HomeMy WebLinkAbout2000-12-18 City Council (22)TO:
FROM:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL 15
CITY MANAGER DEPARTMENT: ADMINISTRATIVE
SERVICES
DATE:DECEMBER 18, 2000 CMR: 450:00
SUBJECT:LICENSE TO BAY AREA CELLULAR TELEPHONE COMPANY FOR
PLACEMENT OF TELECOMMUNICATIONS FACILITIES ON
PROPERTY LOCATED UNDER A PACIFIC GAS & ELECTRIC
TOWER ON THE SOUTH SIDE OF COLORADO AVENUE NEAR
THE INTERSECTION OF COLORADO AVENUE AND SIMKINS
COURT
RECOMMENDATION
Staff recommends that Council hold a public hearing and approve the attached license from
the City of Palo Alto to Bay Area Cellular Telephone Company (Cellular One now AT&T
Wireless) for the development and operation of telecommunications facilities under a Pacific
Gas & Electric (PG&E) tower on city-owned property on the south side of Colorado Avenue
near the intersection of Colorado Avenue and Simkins Court (see Attachment A).
BACKGROUND
On November 17, 1997, Council approved a set of four telecommunications policy
statements as a first step in the development and implementation of a comprehensive
telecommunications policy for Palo Alto. On May 8, 2000, Council 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 March 6, 2000, Council approved the contract with Miller
and Van Eaton to advise the City on the development of a telecommunications policy. The
consultants have analyzed the City’s processes for managing the public right of way and
regulating the siting of wireless facilities. The consultant is in the process of working with
the City staff to develop an ordinance to modify the City’s processes as necessary and
establish the City’s telecommunications policy. Staff estimates that a draft ordinance and
policy will be ready to present to Council in early 2001.
CMR: 450:00 Page 1 of 3
DISCUSSION
Attachment B lists the telecommunications policy statements approved by Council in
November 1997. Policy 4, which addresses the use of City-owned and leased property for
telecommunications infrastructure, recognizes that City land and facilities could be used to
support the competitive delivery of telecommunications 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-owned 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. As yet, specific sites have not
been designated; however, pending the completion of the telecommunications policy, staff
has worked with Cellular One under current City policy to facilitate its request for use of City
property to improve service to its customers. Cellular One has also agreed to relocate its
facilities if the location turns out to be incompatible with the telecommunications policy
when adopted.
The cellular, wireless facilities proposed to be placed on the site consist of three antennas
mounted on the existing PG&E tower and ground equipment covering an area of
approximately 160 square feet, to be placed under the tower within its footprint. The land is
owned by the City; and PG&E, under agreement with the City, operates electric transmission
lines on the City’s property. Cellular One 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
ground equipment consists of an enclosed equipment cabinet, which is fully self serviced,
containing an independent air conditioning unit, electrical supply, and telephone hook up.
In accordance with the intent of Telecommunications Policy #4 to reduce adverse impacts
of telecommunications infrastructure, use of this site by Cellular One has the advantages of
use of an existing tower, which eliminates the need for an additional tower in the area, and
placement of the ground facilities within the footprint of the tower, which results in. little
visual impact.
The site, zoned Public Facility (PF), is already used for utility facilities, and the additional
utility is a permitted use; therefore, a conditional use permit was not required for the project.
The project received ARB approval on August 22, 2000.
Because Cellular One has a license from PG&E for its antenna, staff negotiated a license
rather than a lease for the ground equipment. The primary difference between a lease and
license is that the license permits use but grants no rights to the land. Generally, the attached
license is similar in terms to the above-referenced Council-approved lease with Sprint for the
fire station sites. The terms of the license are summarized in Attachment C. Major terms
include a 5-year term with the option to renew for three additional terms of five years each,
but with the right of the City to terminate at any time with a year’s notice; annual rent of
CMR: 450:00 Page 2 of 3
$12,000 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.
RESOURCE IMPACT
The proposed license will generate annual income to the City in the amount of $12,000 per
year, adjusted annually with changes in the Consumer Price Index.
