and
appurtenances necessary or convenient for connection therewith, in, over, upon, through, across and
along the PREMISES or any part thereof., and to enter the PREMISES for any and all such purposes.
CITY also reserves the right to grant franchises, easements, rights of way, and permits, in, over,
upon, through, across, and along any and all portions of the PREMISES. Notwithstanding anything
to the contrary contained here, no right reserved by CITY in this clause shall be so exercised as to
interfere mxreasonably with LICENSEE’S operation hereunder.
CITY agrees that rights ~anted to third parties by reason of this clause shall contain provisions that
the surface of the land shall be restored as nearly as practicable to the original condition upon the
completion of any construction.
20. HOLDING OVER
ha the event LICENSEE shall continue in possession of the PREMISES after the term of the
License, such possession shall not be considered a renewal of this License but a tenancy from month
to month and shall be governed by the conditions, and covenants contained in this License.
990630 lsj C8142982.1 21
21.CONDITION OF PREMISES UPON TERMINATION
Upon telTnination of this License, except as otherwise agreed to herein, LICENSEE shall redeliver
possession of the PREMISES to CITY in substantially the sane condition that existed immediately
prior to LICENSEE’S occupancy, reasonable wear and tear, flood, earthquake, war, and any act of
war or other casualty beyond the control of LICENSEE excepted.
22. DISPOSITION OF ABANDONED PERSONAL PROPERTY
If LICENSEE abandons the PREMISES or is dispossessed thereof by process of law or otherwise,
title to any personal property belonging to LICENSEE and left on the PREMISES forty-five (45)
days after such abandonment or dispossession shal! be deemed to have been transferred to CITY.
CITY shall have the right to remove and to dispose of such property without liability therefor to
LICENSEE or to any person claiming under LICENSEE, and shall have no need to account therefor.
23.RELINQUISMENT OF LICENSEE’S INTEREST UPON TERMINATION
Upon termination of this License for any reason, including but not limited to tennination because of
default by LICENSEE, LICENSEE shall, at CITY’S request execute, ac -knowledge and deliver to
CITY "adthin five (5) days after receipt of written demand thereof, a w~-itten document, signed by an
official recognized under Section 313 of the California Corporations Code, certifying LICENSEE’s
relinquishment of the PREMISES. Should LICENSEE fail or refuse to deliver the required
certification to CITY, CITY may prepare and record a notice reciting the failure of LICENSEE to
execute, acknowledge and deliver such certification and the notice shall be conclusive evidence of
the termination of this License, and of all right of LICENSEE or those claiming under LICENSEE
in and to the PREMISES.
24. CITY’S RIGHT TO RE-ENTER
LICENSEE agrees to yield and peaceably deliver possession of the PREMISES to CITY on the date -
of termination of this License, whatsoever the reason for such termination.
Upon giving written notice of termination to LICENSEE, CITY shall have the right to re-enter and
take possession of the PREMISES on the date such termination becomes effective without further
notice of any "kind and without institution of regular legal proceedings. Termination of the License
and re-ent13, of the PREMISES by CITY shall in no way alter or diminish any obligation of
LICENSEE under the License telTns and shall not constitute an acceptance or stm’ender.
LICENSEE waives any and all rights of redemption under any existing or future law or statute in the
event of eviction from or dispossession of the PREMISES for any reason or in the event CITY re-
enters and law-fully re-takes possession of the PREMISES.
990630 lsj C8142982.1 22
25.CONFLICT OF INTEREST
LICENSEE warrants and covenants that no official or employee of CITY nor any business entity in
which any official or employee of CITY is interested: (1) has been employed or retained to solicit or
aid in the procuring of tl~s agreement; or (2) will be employed in the performance of this agreement
without the divulgence of such fact to CITY. In the event that CITY determines that the
employment of any such official, employee or business entity is not compatible with such official’s
or employee’s duties as an official or employee of CITY, LICENSEE upon request of CITY shall
ilrnnediately terminate such employment. Violation of this provision constitutes a serious breach of
this License and CITY may terminate this License as a result of such violation.
26.EMINENT DOMAIN
In the event the whole or any part of the PREMISES are condemned by a public entity in the law-ful
exercise of its power of eminent domain, this License shall cease as to the part condemned. The
date of such termination shall be the effective date of possession of the whole or part of the
PREMISES by the condemning public entity. CITY shall be entitled to and shall receive all
compensation related to the condemnation of al! or part of the PREMISES by the exercise of
eminent domain.
27.CHANGES IN PRICE INDICES
Clauses contained in this License may provide for adjustment based on the Consumer Price Index,
component indices, or other indices. Should these indices be changed, altered or cease to be
published, the following conditions shall apply:
No If the subject index is changed so that the base year differs from that used as of the month in
which the term commences, the subject index shall be converted in accordance with the
conversion factor published by the publisher of that index;
If the subject index is discontinued or revised during the License term, such index shall be
replaced by another govermnent index or computation which will obtain substantially the
same result as would be obtained if the subject index had not been discontinued or revised.
28.POST-ACQUISITION LICENSE
LICENSEE hereby acknowledges that its occupancy of the PREMISES is subsequent to acquisition
of the PREMISES by CITY. LICENSEE further understands and agees that as a post-acquisition
LICENSEE, LICENSEE is not eligible and furthermore waives all claims for relocation assistance
and benefits under federal, state or local law.
