Loading...
HomeMy WebLinkAboutStaff Report 13845 ŝƚLJŽĨWĂůŽůƚŽ;/ηϭϯϴϰϱͿ ŝƚLJŽƵŶĐŝů^ƚĂĨĨZĞƉŽƌƚ  DĞĞƚŝŶŐĂƚĞ͗ϭϮͬϭϯͬϮϬϮϭ City of Palo Alto Page 1 dŝƚůĞ͗ƉƉƌŽǀĂůŽĨĂ>ŝĐĞŶƐĞŐƌĞĞŵĞŶƚtŝƚŚEĞǁŝŶŐƵůĂƌtŝƌĞůĞƐƐW^͕>>͕ ƚŽŽŶƚŝŶƵĞKƉĞƌĂƚŝŶŐƚŚĞŽŵŵƵŶŝĐĂƚŝŽŶƐ^ŝƚĞŽŶƚŚĞŝƚLJKǁŶĞĚWƌŽƉĞƌƚLJ >ŽĐĂƚĞĚĂƚϭϬϴϮŽůŽƌĂĚŽǀĞŶƵĞ &ƌŽŵ͗ŝƚLJDĂŶĂŐĞƌ >ĞĂĚĞƉĂƌƚŵĞŶƚ͗ĚŵŝŶŝƐƚƌĂƚŝǀĞ^ĞƌǀŝĐĞƐ ZĞĐŽŵŵĞŶĚĂƚŝŽŶ Staff recommends that Council approve and authorize the City Manager to execute the attached license agreement between the City of Palo Alto and New Cingular Wireless PCS, LLC, to permit New Cingular Wireless PCS to continue operating the communications site at the City owned property located at 1082 Colorado Avenue. ĂĐŬŐƌŽƵŶĚ The City is the owner of the real property located at 1082 Colorado Avenue (Assessor Parcel Number 127-36-039). On December 28, 2000, New Cingular Wireless PCS’ predecessor entered into a license agreement with the City for the development and operation of a telecommunication facility on a portion of the property (CMR 450:00). Verizon and T-Mobile also operate a communication site on the property. The New Cingular Wireless PCS premises are within an approximate 160 square foot ground space located beneath the legs of a Pacific Gas & Electric (PG&E) transmission tower. The premises are improved with an equipment shelter with base station equipment and coaxial cables connected to the cellular telephone antennas placed on the tower. The term of the existing agreement expired on January 19, 2021 and New Cingular Wireless PCS has been in a month-to-month tenancy since January 20, 2021. The parties desire to enter into a new license agreement to permit New Cingular Wireless PCS to continue operating the communications site at the premises. ŝƐĐƵƐƐŝŽŶ Staff has negotiated a license agreement to grant New Cingular Wireless PCS the right to continue using the premises as a communications site for a five-year initial term that will be extended automatically for an additional five-year term, unless either party provides the other party with written notice of intent not to extend the then-current term. New Cingular Wireless PCS has agreed to pay $67,000 as a license fee in consideration for use of the premises during the first year with 3% annual increases. If New Cingular Wireless PCS wants to add another carrier to the premises, New Cingular Wireless PCS shall pay the City 50% of the revenue from 17 Packet Pg. 221 City of Palo Alto Page 2 their new agreement with the co-locating carrier if revenues exceed the license fee due from New Cingular Wireless PCS to the City.  ZĞƐŽƵƌĐĞ/ŵƉĂĐƚ The proposed license will generate $67,000 in rental income to the City for the first year which will be collected in the General Fund, and this amount is scheduled to increase 3% annually. New Cingular Wireless PSC will also pay a one-time license preparation fee of $1,600, due to the City within 45 days of the effective date of the license. These estimated revenues are accounted for annually as part of the budget process.  WŽůŝĐLJ/ŵƉůŝĐĂƚŝŽŶƐ 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. dŝŵĞůŝŶĞ The initial term shall commence upon full execution of the license and end on the date that is five years thereafter. The initial term will be extended automatically for an additional five-year term for a projected total term of ten years. ^ƚĂŬĞŚŽůĚĞƌŶŐĂŐĞŵĞŶƚ The Utilities Department manages the adjacent Colorado Substation and has approved the new agreement. ŶǀŝƌŽŶŵĞŶƚĂůZĞǀŝĞǁ 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. ƚƚĂĐŚŵĞŶƚƐ͗ • ƚƚĂĐŚŵĞŶƚϭϳ͘Ă͗Attachment A: License Agreement 17 Packet Pg. 222 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 1 LICENSE AGREEMENT This license agreement (this “Agreement”), is entered into as of the last date signed by all Parties below (the “Effective Date”), by the CITY OF PALO ALTO, a California chartered municipal corporation (the “City”), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, (the “Licensee”) (individually, a “Party”; collectively, the “Parties”), in reference to the following: RECITALS: A. The City owns real property located at 1082 Colorado Avenue and West Bayshore Road, Palo Alto, California 94303, commonly referred to as the Colorado Substation or Assessor Parcel Number 127-36-039 (the “Property”), as more particularly described in Exhibit B, attached hereto and made a part hereof. B. The Property is not located in the public right-of-way and the City is licensing the Property in its proprietary capacity; thus neither 47 U.S.C. Sections 253, 332(c)(7) or 1455(a), the FCC rules promulgated thereunder, nor California Government Code Section 65964.1 applies to this License Agreement or the City’s decision to license the Property to Licensee. C. Pacific Gas and Electric Company (“PG&E”), by an easement agreement with the City, has installed and operates a transmission tower (the “Tower”) and electric transmission lines on or about the Property. D. The City and Licensee’s predecessor entered into that certain License Agreement (the “2000 License”), dated as of December 28, 2000, to permit operation of a communications site (“WCFs”) within an approximate 160 square foot ground space located beneath the legs of the Tower (“Premises”), shown and described more particularly in Exhibit C attached hereto and made a part hereof. E. The Premises are improved with an equipment shelter with base station equipment and coaxial cables connected to the cellular telephone antennas placed on the Tower, shown and described more particularly in Exhibit D attached hereto and made a part hereof. F. WHEREAS, the term of the 2000 License expired on January 19, 2021. Licensee has been in a month-to-month tenancy since January 20, 2021 and the City has accepted rent during such period; G. As of the Effective Date, the Parties desire to terminate the month-to-month tenancy under the 2000 License. The Parties mutually desire to enter into this new Agreement to permit Licensee to continue operating the WCFs at the Premises after the 2000 License expired on January 19, 2021, under the covenants, terms and conditions (the “Provisions”) set forth below. 17.a Packet Pg. 223 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 2 AGREEMENT: In consideration of Recitals A through G, which are made a substantive part of this Agreement, and the following Provisions, the Parties agree, as follows: Section 1.0 PREMISES 1.1 Subject to the Provisions hereof, the City grants to the Licensee a right to continue to use the Premises, 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, for purposes of operating the WCFs. 1.2 City hereby consents to Licensee’s continued use of the Tower for placement of Licensee’s antennas and related equipment on the Tower pursuant to the pursuant to a separate license agreement with PG&E. Section 2.0 PURPOSE 2.1 The purpose of this Agreement is to provide for the continuation of the uninterrupted service, installation, replacement, maintenance, modification, upgrade and operation of the WCFs at the Premises at the Licensee’s sole cost and expense. Section 3.0 ALLOWABLE SERVICES AND USES 3.1 Permitted Uses. The Licensee may use the Premises to provide the following: A. During the Term, the Licensee shall use the Premises for the purpose of installing, removing, replacing, repairing, maintaining, modifying, upgrading and operating, at its sole cost and expense, the WCFs. The WCFs consist of radio, telephone and communications equipment and antennas installed and used to transmit and receive communications signals. B. The Licensee’s uses of the Property and the Premises shall be subject to the following terms and conditions: 1. The Licensee’s use of the Property is non-exclusive, and its use of the Premises is exclusive. 