HomeMy WebLinkAbout07 WIRELESS AGR'MT W/ CINGULAR WIRELESS FOR TUSTIN SPORTS PARKAgenda Item 7
AGENDA REPORT Reviewed:
City Manager
Finance Director ! �A
MEETING DATE: FEBRUARY 18, 2014
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: JOHN BUCHANAN, DEP. DIRECTOR OF ECONOMIC DEVELOPMENT
SUBJECT: COMMUNICATIONS SITE LICENSE AGREEMENT WITH NEW
CINGULAR WIRELESS PCS, LLC FOR EXISTING WIRELESS
FACILITIES AT TUSTIN SPORTS PARK (12850 ROBINSON DRIVE)
SUMMARY
Approval is requested for a Communication Site License Agreement between the City
(Licensor) and New Cingular Wireless PCS, LLC (Licensee) at the Tustin Sports Park.
RECOMMENDATION
It is recommended that the City Council authorize the City Manager to execute the
attached Communications Site License Agreement with New Cingular Wireless PCS, LLC,
a Delaware limited liability company, subject to any non - substantive modifications as may
be deemed necessary by the City Attorney prior to execution of the Agreement.
FISCAL IMPACT
Under the Agreement, Cingular Wireless (Licensee) will pay $36,000 per year ($3,000 per
month) for the right to retain existing facilities and antennas at Tustin Sports Park. The
term of the agreement is 10 years with two 5 year options. License payments will be
escalated annually at 4.00 %. Over the initial 10 year term Licensee will pay $432,220, the
City will receive 80% or $345,776; if the Licensee exercises the option to extend through
2033 (total of 20 years), the City will receive $857,609. Consistent with the existing
consulting agreement, ATS Communications will receive 20% of the license payments
through the term of the license including extension periods. The proposed terms and
conditions of the agreement are competitive with market rents for similar carriers providing
voice and data services.
COORELATION TO THE STRATEGIC PLAN
This action correlates to the City's Strategic Plan for Financial Strength (Goal C).
BACKGROUND
Wireless facilities have been located in Tustin Sports Park since 1996, the equipment
facilities are located behind the scoreboard adjacent of Jamboree Road and the antennas
are located on light poles located adjacent to baseball fields. Cingular's (also known as ATT)
City Council Agency Report
February 18, 2014
License Agreement at Tustin Sports Park — New Cingular Wireless
Page 2
wireless facilities have been in the Park since October 2003; the initial term of the lease was
7 years with five 1 year extensions. Currently, Cingular is in the third extension period with
the lease expiring in October 2015. Cingular's lease will terminate the existing lease by
entering into this license with the City.
Joh A. Buchanan
Deputy Director, Economic Development
Attachments
COMMUNICATIONS SITE LICENSE AGREEMENT
This Communications Site License Agreement ( "Agreement ") is made this _ day
of 20 ( "Effective Date ") by and between the City of Tustin, a municipal
corporation, (hereinafter "City "), and New Cingular Wireless PCS, LLC, a Delaware
limited liability company, having a mailing address of 12555 Cingular Way, Suite 1300,
Alpharetta, GA 30004 (hereinafter "Licensee ").
City and Licensee (or its predecessor or interest) entered into that certain Ground
Lease dated October 6, 2003 for the Premises, which agreement shall terminate as of the
Effective Date.
1. GRANT OF LICENSE.
City currently owns property, commonly known as Tustin Sports Park, as legally
described on Attachment 1 (the "Property "). City hereby grants a license to Licensee for
the purpose of installing and maintaining certain communications equipment consisting of
antenna support structure ( "Tower "), antennas, cable runs, radio transmitting and receiving
equipment, conduits, wires, batteries, back -up generators, utility lines and facilities, storage
facilities including walls, fences and gates, telephone facilities, microwave equipment and
associated equipment ( "Licensee's Facilities ") on the Property at those locations more
specifically set forth on Attachment 2 (the "Premises ") and as depicted on Attachment 3
together with the non - exclusive right for ingress and egress from and to the nearest public
right -of -way, seven (7) days a week, twenty -four (24) hours a day, subject to any
restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation
and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a
ten foot (10') wide right -of -way extending from the nearest public right -of -way (the ."Non -
Exclusive Site Access Area ") to the Premises to be approved in form and content in the
sole discretion of the Tustin Parks and Recreation Department as generally depicted in
Attachment 3, following notice by Licensee of its intent to access the Licensee Premises or
Facilities. The Tustin Parks and Recreation Department reserves the right to change the
Non - Exclusive Site Access Route at any time, and the Non - Exclusive Site Access Route
shall not remain a fixed location. . Licensee shall be responsible for installing and
maintaining access required, subject to the limitations set forth in this Agreement and more
particularly described as follows:
1.1 All utility wires, poles, cables, conduits and pipes along or under the Non -
Exclusive Site Access Area shall be below ground.
1.2 Motor vehicles, including trucks shall be limited in their access to Premises on
those portions of the Non - Exclusive Site Access Area that are depicted on Attachment 3.
1.3 Licensee shall have twenty -four (24) hour per day, seven (7) day per week access
to the Premises, without payment of any additional fees to City. Licensee shall give
twenty four (24) hours notice to the City prior to commencing any routine maintenance or
any other activity or work; provided that no advanced notice shall be required in the event
of an emergency, in which case Licensee shall give City notice of its access to the
Premises as soon as is reasonably practical thereafter. Routine maintenance and work
hours that result in interference with the use of the park or scheduled City activities or
programs shall be subject to review and approval by the City, which approval shall not be
unreasonably denied, delayed or conditioned. The Licensee shall not interfere with City
scheduled activities within Tustin Sports Park, except in the event of an emergency as
defined in Section 12 of this Agreement.
2. TERM.
Unless earlier terminated in accordance with this Agreement, the Term of this
Agreement shall be for ten (10) years commencing upon the Effective Date herein above
written.
3. LICENSE PAYMENT, CAPITAL CONTRIBUTION, OPERATIONAL
EXPENSES AND SECURITY DEPOSIT.