990630 Isj C8142982.1 __...3
29.HAZARDOUS SUBSTANCES
No Definition. As used herein, the term "Hazardous Materials" means any substance or material
which has been determined by any state, federal or local governmental authority to be
capable of posing risk of injury-to health, safety, and property, including petroleum and
petroleum products and all of those materials and substances designated as hazardous or
toxic by the U.S. Environmental Protection Agency, the California Water Quality Control
Board, the U.S. Department of Labor, the California Department of Industrial Relations, the
California Department of Health Services, the California Health and Welfare Agency in
connection with the Safe Water and Toxic Enforcement Act of 1986, the U.S. Department of
Transportation, the U.S. Department of Agriculture, the U.S. Consumer Product Safety
Commission, the U.S. Department of Health and Human Services, the U.S. Food and Drug
Administration or any other govermnental agency now or hereafter authorized to regulate
materials and substances in the environment. Without limiting the generality of the
foregoing, the term "Hazardous Materials" shall include all of those materials and substances
defined as "toxic materials" in Sections 66680 through 66685 of Title 22 of the California
Code of Regulations, Division 4, Chapter 20, as the same may be amended from time to
time.
LICENSEE’S USE of PREMISES. Dm’ing the term of this LICENSE, LICENSEE shall
abide and be bound by all of the follov, dng requirements:
LICENSEE shall comply w4th all laws now- or hereafter in effect relating to the use
of Hazardous Materials on, under or about the PREMISES, and LICENSEE shall not
contaminate the PREMISES, or its subsurfaces, with any Hazardous Materials.
ii.LICENSEE shall restrict its use of Hazardous Materials at the PREMISES to those
kinds of materials that are normally used in constructing telecommunications
systems. Disposal of any Hazardous Materials at the Premises are strictly prohibited.
Storage of such permissible Hazardous Materials is allowed only in accordance with
all applicable laws now or hereafter in effect. All safety, and monitoring features of
any storage facilities shall be approved by CITY’S Fire Chief in accordance with all
laws.
iii.
iv.
LICENSEE shall be solely and fully responsible for the reporting of all Hazardous
Materials releases to the appropriate public agencies, when such releases are caused
by or result from LICENSEE’S activities on the PREMISES. LICENSEE shall
immediately inform CITY of any release of Hazardous Materials, whether or not the
release is in quantities that would otherwise be reportable to a public agency.
LICENSEE shall be solely and fully responsible and liable for any such releases
9906301~ C8142982.1 24
which are caused by LICENSEE at the Premises, or into CITY’S sewage or storm
drainage systems. LICENSEE shall take all necessary precautions to prevent any of
its Hazardous Materials from entering into any storm or sewage drain system or from
being released on the Premises. LICENSEE shall remove releases of its Hazardous
Materials in accordance with all laws. In addition to all other rights and remedies of
CITY hereunder, if the release of Hazardous Materials caused by LICENSEE is not
removed by LICENSEE within ninety (90) days after discovery by LICENSEE,
CITY or any other third party, CITY may pay to have the same removed and
LICENSEE shall reimburse CITY for such costs within five (5) days of CITY’S
demand for payment.
City represents that it has no knowledge of any Hazardous Materials on or under the
PREMISES or PROPERTY. LICENSEE wil! not introduce or use any such
substance on the PREMISES in violation of any applicable law-. CITY shall
indemnify and hold LICENSEE harmless from and against all claims, actions,
damages, fines, liabilities, costs and expenses (including attorneys= and expert fees)
arising, directly or indirectly, from the deposit of any Hazardous Materials on or
under the PROPERTY or the PREMISES prior to the commencement of the
LICENSE, unless said materials were actually deposited on the PROPERTY or
PREMISES by LICENSEE. This obligation to indemnify LICENSEE shall include
damages, costs and expenses incurred in connection with any investigation, cleanup,
remediation, monitoring, removal or restoration related to the presence of any
substance. This indemnity shall survive the expiration or termination this LICENSE.
LICENSEE shall indemnify and hold harmless CITY from and against all claims,
actions, damage, fines, liabilities, costs and expenses (including attorneys’ and expert
fees) arising, directly or indirectly, from he deposit by LICENSEE of any Hazardous
Materials on or under the PREMISES during the LICENSE term, unless said
materials were actually deposited onto the PREMISES by CITY; provided however,
that this indemnity shall not apply to claims, actions, damages, fines, liabilities, costs
and expenses, (including attorneys’ and expert fees) arising from vandalism to the
PREMISES by third parties. This obligation to indemnify CITY shall include
damage, costs and expenses incurred in connection with any investigation, cleanup,
remediation, monitoring, removal or restoration related to the presence of any
substance. This indemnity shall survive the expiration or ten~aination of this
LICENSE.
vi.LICENSEE’S and CITY’s obligations under this Clause shall survive the expiration
or earlier termination of this LICENSE.
30.ALL COVENANTS ARE CONDITIONS
All provisions of the License are expressly made conditions.
990630 lsj C8t42982.1 25
31.PARTIES OF INTEREST
Nothing in this agreement, expressed or implied, is intended to, or shall be construed to, confer
upon or to give to any person or party other than CITY and LICENSEE the covenants, condition or
stipulations hereof. All covenants, stipulations, promises and agreements in this License shall be for
the sole and exclusive benefit of CITY and LICENSEE.
990630 lsj C8142982.1 26
PG&E COLORADO
SF-14366