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HomeMy WebLinkAboutC-4733(B) - Telecommunications License Agreement (Streetlight)AMENDMENT NO. ONE TO TELECOMMUNICATIONS LICENSE AGREEMENT BY AND BETWEEN THE CITY OF NEWPORT BEACH AND T-MOBILE WEST LLC THIS AMENDMENT NO. ONE TO LICENSE AGREEMENT ("Amendment No. One") is made and entered into as of this ['-I_ day of SEAT , 2025 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and T-MOBILE WEST LLC, a Delaware limited liability company ("Company"). City and Company are sometimes individually referred to herein as "Party" and collectively as the "Parties". RECITALS A. On April 2, 2007, City and Omnipoint Communications Inc., a Delaware corporation, a subsidiary of T-Mobile USA, Inc., a Delaware corporation ("Initial Licensee") entered into a Telecommunications License Agreement for replacement of a streetlight and the use of the License Area as defined therein ("Agreement"). Company is the successor -in -interest to Initial Licensee. B. The Parties desire to enter into this Amendment No. One to amend the name of the Company, extend the term, amend the insurance requirements, update the contact information for notice, update the terms of default, and update the description and the depiction of the Replacement Streetlight, as set forth under the Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. COMPANY The term "Company" as used in the Agreement shall refer to T-Mobile West LLC, a Delaware limited liability company. T-Mobile West LLC was formerly known as T-Mobile West Corporation, a Delaware corporation, the successor -in -interest to Omnipoint Communications Inc., a Delaware corporation. 2. TERM Section (4) (Term) of the Agreement is amended in its entirety and replaced with the following: A. Currently, the Term of the Agreement expires at midnight on April 30, 2027. Company shall have the right to extend this Agreement for six (6) successive five (5) year terms (each, a "Renewal Term") commencing on May 1, 2027 on the same terms and conditions as set forth in the Agreement, as amended herein. The Agreement shall automatically renew for each successive Renewal Term unless Company notifies City, in writing, of Company's intention not to extend the Agreement at least thirty (30) calendar days prior to the expiration of the immediately preceding current Term or Renewal Term. Upon the expiration date or termination date, Company shall proceed to comply with the surrender conditions pursuant to Section 17 of the Agreement. Notwithstanding the above, this Agreement shall not be automatically extended if Company has defaulted in the performance of any term or condition of the Agreement and has failed to cure such default within the time frame provided in the City's notice pursuant to Section 37 (Default) of this Agreement. B. Holdover. Company has no right to retain possession of the License Area or any part thereof beyond the expiration or termination of this Agreement. In the event that Company holds over, then the License Fee shall be increased to 150% of the License Fee applicable immediately preceding the expiration or termination. Nothing contained herein shall be construed as consent by City to any holding over by Company. Any holding over by Company of the License Area after the expiration or termination of this Agreement shall be terminable by either party upon thirty (30) days prior written notice to the other, at which time the Company shall comply with the surrender conditions of Section 17 of the Agreement." 3. INDEMNIFICATION AND INSURANCE Section 25 (Indemnification and Insurance) of the Agreement is amended in its entirety and replaced with the following: "a. Indemnification. To the fullest extent permitted by law, Company shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement by Company, any latent or patent defects in design and construction of the Replacement Streetlight and Telecommunications Facilities, or work thereon conducted under this Agreement by Company including, without limitation, defects in workmanship or materials or Company's presence or performance of duties on the License Area and/or Replacement Streetlight and/or Telecommunications Facilities (including the negligent and/or willful acts, errors and/or omissions of Company, its principals, officers, agents, employees, vendors, suppliers, subcontractors, anyone Amendment No. One to License Agreement Page 2 employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Company to indemnify the Indemnified Parties from any Claim arising from the negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Company. b. Insurance. Without limiting Company's indemnification of City, and prior to commencement of work under this License or any amendment to the License, Company shall obtain, provide and maintain at its own expense during the term of this License, policies of insurance of the type and amounts described in Exhibit "F" for the License Area, Replacement Streetlight, and the Telecommunications Facilities." 4. NOTICES The parties' contact information in Section 30 (Notices) of the Agreement is amended in its entirety and replaced with the following: "To City: Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 And with respect to insurance issues: City Risk Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 City's emergency contact: City of Newport Beach Municipal Operations Department Phone: 949-644-3011 Amendment No. One to License Agreement Page 3 To Company: Company's Emergency Contact: 5. DEFAULT T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 (Site LA02839) Attn: Lease Compliance NOC Phone: (888) 662-4662 Or: (425) 396-4145 Section 37 (Default) is hereby added to the Agreement as follows: "37. Default a. Default by Company. The occurrence of any one or more of the following events shall constitute a default and material breach of this Agreement by Company: Failure of Company to pay License Fees due hereunder within fifteen (15) calendar days after written notice from City; 2. Any failure by Company to perform any of the other terms, conditions or covenants of this Agreement to be observed or performed by Company within thirty (30) calendar days after written notice from City; 3. Company becoming insolvent or filing any debtor proceedings, or should any adjudications in bankruptcy be rendered against Company, or should Company take or have taken against it, in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Company's property, and should the same not be discharged within one hundred twenty (120) calendar days thereafter; 4. Company permitting the License Area to become vacant or unoccupied for thirty (30) consecutive calendar days after written notice to Company (except for vacancies caused by any force majeure or by remodeling, reconstruction, alteration or repairs permitted under this Agreement and approved in writing by the City. The appointment of a trustee or receiver to take possession of substantially all of the assets of Company located at the License Area or Company's interest in this Amendment No. One to License Agreement Page 4 Agreement or the License Area, where possession is not restored within thirty (30) calendar days; or 5. If the Replacement Streetlight or the Telecommunications Facility located in the License Area is non -operational or non- functional and cannot be reasonably repaired within ninety (90) calendar days of the first day of non -operation. b. Except for the payment of License Fees, if the nature of Company's default or breach under this Agreement is such that more than thirty (30) calendar days are reasonably required for its cure, then Company shall not be deemed to be in default or breach if Company commences such cure within such thirty (30) calendar day period and diligently proceeds with such cure to completion. C. Remedies. In the event of a default or breach by Company and Company's failure to cure such default or breach, City may at any time and with or without notice do any or more of the following: 1. Re-enter the portion of the License Area giving rise to the default, remove all persons and property, and repossess and enjoy such License Area. 2. Terminate this Agreement and Company's right of possession of the License Area. Such termination shall be effective upon City's giving written notice and upon receipt of such notice; Company shall immediately surrender possession of the License Area to City. 3. Exercise any other right or remedy which City may have at law or equity. d. City's Right to Cure Company's Default. Upon continuance of any material default beyond applicable notice and cure periods that is an emergency and/or would result in an imminent damage to City property and/or persons, City may, but is not obligated to, cure the default at Company's cost. If City pays any money or performs any act required of, but not paid or performed by, Company after notice, the payment and/or the reasonable cost of performance shall be due as Additional Fees not later than thirty (30) days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance." Amendment No. One to License Agreement Page 5 6. REPLACEMENT STREETLIGHT Exhibit D (Replacement Streetlight) of the Agreement is amended to include the description and depiction of the Replacement Streetlight that is attached hereto and incorporated herein as Exhibit D. 7. