2006/01/10 City Council Resolution (25)RESOLUTION NO. 2006 - 24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING A ANTENNA SITE LICENSE AGREEMENT WITH OMNIPOINT
COMMUNICATIONS, INC. AT BENICIA PARK
(ASSESSOR'S PARCEL NO.143- 160 -008)
WHEREAS, the City of Rohnert Park owns Assessor's Parcel Number 143 - 160 -008,
commonly known as Benicia Park;
WHEREAS, Omnipoint Communications, Inc. desires to install telecommunication
facilities at a location within the park more specifically outlined within the lease agreement;
WHEREAS, the City has determined that the installation of telecommunication
facilities would not interfere with any existing use of park facilities;
WHEREAS, Omnipoint Communications is required to meet all City development
guidelines and standards;
WHEREAS, the City has negotiated a lease with Omnipoint Communications
providing the City market rate or greater compensation for the use of public property;
WHEREAS, the use of public property by Omnipoint Communications will not only
provide funding for city services, it will also improve communication services available to
the citizens of Rohnert Park; and
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Rohnert
Park that the lease agreement is approved and the City Manager is authorized to execute
the lease on behalf of the City.
DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park
this 10th day of January 2006.
ATTEST:
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City Clerk i
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CITY OF ROHNERT PARK
............
Mayor Tim smith
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BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK- MARTINEZ: AYE SMITH: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
ANTENNA SITE LICENSE AGREEMENT
THIS ANTENNA SITE LICENSE AGREEMENT (this "Agreement ") is effective as of January 10, 2006 ("Effective
Date ") by and between The City of Rohnert Park ( "Licensor) and Omnipoint Communications, Inc d /b /a T- Mobile ( "Licensee ").
1. PREMISES. Licensor is the owner of a parcel of land (the "Land ") and building (the Building ") located at 7450
Santa Barbara Drive, Rohnert Park, California, 94928 (the Land and Building are collectively, the "Property "). The Land is more
particularly described in Exhibit "A" attached hereto. The Premises, as described on the attached Exhibit "B" (the "Premises "), are the
applicable portions of the Property in which Licensee shall have the right to place the equipment described on Exhibit "C" and
Paragraph 2(a) below (the "Site Equipment "), subject to the terms of this Agreement. Exhibit C shall also contain a description of the
services to be provided from the Site Equipment.
2. LICENSE TO USE.
(a) Subject to the terms and conditions hereinafter set forth, and in consideration of the duties, covenants and obligations of
Licensee hereunder, Licensor hereby grants unto Licensee, a non - exclusive license (the "License ") for the installation, operation,
maintenance, and repair of Licensee's Site Equipment consisting of nine (9) antennas (53h "x 13w" x 4d ", each), and four (4)
equipment cabinets (64h" x 52w" x 37d ", each) in the Premises at the sole cost of Licensee. Licensee shall use the Premises only for
the purpose of providing the services detailed in Exhibit C of this Agreement for which it shall receive all necessary governmental
approvals. Licensee agrees that Licensee's Site Equipment shall be considered Licensee's personal property. No other rights are
granted herein. Licensor makes no warranties, implied or otherwise, as to the fitness of the Premises for Licensee's intended use.
Licensee has inspected the Land, Building, and rooftop and accepts the same "AS IS" and agrees that Licensor is under no obligation
to perform any work or provide any materials to prepare the Property for Licensee. In no event shall Licensor be obligated to provide
the use of any facilities, including existing building entrances and riser conduit.
(b) Licensor authorizes Licensee to prepare, execute and file all required applications to obtain government approvals for the
operation of Licensee's Site Equipment under this Agreement and agrees to reasonably assist Licensee with such applications.
Licensee has the right to obtain a title report from a title insurance company of its choice and to have the Property surveyed by a
surveyor of Licensee's choice at Licensee's expense. Prior to the commencement of construction, in the event Licensee determines,
in its sole discretion, due to the title report results or survey results s, that the condition of the Property or Premises is unsatisfactory,
Licensee will have the right to terminate this Agreement upon written notice to Licensor. Licensee may also perform and obtain, 'at
Licensee's sole cost and expense, soil borings, percolation tests, engineering procedures, environmental investigation or other tests or
reports on, over, and under the Property, necessary to determine if the Licensee's use of the Premises will be compatible with
Licensee's engineering specifications, sy stem, design, or operations.