3.1 License Payment. Licensee shall pay a monthly payment ( "License
Payment ") of Three Thousand and No /100 Dollars ($3,000.00) payable to the City on the
first of each month. The Licensee shall commence payments upon the Effective Date of
this Agreement.
If the monthly License Payment is not paid within thirty (30) days after the due
date, and provided Licensee has complied with all applicable notice and cure provisions
herein, a late charge equal to ten (10) percent of such overdue amount shall be paid by
Licensee for purposes of defraying the expense incidental to handling such delinquent
payment, together with interest from the date such payment was due until paid in full, at
the default rate of ten (10) percent, per annum, compounded annually. .License Payments
attributable to partial months shall be prorated on a daily basis. License Payments and
other revenue owing to the City shall be made pursuant to Attachment 5, License Payment
Direction Form or as modified in writing by the City upon notice to the Licensee.
3.2 Security posit.
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3.2.1 Payment and Form of Security Deposit. Prior to the Effective Date and
prior to taking possession of the Premises, the Licensee shall pay to City a Security
Deposit in the amount equal to the monthly license fee for three (3) months, or an amount
of Nine Thousand Dollars ($9,000). In lieu of posting a cash Security Deposit, Licensee
may provide a performance bond to the City of Tustin in the total amount of Nine
Thousand Dollars ($9,000), naming the City as covered obligee, with surety and in the
form and substance each acceptable to the City in its sole discretion.
3.2.2. Performance. Said Security Deposit shall serve as security for the faithful
performance of all Licensee's obligations, and may be applied in satisfaction and/or
mitigation of damages arising from an Event of Default, including but not limited to
delinquent payments, correction of maintenance and repair deficiencies and completion of
construction. Application of amounts on deposit in satisfaction and /or mitigation of
damages shall be without prejudice to the exercise of any other rights provided herein or
bylaw to remedy an Event of Default.
3.2.3. Maintaining Security Deposit. In the event any or all said amounts are
applied in satisfaction and /or mitigation of damages Licensee shall immediately deposit
such sums as are necessary or replenish their performance bond to restore Security Deposit
to the full amount required hereunder.
3.2.4 Return of Security Deposit. Said cash Security Deposit amount shall be
returned or performance bond released upon termination of this Agreement less any
amounts that may be withheld from Licensee for Licensee's failure to perform its
obligations hereunder, provided that in the Event of Default, the entire performance deposit
or performance bond shall be forfeited to City.
3.3 Property Taxes and Fees. Licensee shall pay all applicable real property
taxes, and /or all possessory interest taxes or fees applicable to the Premises prior to
delinquency thereof. Licensee shall also pay and discharge punctually, as and when due,
any and all taxes upon Licensee's personal property, equipment and trade fixtures installed
about the Premises. Licensee shall have the sole responsibility to pay such taxes or fees.
3.4 Utilities. Licensee shall obtain, at its sole cost and expense, any utilities for
the operation of Licensee's Facilities. Licensee will install a separate meter for the
measurement of its power and will pay for utilities used by the Licensee. Licensee shall
promptly pay all assessments, deposits, rents, costs, connections and tap -in fees and other
charges for connection of utilities or installation of utility improvements including any
charges or fees imposed by any utility company or governmental entity or agency for
making such connections and for service throughout the Term of the Agreement.
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4. ANNUAL LICENSE PAYMENT INCREASES.
Monthly payments shall be subject to an annual License Payment increase of four
percent (4 %) per year, to be increased on each anniversary of the Effective Date of this
Agreement.
5. LICENSE EXTENSIONS.
Provided that Licensee is not in default in the performance of this License,
Licensee shall have the option to extend the term of this Agreement for two (2) additional
and consecutive terms of five (5) years each (each a "Renewal Term "), provided that the
City shall have the right to review and modify Agreement terms related to insurance in any
renewal license per City policy. The monthly Licensee Payment shall be the existing
Licensee Payment as adjusted on an annual basis as described in Section 4, Annual License
Payment Increases. The option(s) to extend the term shall be exercised by written notice
given to the City not less than ninety (90) days prior to the Agreement termination date.
6. GOVERNMENTAL APPROVALS.
It is understood and agreed that Licensee's ability to use the Premises is contingent
upon its obtaining all of the certificates, permits and other approvals (collectively the
"Governmental Approvals ") that may be required to comply with Federal and State
Building and Safety Codes including but not limited to the California Building Code and
International Construction Codes, and City zoning and building codes as appropriate,
.including any applicable discretionary land use permits such as site plan or use permit
requirements. Licensee may be required by the City Manager or City Manager's designee
or designees (collectively referred to in this License as "City Manager ") to provide other
information in the planning process such as site plans, design concepts and photo
simulations of the structural plans. Licensee shall have the right (but not the obligation) to
enter the Premises for the purpose of making necessary inspections and engineering
surveys (and soil tests where applicable) and other reasonably necessary tests (collectively
"Tests ") to determine the suitability of the Premises for Licensee's Facilities and for the
purpose of preparing for the construction of Licensee's Facilities. In the event that any of
such applications for such Governmental Approvals should not be approved or any
Governmental Approval issued to Licensee is canceled, expires, lapses, or is otherwise
withdrawn or terminated by the governmental authority or are found to be unsatisfactory so
that Licensee will be unable to use the Premises for its intended purposes, Licensee and
agents representing the Licensee shall have the right to terminate this Agreement. Notice
of Licensee's exercise of its right to terminate shall be given to City in writing by personal
service, or first class mail, or by a nationally recognized carrier, and if mailed, shall be
effective upon the mailing of such notice by Licensee. All License Payments including
deposits or fees, if applicable, paid prior to said termination date shall be retained by the
City. Upon such termination, this Agreement shall become null and void and all the
Parties shall have no further obligations, including the payment of money, to each other.
7. LICENSEE'S USE AND MAINTENANCE OF PREMISES.
7.1 Use. Following City's approval of Licensee's Facilities plans and
specifications, Licensee may use the Premises for the provision of mobile /wireless
communications services, including transmission and reception of radio communication
signals on various frequencies providing there is no conflict with the primary purpose of
the City -owned property or City emergency communication activities including, but not
limited to, emergency service responders serving the City (e.g., the City's Police
communication system, the Orange County Fire Authority communication system, and
other emergency communication systems).