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain in full force and effect. In the event of a conflict between any term, provision, or condition of this Amendment No. One and any term, provision, or condition of the Agreement, the terms, provisions, or conditions of the Agreement will control. [SIGNATURES ON NEXT PAGE] Amendment No. One to License Agreement Page 6 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 7 !, By: �,- Hank; :6,, Aar4 C. Harp City Attorney ATTEST: Date: 1.11 ) ` By: Y V `fl' I Molly Perry Interim City Clerk f�L1,�' o CITY: CITY OF NEWPORT BEACH, a California municipal corporation and charter city Date: q1 I I � By: Ka K. Leung y Manager COMPANY: T-Mobile West LLC, a Delaware limited liability company Date: Signed in Counterpart RV: )me: Geri Roper rIe: Director, Network Engineering and operations [END OF SIGNATURES] Attachments: Exhibit D — Additional Description & Depiction of Replacement Streetlight Exhibit F — Insurance Requirements Amendment No. One to License Agreement Page 7 Docusign Envelope ID: F816839E-13F5-469A-B356-588AFB660FFA IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:W/7 5_ By:_ Aaro C. Harp dpSt nc. City Attorney ATTEST: Date: as Leilani I. Brown City Clerk CITY: CITY OF NEWPORT BEACH, a California municipal corporation and charter city Date: By: Grace K. Leung City Manager COMPANY: T-Mobile West LLC, a Delaware limited liability company �EPESraiE fr; . Date: By:/ TMpBIEE Name: Geri Roper Title: Director, Network Engineering and Operations [END OF SIGNATURES] Attachments: Exhibit D — Additional Description & Depiction of Replacement Streetlight Exhibit F — Insurance Requirements os Amendment No. One to License Agreement Page 7 �� TMO Signatory Level: L06 x NLG-97000 EXHIBIT D REPLACEMENT STREETLIGHT Amendment No. One to License Agreement Page D-1 m ,71 M C-0 Ljj U ULu O � � O CL W =) C/) LU Z C,J --, � O C LU � Z U W p U Q U) W R � W m � � Z W � � � U W m F— O � W Z W � � Z W F— U5 LL � � LL � U \� ( : y§ < 1 : . � I 1 2 $ tz § : | im /M§ g ' > -®®` _mOD \ //§\y > §T?7?`7~ $:3 > > ƒ� E_ - B 3 _ \ I / _ } _ / Ld b E .\\4i I �} . Ir \\k /��5E< §e\\ §!$iz ' } \//��\\ \}\\ } ST. LIGHT POLE 1 TOP Of POLE flll ST- uCNT ARM Jr- EXI571N0 MICROCELLS M1TN 1 1 1-(N) 6601 1/. M k e ®E%KTRIO YICROCELLS Y111N f 1-(N) YRRtI 84 1 1-(N) 6501 YRBS 82 k / MOUNTED ON LA 1-M MRRU 92 1/ MOINTFD ON LID 12' --- --- -. �. 20'-3" EXHIBIT F INSURANCE REQUIREMENTS Provision of Insurance. Without limiting Company's indemnification of City, and prior to commencement of entry upon the License Area by Company or Company's agents, representatives, consultants, contractors and/or subcontractors, Company shall obtain, provide and maintain at its own expense during the term of this Agreement policies of insurance of the type and amounts described below and in a form satisfactory to City. Company agrees to provide insurance in accordance with requirements set forth here. If Company uses existing coverage to comply and that coverage does not meet these requirements, Company agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of A - (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Self -Insurance. Notwithstanding the above, Company shall have the right to self - insure in accordance with the coverages required in this Exhibit. In the event Company elects to self -insure, Company shall be obligated to include City as an additional insured, and in addition to the provisions set forth in Sections 4-6, the following provisions shall apply: a. City shall promptly provide Company written notice of any claim, demand, or lawsuit, for which it seeks coverage pursuant to this Section, and provide Company with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, or lawsuit; b. City shall not settle any such claim, demand, or lawsuit without prior written notice to Company; and c. City shall fully cooperate with Company in the defense of such claim, demand, or lawsuit. 4. Coverage Requirements. A. Workers' Compensation Insurance. Company and Company's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Amendment No. One to License Agreement Page F-1 B. General Liability Insurance. Company and Company's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount of two million dollars and 00/100 ($2,000,000) per occurrence, four million dollars and 00/100 ($4,000,000) general aggregate. The policy shall cover liability arising from License Area, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract per coverage under ISO CGL form 00 01 or equivalent. C. Automobile Liability Insurance. Company and Company's consultants, contractors and/or subcontractors shall maintain commercial automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Company or all activities of Company's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the License Area, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars and 00/100 ($1,000,000) combined single limit each accident. D. Builder's Risk Insurance. During construction, Company shall require that Company's construction contractors and subcontractors maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the work for the improvements being constructed by or on behalf of Company with limits equal to one hundred percent (100%) of the replacement cost value of the work, with coverage to continue until final acceptance of the work by Company and City. 5. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. City, its elected or appointed officers, officials, employees, agents and volunteers are to be included as an additional insured under all general liability policies with respect to liability arising out of Company's activities ongoing and completed operations related to this Agreement and with respect to use or occupancy of the License Area. City, its elected or appointed officers, officials, employees, agents and volunteers shall be included as an additional insured on any of Company's contractor's and subcontractor's policies. Amendment No. One to License Agreement Page F-2 B. Primary and Non Contributory. Policies shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising out of the negligent acts or willful misconduct from Company's operations. Any insurance maintained by City, including any self -insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. Waiver of Subrogation. With the exception of workers' compensation and builder's risk, all insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Company or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. With the exception of workers' compensation and builder's risk, Company hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Notice of Cancellation. The insurance required by this Agreement shall not be canceled or non -renewed, except after thirty (30) calendar days written notice has been sent to City. It is Company's obligation to ensure that provisions for such notice have been established. F. Reserved. 