(c) Licensor and Licensee acknowledge and agree that the relationship between them is solely that of Licensor and Licensee and
nothing herein shall be construed to constitute the parties as employer /employee, partners, joint ventures, co- owners, or otherwise as
participants in a joint or common undertaking. Neither party, nor its employees, agents, or representatives, shall have any right,
power, or authority to act or create any obligation, express or implied, on behalf of the other.
(d) In no event shall Licensee use the Premises to enable other providers of communications services to provide
communications services to any tenant, occupant or licensee of the building or to any tenant, occupant or licensee of any other
building.
(e) Licensee agrees that, at no time during the term of this License will it use or permit the use of its Site Equipment in ways that
are inconsistent with Paragraph 2, or Exhibit "C" of this Agreement.
3. ADDITIONAL EQUIPMENT. Upon the written consent of Licensor which may be withheld in Licensors' sole
discretion, and in accordance with Paragraph 2 above, Licensee may add equipment to this Property, in addition to the above
referenced Site Equipment ( "Additional Site Equipment "). The parties expressly acknowledge and agree that the Annual License Fee
set out in Paragraph 5 is based, in part, upon the type and quality of service currently expected to be provided by the Site Equipment
described in Exhibit "C ". Licensee agrees it shall notify Licensor in writing if any existing antennas are replaced and the dimensions of
the replacement antennas. In the event Licensee replaces existing antennas with others that are greater than one (1) foot larger in
either length or width, Licensor and Licensee agree that an increase in the amount of equipment in the Premises may be reflected in
an increase to the Annual License Fee. Said additional payments shall become part of. the Annual License Fee and shall be due to
Licensor upon the date Licensee begins construction on the Additional Site Equipment with the anniversary of such payments to
coincide with the Commencement Date, as described in Paragraph 4 below. Additional Site Equipment shall be specifically described
in an addendum to this Agreement, (which will contain and incorporate the same terms, conditions, and obligations of this Agreement)
to be signed by both parties.
4. TERM. The term of this License shall be for five (5) years, commencing on date Licensee begins construction of the
Site Equipment, or three months from the Effective Date of this Agreement, whichever occurs first (the "Commencement Date ") and
terminating on the fifth (5th) anniversary of the Commencement Date (the "Term "). This Agreement may be extended for two (2)
additional Terms of five (5) years ( "Renewal Term ") upon Licensee notifying Licensor in writing at least ninety (90) days prior to the
expiration of the first Term. In the event Licensee extends this Agreement, the subject License Fee shall continue to increase by 4%
per year as described in Paragraph 5 below.
5. PAYMENTS. Upon the Commencement Date, Licensee shall pay Licensor the nonrefundable fee (the "License
Fee ") of $33,000.00 per year due and payable in advance in twelve (12) monthly payments of $2,750.00 commencing on the
Commencement Date. The License Fee shall automatically increase by four percent (4 %) per year. In the event Licensor terminates
this Agreement pursuant to Paragraph 22 below, all sums paid or payable to Licensor pursuant to this Paragraph shall become and
remain the property of Licensor. The License Fee shall be payable to Licensor at the address set forth below.
6. SECURITY DEPOSIT. Within fifteen (15) days of the Commencement Date, Licensee shall deposit with Licensor
the sum of five thousand dollars ($5,000.00) to be held as a security deposit ( the "Security Deposit "). Said Security Deposit shall be
held by Licensor as security for the faithful performance by Licensee of the terms, covenants, and conditions of this Agreement. If
Licensee defaults under this Agreement, which default is not cured by Licensee, Licensor, in addition to its other remedies, may use
apply, or retain all of this Security Deposit to compensate or partially compensate Licensor for any loss, damage, or expense incurred
by Licensor by reason of Licensee's uncured default. Upon the termination of this Agreement, in the event Licensee has not caused
an event of default, Licensor shall return the Security Deposit to Licensee within thirty (30) days of Licensee's vacation of the Property
7. TAXES. Licensee shall pay personal property taxes on Licensee's personal property on the Premises. In the event
Licensor's real property taxes increase as a result of Licensee's use of the Premises, Licensee must reimburse such tax increase to
Licensor within thirty (30) days of receipt of written notice and reasonable evidence thereof. Licensee hereby accepts and assumes
full and exclusive liability for and shall hold Licensor harmless from the payment of Licensee's taxes and other expenses arising from
the conduct of Licensee's business on or in the Property .