Accordingly, Licensee shall have the right to construct, maintain, install, repair, and
operate on the Premises, radio. communications facilities, including but not limited to,
radio frequency transmitting and receiving equipment, batteries, utility lines, transmission
lines, radio frequency transmitting and receiving antennas and supporting structures and
improvements.
7.2 Maintenance of Licensee's Facilities and Damage to City Property.
Notwithstanding the foregoing, once the initial improvements are installed, Licensee shall,
as is necessary, be responsible for the replacement, substitution, upgrading and expansion
of its equipment, cables and antennas which comprise Licensee's Facilities and in the
repair and upgrading of the physical structure or communications capabilities of the
Licensee's Facilities, so long as the equipment, cables or antennas remain within the
original physical parameters of the Premises and are consistent with City- approved
building permit plans and specifications. Licensee is responsible for notifying the City as
described in this Section 7 prior to entering the Premises. Licensee shall be responsible for
the cost of any and all damage to City -owned property including but not limited to, turf,
concrete and /or asphalt, buildings and/or apprentices caused by Licensee regardless of
negligence. Licensee shall repair and /or replace said damages or City will contract for said
services. If City makes such repairs and /or replaces said damages (only after giving
Licensee notice of intent to do so and an opportunity to cure), then Licensee shall pay to
City an amount equal to the amount of said costs which City has invoiced Licensee within
thirty (30) days after presentation by the City to Licensee of a written invoice and
supporting documentation. If any payment to be made by Licensee is not received within
such thirty (3 0) day period, a late charge equal to ten (10) percent of such overdue amount
shall be paid by Licensee for purposes of defraying the expense incidental to handling such
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delinquent payment, together with interest from the date such payment was due until paid
in full, at the default rate of ten (10) percent per annum.
7.3 Noticing on Premises. Licensee shall install any warning signs on or about
the Premises required by federal, state or local law, subject to prior notice to and consent of
City, which consent shall not be unreasonably denied, delayed or conditioned.
7.4 Licensee Maintenance Notification. Licensee shall provide notification to
the City five (5) days prior to commencement of any construction work on the Licensee's
Facilities conducted by the Licensee or its agents, so as to give the City the opportunity to
post a notice of non - responsibility. Said work hours are subject to the approval by the
City. Licensee in providing regular maintenance to the Licensee's Facilities shall provide
twenty -four (24) hour notice to the City prior to commencing any maintenance. Said work
hours shall be subject to review and approval by the City.
7.5 Licensee Notification for Emergency Repair. Any work or repair of an
emergency nature will require the Licensee to provide notification by telephone to the City
of Tustin, Police Department's Watch Commander at 714.573.3200 or other designee of
the City Manager who is identified by written notice to Licensee.
7.6 Maintenance of Licensee's Facilities. Licensee shall maintain its Facilities
and shall make all repairs to the Premises necessitated to keep the Premises clean, safe, and
a condition that approximates the initially installed Facilities including exterior finishes. If
the Licensee is responsible for installing any landscaping on the Property as a result of any
government permits or approvals, once the initial installation is completed, City shall be
responsible for the ongoing maintenance thereof. In the event any portion of the Facilities
and /or any parts regardless of fault including but not limited to damage caused by
vandalism or Acts of God, except if damage is caused solely by the gross negligence or
willful misconduct of City, its employees, agents, contractors or volunteers, prove to be
defective or shall require repair or prompt maintenance to prevent further deterioration, the
Licensee shall, promptly on demand by the City and in no event later than seven (7)
calendar days thereafter, complete such required repair or work and continuously prosecute
the same to completion at its sole cost and expense. Damage caused by graffiti shall be
removed promptly within forty -eight (48) hours after demand by City to Licensee. This
time period for completion of any required work may be extended with written
authorization from the City in its sole discretion. In the event such authorization is not
given and required work and repairs is not completed within time frames noted herein, or
any additional time granted by the City for completion of work, City shall have the right
but not the obligation to take such actions as are necessary to complete such work, correct
such defect or effect such repair. Any costs incurred by the City or its contractors in
performing such work shall be due and payable by Licensee within ten (10) calendar days
of receipt by Licensee of written demand therefore by the City. If any payment to be made
on
by Licensee is not received within such ten (10) calendar day period, a late charge equal to
ten percent (10 %) of such overdue amount shall be paid by Licensee for purposes of
defraying the expense incidental to handling such delinquent payment, together with
interest from the date such payment was due until paid in full, at the default rate of ten
percent (10 %) per annum.
S. CITY'S USE OF PREMISES.
8.1 City Business. Notwithstanding the grant of license rights to Licensee, City
and the public shall have the right to conduct City Business on the Property and within the
Non - Exclusive. Access Area, excluding that portion of the Premises identified for
Licensee's Facilities. Nothing in the Agreement shall impair or impact the ability of the
City or the public to use any area adjacent or near the Premises for any lawful purpose;
provided such use does not interfere with the Licensee's use of the Premises or operation
of its Facilities thereon. "City Business" shall include, but not be limited to the following:
maintenance, landscaping, construction, concessionaires, and City sponsored events, active
and passive park activities located on or near the Premises, so long as the City Business
does not interfere with or impair the operation of Licensee's Facilities. City shall have the
right to inspect Licensee's Facilities by providing at least twenty four (24) hours advance
notice to Licensee, except in cases of emergency.
8.2 Co- Location. Licensee acknowledges and agrees that City policy is to
provide for co- location of communication tower facilities. In the event that a third party
wishes to collocate equipment within/on Licensee's Premises, Licensee shall require such
third party to enter into a license directly with the City for use of ground space outside of
the Premises, and for use of the Non - Exclusive Site Access Area and utility easements
therefore. Licensee acknowledges that the City shall retain the authority and absolute right
to enter into a license agreement with other mobile /wireless communications providers
( "Additional Licensee ") to utilize space on the Property, excluding the Premises. City
agrees that any subsequent license agreement for an Additional Licensee shall include a
provision that, as a condition precedent to using such space, Additional Licensee shall not
interfere with the operations of Licensee's Facilities, and shall indemnify, defend and hold
harmless Licensee and its employees, agents, contractors and subcontractors for any and all
losses, claims, liabilities, damages, costs and expenses (including reasonable attorney's,
court and appellate fees and costs) and injuries (including personal injuries or death)
caused or contributed to by Additional Licensee, its employees, agents, contractors,
subcontractors and invitees.