POLICY IMPLICATIONS
The proposed license is consistent with Policy #4 of the Telecommunications Policy
Statements approved by Council on November 17, 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 by the City.
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.
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Location Map
Telecommunication Policy Statements
Summary of Terms of the Lease
License with Cellular One
PREPARED BY:Janet Freeland
DEPARTMENT HEAD:
CARL YE~-’T~
Director, A~/ninistrative Services
CITY MANAGER APPROVAL:
Assistant City Manager
cc: Bay Area Cellular Telephone Company.
CMR: 450:00 Page 3 of 3
ATTACHMENT A
PR
ANTENNA
LOCATION
EquIPMENT
LOCATION
T~CT
~aTo
/
//
/
/ \
/
LANDS OF THE:
CITY OF PALO ALTO,~
~:~’~\ ,,
PM~O ALTO
ATTACHMENT B
TELECOMMUNICATIONS POLICY STATEMENTS
General - It is the policy of the City of Palo Alto to facilitate the competitive delivery of
conventional and advanced telecommunications services throughout Palo Alto in an
environmentally sound manner, while ensuring cost recovery and enhancement of
revenues derived from the use of the City’s assets.
Siting and installation of New Telecommunications Facilities - The city is the owner
of the public right-of-way over which it has control and the regulatory body for the
development of facilities within its jurisdictional boundaries. It is the policy of the City
to regulate the location and manner of construction, manage the safe, orderly and efficient
use of Palo Alto’s public right-of-way, and to facilitate timely installation of
telecommunications infrastructure in environmentally sound manner.
o Use of Utilities Infrastructure - The City allows the use of Utilities infrastructure and
Utilities-owned or-leased facilities to promote the delivery of telecommunications
services provided that any telecommunications use does not impinge upon the City’s
ability to provide safe and reliable electric, gas, water, wastewater, and storm drainage
services and does not interfere with the City’s planned use of the facility or property.
Use of City Facilities and Property - The City owns and leases property and facilities,
in addition to Utilities facilities, that could be used to support the deployment 0f
affordable telecommunications services while limiting the potential adverse impacts
associated with the development of the necessary infrastructure. It is the policy of the
City to encourage qualified outside parties to use designated City-owned or -leased
property and facilities for siting of telecommunications infrastructure that is compatible
with the primary use of the property, and in a manner that is consistent with City real
estate policy, zoning, legal, environmental, and other requirements as necessary.
Approved by the Palo Alto City Council on November 17, 1997
ATTACHMENT C
Lessor:
Summary of Terms of the License
City of Palo Alto
Tenant:
Bay Area Cellular Telephone Company
Premises:
160 square feet of land located beneath an existing PG&E tower on the south side of Colorado
Avenue near the intersection of Simkins Court.
Purpose:
The purpose of the license is to provide for the installation, maintenance and operation, at
Licensee expense, of a communications site (Cell Site).
Term:
Five years with option to extend for three additional terms of five years each, but with the right
to terminate at any time with one year’s notice.
Consideration/Rent:
$12,000/year, adjusted annually in proportion to the Consumer Price Index
Allowable Use:
Licensee shall use the Premises as a communications site for furnishing 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 so emanate from the facility nor take any action which would disturb,
obstruct or endanger any other occupants or use of the site or interfere with their use.
o
Operation of site shall not cause interference to city or other users of the site, including
any irrigation system installed by city. Prior to construction on the site, Licensee shall
coordinate placement of its facilities so as to not conflict with city’s irrigation systems.
Licensee shall repair any damage to city’sproperty cause by construction of facilities.
Operations to be conducted in compliance with FCC requirements and all laws and
regulations regarding environmental and occupational safety requirements.
Prior to construction on the site, Licensee shall provide the Real Property manager
evidence that all permits from any and all agencies having pre-construction jurisdiction
are authorized and are available, including but not limited to building permits and street
opening permits.
Tenant shall post a notice on the Premises listing its emergency procedures, warnings and
contacts.
Licensee to maintain all improvements it places on the Premises.