CONSTRUCTION.
(a) Prior to the commencement of construction, Licensee shall (at its sole cost and expense) submit to Licensor working
drawings, plans, and specifications detailing the location, size, and weight of the Licensee's Site Equipment specifically describing the
proposed construction and work. No work shall commence until Licensor has approved same in writing, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, Licensor shall have the right not to approve such plans if they are not
aesthetically satisfactory to Licensor in both fitness and appearance. Approval or disapproval and required changes shall be delivered
to Licensee within twenty (20) working days after the receipt of such plans from Licensee. Any changes to the approved plans by
Licensee must be re- submitted to Licensor for its re- approval. In no event shall Licensor's approval of such plans be deemed a
representation that they comply with applicable laws, ordinances, or rules and regulations or will not cause interference with other
communication systems, such responsibility being solely Licensee's. Licensee agrees that all construction and installation work shall
be performed at Licensee's sole cost and expense, in a neat, responsible, and workmanlike manner using generally accepted
construction standards consistent with such reasonable requirements as shall be imposed by Licensor. Licensee shall hire those
contractors (at its sole cost and expense) previously utilized by Licensor, to make and repair any penetrations to the roof or parapet of
the Building. Licensee shall maintain a watertight installation of its Site Equipment on and in the Building. Licensee shall label each
cable placed in or on the Building as well as each antenna. Label information shall include where cable originates, where cable
terminates along with the name of the company that owns the cables and antennas.
(b) Licensee understands and agrees that the structural integrity of the load- bearing capability of the roof and interior of the
Building, the moisture resistance of the Building membrane, and the ability of Licensor to use all parts of the roof and interior of the
Building are of critical importance to Licensor. Licensee agrees that the specifications and plans it will provide shall be of sufficient
specificity to ensure that these concerns are addressed, and Licensee further agrees that the actual installation of Licensee's Site
Equipment shall be in accordance with those specifications. Licensee also agrees that it will not place any Site Equipment on the
Property where the weight of the equipment exceeds the floor or roof -load capacity of the area where the Site Equipment is placed.
(c) Licensee shall repair any damage to the Land, Property, or Building where such damage is caused by Licensee, any of its
agents, representatives, employees, contractors, or subcontractors, as a result of the installation, construction, operation,
maintenance, and repair of Licensee's Site Equipment, at its sole cost, as soon as possible, but in no event more than five (5) days
from the date Licensee was first notified of such damage. All repairs shall be performed to the satisfaction of Licensor. If Licensee
fails to repair or refinish any such damage, Licensor may, in its sole discretion, repair, or refinish such damage and Licensee shall
reimburse Licensor for all costs and expenses incurred in such repair or refinishing.
(d) Licensee shall not during construction or otherwise, in Licenser's sole and reasonable judgment, impede access to or in any
way obstruct, interfere with or hinder the use of the Land, Building's loading docks (if applicable), the sidewalks around the Building or
any entrance ways thereto. If any other foregoing occurs, Licensee shall take corrective action as soon as possible; and shall use best
efforts to correct same within two (2) hours of notice by Licensor.
(e) Licensee represents and warrants that (i) it shall obtain, at its sole cost and expense, prior to start of construction, all
necessary federal, state, and municipal permits, licenses, and approvals and (ii) Licensee's Site Equipment, and placement of such
Site Equipment shall comply with all applicable safety standards, as modified from time to time, of any governing body with jurisdiction
over Licensee's operations. Licensee shall prominently label any equipment with appropriate safety warnings when human exposure
to radio frequency radiation may exceed the safety standards referred to in this paragraph.
(f) Licensee understands and agrees that the aesthetic characteristics of the Building and Property are of significant commercial
importance to Licensor and agrees to ensure that the installed appearance of the Site Equipment shall match the colors, architectural,
and other aesthetic features of the Building and /or Property .