8.3 City Use of Tower for Park Lighting. Licensee shall construct the Tower so
that it is structurally and functionally capable of supporting City's lighting equipment, as
specified in Attachment 3. Licensee shall be responsible for equipping and installing the
City Park lighting on Tower as specified by the City's Parks and Recreation Department,
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the Department of Public Works, and the City's Building Division. The City shall have the
right, but not the obligation, to install lighting equipment thereon,, as such lighting
equipment is generally shown on the Site Plans attached hereto as Attachment 3, which
lighting equipment shall at all time remain the personal property of the City and the City
shall at all times be solely responsible and liable for the installation, operation,
maintenance and repair thereof, including but not limited to replacement of lights and all
other ownership obligations relating thereto, except for damage resulting from the
negligence or willful misconduct of Licensee. If City intends to make any changes to such
lighting equipment or if the installation will deviate at all from that shown on Attachment 3
hereto, City must first obtain Licensee's prior written consent to such changes, which
consent shall not be unreasonably denied, delayed or conditioned. City will notify
Licensee of any installation, construction, maintenance, repair and removal work to be
conducted on the Tower, and will coordinate the scheduling of such activities with
Licensee so that Licensee can power down its equipment, if necessary, to meet any ANSI
(defined in Section 11.1 below) standards or any other applicable laws, orders or regulation
relating to Maximum Permissible RF Exposure.
9. INDEMNITY.
9.1 Licensee Indemnification of City. To the maximum extent permitted by
law, Licensee shall defend, with counsel acceptable to City, indemnify, and save harmless
City and its officers, employees, and agents from, and shall pay all costs, expenses and
reasonable attorney's fees for all trial and appellate levels and post judgment proceedings
in connection with, any and all claims and demands, actions, proceedings, losses, liens,
costs and judgments of any kind and nature whatsoever, including expenses incurred in
defending against legal actions, for death or injury to persons or damage to property and
for civil fines and penalties to the extent arising out of the occupation or use of the
Premises by Licensee, its employees, agents, servants, guests, invitees, contractors, or
sublessees, including the following:
9. 1.1 Any dangerous, hazardous, unsafe or defective condition, in or on the
Premises, of any nature whatsoever, which may exist by reason of any act, omission,
neglect, or any use or occupation of the Premises by Licensee, its officers, agents,
employees, sublessees, licensees or invitees from commencement of the term of the
License Agreement;
9.1.2 Any operation conducted upon or any use or occupation of the Premises by
Licensee, its officers, agents, employees, sublessees, licensees or invitees under or
pursuant to the provisions of this License Agreement or otherwise;
9.1.2.1 Any act, omission, or negligence of Licensee its officers,
agents, employees;
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9.1.2.2 The loss of, or damage to any property of Licensee by theft
or otherwise;
9.1.2.3 Any failure of Licensee, its officers, agents, employees or
sublessees to comply with the terms or conditions of this License Agreement or any
applicable federal, state, regional or municipal law, ordinance, rule or regulation
related to the use or occupancy of the Premises.
10. INSURANCE.
10.1 Licensee shall provide, or cause its member(s) or contractor(s) to provide,
and maintain at its own expense during the term of the work the following insurance
covering all work under this Agreement. Licensee shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated herein. Such
insurance shall be provided with insurers authorized to do insurance business in the State of
California, with a rating of at least A -, VII or better or A -, X (if offered by a surplus line
carrier) according to the latest Best's Key Rating Guide, except that the City will accept
Workers Compensation Insurance rated B -, VIII or better or from the State Compensation
Fund. Evidence of such insurance in the form of Certificates and signed Insurer
Endorsements shall be delivered to the City prior to commencing with work. The signed
Insurer Endorsements (or a copy of the policy binder, if applicable) shall specifically identify
the work and shall provide that (1) said insurance shall not be cancelled, except if City is
given at least thirty (30) days advance written notice of any cancellation or termination of
insurance; (2) commercial general liability insurance shall be primary to and not contributing
with any other insurance maintained by City, and shall name Licensee, the City and any
related entity of the City, as appropriate, as additional insureds; (3) shall contain a provision
that the insurer waives any right of subrogation against the City insured parties which may
arise by reason of any payments made under a policy; and (4) if Licensee is self insured for
Workers' Compensation, Licensee shall submit to City a copy of its certification of self
insurance. All insurance shall be maintained on an occurrence basis and shall include the
following:
10.1.1 Commercial General Liability Insurance. Commercial general
liability and property damage insurance covering the Premises, contractual liability
coverage, broad form property damage, and bodily injury or death, with a combined single
limit of not less than $1,000,000 per occurrence and in the aggregate with respect to
personal injury or death, and $1,000,000 per occurrence with respect to and property
damage. Coverage shall be at least as broad as Insurance Services Office Commercial
General Liability coverage (occurrence Form CG 00 01).
10.1.2 Workers' Compensation Insurance. To the extent that Licensee has
employees, workers' compensation insurance in an amount and form meeting all
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applicable requirements of the California Labor Code, covering all employees of Licensee
and all risks to such persons.
10.1.3 Deductibles. Licensee shall be at sole risk of any deductibles on
any required coverage.
10.1.4 Contractors and Subcontractors. Licensee shall not allow any
contractor or subcontractor to commence work until all insurance required of the contractor
or subcontractor has been verified. All coverages for contractors and subcontractors shall
be subject to all of the requirements stated herein.
10.1.5 Verification of Coverage. The insurer endorsements required
herein are to be signed by a person authorized by that insurer to bind coverage on its
behalf. Blanket endorsements are acceptable in lieu of signed insurer endorsements. All
endorsements are to be received and approved by City before the Effective Date of the
Agreement.
10.1.6 Vehicle Insurance. Licensee shall maintain sufficient automobile
liability insurance on any vehicle accessing the licensed Premises and such insurance shall
be in the amount of $1,000,000 per accident for bodily injury and property damage.