6. Additional Requirements. A. In the event City determines that (i) the Company's activities on the License Area creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Company agrees that the minimum limits of any insurance policy required to be obtained by Company or Company's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. Such change to insurance requirement herein shall be mutually agreed upon by the parties by amendment to this agreement and be appropriately adjusted upon the agreed terms. With respect to changes in insurance requirements that are available from Company's then -existing insurance carrier, Company shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice as per the agreed upon terms. With respect to changes in insurance requirements that are not Amendment No. One to License Agreement Page F-3 available from Company's then- existing insurance carrier, Company shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice as per the agreed upon terms. B. Reserved. C. Company and Company's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Company shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Company shall ensure that City is an additional insured on liability insurance policies required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 20 38 04 13 and CG 20 37 or the equivalent. E. To the extent allowed by law, Company shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Company or Company's agents, representatives, consultants, contractors or subcontractors performance under this Agreement. F. Company shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. G. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Agreement. In addition, the cost of all required insurance shall be borne by Company or by Company's consultants, contractors or subcontractors. H. If Company or Company's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Agreement, or fail to provide proof of insurance, City has the right to declare this Agreement in default without further notice to Company, and City shall be entitled to exercise all available remedies. Company agrees not to use the Agreement Area in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the License Area or on adjacent premises, or that will cause cancellation of any other insurance coverage for the License Area or adjoining premises. Company further agrees not to keep on the License Area or permit Amendment No. One to License Agreement Page F-4 to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the License Area. Company shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the License Area. Amendment No. One to License Agreement Page F-5 q 2 310 D+ 54 ® L QSearch Insured Name T-Mobile US Inc., its Subsidiaries and Affil DE T-Mobile US Inc., its Subsidiaries and Active Records Only Advance Search Insured Tasks Admin Tools View ssi Insured Notes History Deficiencies Coverages Requirements Add Edit Help Video Tutorials -t& Insured Name: Account Number: Address: Status: Insured T-Mobile US Inc., its Subsidiaries and Affiliates A FV00001062 12920 SE 38th Street, Bellevue, WA, USA, 98006 Compliant with Waived Deficiencies. Business Unit(s) Print Insured Info Account Information Account Number: Risk Type: Do Not Call: Address Information Mailing Address Insured: Address 1: Address 2: City: State: ZID: FV00001062 Telecom Agreement Address Updated: Physical Address T-Mobile US Inc., its Omnipoint Communic� Subsidiaries and a Subsidiary of T- Affiliates 12920 SE 38th LA02839A Superior AN Street &Coast Hwy Bellevue Newport Beach WA CA 98006 92660 DocuSign Envelope ID: D8DD4132-5FE8-4FB6-A539-6F6BE5C17F83 1 GDSuVe� a 1l1Mo�Jlh.. 0 TAA T -Mobile West LLC, a whollyownedsubsidiary ofT-Mobile USA 12920 SE 38`h Street Bellevue, WA 98006 Attn: Property Management (877)373-0093 Email: Prooertvmanaeement@T-Mobile.com September 14, 2016 Via Certified Mail City of Newport Beach Attn: City Manager P.O. Box 1768 Newport Beach, CA 92658-8915 Re: Termination of License Agreement ("Agreement") dated October 27, 2008 between T -Mobile West LLC, as successor in interest to Omnipoint Communications, Inc., a subsidiary of T -Mobile USA, Inc. ("T -Mobile") and the City of Newport Beach ("City") Site Address: 2101 1/2 Irvine Avenue, Newport Beach, CA 92660 T -Mobile Site No: LA13163A Dear City, This letter is to advise you that T -Mobile is exercising its right to terminate the above -referenced Agreement. A termination letter dated May 8, 2009 was sent, pursuant to Section 22(a) of the Agreement, providing 180 day notice. Unfortunately, T -Mobile continued to pay rent in error. This letter serves as notice to terminate effective September 30, 2016. T -Mobile highly values the relationship that was established with you. We would like the opportunity to contact you in the future should our network or business requirements change. Sincerely, CDmuSlgnad by: Mevt<w, �t,SfUeSt,ln. 0216302831 DM9D... Morten Jespersen Director, Network Engineering & Ops cc: Duan Dao, T -Mobile Development Manager TELECOMMUNICATIONS LICENSE AGREEMENT (Streetlight) This LICENSE AGREEMENT ( "Agreement ") is entered into between Omnipoint Communications, Inc., a subsidiary of T- Mobile USA, Inc., a Delaware corporation ( "Company "), at 3 Imperial Promenade, Suite 1100, Santa Ana, CA 92707, and the City of Newport Beach, a municipal corporation and charter city ( "City ") this 27th day of October, 2008. Company and City are each a "Party" and together the "Parties" to this Agreement. RECITALS A. City is the fee title owner of that certain real property known as Irvine Avenue (northeast of Santiago Drive) in the City of Newport Beach, California, such property depicted more particularly in Exhibit "A" ( "Real Property'); B. Company desires to license from City, on a non - exclusive basis, the right to use that certain portion of the Real Property, and those certain related easements through the Real Property for physical access and utilities, as depicted in Sheet E -1 of the Encroachment Permit attached hereto as Exhibit "B" (the "License Area "); C. City is the fee title owner of a streetlight located on Irvine Avenue (northeast of Santiago Drive), City of Newport Beach, California, such property depicted in Sheet LS2 of Exhibit "B" ( "Streetlight "); D. Company desires to license from City, on a non - exclusive basis, the right to replace the Streetlight with a new streetlight ( "Replacement Streetlight ") to accommodate both the City's standard streetlight fixture and the operation of Company's wireless telecommunications antenna and related facilities, described more particularly in Sheet A -4 of Exhibit "B ", and which may require encroachment upon and occupation on a portion of the public- right -of -way; and E. City is willing to make the Replacement Streetlight and License Area available to Company, subject to the covenants and conditions set forth in this Agreement on a non - exclusive basis, in order to facilitate the efficient and orderly deployment of communications facilities in the City of Newport Beach. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. License: City grants a non - exclusive license ( "License ") to Company for the term of this Agreement, to replace the Streetlight with the Replacement Streetlight for the uses specified in this Agreement. City further grants to Company a non- exclusive license to access the Replacement Streetlight, subject to the conditions of the Encroachment Permit issued by the Public Works Department, attached hereto as Exhibit "B ", and to the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies, for construction, installation and maintenance of the facilities and utility wires, cables, and conduits as necessary to operate the Telecommunications Facilities, as defined below, and for the construction and installation of a working streetlight pursuant to City standards, and as approved by the City. All installation and maintenance activities shall be at Company's sole cost and expense, including but not limited to the fees and costs associated with the installation of the Replacement Streetlight and the permits and government approvals described in Section 3, pursuant to plans approved in advance in writing by the City. The license granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Company