9. UTILITIES. Licensee shall be responsible for providing, at no cost to Licensor, a separate electrical panel and meter
for the Site Equipment and shall be responsible to the local electric utility for the electrical and any other utility costs attributable to the
Site Equipment. Licensee will make all commercially reasonable attempts to tie into the local electric utility's power. In the event
Licensee is unable to tie into such local electric utility's power despite exhausting commercially reasonable attempts to do so, then
Licensor will permit Licensee to utilize existing utilities. In the event Licensor permits Licensee to draw electricity from the existing
utilities, Licensee shall pay Licensor, as additional fees, a Utility Charge (the "Utility Charge ") in the monthly sum of $350.00. Licensee
shall provide Licensor, at Licensee's cost, a digital monitor that allow s Licensor to determine the amount of pow er used by Licensee. If
Licensor determines the cost of electricity consumed by Licensee exceeds the Utility Charge, then Licensee, upon receipt of written
notice by Licensor and receipt of reasonable evidence of such cost, shall (i) reimburse Licensor for the difference within thirty (30)
days of the date of such notice and thereafter (ii) pay the increased monthly Utility Charge to account for Licensee's actual electrical
usage. The Utility Charge shall be due upon the installation of the Site Equipment and shall be paid to Licensor concurrently with
Licensee's payment of the License Fee. Both parties agree that Licensor shall not be held liable for any damages sustained by
Licensee resulting from Licensee's use of these utilities. Licensee shall pay the cost of any electrical upgrade needed at this Building
as a result of the operation of Licensee's Site Equipment_
10. MAINTENANCE AND ACCESS. Licensee, through its designated and approved employees and contractors, shall be
solely responsible for the maintenance and care of the Site Equipment and shall maintain the same in a clean, sanitary, and safe
condition and in good repair and free of any defects at all times during this Agreement. Licensee, at its sole cost, expense, and risk,
shall ensure that a, physical inspection of the rooftop portion of the Site Equipment occurs at intervals of at least one time per year and
that this inspection include a survey of structural integrity and a review and correction of any loose bolts, fittings, or other
appurtenances. Licensee shall provide to Licensor, in writing, the results of such inspection not more than ten (10) days following
each such inspection. In the absence of such a notification, Licensor shall have the right (but not the obligation) to conduct or arrange
for such an inspection and corrective action and Licensee agrees to pay Licensor for the cost of same. In the event this Agreement
applies to Site Equipment installed in a building owned by Licensor or on Licensor's property adjacent to a police or fire station,
Licensee shall have access to Premises during normal business hours (9am -5pm, Monday through Friday) upon twenty-four (24)
hours advance notice to Licensor. At the time that such notice is given, Licensee shall inform Licensor of the names of the person-,
who will be accessing the Building or property, the reason for entry, and the expected duration of the work to be performed. In the
event of an emergency, Licensee may access the Building or property on a 24 -hour, seven -day per week basis and shall use best
efforts to provide prior notice to Licensor before entering such property . In the event this Agreement applies to Site Equipment
installed directly on land owned by Licensor, then Licensee and its employees, agents, and subcontractors, will have twenty -four (24)
hour per day, seven (7) day per week pedestrian and vehicular access to and over the Property, from an open and improved public
road to the Premises, for the installation, maintenance and operation of the .Communication Facility and any utilities serving the
Premises.
11. INTERFERENCE. At all times during the term of this Agreement, Licensee agrees to use equipment of the ty pe and
frequency that will not cause interference to Licensor's equipment, interior occupants equipment and appliances or other pre- existing
telecommunication licensee's /lessees Site Equipment on or in Licensor's property. If any interference to the use or enjoyment of the
Property by Licensor, occupants, or prior telecommunication licensees or lessees, results, directly or indirectly, from the operation of
any of Licensee's Site Equipment, Licensee shall have a forty eight (48) hour cure period, after written notice from Licensor, within
which to eliminate such interference. in any event, Licensee agrees to cease operations (except for intermittent testing) as soon as
possible until the interference has been corrected to the satisfaction of Licensor. Any future lease, license, or other agreement entered
into by Licensor shall be conditioned upon the contracting party not interfering with the operation of Licensee's Site Equipment.