Construction or Alteration by Tenant:
Licensee may not make any changes to the property without prior City review and approval.
Maintenance and Repair:
Licensee shall maintain all improvements on the licensed premises.
Assignment/Subletting:
The License conveys no property rights to Licensee; therefore, any assignment or encumbrance
of the license is null and void, provided however, that Licensee shall have 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 30 days of receipt of written notice from City.
Licensee’s in ability to obtain or maintain any required certificate, license easement or
other approval from PG&E.
’2.
3.Any time upon one year notice.
4.Bankruptcy by Licensee
Taxes, Assessments and Utilities:
Tenant shall be responsible for all utilities supplied to the facility and for taxes and assessments
for the Premises.
Insurance:
Tenant shall maintain insurance meeting the City’s standard requirements for insurance
protection.
City Telecommunications Policy:
Licensee agrees it will abide by all lawful terms and conditions of the Telecommunications
Policy adopted by City to the extent it relates to Licensee’s communications facility on the
Premises.
City Telecommunications Policy:
Licensee agrees it will abide by all lawful terms and condition of the Telecommunications Policy adopted by City to
the extent it relates to Licensees communications facility on the Premises.
ATTACHMENT D
LICENSE #
This License Agreement is entered into this __ day of ,2000 between the City of
Palo Alto, a municipal corporation, (CITY) and Bay Area Cellular Telephone Company, a
California general partnership, doing business as AT&T Wireless (LICENSEE).
RECITALS
Ao
Bo
Do
CITY owns a strip of property adjacent to 1078 Colorado Avenue, commonly referred to
as the Sterling Canal (PROPERTY).
Pacific Gas and Electric (PG&E), under agreement with CITY, operates electric
transmission lines along PROPERTY;
LICENSEE desires use a portion of the PROPERTY, the PREMISES (as defined in
Clause I), to operate a communications site within the footprint of a PG&E transmission
tower (TOWER) along the Sterling Canal. LICENSEE intends to install certain antennas
and cables on the TOWER pursuant to a separate License Agreement with PG&E (PG&E
LICENSE), which antennas will be connected to equipment cabinets to be located on the
PREMISES pursuant to the terms and conditions of this License.
CITY agrees 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
Subject to the temas and conditions set forth in this License, CITY grant~ to LICENSEE the fight
to use the portior~ ~REMISES) of the PROPERTY generally described as approximately 160 square
feet of ground space, more particularly described as a ten (10) foot by sixteen (16) foot parcel of
land located beneath 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, and coaxial cables connecting LICENSEE’S equipment shelter to the cellular
telephone antennas to be placed on the TOWER. The PREMISES are described and shown in
"Exhibit B". Exhibit B is attached to and, by this reference, made a part of this License.
The Licensed Premises also include that portion of the PROPERTY, which is also described and
990630 Isj C8142982.1 1
shown in Exhibit B, for the sole purpose of constructing and installing cabling and associated
hardware including utility runs incidental to the communications facilities described earlier in
this Clause I, together with the right to ingress and egress from the nearest public right of way to
the PREMISES 24 hours per day, seven days per week.
CITY hereby consents to LICENSEE’s use of the TOWER for placement of LICENSEE’s
antennas and related equipment on the TOWER pursuant to the PG&E LICENSE.
II. PURPOSE
The purpose of this License is to provide for the installation, maintenance, 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:
No Throughout the term of this License LICENSEE shall use the PREMISES for the purpose
of installing, removing, replacing, maintaining, modifying and operating, at its expense,
one of LICENSEE communications sites (a "Cell Site") for furnishing.telephone, radio
and telecommunications services to the public. A Cell Site is a site at which radio,
telephone and communications equipment and antennas are installed and used to send and
receive radio signals to and from cellular telephones and other radio 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) located at the Cell Site. LICENSEE’S use shall
be subject to the following conditions:
LICENSEE’S operations on the PREMISES shall comply at all times with all
applicable federal laws and regulations regarding electromagnetic emissions.