2. The Licensee’s operations at the Premises shall comply at all times with all applicable laws, rules and regulations regarding electromagnetic emissions. The Licensee shall conduct reasonably necessary tests after its WCFs are constructed at the Premises to ensure that its WCFs are in 17.a Packet Pg. 224 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 3 compliance with all applicable laws, rules and regulations regarding electromagnetic emissions. The tests shall be conducted by a licensed professional engineer, and the written results of such tests shall be delivered to the City’s Real Property Manager consistent with section 16.2 of this Agreement. 3. The City agrees that Licensee’s ability to use the Premises is contingent upon the suitability of the Premises and Property for the permitted use and Licensee’s ability to obtain and maintain all government approvals. The City authorizes Licensee to prepare, execute and file all required applications to obtain government approvals for its permitted use and agrees to reasonably assist Licensee with such applications and with obtaining and maintaining the government approvals. 4. In constructing and operating its WCFs, the Licensee shall comply with and include the following items in its plans and operating procedures for its facilities: a. The 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. b. The Licensee shall operate the Premises in a manner that will not cause interference to the City as of the Effective Date, including, but not limited to, any irrigation system and landscaping installed by the City. Prior to any construction at the Premises, the Licensee shall coordinate its placement of its WCFs to ensure that placement does not conflict with the City’s irrigation systems and landscaping. The Licensee shall repair any damage to the City’s property to the extent caused by the construction of its WCFs, including, but not limited to, any damage caused to the City’s irrigation system and landscaping. c. The Licensee’s operations shall at all times be conducted in compliance with all applicable federal, state and local laws, rules and regulations, including, but not limited to, laws and regulations regarding environmental and occupational safety and all Federal Communications Commission (“FCC”) requirements. The Licensee shall submit all required hazardous materials filings (if required) and obtain all required approvals prior to installing its batteries or any other hazardous materials. d. Prior to engaging in any new construction at the Premises, the Licensee shall provide the City with evidence that all permits required from any 17.a Packet Pg. 225 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 4 agencies having pre-construction jurisdiction over the proposed development, including but not limited to building permits and street opening permits, have been authorized and are available. e. The Licensee shall post a visible, prominent notice on the Premises listing its emergency procedures, warnings, and emergency contacts. f. The Licensee shall maintain all improvements that it places at the Premises. g. CITY will not grant a lease, license or other rights to use the Property to any party if such new use would unreasonably interfere with Licensee’s operation of the Premises during the Term and in accordance with this Agreement. Any future lease, license or other grant of rights to use the Property which permits the installation of communications equipment shall be conditioned upon not unreasonably interfering with Licensee’s operation of its WCFs during the Term and in accordance with this Agreement. 3.2 Restricted Uses. The above-referenced services and uses shall be the only services and uses permitted at, on, or from the Premises. The Licensee shall not use the Premises for any other purpose, or to engage in, or permit, any other business activity within or from the Premises. Section 4.0 TERM; EXTENSION OF TERM 4.1 This Agreement shall be effective and binding on the Parties as of the Effective Date. The initial term (“Initial Term”) of this Agreement shall commence on the Effective Date (the “Commencement Date”), and end on the date that is five (5) years thereafter (the “Expiration Date”). 4.2 The Initial Term will be extended automatically for an additional five (5) year term ( “Extension Term”), unless either Party provides the other Party with written notice of intent not to extend the then-current term. In order to be effective, such notice must be delivered, consistent with Section 16 of this Agreement, no later than three (3) months prior to the expiration of the then-current term. The Initial Term and Extension Term shall collectively be referred to as “the Term.” Section 5.0 LICENSE FEE; PAYMENT PROCEDURE; LATE PAYMENT FEE 5.1 Fees. A. License Fees. Licensee shall pay the City a license fee (the “License Fee”) of 17.a Packet Pg. 226 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 5 Sixty Seven Thousand and 00/100 Dollars ($67,000.00) per year (adjusted annually as provided herein) as consideration for Licensee’s use of the Premises, which shall become due and payable in accordance with the payment procedures set forth in section 5.2 below. The License Fee will increase by three percent (3.0%) each anniversary of the Commencement Date. B. License Preparation Fee. The Licensee shall pay a one-time fee of One Thousand Six Hundred Dollars ($1,600.00) (the “Preparation Fee”) to the City. The Preparation Fee shall be due within forty-five (45) days of the Effective Date of this Agreement. C. Failure to pay. The Licensee shall be deemed in default and subject to Termination provisions of section 14 of this Agreement and/or Late Payment Fee provisions of section 5.3 if the License Fee or any other payment hereunder is not paid when due; provided, however, that City will give Licensee notice by calling AT&T’s TAG-LA Department at (877) 231-5447, and an opportunity to cure any failure to pay the License Fee within thirty (30) days of any such notice and Licensee agrees that such notice shall be in lieu of and not in addition to any notice required by law. D. All rent paid by Licensee to the City during the month-to-month tenancy pursuant to the 2000 License shall be credited to such months of the month-to-month tenancy, as applicable, and any excess rent paid or shortfall of rent to be paid shall be applied to future payments of rent due under this Agreement. The obligation to make rent payments in the amount required under the 2000 License shall terminate effective as of the Commencement Date of this Agreement. 5.2 Payment Procedures A. License Fee Payment Schedule. 1. First Year. The License Fee for the first year shall be paid to the City within forty-five (45) days of the Effective Date of this Agreement. 2. Subsequent Years. For all subsequent contract years, the License Fee shall be due and payable on the anniversary of the Commencement Date. In the event this Agreement expires or is otherwise terminated, the City will not return any portion of the License Fee. B. Payment Delivery. The License Fee shall be made payable by check or other negotiable instrument to “CITY OF PALO ALTO” and delivered to or at City of Palo Alto, Attn.: Revenue Collections Division, 250 Hamilton Avenue, Palo Alto, 17.a Packet Pg. 227 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 6 CA 94301. The designated place of payment may be changed at any time by the City upon thirty (30) days’ prior written notice to the Licensee. C. No Waiver. The Licensee agrees that the City’s acceptance of any applicable ‘late paid’ or ‘incorrect amount’ License Fee shall not constitute a waiver by the City of any default or breach and shall not bar the City from enforcing its right to collect the Late Payment Fee or exercising any other remedy provided in this Agreement or by applicable law. D. Rental Documentation. The City hereby agrees to provide to Licensee a complete and fully executed Internal Revenue Service Form W-9 upon execution of this Agreement, and from time to time during the Term of this Agreement upon Licensee’s written request. 