12. COLLOCATION. Licensee acknowledges that the Licensor may elect to enter into agreements with other wireless
telecommunications operators, and that Licensee may be required to share certain;'common facilities with such operators. It is the
intent of the Licensor to consolidate and coordinate all such wireless telecommunications facilities at the Property in a logical manner
in order to maximize use of space and minimize the impact (visual and otherwise) of wireless telecommunications equipment and
antennas. Licensee acknowledges that it has no exclusive rights for operating a wireless telecommunications facility on the Property
and that the Licensor shall have the right to enter into leases, licenses, permits, and agreements with other telecommunications
operators which will serve to allow other telecommunication operators to place equipment on existing light standards, monopoles, or
other such antenna mounts constructed by Licensee under this Agreement. Any license fees or other compensation generated by
such collocation on the subject Property shall belong solely to Licensor. Licensee agrees to reasonably cooperate with the other
wireless telecommunications operators and the Licensor to coordinate efficient collocation of equipment and antennas and to promptly
resolve any interference issues that may arise due to the presence of multiple operators. Licensee shall operate within its FCC-
approved frequencies and shall not materially alter the nature of its use or transmissions, or otherwise unreasonably interfere with the
operations of any other wireless telecommunications operators on the Property
13. HAZARDOUS MATERIALS. Licensee will not generate, store or dispose of any Hazardous Materials on or about
the Premises or Property in violation of any Hazardous Waste Laws. Licensee shall be responsible for any hazardous release to the
extent any release results from Licensee's activities. Notwithstanding the foregoing, Licensee shall be responsible for abating any
Hazardous Materials that will be disturbed by Licensee's permitted use. Licensee shall indemnify, defend and hold harmless Licensor
with respect to any losses, claims, damages, penalties and liabilities (including attorneys and consultants' fees and costs) arising from
any breach of this provision. "Hazardous Materials" shall mean any substance deemed to be hazardous, toxic or dangerous in any
Hazardous Waste Law, and shall include petroleum. "Hazardous Waste Laws" shall mean all applicable federal, state, or local laws
or regulations governing Hazardous Materials.
14. FORCE MAJEURE. Licensor and Licensor's agents shall not be liable or responsible to Licensee, and Licensee hereby
waives any claim for, any loss or damage to any property or person occasioned by theft, fire, act of God, public enemy, injunction, riot,
strike, insurrection, war, court order, requisition or other order of governmental body or authority, or for any damage or inconvenience
which may arise through maintenance, repair or alteration of any part of the Building, or failure to make any such repairs. Licensee
also agrees that Licensor shall not be liable for damage to Licensee's Site Equipment or for theft, misappropriation, or loss thereof,
unless due to Licensor's gross negligence or w illful misconduct.
15. FIRE AND OTHER CASUALTY. If the Premises, through no fault or neglect of Licensee, its agents, employees or
contractors, shall be partially destroyed by fire or other casualty so as to render the Premises unusable, the License Fee provided for
herein shall abate thereafter until such time as the Premises are made usable as determined by Licensor. In the event of total
destruction of the Premises without fault or neglect of Licensee, its agents, employees or contractors, this Agreement shall terminate.
Nothing herein shall be construed to require Licensor to rebuild the Premises, but if Licensor elects not to rebuild, this Agreement shall
terminate as of the date of such destruction.
16. LIENS. Licensee shall be responsible for the satisfaction or payment for any provider of work, labor, material, or
services claiming by, through or under Licensee. Licensee shall also indemnify, hold harmless and defend Licensor against any such
liens, including the reasonable fees of Licenser's attorney's. Such liens shall be discharged by Licensee within thirty (30) days after
notice of filing thereof by bonding, payment, or otherwise, provided that Licensee may contest, in good faith and by appropriate
proceedings, any such liens. The provisions of this paragraph shall survive termination of this Agreement.
17. SUBORDINATION. Licensee accepts this Agreement subject and subordinate to any mortgage, deed of trust or
other lien presently existing or hereafter arising upon the Land or the Building and to any renewals, modifications, consolidations,
refinancing, and extensions thereof. This provision is hereby declared self- operative and no further instrument shall be required to
effect such subordination of this Agreement.