covenants, as a material part of the consideration for this license, to keep and perform each and every term, covenant and condition of this Agreement. Except as otherwise stated in this Agreement, Company shall be responsible for all maintenance associated with the Telecommunications Facilities and the Replacement Streetlight pole, including all costs and expenses associated therewith. Company shall provide twenty -four (24) hour telephone notice to the Utilities Director at (949) 644 -3011 prior to performing any Telecommunications Facilities maintenance on the Replacement Streetlight. City shall be responsible for all maintenance associated with the streetlight portion of the Replacement Streetlight, including but not limited to, the working streetlight itself, and the wires and equipment necessary to operate the streetlight. City shall have the right, upon at least four (4) hours notice to Company, to temporarily turn off the power to the Telecommunications Facilities if any required maintenance for the streetlight portion of the Replacement Streetlight requires City employees to be within ten (10) feet of the transmitting antennas. For purposes of this paragraph, City shall contact Company at its 24 hour Network Operations Center at 888 - 662 -4662 prior to shutting down the power. Notwithstanding Company's construction and installation of the Replacement Streetlight, it is the parties' intention that Company's interest in the Replacement Streetlight is restricted to this License and the City retains all rights, title and interest in the Replacement Streetlight in its as is condition. 2. Uses: Company shall use the Replacement Streetlight and the License Area for the sole purpose of constructing, maintaining, securing and operating a wireless telecommunications antenna and related facilities including, wires and /or cables, described in Sheets A -4 and A -5 of Exhibit "B ", to transmit and receive radio communication signals on various frequencies (between 1710 -1755 and 2110- 2155 MHz and 1850 -1990 MHz), all in compliance with the approved site plans and related drawings dated March 30, 2007, on file with the City Planning Department, the conditions of approval contained in the Telecommunications Permit issued by the Planning Department in accordance with Chapter 15.70 of Paae 2 the Newport Beach Municipal Code, ( "Telecom Permit" No. TP 2007 -001 (PA 2007 -002) and the Encroachment Permit issued by the Public Works Department (collectively, the "Telecommunications Facilities' or "Facilities "). The Telecommunications Facilities and operating frequencies may not be expanded or modified except upon written approval of an amended Telecom Permit and as may be required by this Agreement. Construction and operation of the Telecommunications Facilities shall be at Company's sole expense. Company shall keep the Telecommunications Facilities free from hazards or risk to the public health, safety or welfare. Except as provided under this Agreement, Company shall not make or permit to be made any alterations, additions or improvements to the Replacement Streetlight, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the Replacement Streetlight without the prior written consent of City. Notwithstanding the foregoing, Company shall place warning signs on or about the Telecommunications Facilities in the manner required by Federal, State or local law. Company shall have the right to replace existing equipment with substantially similar equipment in order to maintain the Telecommunications Facilities. 3. Telecommunications Permit And Government Approvals: Company shall comply with all conditions of approval contained in the Telecom Permit, the Encroachment Permit, and if required, the Building Permit. Company shall obtain all other governmental licenses, permits and approvals required by Federal, State or local governmental agencies, enabling Company to construct, operate, repair and remove the Telecommunications Facilities in the License Area. 4. Term: The initial Term of the license granted hereunder ( "Term ") shall commence on the Commencement Date and continue for a period of five (5) years. For purposes of this Agreement, the "Commencement Date' shall be the first day of the month following the date this Agreement is executed. After the Commencement Date, this License shall not be revoked or terminated except as expressly provided in this Agreement. This Agreement shall automatically be extended, on the same terms and conditions as set forth in this Agreement, for up to three (3) successive terms of five (5) years each ( "Renewal Terms "), unless at least thirty (30) days prior to the expiration of the Term or any Renewal Term, Company notifies City in writing of Company's intention not to extend this Agreement and by the end of the then current Term or Renewal Term the Company also complies with the surrender conditions of Section 17 below. Notwithstanding the above, this Agreement shall not be automatically extended if Company has defaulted in the performance of any term or condition of the Agreement and has failed to cure such default after notice as provided in this Agreement. Paae 3 -- 5. Fees and Costs: a. Within fifteen (15) days following the Commencement Date, and on the first day (1st) of each month during the Term and each Renewal Term, Company shall pay to City a License Fee in the amount of One Thousand One Hundred and 00/100 Dollars ($1,100.00) per month, which amount shall be adjusted in accordance with Sections 5(b) and 6 ( "License Fee'). The License Fee for any partial month shall be prorated in accordance with the actual number of days in that month. b. Beginning in the second (2 "d) year of the Term of this Agreement, the License Fee shall automatically increase each and every year during the Term and any Renewal Term, upon the anniversary of the Commencement Date, with the exception of any year in which the fee is being increased under Section 6, below, to "Market Rate ". The amount of increase shall be four percent (4 %) of the License Fee in effect immediately preceding the increase. C. A ten percent (10 %) penalty shall be added to the License Fee if not received by City within fifteen (15) days following the due date. In addition all unpaid fees shall accrue interest at the rate of one and a half percent (1'/z %) per month or any portion of a month until paid in full. 6. Adjustment of License Fee Upon Renewal: Periodically throughout the Term and Renewal Terms, the City shall conduct rent surveys and appraisals of rents or license fees paid for similar facilities in similar California locations. The Media & Communications Committee shall then meet to review such rent surveys and appraisals and make a recommendation to the City Manager's office for the Market Rate of the Telecommunications Facilities. Sixty (60) days prior to the start of the second (2 "d) Renewal Term, and each Renewal Term thereafter, the City Manager shall establish the Market Rate of the Telecommunications Facilities based upon the Media & Communications Committee recommendations. If Company reasonably believes that the Market Rate is excessive, Company shall have the right to submit its own rent survey and appraisal to the City. City Manager shall, at his /her reasonable discretion, review and take such survey and appraisal in consideration for establishing the Market Rate. The Parties recognize that the annual increase in the License Fee as required by Section 5(b) may cause the License Fee to be greater than, less than, or equal to the Market Rate. If the Market Rate is greater than the License Fee as adjusted by the annual increase in Section 5(b) above, then the License Fee for the second (2 "d) Renewal Term, and each Renewal Term thereafter, shall be adjusted to the higher Market Rate for that Renewal Term. If the Market Rate is less than or equal to the License Fee as adjusted by the annual increase in Section 5(b) above, then the License Fee for the Renewal Term shall be the Paae 4 License Fee at the expiration of the term immediately preceding the Renewal Term. 7. Adjustment of License Fee Upon Modification of Uses: The License Fee set out in this paragraph is based upon the Facilities, Replacement Streetlight and License Area permitted by the Telecom Permit. Changes in the Facilities, Replacement Streetlight or License Area may increase the value of this License Agreement. To the degree that a change in the Facilities requires amendment or modification to the Telecom Permit, City and Company understand and mutually agree that a corresponding increase in the Market Rate of the Telecommunications Facilities may be reflected in an adjustment to the License Fee. Such an adjustment may be defined at the time at which Company seeks City's approval for modifications in the Telecommunications Facilities described in Section 2, and shall be mutually agreed to by the Parties as a condition of the City's approval of such expanded service by the Company. 