5.3 Late Payment Fee. If the City does not receive payment of the License Fee or the Application Fee within thirty (30) days of the applicable fee’s date due, or payment of any other sum then due and payable by the Licensee as specified in this Agreement, then the Licensee shall pay a fee equal to ten percent (10%) per annum or the maximum rate permitted under California or federal law, if the aforesaid rate exceeds such maximum, of the applicable fee then due and payable yet remaining unpaid (the “Late Payment Fee”) plus an administrative fee of forty-five dollars ($45.00) or any fee established by the Municipal Fee Schedule, whichever fee is higher (the “Administrative Fee”). The total sum of all outstanding fees (as applicable, the License Fee, the Application Fee, the Late Payment Fee, the Administrative Fee or the Overhead Fee) then due and owning shall become immediately due and payable to the City. A. The City’s acceptance of any fee or fees due and payable by the Licensee that is or are paid late shall in no event constitute a waiver of the Licensee’s default with respect to such overdue payment, nor shall the Licensee’s failure to pay bar the City from exercising any other rights and remedies granted hereunder or by any provision of law. Section 6.0 MAINTENANCE AND REPAIR 6.1 WCF Maintenance and Repairs. The Licensee, at its sole cost and expense, shall perform its WCF’s maintenance and repairs, including, without limitation, 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 satisfaction of the City, and in compliance with all applicable laws, during the Term. 6.2 Other Maintenance and Repairs. 17.a Packet Pg. 228 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 7 A. The Licensee shall maintain, at its expense, all equipment, trade fixtures and any other improvements it installs at the Premises that are required for the maintenance and operation of the Premises. The Licensee waives the right to make repairs at the expense of the City and the benefit of the provisions of Sections 1941 and 1942 of the California Civil Code relating thereto; and further agrees that if and when any repairs, alterations, additions or betterments shall be made by the Licensee as required by this Agreement, the Licensee 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. B. If the Licensee fails to commence any repairs or perform any maintenance work, for which it is responsible hereunder, within thirty (30) days of receipt of written notice from the City, the City shall have the option to make the repairs and invoice the Licensee for those costs, and the Licensee shall within thirty (30) days of receipt of a bill therefor from the City’s Real Property Manager, reimburse the City for the cost of such repairs, which payment shall include a fifteen percent (15%) administrative overhead fee (the “Overhead Fee”). The City’s performance of such repairs or performance of maintenance shall in no event be construed as a waiver of the duty of the Licensee to make repairs or perform maintenance as required by this Agreement. Section 7.0 CONSTRUCTION AND/OR ALTERATION BY THE LICENSEE 7.1 City’s Consent. A. A WCF currently exists on the Premises in approximately the configuration shown on the plans attached at Exhibit D. No other WCFs or other facilities shall be constructed, nor shall the existing WCF be modified without the prior written consent of the City (which may act in either or both its proprietary capacity as Licensor or its regulatory capacity in enforcing City ordinances, resolutions, policies, rules or regulations). The Parties acknowledge that, to the extent the City acts in its proprietary capacity, neither 47 U.S.C. Sections 253, 332(c)(7) or 1455(a), the FCC rules promulgated thereunder, nor California Government Code Section 65964.1 applies to the City’s decision to approve modifications to the existing WCF. B. Notwithstanding paragraph A, the Licensee may replace, substitute or modify any part of the WCFs without the City’s consent provided that such replacements, substitutions and modifications are contained within the Licensee’s equipment enclosure or do not materially alter the size or weight of the Licensee’s improvements at the Premises and provided that the Licensee complies with applicable City ordinances, resolutions, policies, rules and regulations relating to zoning approvals and building permits applicable to the WCFs. 17.a Packet Pg. 229 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 8 7.2 Trade Fixtures. The Licensee may, at any time and at its sole cost and expense and without the City’s consent, install and place business fixtures and equipment within any structure at the Premises, provided that written notice of such fixtures and their installation have been provided to the City’s Real Property Manager. 7.3 Building Permit Final Inspection. Upon completion of construction of any building, structure, or facility, the Licensee shall submit to the City’s Real Property Manager, a copy of the building permit issued to the Licensee, which shows the final inspection has been completed and approved, in writing, by the City. Section 8.0 OWNERSHIP OF IMPROVEMENTS 8.1 Improvements to Real Property. All improvements constructed, erected or installed at the Premises must be free and clear of all liens, claims, or liability for labor or material. Upon the expiration or earlier termination of this Agreement, the City at its option may require the Licensee to remove its improvements including, but not limited to, the foundations, and may further require the Licensee to repair to the satisfaction of the City any damage to the Premises caused by such removal within one hundred twenty (120) days after the Licensee’s receipt of the City’s request that the Licensee shall remove such improvements; provided, that the Licensee may be required to remove up to a depth of one (1) foot below grade underground conduit installed by Licensee during the Term and provided that the Licensee receives the City’s request to remove such improvements within thirty (30) days from the expiration or earlier termination of this Agreement. 8.2 Personal Property. Title to all equipment, furniture, furnishings and trade fixtures placed by the Licensee at the Premises shall remain the property of the Licensee, and replacements, substitutions and modifications thereof may be made by the Licensee during the Term. The Licensee will remove all of its equipment, fixtures and furnishings within ninety (90) days after the expiration or earlier termination of this Agreement (the “Removal Period”), provided that the Licensee shall repair to the reasonable satisfaction of the Real Property Manager any damage to the Premises and improvements caused by such removal. A. The City acknowledges the Licensee may enter into financing arrangements, including issuance of promissory notes and financial and security agreements for the financing of the 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, City consents to the assignment of rights in the Collateral, disclaims any interest in the Collateral, as fixtures or otherwise, and agrees the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any license fee or any other fee due or to become due and payable to the City, and such Collateral 17.a Packet Pg. 230 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 9 may be removed at any time without recourse to legal proceedings. Section 9.0 “AS BUILT” PLANS 9.1 Upon completion of any major Licensee-constructed improvements, the Licensee shall provide the City’s Real Property Manager with a complete set of