18. INSURANCE. Licensee, at Licensee's sole cost and expense, shall procure and maintain a policy of comprehensive
commercial general liability insurance issued by a company acceptable to Licensor, and licensed to do business within the state where
the Building is located insuring Licensee and Licensor with a combined single limit of at least three million dollars ($3,000,000.00) per
occurrence for injury, death, and property damage. Licensee shall maintain all risk property insurance on its Site Equipment in
sufficient amounts to cover any loss thereof. Licensee's insurance company shall carry a Best's A:VII rating and be primary insurance
as far as Licensor and Licensee are concerned, with any other insurance maintained by Licensee being excess and non - contributing
with the insurance of Licensee required hereunder and providing coverage for the contractual liability of Licensee to indemnify
Licensor pursuant to Paragraph 19 below. Licensee shall name Licensor and its partners, directors, officers, employees,
representatives, and agents as additional insureds on the Licensee's policy. Licensee shall provide to Licensor a certificate of
insurance evidencing the coverage required by this paragraph prior to commencement of construction. Licensee shall also maintain in
force all required workers' compensation and other similar insurance pursuant to all applicable state and local statutes.
19. HOLD HARMLESS /INDEMNIFICATION.
Licensee shall indemnify and hold Licensor, and its partners, directors, officers, employees, representatives, and agents ( "Licensor's
Agents ") harmless from and against any and all liability, damage, loss, cost, expense, claim, alleged claim or cause of action (including
reasonable attorney's fees, costs, and expenses of defending against such claims) of any nature arising out of or in connection with
(A) the use, operation, maintenance, repair, or replacement of Site Equipment and materials on the Premises by Licensee or
Licensee's agents, assigns, employees, contractors, sub - contractors ( "Licensees Agents "), or (B) any work performed by or required to
be performed by Licensee or Licensee's Agents under this Agreement, (C) Negligent acts or omissions of Licensee or Licensee's
Agents, or (d) Licensee's failure to comply with the terms of this Agreement.
Licensee agrees that Licensor and Licensor's Agents shall have no liability to Licensee or anyone claiming under or through Licensee
for any injury, inconvenience, loss, cost, expense, or damage: (i) caused by failure of equipment, or the malfunctioning or interruption
of any service, utility, facility, or installation supplied by Licensor or Licensor's Agents and (ii) for the making of any alteration of or
improvement or repair to the Premises, whether required by any governmental agency, or due to casualty, or for any other reason,
4
provided that, in the case of such alteration, improvement or repair, Licensor has exercised due care to avoid or minimize any such
injury, inconvenience, or loss, or damage.
The duties described in this Paragraph 19 shall sury ive termination of this Agreement.
20. LIMITATION OF LIABILITY. No owner, partner, member, principal, officer, director, employee, agent, shareholder, or
consultant (hereinafter " Licensor's Agents ") of Licensor shall be personally liable for the performance of Licensor's obligations under
this Agreement. The liability of Licensor for any of Licensor's obligations under this Agreement shall be limited to Licensor's interest in
the Building where the Site Equipment is located.
21. DEFAULT; REMEDIES. Licensee's failure to pay the License Fee when due shall be an event of default, and
Licensee shall pay the License Fee along with a late charge of fifteen percent (15 %) of the overdue License Fee, calculated on a
prorated monthly basis, plus the License Fee to cure the default. Licensee filing a petition for bankruptcy, ceasing to conduct its
business in the normal course, or Licensee's inability to pay its debts when they come due, shall also constitute an event of default.
Additionally, Licensee shall cause an event of default for its failure to perform its obligations under the Agreement for thirty (30) days
after written notice. Upon the occurrence of an event of default, Licensor shall have the option to pursue either or both of the following
remedies:
(a) If the event of default pertains to work to be performed by Licensee, or Licensee causes such work to be performed,
without waiving such an event of default and without liability to Licensee for any loss or damage which may result to Licensee's Site
Equipment or business by reason of such work, Licensor may perform or complete such work and Licensee shall, on demand, pay to
Licensor the cost of such work plus a fifteen percent (15 %) administrative fee
(b) Licensor may immediately terminate the Agreement.
The pursuit of the forgoing remedies by Licensor shall not preclude pursuit of any other remedies provided by law or equity, nor shall
pursuit of any remedies herein provided constitute a forfeiture or waiver of any fees due Licensor. Failure by Licensor to enforce one
or more of the remedies herein provided upon an event of default or acceptance of any installment of the License Fee during an event
of default shall not be deemed or construed to constitute a w aiver of such default.