LICENSEE shall conduct all necessary tests after its Cell Site facilities are
constructed on the PREMISES to ensure that its facilities are in compliance with
those laws an~t 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 include the
following items in its plans and operating procedures for its facilities:
ao 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
9906301~ C81429821 2
endanger any other occupants or use of the site or interfere with their use
of their respective premises.
bo LICENSEE shall operate the communications site in a manner that will
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 Agreement, including but not limited to any irrigation
system installed by CITY. 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
shall 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.
C°CITY will not grant a lease, license or other rights to use the PROPERTY
to any party if such new use would interfere with LICENSEE’S operation
of its Cell Site during the term of and in accordance with this License.
Any future lease, license or other grant of rights to use the PROPERTY
which permits the installation of communication equipment shall be
conditioned upon not interfering with LICENSEE’s operation of the Cell
Site during the term of and in accordance with this License.
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.
eo 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’
agencies having pre-construction jurisdiction over the proposed
development have been authorized and are available.
f.LICENSEE shall post a prominent notice on the PREMISES listing its
emergency procedures, warnings and emergency contacts.
go LICENSEE shall maintain all improvements that it places on the
PREMISES.
990630 Isj C8142982.1 3
Bo Restricted Uses. The above listed services and uses, both required and optional, shall be
the only services and uses permitted upon or from the PREMISES. LICENSEE agrees
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 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 XIX (TERMINATION),
LICENSEE shall have the option to extend this License Agreement for an additional three (3)
terms of five (5) years each if the following conditions have been satisfied:
Ao LICENSEE is not in default hereunder (beyond any grace or cure periods) at the time of
LICENSEE’S exercise of the right to extend.
LICENSEE has submitted to CITY, a written notice of LICENSEE’S intent to extend the
License in accordance with the terms of this clause, on or before six (6) months prior to
the end of the License term set forth in Clause IV (TERM).
This option shall be void if more than three defaults have been noticed, even if the defaults were
corrected during the 30-day period allowed under Clause XIX (TERMINATION).
VI.CONSIDERATION/RENT
License Fee. As partial consideration for use of the PREMISES, LICENSEE agrees to pay to
CITY an annual fee (hereinafter referred to as "Rent") of Twelve Thousand Dollars ($12,000)
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,
990630 14 C81429821 4
(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
A0
No
Co
Do
Concurrently with the execution of this License, LICENSEE shall pay to CITY rent for
the first year of the term as set forth in Clause VI (CONSIDERATION/RENT).
Commencing on the first anniversary of the commencement of the term, on or before
each anniversary of the commencement of the term LICENSEE shall pay to CITY rent as
set forth in Clause VI (CONSIDERATION/RENT), as revised pursuant to Claus6 VII.
Rental payments shall be delivered to the Revenue Collections Division, 250 Hamilton
Avenue, PO Box 10250, Palo Alto, CA 94303. The desigriated place of payment may be
changed at any time by CITY upon ten (10) days written n6tice to LICENSEE. Rental
payments may be made by check made payable to the City of Palo Alto, however,
LICENSEE assumes all risk of loss if payments are made by mail.
Acceptance of Late or Incorrect Rent: LICENSEE specifically agrees 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.
990630 Isj C8142982.1 5
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, 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 any portion of the overdue payment by CITY shall in no event
constitute a waiver of LICENSEE’S default with respect to such overdue payment, 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 agrees that if and when any repairs, alterations, additions or betterments shall
be made by it as required by this paragraph, it shall promptly pay for all labor done or materials
furnished and shall keep the PREMISES free and clear of any lien or encumbrance of any kind
whatsoever. Should LICENSEE fail to make any repairs or perform any maintenance work for
which it is liable, CITY shall have the option to make the repairs, and LICENSEE shall within
ten (10) days of receipt of a bill therefor 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 br performance of maintenance by CITY shall in no eveiat be construed as
a waiver of the duty of LICENSEE to make repairs or perform maintenance as provided in this
clause.