reproducible "as built plans," reflecting the actual construction at the Premises. Section 10.0 DAMAGE TO OR DESTRUCTION OF PREMSES 10.1 If the Premises are, in whole or in part, damaged or destroyed, then: A. If wholly damaged or destroyed so that the Premises are rendered permanently unusable for reconstruction of a WCF site, this Agreement shall terminate and the Licensee shall be liable for the License Fee up to the time of such damage or destruction and any License Fee pre-paid by the Licensee shall be returned on a pro-rata basis; or B. If only partially damaged or destroyed and still usable for construction or use as a WCF, the Licensee shall, within a reasonable time, not to exceed thirty (30) days from the date of the Licensee’s receipt of notice of the damage or destruction, notify the City, in writing, of its intent to either: 1. terminate this Agreement, in which case Licensee shall be liable for the License Fee only up to the time of City’s receipt of Licensee’s notice and any License Fee prepaid by the Licensee applicable to the period after receipt of such notice shall be returned to the Licensee, or 2. continue operating under this Agreement, in which case, the Licensee within a reasonable time shall repair the Premises and the WCFs, with a proportional and reasonable reduction of the License Fee from the date notice is received from the City until the date the Premises and the WCFs are usable Section 11.0 UTILITIES CHARGES 11.1 Payment Required. The Licensee shall pay, prior to delinquency, all charges for utilities goods and services delivered or supplied to the Premises for Licensee’s use by the City at the rate charged by the City’s Department of Utilities and/or Department of Public Works or any other City department. Section 12.0 INSURANCE 12.1 General. Unless the City’s insurance risk manager agrees, in writing, to accept the 17.a Packet Pg. 231 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 10 Licensee’s self-insurance in fulfillment of these insurance requirements, the Licensee shall carry and maintain at all times during the Initial Term and the Extension Term, if any, commercial general liability insurance, as per ISO form CG 00 01 or equivalent, commercial automotive liability insurance protecting the Licensee in an amount of two million dollars ($2,000,000) per occurrence (combined single limit), including death, bodily injury and property damage, and two million dollars ($2,000,000) aggregate, for each personal injury or death liability, products-completed operations, and each accident, and pollution legal liability self-insurance in the amount of $2,000,000 per claim and in the aggregate covering third party claims for bodily injury, property damage or cleanup costs as required by law, where the pollution is caused during and by Licensee’s operations under this Agreement. Such insurance, with the exception of Licensee’s pollution self-insurance, pursuant to ISO Form No. CG2010 or CG 2037 or equivalent, shall include the City, its council members, officers, employees, and agents as an additional insured by endorsement as respects liability caused, in whole or in part, by the Licensee’s negligent performance of any work that it performs or may be authorized to perform under this Agreement. Coverage shall be provided in accordance with the limits specified and the Provisions indicated herein. Claims-made policies are not acceptable. Such limits may be satisfied by a combination of primary and umbrella/excess policies. Licensee will provide at least 30 days written notice to the City of cancellation or non- renewal of any required coverage that is not replaced. 12.2 Certificates. The Licensee shall file the required original certificate(s) of insurance and/or letter of self-insurance with blanket additional insured endorsements with the City’s insurance risk manager, with a copy to the City’s Real Property Manager. The certificate(s) shall clearly state or provide: A. Policy number; name of insurance company; name, address and telephone number of the agent or authorized representative; name and address of insured; project name and address; policy expiration date; and specific required coverage amounts; and B. That the Licensee’s required insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have. 12.3 Notice. The certificate(s) of insurance with blanket additional insured endorsements and/or letter of self-insurance and notices shall be mailed to: (a) City of Palo Alto, Attn.: Real Property Manager, P.O. Box 10250, Palo Alto, CA 94303; and (b) City of Palo Alto, Attn: Risk Manager, P.O. Box 10250, Palo Alto, CA 94303. 12.4 Other Coverage. Unless the City permits the Licensee to self-insure, the Licensee shall carry and maintain at all times during the Initial Term and the Extension Term, if any, statutory workers’ compensation and employer’s liability insurance or qualify as a self- 17.a Packet Pg. 232 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 11 insurer in an amount of one hundred thousand dollars ($100,000) per accident/ per disease, per employee/ per disease, policy limits or such other amounts as required by Law, and furnish the City with a certificate showing proof of such coverage. 12.5 Insurance Rating. Any insurance provider of the Licensee shall be authorized to do business in California and shall be rated at least A-:VII in Best’s Key Rating Guide. 12.6 Section 13.0 ASSIGNING, SUBLICENSING, AND ENCUMBRANCES 13.1 Transfers. This Agreement conveys no property rights in the Property or the Premises except as specifically provided herein to the Licensee. Licensee shall not, without the prior written consent of City, mortgage, pledge, hypothecate, encumber, assign, or permit any lien to attach to, or otherwise transfer, this License or any interest hereunder, permit any assignment, or other transfer of Licensee’s interest in this License or any interest hereunder by operation of law, or enter into any license agreement or otherwise permit the occupancy or use of the Premises or any part thereof by any person other than Licensee (all of the foregoing are hereinafter sometimes referred to collectively as “Transfers” and any person to whom any Transfer is made or sought to be made is hereinafter sometimes referred to as a “Transferee”). Any Transfer requiring City’s consent which is made without City’s prior written consent shall be null, void, and of no effect. City hereby acknowledges that, in accordance with FCC regulations, Licensee’s wireless network supports and permits the roaming of subscribers from competing carriers, and such roaming is hereby specifically allowed to occur at the WCF and will not be deemed a Transfer or Sublicense. If Licensee desires City’s consent to any new Transfer, Licensee shall notify City in writing, which notice (the “Transfer Notice”) shall include (i) the proposed effective date of the Transfer, which shall not be less than thirty (30) days nor more than one (1) year after the date of delivery of the Transfer Notice, (ii) a description of the portion of the Premises to be transferred (the “Subject Space”), and (iii) the name and address of the proposed Transferee and documentation pertaining to the proposed Transfer, including all existing operative documents to be executed to evidence such Transfer or the agreements incidental or related to such Transfer. Whether or not City consents to any proposed Transfer, Licensee shall pay City’s reasonable review and processing fees, as well as any reasonable professional fees (including, without limitation, attorneys’, accountants’, architects’, engineers’ and consultants’ fees) incurred by City (collectively, the “Review Fees”) within thirty (30) days after Licensee’s receipt of the itemized invoice for such Review Fees by City. This Agreement is personal to the Licensee; any unrelated third party Transferee shall apply for a new agreement with the City upon the expiration or earlier termination of this 17.a Packet Pg. 233 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 12 Agreement. 