22. TERMINATION
(a) Licensee. This Agreement may be terminated by Licensee without further liability on thirty (30) days prior written notice as
follows: (i) at any time prior to the Commencement Date for any reason or no reason; (ii) upon a default of any covenant, condition, or
term .hereof by Licensor, which default is not cured, or a cure has not connnenced within thirty (30) days of receipt of written notice of
default; (iii) if Licensee is unable to occupy or utilize the Premises due to ruling or directive of the FCC or other governmental or
regulatory agency, including, but not limited to, a take back of frequencies; or (iv) by Licensee if it can demonstrate in writing that its
signal is being blocked or there is incurable interference and despite reasonable efforts to remedy this, its signal cannot reach its
desired coverage area.
(b) Licensor. Licensor may terminate this License upon the occurrence of any of the following: (a) failure by Licensee to pay
the License Fee when due if such failure shall continue for more than ten (10) days after written notice to Licensee of such failure; or
(b) failure by Licensee to comply with any material term, condition or covenant of this Agreement, other than the payment of License
Fees, if such failure is not cured within thirty (30) days after written notice to Licensee, or in the event of a cure which requires in
excess of thirty (30) days to complete, if Licensee has not commenced such -cure within thirty (30) days of such notice and is not
diligently prosecuting said cure to completion. In addition, after expiration of the first ten (10) years from the Commencement Date of
this Agreement, Licensor may terminate this Agreement upon one (1) year's notice to Licensee under the following conditions: (i)
Licensor or its successor in interest has engaged architects and /or engineers to prepare plans for the re- development of the Property;
(ii) the Site Equipment cannot be relocated to another area of the Property reasonably acceptable to Licensor and Licensee; and (iii)
the Site Equipment cannot be relocated to an alternate, nearby property owned by the Licensor that is reasonably acceptable to
Licensee.
23. REMOVAL OF SITE EQUIPMENT. Licensee, at its sole cost and expense, shall remove the Site Equipment and will
return the Premises to Licensor in the condition in which it existed upon original execution hereof, reasonable wear and tear excepted,
by the termination of this Agreement. Licensee shall repair any damage to the Property caused by such removal within five (5) days of
discovery of same. If Licensee does not repair said damage within such five (5) day period, Licensor may repair said damage to
restore its property to the condition it was in upon original execution hereof, reasonable wear and tear excepted. Licensee shall
promptly reimburse Licensor for the cost thereof, plus an administrativ e fee of fifteen percent (15 %) of such cost, within thirty
(30) days after receipt of invoice. Any property owned by Licensee that is not removed may, at Licensor's sole option, either
be removed and stored by Licensor at Licensee's expense, or shall become the property of Licensor without compensation to
Licensee.
24. NO IMPLIED WAIVER. The waiver by Licensor of any breach of any term, covenant, or condition herein contained
shall not be deemed to be a waiver of such terms, covenants, or conditions for any subsequent breach of the same or any other term,
covenant, or condition herein.
25. COMPLIANCE WITH LAWS. Each party agrees to comply with all laws, ordinances, rules and regulations
applicable to their occupation and use of the Premises.
26. QUIET ENJOYMENT /TITLE. At all times during the terms of this License Agreement, Licensee's quiet enjoyment
thereof shall not be disturbed so long as Licensee is not in default. Licensor covenants and warrants to Licensee that it has good and
unencumbered title to the Premises.
27. AUTHORITY. Licensor and Licensee each covenant that persons executing this License Agreement on their behalf
have full power and authority to execute this License Agreement.
28. NOTICES. All notices and demands shall be in writing, and be deemed given if personally delivered, or mailed
certified mail, return receipt requested, or sent by overnight carrier, to the addresses listed below.
29. ASSIGNMENT. Licensee may assign this License Agreement to any subsidiary, parent company, or any entity
which is the owner of a controlling interest in Licensee, provided that no such assignment shall serve to release Licensee from its
duties and obligations hereunder. Licensee shall have no other right to assign its interest in this Agreement without Licenser's written
approval. Licensor shall have the right to freely transfer and assign, in whole or in part, all of its rights and obligations hereunder in the
Building and and /or Property with no further liability or obligation shall thereafter accrue against Licensor hereunder:
30. CONDEMNATION. If all or any portion of the Premises shall be taken or condemned for any public purpose to such
an extent as to make Licensee unable to utilize its Site Equipment, this Agreement shall, at the option of either party, forthwith cease
and terminate. All proceeds from any taking or condemnation of the Premises shall belong to and be paid to Licensor. However,
Licensee shall not be prevented from seeking a separate award for relocation expenses and loss of business revenue from the party or
parties taking the Premises. Licensee shall have all rights to its Site Equipment, which shall not be included in any taking or
condemnation award to Licensor.