8. Interference with City Telecommunications: a. Company agrees that its operation of the Telecommunications Facilities shall at all times comply with all Federal Communications Commission ( "FCC ") requirements and shall not cause any direct or indirect interference with the operation of the Replacement Streetlight as a streetlight or City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist ( "City's facilities "). b. In the event of any interference with City Police and Fire Department public safety communications, Company shall work with the affected Department to correct the interference within two (2) hours of City's written or telephone call notice to Company. In the event of interference with City's streetlight or own wireless communications system or external radio signals and communications other than Police or Fire Department, Company shall work with City to correct the interference within twenty -four (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Facilities and if Company is unable to correct interference to City's satisfaction, Company shall cease its operation of the Telecommunications Facilities at the end of such time period until the cause of the interference is corrected to City's reasonable satisfaction. If Company fails to correct any interference, City may, in addition to and without compromising any other available remedy cut off power to the facility in the manner set forth in Section 9 below. C. Prior to making any changes to the frequency or operating conditions approved by the Telecom Permit, Company shall submit plans for the proposed changes to City for its review and approval. Company agrees to fund any studies required to ensure that any contemplated changes will be Paae 5 compatible with the City's facilities. No Company change shall occur prior to the City's reasonable approval. 9. Emergency: a. Company understands that the Telecommunications Facilities are located on a public structure or within public property and emergency situations may develop from time -to -time that require power to the Telecommunications Facilities to be immediately shut off and thereby interfere or temporarily terminate the Company's use of its Facilities on the Replacement Streetlight and License Area. Notwithstanding Section 8 of this Agreement, Company agrees that if such a situation occurs, and /or there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Company in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Telecommunications Facilities and any equipment of Company's located on the Replacement Streetlight for the duration of the emergency. Company agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Telecommunications Facilities or other communication facilities by the shut off of power. b. Company agrees to install a clearly marked & accessible master power "cut -off" switch on their equipment for the purpose of assisting City in such an emergency. C. Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Telecommunications Facilities pursuant to Section 9(a) is not intended to constitute a termination of this Agreement by either party and such event is a risk accepted by the Company. Company and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. The License Fee, prorated to a 365 -day year, shall be abated for any day, or part thereof, in which power to the Telecommunications Facilities is shut off pursuant to Sections 8 or 9 of this Agreement. d. City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this Section. 10. Acceptance of Condition of Company Area: Company shall accept use of the Replacement Streetlight, Streetlight and License Area in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the Replacement Streetlight, Streetlight and License Area, including its suitability for the use intended by Company. To the best of City's knowledge, the Paae 6 Replacement Streetlight, Streetlight and the License Area has not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in Section 26. The Company has conducted its own appropriate due diligence investigation of the Replacement Streetlight, Streetlight and License Area prior to its execution of this Agreement. 11. No Interest in Property: Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the Replacement Streetlight, Streetlight, License Area, or any public right -of -way, other than a real property license to use and access the Replacement Streetlight and License Area, revocable and for a term as set forth in this Agreement. 12. Reservation of Rights: Company understands, acknowledges and agrees that any and all authorizations granted to Company under this Agreement are non - exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 13. Utilities: Company shall not do, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the Replacement Streetlight, except as may be specifically permitted by the Telecom Permit. The Telecommunications Facilities shall be separately metered. In addition to the License Fee, Company shall be responsible for the cost of all utility services necessary for the operation of the Telecommunications Facilities, and if required by City, shall have such utilities installed underground and /or connected if already installed, and maintained at Company's sole cost and expense (along with all ongoing use charges). Subject to City's approval, Company shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. 14. Inspection: City shall be entitled, at any time, to inspect the Replacement Streetlight and Telecommunications Facilities for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 15. City Retention Rights: Company's right to use the Replacement Streetlight and License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use Paae 7 and occupy the Replacement Streetlight and License Area for any purpose that does not interfere with Company's use of the Replacement Streetlight and License Area as provided herein. 16. Company's Retention of Title: Title to the Telecommunications Facilities placed on the Replacement Streetlight and License Area by Company shall be held by Company or its equipment lessors, successors, or assigns. The Telecommunications Facilities shall not be considered fixtures. Company has the right to remove any or all of the Telecommunications Facilities at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) days after an early termination of this License. 17. Surrender: Upon expiration or termination of this Agreement, Company at its sole cost and expense, shall within sixty (60) days of written notice from City, remove the Telecommunications Facilities, restore the Replacement Streetlight and License Area to its original condition or to a condition satisfactory to and reasonably approved by City, and vacate the Replacement Streetlight and License Area. Should Company fail to restore the Replacement Streetlight and License Area to a condition satisfactory to City, City may perform such work or have such work performed by others and Company shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Company shall continue to pay the License Fee until the Replacement Streetlight and License Area is so restored as required by this Agreement. 