XI.CONSTRUCTION AND/OR ALTERATION BY LICENSEE
CITY’S Consent. No structures, improvements, 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
9906301~ C81429821 6
No
otherwise by the City Manager or designee). LICENSEE shall have the right to construc~
the Cell Site (including the base station radio equipment) in approximately the
configuration shown on the plans attached as Exhibit B (subject to all necessary
architectural review, zoning approvals and buildings 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
additional business fixtures and equipment within any structure on the PREMISES, upon
giving ten days prior written notice 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 Building Permit Final Inspection. Upon completion of construction of any building,
LICENSEE shall submit to the Real Property Manager copy of the Building Permit
showing the final inspection has been completed and is signed off.
XII.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 ofthi’s License.
B. Personal Property.
Title to all equipment, furniture, furnishings and trade fixtures placed by LICENSEE upon the
PREMISES (including without limitation the Cell Site facility) shall remain in LICENSEE, and
replacements, substitutions and modifications thereof may be made by LICENSEE throughout
the term of this License. LICENSEE may remove such fixtures and furnishings upon expiration
of this License if LICENSEE is not then in default under this License, provided that LICENSEE
shall repair to the satisfaction of CITY any damage to the PREMISES and improvements caused
9906301~ C8142982.1 7
by such removal.
XIII.AS BUILT PLANS
Upon completion of any 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 IMPROVEMENTS
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 permanently 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.
XVI. INSURANCE
LICENSEE shall maintain insurance acceptable to CITY in full force and effect throughout the term
of this License.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1)Insurance Services Office Commercial General Liability coverage (occurrence form
CG 0001).
990630 Isj C8142982 I 8
2)
3)
4)
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)COMPREHENSIVE
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
ca. occurrence
(3)COMPREHENSIVE
GENERAL
LIABILITY
including
products and
completed operations,
broad form contractual,
and personal injury.
Bodily Injury
Property Damage
Personal Injury
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
ea. person
ea. occurrence
aggregNe
ea. occurrence
ea. occu~ence
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared tb and approved by the CITY. At the
optic~n 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 procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
Insurance shall be in full force and effect commencing on the first day of the term of this License.
Each insurance policy required by this License shall contain the following clauses:
1."Each insurance policy required by this clause shall be endorsed to state that
990630 lsj C8142982. I 9
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."
"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 employment or appointment."
"The CITY, its officers, officials, employees, agents and volunteers are to be covered
as insureds as respects: liability arising out of activities performed by or on behalf of
the LICENSEE; products and completed operations of the LICENSEE; premises
owned, occupied or used by the LICENSEE; or automobiles owned, Licensed, hired
or borrowed by the LICENSEE. The coverage shall contain no special limitations on
the scope of protection afforded to the CITY, its officers, officials, employees, agents
or volunteers."
"For any claims related to this License, the LICENSEE’s insurance coverage shall be
primary 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."
"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."
Acceptability of Insurers
Insurance is to be’placed with insurers with a current A.M. Best’s rating o~’no less than A:X.
XII. INSURANCE
LICENSEE agrees to deposit with the Real Property Manager, on or before the effective date of this
License, certificates of insurance necessary to satisfy CITY 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
990630 Isj C8142982.1 10
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 0fthe 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 notify LICENSEE in writing of changes in the insurance
requirements. If LICENSEE does not deposit an acceptable certificate of insurance with CITY
incorporating 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 grounds for immediate 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 amount of any damage, injury, or loss caused by or connected with this License or
with use or occupancy of the PREMISES.
XVIII. 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 to any of its subsidiaries, affiliates or successor legal entities br to any
entity acquiring substantially ~11 the assets of LICENSEE.
XIX. TERMINATION OF LICENSE
Termination of the License by CITY.
Notwithstanding Clause IV, CITY may terminate this License upon the occurrence of any of
the following events:
990630 Isj C8142982.1 I 1
Upon a breach or default by LICENSEE of any covenant, condition or agreement
contained in this License, which is not corrected within thirty (30) days of receipt of
written notice of default from CITY;
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
material portion of the property or business of LICENSEE.