Coverage shall be at least as broad as Insurance Services Office Form Number CA 00 01
covering Automobile Liability, Code 1 (any auto).1
11. MISCELLANEOUS LICENSEE RESPONSIBILITIES.
11.1 Maximum Permissible Exposure. Licensee shall comply with all present
and future laws, orders and regulations relating to Maximum Permissible Exposure
( "MPE ") and other related health issues directly applicable to its operation of Licensee's
Facilities, as well as the American National Standards Institute (ANSI) standards. Without
limiting the provisions of Licensee's indemnity contained herein, Licensee, on behalf of
itself and its successors and assigns, shall indemnify City, its officials, officers, and
employees from and against all claims of personal injuries due to violation of MPE to the
extent such personal injuries are actually caused by Licensee's Facilities on the Premises.
11.2 Non- Interference by Licensee of City Events. The Licensee shall not
interfere or cause to interfere with activities on adjacent City -owned sites including sports
activities and cultural events. Licensee shall notice the City pursuant to Section 7,
Licensee's Use and Maintenance of Premises, of this Agreement regarding maintenance,
repair and installation work.
12. EMERGENCY USE OF SITE.
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In cases of emergency, Licensee shall make available to the City police, fire and
emergency services a location for City's communication equipment on Licensee's Facilities
at no cost to City on a temporary basis, not to exceed thirty (30) days. The City is
responsible for maintaining its own equipment. In addition, City shall indemnify, defend
and hold harmless Licensee, its officers, directors, partners, shareholders, employees,
agents, contractors or subcontractors from and against any and all losses, claims, liabilities,
damages, costs and expenses (including reasonable attorney's fees and costs) and injuries
(including personal injuries or death) arising from or in connection with City's use,
operation, maintenance or repair of equipment on the Premises and Licensee Facilities,
except those resulting from the negligence or willful misconduct of Licensee or Licensee's
officers, directors, partners, shareholders, employees, agents, contractors or subcontractors.
The space to be made available will not create interference with Licensee's
communications operations and radio frequency transmissions previously in use and
operating in compliance with all government regulations. The City entities will be
afforded 24 -hour access to its equipment at the Premises. In addition, for such emergency
use only, the City will be provided "power backup" by Licensee at the Premises, if
available, on a temporary basis; provided City hereby waives any and all rights and claims
against Licensee for any damages, injury or costs that may arise should there be an
interruption or outage in use of such "power backup."
13. DEFAULTS.
It shall constitute an Event of Default under this Agreement, if a party (the
"Defaulting Party "):
13.1 Failure to Timely Pay ( "Monetary Default "). Fails to timely pay any sum
required to be paid by the Defaulting Party pursuant to this Agreement.
13.2 Failure to Perform Under this Agreement ( "Non- Monetary Default "). Fails
to perform, or delays in the performance of, in whole or in part, any obligation required to
be performed by the Defaulting Party as provided in this Agreement.
13.3 Cure Periods. The other Party (the "Injured Party ") shall give written notice
to the Defaulting Party of such Event of Default at any time after occurrence thereof,
which notice shall state the particulars of the Event of Default. After receipt of such
written notice, a Defaulting Party shall have ten (10) days in which to cure any monetary
default. A non - monetary default shall be cured (i) within thirty (30) days after receipt of
written notice from the Injured Party, or (ii) at the Injured Party's sole discretion a longer
period of time as may be granted in writing for the cure period if the nature of the cure is
such that it cannot be reasonably accomplished within such thirty (30) day period, but only
if the Defaulting Party has commenced such cure within such thirty (30) day period and
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thereafter continuously and diligently pursues the cure to completion to the satisfaction of
the Defaulting Party.
13.4 Remedies. Upon occurrence of an uncured Default by the Parties, the
Injured Party may:
13.4.1 Terminate the Agreement. By written notice to the
Defaulting Party pursuant to Section 16 of the Agreement.
13.4.2 Seek Performance. See specific performance of the
obligations under the Agreement.
13.4.3 All Other Rights and Remedies. Exercise any of its rights
and remedies at law or in equity, or otherwise as provided in this Agreement.
14. LICENSEE'S COMPLIANCE WITH ENVIRONMENTAL LAWS.
14.1. Hazardous Materials. Licensee shall not bring any Hazardous Materials
onto the Premises, except for those contained in its back -up power batteries and common
materials used in telecommunications operations. "Hazardous Materials" shall mean any
substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation, including petroleum and asbestos. Licensee will
treat and dispose of any Hazardous Materials brought onto the Premises and Property by it
in accordance with all federal, state and local laws and regulations.
14.2. Licensee Compliance with Regulations. Licensee will be responsible for all
obligations of compliance with any and all environmental and industrial hygiene laws,
including any regulations, guidelines, standards, or policies of any governmental
authorities regulating or imposing standards of liability or standards of conduct with regard
to any environmental or industrial hygiene conditions or concerns as may now or at any
time hereafter be in effect, that are or were in any way related to the operation of
Licensee's Facilities.
15. CASUALTY
In the event of damage by fire or other casualty to the Premises that cannot reasonably be
expected to be repaired within sixty (60) days following same or, if the Property is
damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt Licensee's operations at the Premises for more than sixty (60) days, then Licensee
may at any time following such fire or other casualty, provided City has not commenced
the restoration required on the Property to permit Licensee to resume its operation at the
12
Premises, terminate this Agreement upon twenty (20) days written notice to the City. Any
such notice of termination shall cause this Agreement to expire with the same force and
effect as though the date set forth in such notice were the date originally set as the
expiration date of this Agreement and the parties shall make an appropriate adjustment, as
of such termination date, with respect to payments due to the other under this Agreement.
If Licensee decides not to terminate this Agreement, the License Payment shall be abated
proportionally to the reduction of use of the Premises as reasonably determined by the
City.