18. Assignment: a. All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. This Agreement and the rights and obligations of Company shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred "), in whole or in part, without the express written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned and may be withheld if assignee is of lesser financial status than Company when this Agreement was executed. Any attempted transfer in violation of this Section shall be void. Except as provided below, the transfer of the rights and obligations of Company to any successor in interest or entity acquiring fifty -one percent (51 %) or more of Company's stock or assets, shall be deemed an assignment requiring consent. Company shall provide City at least thirty (30) days advance written notice of any proposed transfer. b. If Company desires at any time to effect a transfer, it shall first deliver to City: (1) a written request for approval; (2) the name, address and most recent financial statements of the proposed transferee; and (3) the proposed instrument of assignment or sublease, which in the case of PaOe a assignment shall include a written assumption by the assignee of all obligations of this Agreement arising from and after the effective date of assignment. C. Notwithstanding Section 18(a) above, Company may, without prior approval from time -to -time, do any of the following: Grant to any person or entity a security interest in some or all of Company's Telecommunications Facilities which lien shall be subordinate and junior to this License; and Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30 %) or greater interest in Company (a "Parent ") or in which Company or a Parent has a thirty percent (30 %) or greater interest (an "Affiliate "); (ii) to any entity with which Company and /or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units, stocks or assets of Company or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Telecommunications Facilities is operated, upon FCC approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until Company cures any defaults under this Agreement and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of Company's post, current and future obligations under the Agreement. d. No assignment by the Company shall release Company from continuing liability under this Agreement with the exception of a buyout of the Company by another entity which formally assumes all post, current and future obligations of the Company under this Agreement. 19. Taxes: Company shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Telecommunications Facilities. City hereby gives notice to Company, pursuant to Revenue and Tax Code Section 107.6 that this Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Company. 20. Relocation: Company agrees that whenever any City improvements may be required (for example, the widening of a street or replacement of a bridge), the City may require the relocation of any such Telecommunications Facilities at the Company's expense, without making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Telecommunications Paae 9 Facilities, City shall provide Company with not less than sixty (60) days written notice of relocation specifying a date by which the relocation is to take place. 21. Damage and Destruction of Replacement Streetlight: In the event of (a) partial or total destruction of the Replacement Streetlight during the term of this Agreement which requires repairs to the Replacement Streetlight, or (b) the Replacement Streetlight being declared unsafe by any authorized public authority for any reason other than Company's act, use or occupation, which declaration requires repairs to the Replacement Streetlight, Company may either (i) make said repairs or replace the Replacement Streetlight within one hundred twenty (120) days of the date of destruction or the date the declaration was served on Company; or (ii) terminate this Agreement by providing written notice to City within sixty (60) days following the date of such destruction or the date that the declaration was served on Company. If Company elects to repair or replace the Replacement Streetlight, the License Fee shall remain in full force and effect. If Company elects to terminate this Agreement pursuant to this Section, the License Fee shall remain in full force and effect until the date of termination. Any termination is subject to the Company complying with the surrender obligations of Section 17, above. 22. Termination: a. This Agreement may be terminated by either party, for any reason, without cause, by giving one hundred eighty (180) days written notice to the other party. Any termination is subject to the Company complying with the surrender obligations of Section 17, above. 23. Construction: a. Company agrees to take all prudent action to protect the Telecommunications Facilities and City facilities from any damage or injury caused by any work performed by or on behalf of Company regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of its Telecommunications Facilities or the failure, deterioration or collapse of such Telecommunications Facilities. b. Company shall, at its sole cost and expense, continually maintain in a first - class manner, and repair any damage to the Replacement Streetlight and License Area, to the extent such damage is caused by Company or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Company shall immediately notify the City Manager and the appropriate public safety agency (e.g. Police and Fire Department) of any damage or injury caused by work authorized pursuant to this Agreement. Paae 10 c. Without limitation of any other remedy available hereunder or at law or in equity, if Company fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Company shall reimburse City of all costs and expenses incurred in such repair or refinishing. d. Company shall, within thirty (30) days of the execution of this Agreement, submit to the City and, throughout the Term and each Renewal Term, maintain in effect, a bond, letter of credit or other security, in the principal amount of One Thousand and 00/100 Dollars ($1,000.00) ( "Security') to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form reasonably acceptable to the City, and shall remain in effect throughout the term of this Agreement. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and cost of removal of the Facilities upon expiration or termination of this Agreement should Company fail to do so as required by this Agreement. The Security shall in no way limit the liability or obligations of Company or its insurers under this Agreement. If the funds represented by the Security become exhausted, Company shall immediately provide the City with a new security in the amount necessary to provide full required Security. 24. Maintenance: At its sole cost and expense, Company shall take good care of the Telecommunications Facilities and keep the Telecommunications Facilities neat, clean and free from graffiti, dirt and rubbish at all times. 25. Multiple Companies: The Parties recognize that this Agreement contemplates installation and use by multiple entities or companies, other than City, seeking to place telecommunications facilities in or about the Replacement Streetlight or License Area. Company shall use its best efforts to coordinate its activities with those other such entities to reduce the costs of all such parties and to avoid interference with each such party's realizations of benefits of this and similar Agreements. If City deems it reasonably necessary, City shall coordinate any such cooperative efforts. City will not enter into a subsequent agreement with another entity to place telecommunications facilities within the License Area or in proximity to the License Area if Company has shown to City's satisfaction, after compliance with this Section, that additional telecommunications facilities are technically incompatible with the operation of the Telecommunications Facilities under this Agreement. Paae 11 26. Indemnification: Company shall indemnify, release, defend and hold harmless City, its City Council, boards and commissions, officers, agents, and employees against any and all claim, demand, suit, judgment, loss, liability or expense of any kind, including attorneys' fees and administrative costs, arising out of or resulting in any way, in whole or in part, from the latent or patent defects in design and construction of Replacement Streetlight, Telecommunications Facilities or any acts or omissions, intentional or negligent, of Company or Company's officers, agents or employees in the performance of their duties and obligations under this Agreement, except to the extent such claims are caused by the active negligence, or willful misconduct of City, its officers, agents and employees. a. During the term of this Agreement, Company shall maintain, at no expense to City, the following insurance policies with a minimum financial rating of Best A -VII or better; A comprehensive general liability insurance policy in the minimum amount of One Million and no /100 Dollars ($1,000,000.00) per occurrence for death, bodily injury, personal injury, or property damage; 2. An automobile liability (owned, non - owned, and hired vehicles) insurance policy in the minimum amount of One Million and no /100 Dollars ($1,000,000.00) per occurrence; b. The insurance coverage, shall also meet the following requirements: The insurance shall be primary with respect to any insurance or coverage maintained by City and shall not call upon City insurance or coverage for any contribution. 