31. ESTOPPELS, SUBORDINATIONS, REQUESTS AND APPLICATIONS. Each party agrees to execute for the other,
within thirty (30) days after written request, estoppels, subordination's (including non - disturbance clauses), zoning and permitting
requests, and applications.
32. APPLICABLE LAW. This Agreement shall be interpreted under, and venue shall reside in, the laws of the State of
California. In interpretation of this License Agreement, the plain meaning rule shall apply .
33. PARTIAL INVALIDITY. If any term of this Agreement is found to be invalid, the balance of this License Agreement
shall remain in full force and effect.
34. ATTORNEYS' FEES. The prevailing party in any litigation between the parties in connection with this Agreement
shall be entitled to recover its reasonable attorneys' fees and costs.
35. LICENSE ONLY. This Agreement creates a license only and Licensee acknowledges that Licensee does not and
shall not claim at any time any interest or estate of any kind or extent whatsoever in the Building, Premises, or Land by virtue of this
Agreement or Licensee's use of these areas pursuant hereto. In connection with the foregoing, Licensee further acknowledges that in
no event shall the relationship between Licensor and Licensee be deemed to be a so called Landlord - tenant relationship and that in no
event shall Licensee be entitled to avail itself of any rights afforded to tenants under the laws of the state . in which the Building or
Property is located.
36. HEADINGS. Headings are for convenience only, and are not to be used in the interpretation of this Agreement.
37. ENTIRE AGREEMENT. This Agreement contains the entire Agreement between the parties and supersedes all
other agreements, written or oral, between the parties. Any amendments must be in writing and executed by both parties.
By:
Its:
Address for Notices:
LICENSOR:
THE CITY OF ROHNERT PARK
tarty of Kohnert Park
Attn: Director of Administrative Services
6750 Commerce Blvd.
Rohnert Park CA 94928
Per resolution No. 2006 -24 adopted by the City Council at its meeting of January 10, 2006
APPROVED AS TO FORM:
hable WWhele Deputy City Attorney
ATTEST:
Judy Hauff, City Clerk
M
Its:
Address for Notices:
LICENSEE:
. Omnipoint Communications, Inc d /b /a T- Mobile
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EXHIBIT A
7450 Santa Barbara Drive
Rohnert Park, CA 94928
APN: 143- 160 -008
EXHIBIT B
Premises Location, Easements and Site Layout Plan
(to be supplied by Licensee)
EXHIBIT C
Site Equipment Specifications
(to be supplied by Licensee)
Please provide the following information for this exhibit:
1. Specifically describe intended services to be provided by the operation of this Site Equipment.
Transmission and reception of radio communication signals for w ireless telephone service in Benecia Park
and the surrounding community.
2. Engineering plan and design specifications that include:
a, dimensions of antennas and associated equipment cabinets
Antennas (53 "x 13" x 4 ") Equipment Cabinets (64" x 52" x 37 ")
b, weight of each equipment cabinet; number of cabinets to be used
Four Equipment Cabinets will be used and each Cabinet weighs 1600 lbs.
c. number of antennas to be used and antenna wind load characteristics
9 Antennas total, each with a wind load of 125 MPH
d. estimated power usage:
160 A
e. information ensuring the weight of the Site Equipment being within the floor -load capacity of the subject placement area.
Design will meet all building code requirements to ensure structural integrity ; specifically, concrete will sustain
3,000 lbs per square inch which is more than adequate to support all equipment.
3. Frequencies of all transmitters, receivers, and antennas.
1850 -1990 MHz
4. Azimuth of antennas; effective radiated power for all transmit antennas.
Azimuths- 35, 125, 245; Effective Radiated Power - 53dBm
4. Power levels and emission types for all transmitters.
PA Power = 45dBm
6. Make and model of all transmitters, receivers, and antennas.
Transmitters and Receivers - Ericsson 2106 GSM
Antennas — Radio Frequency Systems APX16PV- 16PVL -E
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