Upon the occurrence of any of the events described in paragraphs 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 unlawful 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 l~erform and carry out its duties and obligations under th~
law and its covenants and agreements with CITY as provided herein; or
Pursue any other remedy available by law or specifically provided in other clauses of
his License.
However, in the event of a default which cannot reasonably be cured within 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
990630 lsj C8142982 1 12
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 brought 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 any
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.
In addition, LICENSEE may terminate this License upon a breach or default by CITY of any
covenant, condition or agreement contained in this License, which is not corrected within
thirty (30) days of receipt of written notice of defauk from LICENSEE, provided, however,
in the event of a default which cannot reasonably be cured within thirty (30) days, CITY
shall have a reasonable period of time to cure the default.
XX.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
.Z’Telecommunications Policy"). LICENSEE acknowledges receipt of the City 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:
A. LICENSEE agrees that it will abide by all lawful terms and conditions of the
990630 Isj C8142982.1 13
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 of the 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 written notice
(compliance notice") specifying the items of non-compliance. Such notice shall
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.
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
LICENSSEE, 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 agrees 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 to use the PREMISES previously
permitted ~or use by LICENSEE under the LICENSE.
XXI. NOTICES
All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements,
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
of a facsimile, if sent to the telephone number(s) set forth below during normal business hours of
990630 Isj C8142982.1 14
the receiving party 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 service shall include, without
limitation, service by delivery service and service by facsimile transmission. Delivery 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) 328-3631
and
Bay Area Cellular Telephone Company
651 Gateway Boulevard, Suite 1500
South San Francisco, CA 94080
Attn: Director Site Acquisition
Fax: 650-266-6326
with a copy to:
Mackenzie & Albritton LLP
One Post Street, Suite 500
San Francisco, CA 94104
Attn: Paul B. Albritton
Fax: 415-288-4010
City Attomey, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto CA 94303
FAX: (650) 329’-2646
XXII. ATTACHMENT TO LICENSE
This License includes the following exhibits, which are attached hereto and by this reference
incorporated into this License:
Exhibit A - General Conditions
Exhibit B - Description of Licensed Premises
99063014 C8142982.1 15
The inclusion of clauses in Exhibit A (GENERAL CONDITIONS) is not in any way intended to
lessen the importance 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
written.
CITY:LICENSEE:
CITY OF PALO ALTO (LESSOR)
By:
Mayor
ATTEST:
BAY AREA CELLULAR TELEPHONE COMPANY
By: CMT Partners, a Delaware general partnership
Its: General Partner
By:
City Clerk
APPROVED AS TO FORM:
By:
Senior Asst. City Attorney
RECOMMENDED FOR APPROVAL:
By:
Asst. City Manager
By:
Real Property Manager
9906301NC8142982A 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 agreed 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 partnership is a duly qualified partnership authorized to do
business in Santa Clara County; 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;
A.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 duly qualified corporation authorized to do business in State of California.
As used in this License, the term "LICENSEE" shall include LICENSEE, its
agents, sublessees, concessionaires, or licensees, or any person acting under contract with
LICENSEE; however, the definition of LICENSEE used herein, shall not be construed to authorize
or permit any sublicense or licenses not authorized or permitted elsewhere in this License.
990630 lsj C8142982.1 17
3.TIME
Time is of the essence of this License.
4.SIGNS
LICENSEE agrees not to construct, maintain, or allow any sign to be placed upon the PREMISES
except as may be approved by CITY except as may be required by law. 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
connection 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 all 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 reserves 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
No 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
9906301~C8142982.1 18
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 shall 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 otherwise 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 natural persons.
The terms "hereby", "hereof’, "hereto", "herein", "hereunder" and any similar terms, as used in this
agreement, refer to this agreement.
All the terms and provisions hereof shall 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.
990630 Isj C8142982,1 19
10.NONDISCRIMINATION
LICENSEE and its employees shall not discriminate against any person because of race, color,
religion, ancestry, age, sex, national origin, disability or sexual preference. LICENSEE shall not
discriminate against any employee or applicant for employment because of race, color, religion,
ancestry, sex, age, national origin, disability or sexual preference. LICENSEE covenants to meet all
requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment. If
LICENSEE is found 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 Employment Practices Commission
or the equivalent federal agency or officer, it shall 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 in part.