2. The insurance policies shall be endorsed for contractual liability and personal injury; 3. The insurance policies shall be specifically endorsed to include City, its officers, agents, employees, and volunteers, as additional insureds under the policies; 4. Company shall provide to City's Risk Manager, (a) original Certificates of Insurance evidencing the insurance coverage required herein, and (b) original specific endorsements naming City, its officers, agents, employees, and volunteers, as additional insureds under the policies; 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to City's Risk Manager. However, provided that the insurance Paae 12 coverage required under this Agreement is not impacted, Company may modify its policy without notifying City in order to add coverage for Company's new telecommunication facilities or to remove coverage from de- commissioned telecommunications facilities; 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five (5) years; The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement; 8. The insurance shall be approved as to form and sufficiency by the City's Risk Manager and the City Attorney. C. If it employs any person, Company shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both Company and City against all liability for injuries to Company's officers and employees. Any notice of cancellation or non - renewal of all workers compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Company for City. d. Any deductibles or self - insured retentions in Company's insurance policies must be commercially reasonable. e. The limits of coverage provided in Section 26(a) above may be increased to reflect Council adopted coverage as determined necessary by the City's Risk Manager consistent with industry standards. 27. Hazardous Substances: a. From the date of execution of this Agreement throughout the Term and any Renewal Term, Company shall not use, store, manufacture or maintain on the Replacement Streetlight and License Area any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of Telecommunications Facilities approved by this Agreement, (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Company shall handle, store and dispose of all Hazardous Substances it brings onto the Replacement Streetlight and License Area in accordance with applicable laws. b. For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant Paae 13 to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ( "CERLCA "); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ( "RCRA "); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter - Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended, (the above -cited statutes are here collectively referred to as "the Hazardous Substances Laws ") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. C. Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Company set forth in Section 26, Company agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the Replacement Streetlight and License Area provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Replacement Streetlight and License Area, to the extent caused by Company. This Section 27 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. Paae 14 City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the Replacement Streetlight and License Area in violation of any law or regulation. City and Company each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and /or costs arising from any breach of any representation, warranty or agreement contained in this Section 27. This Section 27 shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Company shall surrender and vacate the Replacement Streetlight and License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Company. 28. Compliance with Laws: Company, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the Replacement Streetlight and the License Area, or the use thereof, including all RF safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Company shall not occupy or use the Replacement Streetlight and License Area or permit any portion of the Replacement Streetlight and License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 29. Not Agent of City: Neither anything in this Agreement nor any acts of Company shall authorize Company or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 30. No Third -Party Beneficiaries: City and Company do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 31. Notices: All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or next - business -day delivery via a nationally recognized overnight courier or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: Paae 15 To City: City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 and with respect to insurance issues: City Risk Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 To Company: T- Mobile USA, Inc. 12920 SE 38th Street Bellevue. WA 98006 Attn: PCS Lease Administrator With a copy to: Attn: Legal Dept. (Site #: LA13163A) With a copy to: Omnipoint Communications, Inc., a subsidiary of T- Mobile USA, Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Manager (Site #: LA13163A) Company's emergency contact: Department: Network Operations Center 24 hour phone number: (888) 662 -4662 32. Entire Agreement Amendments: a. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the Company and the City. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. Paae 16 d. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Company and City. e. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of any attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 33. Waivers: The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 34. Attorneys' Fees: The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 35. City Business License: Company shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 36. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. Time is of the Essence: Time is of the essence for this Agreement. Paae 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the date and year first written herein. City of Newport Beach A Municipal Corporation w omer Bludau, eity Manager City Clerk APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney For the City of Newport Beach Ar Ccl Paae 18 OMNIPOINT COMMUNICATIONS, INC., • subsidiary of T- Mobile USA, Inc., • Delaware corporation By: Danny Bazerman Director of Engineering & Operations Date: By- — /x Dates zl.