13.2 Sublicenses. Licensee shall not, without the prior written consent of City, sublicense the Premises or any part thereof, or enter into any license agreement or otherwise permit the occupancy or use of the Premises or any part thereof by any person other than Licensee (all of the foregoing are hereinafter sometimes referred to collectively as “Sublicense” and any person to whom any Transfer is made or sought to be made is hereinafter sometimes referred to as a “Sublicensee”). Any Sublicense requiring City’s consent which is made without City’s prior written consent shall be null, void, and of no effect. 13.3 Sublicense Revenue. If City consents to a Sublicense, as a condition thereto which the parties hereby agree is reasonable, Licensee shall pay to City fifty percent (50%) of “Sublicense Revenue,” when due by Sublicensee from such Sublicense (“Sublicense Premium”). “Sublicense Revenue” shall mean all rent or additional rent payable by a Sublicensee. 13.4 Effect of Sublicense. If City consents or had previously consented to a Sublicense, (i) the terms and conditions of this License shall in no way be deemed to have been waived or modified, (ii) such consent shall not be deemed consent to any future Sublicense by either Licensee or a Sublicensee, (iii) Licensee shall deliver to City, promptly after execution, an original executed copy of all documentation pertaining to the Sublicense, including amendments, in form reasonably acceptable to City, (iv) Licensee shall furnish a complete statement, certified by an independent certified public accountant, or Licensee’s chief financial officer, setting forth in detail the computation of any Sublicense Revenue Licensee has derived and shall derive from such Sublicense, and (v) no Sublicense relating to this License or agreement entered into with respect thereto, whether with or without City’s consent, shall relieve Sublicensee from any liability under this License, including, without limitation, in connection with the Subject Space. City or its authorized representatives shall have the right to audit the books, records, and papers of Licensee relating to any Sublicense, and shall have the right to make copies thereof. If the Sublicense Revenue respecting any Transfer shall be found understated, Licensee shall, within thirty (30) days after demand, pay the deficiency, and if understated by more than two percent (2%), Licensee shall pay City’s reasonable costs of such audit. 13.5 Occurrence of Default. Any Sublicense hereunder shall be subordinate and subject to the provisions of this Agreement, and if this Agreement shall be terminated during the term of any Sublicense, City shall have the right to: (i) treat such Sublicense as cancelled and repossess the Subject Space by any lawful means upon the expiration of the Removal Period, or (ii) require that such Sublicensee attorn to and recognize City as its landlord under any such Sublicense. If Licensee shall be in default, City is hereby irrevocably authorized to direct any Transferee to make all payments under or in connection with the Sublicense directly to City (which City shall apply towards Licensee’s obligations under this License) until such default is cured. Such Sublicensee shall rely on any 17.a Packet Pg. 234 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 13 representation by City that Licensee is in default hereunder, without any need for confirmation thereof by Licensee. No collection or acceptance of rent by City from any Sublicensee shall be deemed a waiver of any provision of this Section 13 or the approval of any Sublicensee or a release of Licensee from any obligation under this License, whether theretofore or thereafter accruing. In no event shall City’s enforcement of any provision of this License against any Sublicensee be deemed a waiver of City’s right to enforce any term of this Agreement against Licensee or any other person. 13.6 Transfer to an Affiliate. Notwithstanding anything to the contrary in this Agreement, including without limitations Sections 13.1, 13.2, 13.3, and 13.4, Licensee shall have the right to assign its rights under this Agreement without the City’s consent, in whole or in part, to any of its parent companies, subsidiaries, affiliates, or successor legal entities, or to any entity acquiring substantially all the assets of the Licensee in the market defined by the Federal Communications Commission in which the Property is located, or as otherwise permitted by applicable law (each, a “Permitted Assignment”). As used herein, “affiliates” means an entity which is controlled by, controls, or is under common control with, Licensee. Licensee shall deliver written notification of any such assignment within thirty (30) days following the assignment and shall further provide City written documentation showing that any such assignee has affirmatively assumed all the relevant obligations under this Agreement, arising from and after the date of such assignment with respect to the portion of the rights assigned. Section 14.0 TERMINATION OF AGREEMENT 14.1 Termination by the City. A. The City may terminate this Agreement upon the occurrence of any of the following events: 1. Upon a breach by the Licensee regarding any provision of this Agreement, other than late payment of License Fee, which the Licensee has not commenced to cure within thirty (30) days of receipt of written notice of default from the City. 2. If the 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 if the 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 the Licensee. 17.a Packet Pg. 235 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 14 3. If the City determines, in its sole and reasonable discretion, that it requires the Property or Premises or any portion thereof for security reasons due to federal, state or local law or regulation related to the design, maintenance or protection of critical infrastructure, or as otherwise may be necessary to protect the safety of City’s critical infrastructure facilities. City agrees to provide Licensee with twelve (12) months advanced written notice of any such need for property, except in cases where federal, state or local law or regulation require the City to act sooner. City will make a good faith effort to work with Licensee to identify an alternative location reasonably acceptable to the Parties and Licensee shall be allowed, if necessary, in Licensee’s reasonable determination, to place a temporary installation on the Property in a mutually agreeable location until the earlier to occur of (a) Licensee’s WCF on such alternative location is operational, or (b) the expiration of twenty-four (24) months after the date Licensee first installed such temporary installation. B. Upon the occurrence of any of the events described in this section, the City may: 1. In the event of a Licensee default after any applicable cure or grace period has expired, at the 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 actually incurred by the City, shall become due and payable by the Licensee within thirty (30) days of Licensee’s receipt of notice; 2. Seek an action or suit in equity to enjoin any acts or things which may be unlawful or in violation of the rights of the City; 3. Seek a mandamus or other suit, action or proceeding at law or in equity to enforce its rights against the 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 agreements with the City, as provided herein; or 4. Pursue any other remedy available by law or specifically provided in this Agreement. C. Notwithstanding anything to the contrary contained herein however, in the event of a Licensee default or breach which cannot reasonably be cured within the specified period of thirty (30) days, the Licensee shall have such additional period of time as Licensee reasonably to cure any default or breach of this Agreement provided Licensee has commenced curing within such period and pursues the cure 17.a Packet Pg. 236 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 15 with reasonable diligence. Each and all of the remedies given to the 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 the 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, the Parties 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. 