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, however, that
LICENSEE’S cellular equipment is highly sensitive and is subject to federal requirements such that any
entry onto the PREMISES be restricted. Accordingly, CITY’S employees and/or agents shall not enter
the PREMISES (other than in an emergency) unless it has given LICENSEE twenty-four (24) hours’
actual notice. In case of emergency, CITY shall, to the extent reasonable feasible under the
circumstances, call LICENSEE’S Network Management Center at (800) 481-9500 prior to entering the
PREMISES and shall advise LICENSEE of the nature of any such entry promptly thereafter.
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 arising out of LICENSEE’S occupancy of the PREMISES or LICENSEE’S operation
or maintenance of the facilities placed thereon pursuant to this License, excepting claims arising
from the sole negligence of CITY.
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
990630 lsj C8142982.1 20
-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
without fault and beyond the control of the party obligated (financial inability excepted),
performance of such act shall 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 any term, covenant, condition, or provision of this License is determined to be invalid, void, or
unenforceable, by a court of competent jurisdiction, the remainder of the provisions hereof shall
remain in full 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
99063014 C8142982.1 21
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 telegraph 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. No right reserved
by CITY in this clause shall be so exercised as to interfere unreasonably with LICENSEE’S
operation hereunder.
CITY agrees that rights granted 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
In 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.
21.CONDITION OF PREMISES UPON TERMINATION
Upon termination of this License, except as otherwise agreed to herein, LICENSEE shall redeliver
possession of the PREMISES to CITY in substantially the same condition that existed immediately
prior to LICENSEE’S occupancy, reasonable wear and tear, flood, earthquake, war, and any act of
war 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 shall 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
9906301~ C81429821 22
therefor.
23. RELINQUISMENT OF LICENSEE’S INTEREST UPON TERMINATION
Upon termination of this License for any reason, including but not limited to termination because of
default by LICENSEE, LICENSEE shall, at CITY’S request execute, acknowledge and deliver to
CITY within five (5) days after receipt of written demand thereof, a written 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-entry of the PREMISES by CITY shall in no way alter or diminish any obligation of
LICENSEE under the License ternas and shall not constitute an acceptance or surrender.
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 lawfully re-takes possession of the PREMISES.
25. EMINENT DOMAIN
In the event the whole or any part of the PREMISES are condemned by a public entity in the lawful
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 all or part of the PREMISES by the exercise of
eminent domain.
990630 lsj C8142982.1 23
26. 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:
Ao 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;
Bo If the subject index is discontinued or revised during the License term, such index shall be
replaced by another government index or computation which will obtain substantially the
same result as would be obtained if the subject index had not been discontinued or revised.
27.POST-ACQUISITION TENANCY
LICENSEE hereby acknowledges that its occupancy of the PREMISES is subsequent to acquisition
of the PREMISES by CITY. LICENSEE further understands and agrees 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.
28.HAZARDOUS SUBSTANCES
Ao 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. D@artment of Health and Human Services, the U.S. Food and Drag
Administration or any other governmental 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.
990630 lsj C8142982.1 24
Bo LICENSEE’S USE of PREMISES. During the term of this LICENSE, LICENSEE shall
abide and be bound by all of the following requirements:
ii.
LICENSEE shall comply with 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.
LICENSEE shall restrict its use of Hazardous Materials at the PREMISES to those
kinds of materials that are normally used in constructing personal
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
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 will 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 reasonable 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
9906301~C8142982.1 25
vi.
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 reasonable 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 reasonable
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 termination of this LICENSE.
LICENSEE’S and CITY’S obligations under this Clause shall survive the expiration
or earlier termination of this LICENSE.
29.ALL COVENANTS ARE CONDITIONS
All provisions of the License are expressly made conditions.
30.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.
9906301~C8142982A 26