16. TERMINATION.
16.1. Compelled Termination. If, during the License Agreement Term, there is a
determination made pursuant to an un- appealable order of a county, state, or national
governmental health agency having proper jurisdiction over Licensee's operations that
Licensee's use of the Premises poses a human health hazard which cannot be remedied and
that Licensee must cease all operations on the Premises, then Licensee shall immediately
cease all operations on the Premises and this Agreement shall terminate as of the date of
such order. In the event the Federal Communications Commission, or any successor
agency, makes a determination which is final and non - appealable or which is affirmed and
becomes final after the exhaustion of all available appeals concluding that Licensee's use
as set forth in this Agreement presents a material risk to the public health or safety and that
Licensee must cease all operations on the Premises, City or Licensee may terminate this
Agreement immediately upon written notice to the other party.
16.2. Termination by Licensee. Licensee may terminate this Agreement by
notice to City if (i) Licensee does not obtain all permits, consents, easements, non-
disturbance agreements or other approvals (collectively "approval ") reasonably desired by
Licensee or required from any governmental authority or any third parry related to or
reasonably necessary to operate, install, maintain, replace, or remove Licensee's Facilities,
or if any such approval is canceled, expires or is withdrawn or terminated without any fault
of Licensee, or (ii) Licensee experiences any technological interference to its operations at
the Premises, including, without limitation, signal strength, (iii) the Property or Licensee's
Facilities are, or become, unacceptable under Licensee's design or engineering
specifications for Licensee's Facilities or the communications system to which Licensee's
Facilities belong, so long as Licensee pays City a termination fee equal to six (6) months of
the then current License Payment, or (iv) upon ninety (90) days' written notice by Licensee
if Licensee determines that the Property or Licensee's Facilities are inappropriate or
unnecessary for Licensee's operations due to economic reasons so long as Licensee pays
City a termination amount equal to six (6) months' of the then current License Payment, as
an early termination fee, or (v) City fails to cure a default within sixty (60) days after
receipt of written notice thereof to cure, or upon any longer period as may granted to City
13
by Licensee pursuant to Section 13.3. Upon termination, except in the case of a
termination for a Default by City, all prepaid rent shall be retained by City. In the event
Licensee abandons its property for ninety (90) days, including, but not limited to, the
Tower structure, antennas, support structures, cabling, equipment, radios or any ancillary
equipment, it shall become the property of the City. Abandonment shall be defined as
stoppage of License Payment for three (3) consecutive months, provided that City has
notified Licensee of its failure to make such License Payments in accordance with Section
13, and failure to provide City with written communication by Licensee regarding use of
Licensee Facilities; City is under no obligation 'to contact Licensee regarding status of
Licensee Facilities during this period.
16:3. Termination by City. In the event that Licensee does not cure an Event of
Default pursuant to Section 13, the City may terminate this Agreement, or upon thirty (30)
days prior written notice if the City and Licensee fail to agree upon a Relocation Site in
accord with Section 17 of this Agreement.
17. RELOCATION RIGHT BY CITY.
17.1. City Right to Order Relocation. Anytime after the expiration of the First
Renewal Term, the City shall have the one -time right to relocate Licensee's Facilities to
alternate space on the Property; to be performed by Licensee or its agents, at the Licensee's
sole cost, to be done in accordance with subsections 17.2 and 17.3 below. Upon relocation
of Licensee's Facilities, the access area and utility rights -of -way areas will be relocated as
required, in the sole discretion of City in coordination with any utility provider, to operate
and maintain Licensee's Facilities. Any relocation of the Licensee's Facilities shall be
consistent with Chapter 3 of Division 4 of the California Public Utilities Code (Section
7901 et seq.) and other sections of the Public Utilities Code, as applicable except that the
provisions of this Section 17.1 shall only remain in force and effect for twenty -five (25)
years. Notwithstanding anything in this Agreement to the contrary, under no
circumstances is Licensee responsible or liable to relocate any of the City's equipment" or
any Additional Licensee's equipment, such responsibility and liability remaining solely
with the entity that owns or operates such equipment.
17.2. Exercising Right to Relocation. City shall exercise City's relocation right
under Section 17.1 above by (and only by) delivering written notice (the "Notice ") to
Licensee. In the Notice, City shall propose an alternate site within or on the Property to
which Licensee may relocate Licensee's Facilities ( "Relocation Site "). Licensee shall have
sixty (60) days from the date it receives the Notice to evaluate City's proposed Relocation
Site, during which period Licensee shall have the right to conduct tests to determine the
technological feasibility of the proposed Relocation Site. If Licensee fails to approve of
such proposed Relocation Site in writing within the sixty -day (60) period, Licensee shall
14
be deemed to have disapproved such proposed Relocation Site. If Licensee disapproves
such relocation site, then City may thereafter propose another Relocation Site by Notice to
Licensee in the manner set forth above. If the City and Licensee fail to find an alternative
Relocation Site within six (6) months of the Notice being delivered by the City, the
License Agreement shall be terminated pursuant to Section 16, Termination. Licensee
shall have a period of not more than twelve (12) months after execution of a written
agreement between the parties concerning the location and dimensions of the Relocation
Site to relocate Licensee's Facilities to the Relocation Site.
17.3. Agreement to Survive Relocation of Licensee's Facilities. Upon relocation
of Licensee's Facilities to the Relocation Site, all references to the Premises herein shall be
deemed to be references to the Relocation Site. City and Licensee agree that the
Relocation Site (including the access and utility right of way) may be surveyed by a
licensed surveyor at the sole cost of Licensee, and such survey will then replace
Attachment 2 and become a part hereof and will control or describe the Premises. Except
as expressly provided, City and Licensee hereby agree that in no event will the relocation
of Licensee's Facilities, or any part thereof, under Section 17.1 above, affect, alter, modify
or otherwise change any of the terms and conditions of this Agreement.
18. CONDITION OF PREMISES AT TIME OF TERMINATION.
Upon termination of this Agreement, Licensee shall within thirty (30) days remove
all of Licensee's Facilities and all personal property and restore the Premises, as defined in
this Agreement, to the condition in which it existed immediately prior to Licensee's
construction on the Premises, reasonable wear and tear and casualty excepted. City
acknowledges that all of the equipment and personal property of Licensee shall remain the
personal property of Licensee and shall not be deemed fixtures, and Licensee shall have
the right to remove such facilities. City may, at its sole discretion, agree to provide
reasonable additional time to remove facilities. In such event, Licensee shall pay the
License Payment as adjusted upward by twenty -five percent (25 %) until such time as the
facilities and personal property are removed. In the event, the Licensee fails to remove the
facilities and personal property within such thirty (30) day period as requested by the City,
the City may remove the facilities and personal property at the cost of the Licensee.