14.2 Termination of this Agreement by the Licensee. A. Licensee may terminate this License at any time upon 180 days prior written notice to the City, provided that in the event of such early termination, no portion of the then current year's License Fee shall be refunded to the Licensee. B. If the Licensee and PG&E do not enter into the PG&E License or the PG&E License expires or terminates, the Licensee may terminate this Agreement, which termination shall be effective upon the receipt of notice of termination delivered to City. C. Upon a breach by the City regarding any provision of this Agreement, which the City has not commenced to cure within thirty (30) days of receipt of written notice of default from Licensee. Section 15.0 RESERVED Section 16.0 NOTICES 16.1 All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder to be given by either Party to the other, shall be in writing and shall be sufficiently given and served upon the other Party if (1) sent by United States Postal Service certified mail, postage, prepaid, or (2) sent by express delivery service, or (3) by e-mail. Delivery of notices properly addressed shall be deemed complete when the notice is physically delivered or upon refusal of delivery by the City’s Real Property Manager or the City Clerk or by the Licensee. 16.2 All notices issued pursuant to this Agreement shall be addressed as set forth below or as either Party may subsequently designate by thirty (30) days prior written notice. TO: CITY City of Palo Alto Attn.: Real Property Manager 17.a Packet Pg. 237 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 16 250 Hamilton Avenue Palo Alto, CA 94301 real.property@cityofpaloalto.org With copies to: City of Palo Alto Attn.: City Clerk 250 Hamilton Avenue Palo Alto, CA 94301 City.clerk@cityofpaloalto.org and City of Palo Alto Attn.: City Attorney 250 Hamilton Avenue Palo Alto CA 94301 City.attorney@cityofpaloalto.org TO: LICENSEE Email: releaseadmin@att.com New Cingular Wireless PCS, LLC Attn.: TAG - LA Re: Cell Site #: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA); Fixed Asset No.: 10097075 1025 Lenox Park Blvd. NE 3rd Floor Atlanta, GA 30319 With a required copy to: New Cingular Wireless PCS, LLC Attn.: Legal Department Re: Cell Site #: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA); Fixed Asset No.: 10097075 208 S. Akard Street Dallas, Texas, 75202-4206 Section 17.0 ATTACHMENTS TO AGREEMENT 17.a Packet Pg. 238 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 17 17.1 This Agreement includes the following exhibits, which are attached hereto and by this reference incorporated into this Agreement: Exhibit A – General Conditions Exhibit B – Legal Description of the Property Exhibit C – Site Survey and Plan Exhibit D – Existing Antenna Configurations 17.2 Exhibit A (GENERAL CONDITIONS) contains standard City general conditions applicable to this Agreement; in the event of a conflict between the foregoing clauses in this Agreement and the provisions of Exhibit A, the foregoing clauses shall take precedence. [Signatures Appear on the Following Page] 17.a Packet Pg. 239 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 18 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CITY: City of Palo Alto, a California chartered municipal corporation By: ______________________________ Name: ____________________________ Title: _____________________________ Date: _____________________________ APPROVED AS TO FORM: By: ______________________________ Name: ____________________________ Title: _____________________________ Date: _____________________________ ATTEST: By: ______________________________ Name: ____________________________ Title: _____________________________ Date: _____________________________ LICENSEE: New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: ______________________________ Name: ____________________________ Title: _____________________________ Date: _____________________________ 17.a Packet Pg. 240 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 19 EXHIBIT A GENERAL CONDITIONS 1. GENERAL: “City” also shall mean the Council of the City of Palo Alto. Clauses in this Agreement refer to specific officers or employees of the 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 the Licensee is a partnership, each general or limited 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 Agreement. If the Licensee is a corporation, each individual signing this Agreement on behalf of the Licensee represents and warrants that; A. he is duly authorized to do so in accordance with an adopted Resolution of the Licensee's Board of Directors or in accordance with the Bylaws of the corporation; and B. The Licensee is a duly qualified corporation authorized to do business in State of California. 3. TIME Time is of the essence of this Agreement. 4. SIGNS The Licensee agrees not to construct, maintain, or allow any sign to be placed upon the Premises except as may be approved by the City. Unapproved signs, banners, etc., may be removed by the City. 17.a Packet Pg. 241 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 20 5. PERMITS AND LICENSES The 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 set forth in this Agreement. The City authorizes Licensee to prepare, execute and file all required applications to obtain such permits and/or licenses and agrees to reasonably assist Licensee with such applications and with obtaining and maintaining the permits and/or licenses. 6. MECHANICS LIENS The Licensee shall at all times indemnify and save the City harmless from all claims for labor or materials supplied to the extent arising from the Licensee’s construction, repair, alteration, or installation of structures, improvements, equipment, or facilities within the Premises, and from the cost of defending against such claims, including reasonable attorney feesThe Licensee shall provide the 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. Upon at least forty-eight (48) hours’ notice to the Licensee, the City reserves the right to enter upon the Premises for the purposes of posting Notices of Non-Responsibility; the Licensee may accompany the City’s representative during any such entry. In the event a lien is imposed upon the Premises as a result of such construction, repair, alteration, or installation by the Licensee, the Licensee shall either: A. Record a valid release of lien; or B. Deposit sufficient cash with the 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 C. Procure and record a bond in accordance with Section 8424 of the Civil Code, which releases the Premises from the claim of the lien from any action brought to foreclose the lien. Should the Licensee fail to accomplish one of the three optional actions within s after the filing of such a lien, Licensee shall be deemed in breach of this Agreement and the City may terminate this Agreement according to the provisions of Section 14 of the Agreement. 7. 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 17.a Packet Pg. 242 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 21 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 Agreement 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 The 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 Agreement, or of any regulation, order of law, statute, or ordinance of a governmental agency having jurisdiction over the Licensee’s use of the Premises. 10. NONDISCRIMINATION The 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, familial status, weight or height of such person. The 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. The Licensee covenants that in all of the activities the licensee conducts or allows to be conducted on the Premises, the Licensee shall accept and enforce the statements of policy set forth in Palo Alto Municipal Code Section 9.73.010 regarding human rights and nondiscrimination. If the Licensee is found in violation of the provisions of Palo Alto Municipal Code Section 9.73.010 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 Agreement 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 Agreement, and such default shall constitute a material breach of this Agreement. The City shall then have the power to cancel or suspend this Agreement in whole or part. 17.a Packet Pg. 243 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 22 11.INSPECTION The City’s employees and agents shall have the right at all reasonable times to inspect the Premises to determine if the provisions of this Agreement are being complied with provided that (i)reasonable prior written notice has been provided to the Licensee in accordance with this subsection and Section 16 of the Agreement, to allow the Licensee to accompany any such inspection and (ii) Licensee’s equipment is highly sensitive and is subject to federal requirements such that any entry onto the Premises be restricted. Accordingly, City’s employee’s and/or agents shall not enter the Premises (other than in an emergency) unless it has given Licensee twenty-four (24) hours’ actual notice. Notwithstanding the foregoing, the City shall not, and shall not have the right to, touch or otherwise interfere with any of the Licensee’s equipment, fixtures, or improvements located within the Premises. 12.HOLD HARMLESS The Licensee agrees to indemnify, hold harmless and defend the City, its officers, agents and employees against any and all claims, liability, demands, damages and costs (including reasonable attorneys' fees) (collectively, the “Claims”) to the extent arising out of the negligence, recklessness or willful misconduct of the Licensee, except to the extent such Claims are caused by the negligence, recklessness or willful misconduct of the City, its officers, agents, contractors and/or employees. 13.TAXES AND ASSESSMENTS This Agreement 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 the Licensee’s fixtures, equipment, or other property installed or constructed thereon by the Licensee, shall be the full responsibility of the Licensee and the Licensee shall pay the taxes and assessments prior to delinquency. For any tax amount for which Licensee is responsible under this Agreement, Licensee shall have the right to contest, in good faith, the validity or the amount thereof using such administrative, appellate or other proceedings as may be appropriate in the jurisdiction, and may pay the tax under protest, or take such other steps as permitted by law. 14.SUCCESSORS IN INTEREST Unless otherwise provided in this Agreement, the terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the Parties hereto. 15.CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (FORCE MAJEURE) 17.a Packet Pg. 244 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 23 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 Agreement 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 the City or the Licensee to insist upon strict performance of any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of any right or remedy that either Party 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 Agreement thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant, or condition of this Agreement. 18. COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT In the event either Party commences legal action against the other Party claiming a breach or default of this Agreement, 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 the Licensee subject to any and all existing easements, and encumbrances. The 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, though, across and along the Premises. Notwithstanding anything to the contrary contained here, no right reserved by the City in this clause shall be so exercised as to interfere unreasonably with the Licensee’s operation hereunder. The 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. 17.a Packet Pg. 245 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 24 20. HOLDING OVER In the event the Licensee shall continue in possession of the Premises after the expiration or earlier termination of this Agreement, such possession shall not be considered a renewal of this Agreement but a tenancy from month to month and shall be governed by the conditions, and covenants contained in this Agreement. 21. CONDITION OF PREMISES UPON TERMINATION Upon termination of this Agreement or within one hundred twenty (120) days thereof in accordance with the terms of this Agreement, except as otherwise agreed to herein, the Licensee shall redeliver possession of the Premises to the City in substantially the same condition that existed immediately prior to the Licensee’s occupancy, reasonable wear and tear, flood, earthquake, war, and any act of war or other casualty beyond the control of the Licensee excepted. 22. DISPOSITION OF ABANDONED PERSONAL PROPERTY If the Licensee abandons the Premises, as defined by applicable law, or is dispossessed thereof by process of law or otherwise, title to any personal property belonging to the Licensee and left on the Premises for at least ninety (90) days after such abandonment or dispossession shall be deemed to have been transferred to the City. The City shall have the right to remove and to dispose of such property without liability therefor to the Licensee or to any person claiming under the Licensee, and shall have no need to account therefor. 23. RELINQUISMENT OF THE LICENSEE'S INTEREST UPON TERMINATION Upon termination of this Agreement for any reason, including but not limited to termination because of default by the Licensee, the Licensee shall, at the City’s request execute, acknowledge and deliver to the City within thirty (30) days after receipt of written demand thereof, a written document, signed by an official recognized under Section 313 of the California Corporations Code, certifying the Licensee’s relinquishment of the Premises. Should the Licensee fail or refuse to deliver the required certification to the City, and the Parties are not then in any dispute or in disagreement regarding termination of this Agreement or an event of breach or default hereunder, the City may prepare and record a notice reciting the failure of the Licensee to execute, acknowledge and deliver such certification and the notice shall be conclusive evidence of the termination of this Agreement, and of all right of the Licensee or those claiming under the Licensee in and to the Premises. 24. CITY'S RIGHT TO RE-ENTER The Licensee agrees to yield and peaceably deliver possession of the Premises to the City after 17.a Packet Pg. 246 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 25 the removal period described in Section 8.1. Upon giving written notice of termination to the Licensee in accordance with the terms of this Agreement, the City shall have the right to re-enter and take possession of the Premises after the removal period described in Section 8.1. Termination of the Agreement and re-entry of the Premises by the City shall in no way alter or diminish any obligation of the Licensee under the Agreement terms and shall not constitute an acceptance or surrender. The 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 the City re-enters and lawfully re-takes possession of the Premises. 