19. NON - INTERFERENCE WITH PUBLIC COMMUNICATIONS SYSTEMS.
19.1. Non - Interference with Public Safety Communication Systems. Before
activating Licensee's Facilities, Licensee shall submit to a post - installation test to confirm
that the "planning and frequency coordination" of the facility was successful in not
interfering with the City of Tustin's Public and Safety radio equipment. The test will be
conducted by the Communications Division of the Orange County Sheriff - Coroner
15
Department or a Division - approved contractor at the expense of the applicant. This post -
installation testing process shall be repeated for every proposed frequency addition and/or
change to confirm the intent of the "frequency planning" process has been met. Licensee
shall provide a 24 -hour phone number to which interference problems may be reported.
To ensure continuity on all interference issues the name, telephone number, fax number,
and e -mail address of a "single point of contact" in its Engineering and Maintenance
Departments shall be provided to-the City prior to activation of the Licensee's Facilities as
well as a telephone number to its Network Operations Center.
19.2. Notes to be Added to Licensee's Submitted Plans. Licensee recognizes that
the frequencies used by the Licensee's Facilities located at the Premises are close to the
frequencies used by the City of Tustin for public safety. This proximity will require
extraordinary "comprehensive advanced planning and frequency coordination" engineering
measures to prevent interference, especially in the choice of frequencies and radio ancillary
hardware. This is encouraged in the "Best Practices Guide" published by the Association
of Public- Safety Communication Officials- International, Inc. (APCO)' and as endorsed by
the Federal Communications Commission (FCC). Prior to the issuance of any permits to
install the Licensee's Facilities, Licensee shall meet in good faith to coordinate the use of
frequencies and equipment with the Communications Division of the Orange County
Sheriff - Coroner Department to minimize, to the greatest extent possible, any interference
with the Public Safety 800 MHz countywide Coordinated Communications System
(CCCS). Similar consideration shall be given to any other existing or proposed wireless
communications facility that may be located on the subject property.
The Licensee shall provide a 24 -hour phone number to which interference
problems may be reported. To ensure continuity on all interference issues the name,
telephone number, fax number, and e -mail address of a "single point of contact" in its
Engineering and Maintenance Departments shall be provided to the City upon activation of
the facility.
20. MISCELLANEOUS PROVISIONS.
20.1 Authority of Signatories. Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective parties to
each of the terms of this Agreement, and each party shall indemnify the other fully,
including reasonable costs and attorney's fees, for any injuries or damages incurred in the
event that such authority or power is not, in fact, held by the signatory or is withdrawn.
20.2 Integration and Amendments. The Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof. This Agreement
16
may not be modified, amended, supplemented, or otherwise changed except in writing
executed by both Parties.
20.3 Partial Invalidity. If any provision of the Agreement is declared to be
invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired.
20.4 Rialits. The failure of either Party to insist upon strict performance of any
of the terms or conditions of this Agreement or to exercise any of its rights under the
Agreement shall not waive such rights and such Party shall have the right to enforce such
rights at any time and take such action as may be lawful and authorized under this
Agreement, either in law or in equity.
20.5 Governing Law. This Agreement and the performance thereof shall be
governed, interpreted, construed, and regulated by the laws of the State of California, with
venue in Orange County.
20.6 Attorney's Fees. The substantially prevailing party in any legal action or
lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs,
including appeals, if any.
20.7 Assignment /Subletting.
20.7.1 Licensee shall not assign, transfer or sublet any right or interest in
this Agreement without written approval of the City, which approval shall not be
unreasonably withheld; provided, however, that Licensee may, without City
approval, assign its interest to its parent company, any subsidiary or affiliate of it or
its parent company or to any successor -in- interest or entity acquiring more than
fifty percent (50 %) of its stock or assets, subject to any financing entity's interest, if
any, in this Agreement.
All other assignments shall require review and approval by the City. Upon
a City- approved assignment, Licensee shall be relieved of all future performance,
liabilities, and obligations under this License Agreement, provided that the assignee
shall assume all of Licensee's obligations herein.
20.7.2 Notwithstanding anything to the contrary contained in this
Agreement, Licensee may assign, mortgage, pledge, hypothecate or otherwise
transfer without consent its interest in this Agreement to any financing entity, or
agent on behalf of any financing entity to whom Licensee (i) has obligations for
borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced
17
by loans, bonds, debentures, notes or similar instruments, or (iii) has obligations
under or with respect to letters of credit, bankers acceptances and similar facilities
or in respect of guaranties thereof.
20.8 No Joint Venture. The Parties acknowledge and agree that this Agreement
shall not be deemed or constructed as creating a partnership, joint venture or similar
association between the City and Licensee and the relationship between the Parties shall
remain solely that of contracting Parties.
20.9 Notices. Any notice required to be given under this Agreement shall be
provided in writing, unless otherwise indicated, and may be provided by personal service
or first class mail, postage prepaid, or sent next - business -day delivery by a nationally
recognized overnight courier as follows:
To City:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager's Office
To Licensee:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site # LAC939
Cell Site Name: Tustin Sports Park
Fixed Asset # 1010393
12555 Cingular Way, Suite 1300
Alpharetta, GA 30004
City or Licensee may from time to time designate any other address for notices or
deliveries by written notice to the other party.
20.10 Time is of the Essence. Time is of the essence with respect to any act to be
performed under this Agreement.
20.11 Waiver of City Lien. City acknowledges that Licensee may enter into
financing arrangements including promissory notes and financial and security agreements
for the financing of Licensee's Facilities (the "Collateral ") with a third party financing
18
entity and may in the future enter into additional financing arrangements with other
financing entities. In connection therewith, City (i) consents to the installation of the
Collateral to the extent that the Collateral is part of the approved Licensee's Facilities; (ii)
disclaims any interest in the Collateral, as fixtures or otherwise, whether arising at law or
otherwise, including, but not limited to any statutory landlord's lien; and (iii) agrees that
the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or
distress for any monies due or to become due and that such Collateral may be removed at
any time without recourse to legal proceedings.