25. CONFLICT OF INTEREST The Licensee warrants and covenants, to the best of its knowledge, that no official or employee of the City nor any business entity in which any official or employee of the City is interested: (1) has been employed to solicit or aid in the procuring of this Agreement to Licensee’s reasonable knowledge; or (2) will be employed in the performance of this Agreement without the divulgence of such fact to the City. In the event that the 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 the City, the Licensee upon request of the City shall immediately terminate such employment. Violation of this provision constitutes a serious breach of this Agreement and the City may terminate this Agreement as a result of such violation. 26. EMINENT DOMAIN In the event the whole or any part of the Premises is condemned by a public entity in the lawful exercise of its power of eminent domain, this Agreement 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. The 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. Licensee will each be entitled to pursue its own separate awards in the condemnation proceeds, which may include, where applicable, the value of its WCFs, moving expenses, prepaid License Fees, and business dislocation expenses. 27. [Intentionally deleted.] 28. Intentionally deleted. 29. HAZARDOUS SUBSTANCES A. Definition. As used herein, the term "Hazardous Materials" means any 17.a Packet Pg. 247 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 26 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 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. B. USE OF PREMISES. During the Term, the Licensee shall abide and be bound by all of the following requirements: 1. The 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 the Licensee shall not contaminate the Premises, or its subsurfaces, with any Hazardous Materials in violation of applicable law. 2. The Licensee shall restrict its use of Hazardous Materials at the Premises to those kinds of materials that are normally used in constructing and operating communications facilities. 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 the City’s Fire Chief in accordance with all laws. 3. The 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 the Licensee’s activities at the Premises. The Licensee shall immediately inform the City of any release of Hazardous Materials by Licensee, whether or not the release is in quantities that would otherwise be reportable to a public agency. 4. The Licensee shall be solely and fully responsible and liable for any such 17.a Packet Pg. 248 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 27 releases which are caused by the Licensee at the Premises, or placed into the City’s sewage or storm drainage systems by Licensee. The 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. The Licensee shall remove releases of its Hazardous Materials in accordance with all laws. In addition to all other rights and remedies of the City hereunder, if the release of Hazardous Materials caused by the Licensee is not removed by the Licensee or the Licensee has not commenced removal within ninety (90) days after the Licensee’s receipt of written notice from the City or any other third party, the City may pay to have the same removed and the Licensee shall reimburse the City for such costs actually incurred within thirty (30) days of the City’s demand for payment. 5. The City represents that it has no knowledge of any Hazardous Materials on or under the Premises or the Property. The City will not introduce or use any such substance at the Premises or the Property in violation of any applicable law. The City shall indemnify and hold the 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 during the Term, unless said materials were actually deposited on the Property or the Premises by the Licensee. This obligation to indemnify the 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 Agreement. The Licensee shall indemnify and hold harmless the City from and against all claims, actions, damage, fines, liabilities, costs and expenses (including reasonable attorneys’ and expert fees) arising, directly or indirectly, from the deposit by the Licensee of any Hazardous Materials on or under the Property or the Premises during the Term, unless said materials were actually deposited onto the Property or the Premises by the 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 by either Party 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 Agreement. 6. Each Party’s obligations under this clause shall survive the expiration or 17.a Packet Pg. 249 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 28 earlier termination of this Agreement. 30. ALL COVENANTS ARE CONDITIONS All provisions of the Agreement are expressly made conditions. 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 the City and the Licensee the covenants, condition or stipulations hereof. All covenants, stipulations, promises and agreements in this Agreement shall be for the sole and exclusive benefit of the City and the Licensee. 32. INTERFERENCE The Licensee agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then-existing industry standards to any equipment of the City or other licensees of the Property which existed on the Property prior to the date this Agreement is executed by the Parties, provided such party (the City or an existing licensee) operate within their permitted frequencies and in accordance with all applicable laws and regulations. In the event any after-installed the Licensee’s equipment causes such interference, and after the City has notified the Licensee in writing of such interference, the Licensee will take all commercially reasonable steps necessary to correct and eliminate the interference, including but not limited to, at the Licensee’s option, powering down such equipment and later powering up such equipment for intermittent testing. In no event will the City be entitled to terminate this Agreement or relocate the equipment as long as the Licensee is making a good faith effort to remedy the interference issue. The City agrees that the City and/or any other licensees or tenants of the Property who in the future take an interest in the Property will be permitted to install only such equipment that is of the type and frequency which will not cause harmful interference which is measurable in accordance with then-existing industry standards to the then-existing equipment of the Licensee and such future lease or agreement shall contain a similar interference obligation as is included in this Agreement. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Section and therefore, either Party shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance. 17.a Packet Pg. 250 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 29 EXHIBIT B LEGAL DESCRIPTION OF THE PROPERTY 17.a Packet Pg. 251 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 30 EXHIBIT C SITE SURVEY AND PLAN (Attached hereto) 17.a Packet Pg. 252 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 31 17.a Packet Pg. 253 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 32 17.a Packet Pg. 254 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 33 17.a Packet Pg. 255 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 34 EXHIBIT D EXISTING ANTENNA CONFIGURATIONS (Attached hereto) 17.a Packet Pg. 256 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 35 17.a Packet Pg. 257 Market: San Francisco/Sacramento/Reno Cell Site Number: CNU1822 Cell Site Name: Hwy 101 Palo Alto (CA) Fixed Asset Number: 10097075 Page 36 17.a Packet Pg. 258