20.12 Interference with Licensee's Facilities. Licensee's Facilities and operations
shall not interfere with the communications configurations, frequencies or operating
equipment which exist on City's Property on the Effective Date which operate and
continue to operate within their frequencies and in compliance with all laws ( "Pre- existing
Communications "), and Licensee's Facilities and operations shall comply with all non-
interference rules of the FCC. Upon written notice from City of apparent interference by
Licensee with Pre - existing Communications, Licensee shall have the responsibility to
promptly terminate such interference or demonstrate to City with competent information
that the apparent interference in fact is not caused by Licensee's Facilities or operations.
City shall not, nor shall City permit any subsequent tenant or occupant of any portion of
City's Property to, engage in any activities or operations which interfere with the
communications operations of Licensee described in this Agreement. Such interference
with Licensee's communications operations shall be deemed a material breach by City, and
City shall have the responsibility to promptly terminate said interference. In the event any
such interference does not cease promptly, the parties acknowledge that continuing
interference will cause irreparable injury to Licensee, and therefore Licensee shall have the
right to bring a court action to enjoin such interference or to terminate this Agreement
immediately upon notice to City. City agrees to incorporate equivalent provisions
regarding non - interference with Pre - existing Communications into any subsequent leases,
licenses or rental agreements with other persons or entities for any portions of City's
Property.
20.13 Quiet Enjoyment. So long as Licensee is not in default under this
Agreement, Licensee shall be entitled to quiet enjoyment of the Premises during the term
of this Agreement, and Licensee shall not be disturbed in its occupancy and use of the
Premises.
20.14 Attachments. Attached hereto are the following, all of which constitute
part of this Agreement:
A. Attachment 1, Legal Description of the Property
19
B. Attachment 2, The Premises
C. Attachment 3, Licensee's Facilities and Non - Exclusive Site Access Area
D. Attachment 4, Agreement to Conditions Imposed
E. Attachment 5, License Payment Direction Form
F. Attachment 6, Addendum to Standard Form Communications Site License
Agreement
G. Attachment 7, Pre- Approved Assignment Entities
** *SIGNATURES ON FOLLOWING PAGE * **
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By
21
CITY OF TUSTIN
By:
Jeffery C. Parker, City Manager
LICENSEE:
New Cingular Wireless PCS, LLC, a
Delaware limited liability company
By: AT &T Mobility Corporation
Its: Manager
CALOFORRIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On &�Ijbr 2012 before me, A ' � 1 c
Date ' Here Insert Name and TitIj§ of the Officer
personally appeared (� .� f i f) /jf L -/
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the persor)�gfwhose name is>t subscribed to the
within instrument and acknowledged to me that
,�ershaAfiey executed the same in Wher /tl)-eir authorized
( capacity06i ), and that by WherWeir signature(s)'on the
ALMA PINEDA - instrument the p erson (Y , or the entity upon behalf of
Commission # 2017657 which the personK'acted, executed the instrument.
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Notary Public - California z
orange County D
� C I certify under PENALTY OF PERJURY under the laws
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2017 y of the State of California that the foregoing paragraph is
true and correct.
WITNESS my Pand and off ici I psgal.
Place Notary Seal Above Signature ��L'� -�- 'f- -�1,�
Y Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: _
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ Ger
❑ Attorney in Fact
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Signer Is Representing
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❑ Individual
❑ Corporate Officer — Title(s): _
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Attachment No. 1
Legal Description of Property (Tustin Sports Park)
The land referred to in this Agreement is situated in the State of California, County of
Orange, City of Tustin and is described as follows:
Parcel 2 of Parcel Map No. 88 -316, in the City of Tustin, County of Orange, State of
California, as shown on a map filed in Book 262, Pages 45 to 47 inclusive of Parcel Maps,
records of Orange County, California.
Excepting any and all oil, oil rights, minerals, mineral rights, natural gas rights and other
hydrocarbons by whatsoever name known, geothermal steam and all products derived from
any of the foregoing, that my be within or under the property, together with the perpetual right
of drilling, mining, exploring and operating therefore and storing in and removing the same
from the property or any other land, including the right to whipstock or directionally drill and
mine from lands other than the property, oil or gas wells, tunnels and shafts into, through or
across the subsurface of the property and to bottom such whipstocked or directionally drilled
wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to
redrill, retunnel, equip, maintian, repair, deepen and operate any such wells or mines; but
without however, the right to drill, mine, store, explore or operate through the surface or the
upper 500 feet of the subsurface of the property, as reserved by The Irvine Company, a
Michigan corporation in Gant Deed recorded May 21, 1991, as Instrument No. 91- 249110
Offical Records.
Assessor's Parcel Number: 501 - 112 -05 thru 12, 501- 112 -14 & 501 - 112 -16
Attachment 2
The Premises
See the attached drawings dated 4/12/12, Sheet Site Plan
Attachment 3
Licensee's Facilities and Non - Exclusive Site Access Area
See the attached drawings dated 4/12/12, Sheets Existing & New Antenna Layout and
Equipment Layout Plan identified with Project Information: TUSTIN SPORTS PARK
LAC939 (LA2866D is old site ID).
In addition to the approximately 391 square feet depicted on the attached drawings, the
Premises also includes antennas, cable runs and support structures.
Attachment 4
Agreement to Conditions Imposed
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Attachment 5
License Payment Direction Form
Licensee shall make monthly License Payments to the following:
Account Name
PSRS ATS Communications - Municipal Lockbox Account
Tax I.D. #
42- 1543928
Bank Contact Name
Mary F. Nauert mnauert@psrs.com
Bank Phone#
858 -522 -1420
Bank FAX#
858 -514 -2105
Please have the remittances sent to the following address:
Pacific Southwest Realty Services
Attn: Mary F. Nauert
8840 Complex Drive, Suite 101
San Diego, CA 92123
Attachment No. 6
Addendum to Standard Form Communications Site License Agreement
N/A
Attachment 7
List of Approved Assigns in accordance with Section 20.7
N/A