� rn stt�� Approved as to form Tanta B. coullw corDOrate City Controlled Pighl of Way EXHIBIT "A" Private Property REAL PROPERTY city Property ° Feel leo met 2923 2329 13y2 Wil 0_0'1 4 2°°9 P CENTELLA PL zone Q a .ti _ 0�f J� ar �P J� \Q. N O City of Newport Beach Public Works Department Permit No: M2007-0271 3300 Newport Blvd, Newport Beach, CA 92663 Public Works & Inspection Requests (949) 644 -3311 Utilities Inspection Requests (949) 644 -3011 Job Address: 2101 IRVINE AVE NB Thomas Guide: 889J6 Description : INSTALLATION OF T- MOBILE EQUIPMENT MOUNTED INSIDE VAULT (MICROCELL 11'X6'- 8 "X8'. PLACEMENT OF PEDESTAL AND ATT EQUIPMENT, METERS. REMOVAL OF AN EXISTIN STREETLIGHT POLE AND REPALCEMENT WITH CONCRETE STREETLIGHT Parcel # : - - Pr1 Legal Desc : N TR 15935 LOT 69 � Owner: CITY OF NEWPORT BEACH Contractor : NSA WIRELESS O Phone: 949.644 -3311 Phone : 925 -244 -1890 CD'f Address : 3300 NEWPORT BOULEVARD Address : 2527 CAMINO RAMON. SUITE 305 S� S NEWPORT BEACH CA 92663 SAN RAMON rT1 W Contractor State Lic: 867615 –"1 --1 Applicant: OMNIPOINT COMMUNICATIONS License Expire : 11/30J 009 Phone : 949- 232 -2274 Class Code 4 rn Address : ONE VENTURE, SUITE 200 rn IRVINE, CA 92618 Business License : BT30010875 Business Expire : 96f8Bf''688 V (3010q --1 Special Cond.: �P_C� �,/J ®� n ( 66��'"/ ✓+� o— Workers' Compensation Carrier: Insurance - - HARTFORD INS CO OF MIDWEST AvTlLio?A7w'�j1tOh� � Policy No: 34WE00848 (1701 cry G/i'7Gilf OK 0>G�� W. C. Expire: 01/01/2008 Me Permit Processing Fee: $241.00 Sewer Connection : $0.00 Paid $8,569.50 .Agreement Fee: $0.00 4TT Box Cover: $0.00 Balance: 0.00 Street/Alley/Walk /Closure: $61.00 Water Meters(Meter + Conn) :. $0.00 IZ 445 33 Public Works Field Insp.: 3,300.00 Const. Water Meter: $0.00 Receipt No: ° Utilities Field Insp.: 2.062.50 Water Meter Box: $0.00 Refundable Deposit : 2,,08,0..00 Adjustment: 50.00 M f Processed 9y : Date : 1.4of7 Other Department : Date Utilities Approval thy' tkDate: : '171d V12 YE'0lle"tt✓I II / U! 0_1 Permit Denied Date : _i_I_ Traffic Approval : 7VY &dtfaU UW-Date : II / U/ 07 Issued Permit : Date: �� ! 247 o General Services _ � Approval W Date TO: T- Mobile CI'T'Y OF NEWPORT T B EA(ClH[ PUBLIC WORKS DEPARTMENT 3300 NEWPORT BOULEVARD P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768 (949) 644 -3311 CONDITIONS OF APPROVAL FROM: Iris Lee, P.E. DATE: November 20, 2007 SUBJECT: EPN2007 -0271 2101 [CS] Irvine Avenue The following is the Encroachment Permit N2007 -0271 conditions of approval for the cell site proposed at 2101 [CS] Irvine Avenue by T- Mobile: T- Mobile shall enter into a Telecommunications License Agreement with the City of Newport Beach. G T- Mobile /contractor shall provide a contact person and telephone number responsible for all construction aspects. Should this person be removed from this project during the construction period, a replacement contact person and telephone number shall be provided within 48 hours. • T- Mobile shall schedule a preconstruction meeting with City staff, contractor, and other necessary parties a minimum of one (1) week prior to construction. • Contractor shall purchase all temporary "No- Parking" signs from the City prior to the preconstruction meeting. • Light fixtures shall be maintained by the City, whereas the streetlight pole shall be maintained by T- Mobile. This shall be consistent with the Telecommunications License Agreement. • T- Mobile shall install RF emissions warning sticker /sign on streetlight pole at eye -level (approximately five feet above sidewalk elevation) to the satisfaction of the City's Utilities Department. • All splicing shall be an approved WATERPROOF version per City Standard 205 -L. • All underground conduit/cable runs shall maintain a minimum five -foot clearance from City utilities, unless otherwise approved by City. • T- Mobile shall provide an emergency shut -off switch on Myers cabinet to the satisfaction of the City's Public Works and Utilities Department. • Light standard arm bracket shall be welded on. All items not attached directly to the streetlight pole itself shall be "hot- dipped" galvanized. Please verify with PW inspector prior to the attachment of any items on the pole. • All antennas shall be flush mounted. There shall be no exposed wires • A separate conduit in streetlight pole for 240 volt streetlight power shall be provided and satisfy the City's Utilities Department. • Contact the City's Utilities Department Electrical Division prior to start of any 5KV street light circuit work. • The replacement of streetlight shall match the existing streetlight and comply with City Standard. Pole color, facing /coating, style, material, and manufacturer shall be approved by the Utilities Department prior to installation. It is highly recommended to submit a sample to the Utilities Department for a written approval prior to ordering said material. • The storage of all project related equipment shall be off -site and not impact the public right -of -way. • All traffic control shall comply with the City - approved traffic control plans. • T- Mobile shall protect all City landscape, tree, and irrigation in place. If any damage should occur, the contractor will be required to repair as directed by the General Services Department and guarantee work for a minimum of one (1) year. • The re- aiming of any portion of the existing irrigation system shall be coordinated with the City's General Services Department. Work shall not commence until field approval has been provided. • T- Mobile shall work in a fashion that minimizes damage to the irrigation and plantings. If irrigation is required to be turned off, T- Mobile is responsible for any subsequent plant damage. • All pavement, sidewalk, driveway approach, and /or any other restoration shall be per City Standards, unless otherwise directed by City. • Additional inspections fees may be required. T .. Mobile- Get more from life R a TrI 0 gi nMobi'le mo MTE NUMBER: LAI 3163A WY: NEWPORT BEACH &TEN'AME: 1RVWEk1JE. AND SANMAGO DR. COUNTY. ORANGE SEQUOIA Slffo E TYPE: R.O.V'd. 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Company and City are each a "Party" and together the "Parties" to this Agreement. RECITALS A. City is the fee title owner of that certain real property located at Superior Avenue and Coast Highway in the City of Newport Beach, California, such property described more particularly in Exhibit "A" hereto, which description is fully incorporated herein by this reference ("Real Property"); B. Company desires to license from City, on a non-exclusive basis, the right to use that certain portion of the Real Property, and those certain related easements through the Real Property for physical access and utilities, as depicted in Exhibit "B" hereto which is fully incorporated herein by this reference (the "License Area") and; C. City is the fee title owner of a streetlight located at Superior Avenue and Coast Highway, City of Newport Beach, California, such property described more particularly in Exhibit "C" hereto, which description is fully incorporated herein by this reference ("Streetlight"); D. Company desires to license from City, on a non-exclusive basis, the right to replace the Streetlight with a new streetlight ("Replacement Streetlight") to accommodate both the City's standard streetlight fixture and the operation of Company's wireless telecommunications antenna and related facilities, described more particularly in Exhibit "D"; and the right to use certain related easements for physical access, as depicted in Exhibit "E" hereto, all of which are fully incorporated herein by this reference, and which may require encroachment upon and occupation on a portion of the public -right-of-way; and E. City is willing to make the Replacement Streetlight and License Area available to Company, subject to the covenants and conditions set forth in this Agreement, on a non-exclusive basis, in order to facilitate the efficient and orderly deployment of communications facilities..in the City of Newport Beach. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: License City grants a non-exclusive license ("License") to Company for the term of this Agreement, to replace the Streetlight with the Replacement Streetlight, as it is described in Exhibit "D", for the uses specified in this Agreement. City further grants to Company a non-exclusive license for ingress and egress to the Replacement Streetlight and License Area, for construction, installation and maintenance of the facilities and underground utility wires, cables, conduits as necessary to operate the Telecommunications Facilities, as defined below, subject to the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies. All installation and maintenance activities shall be at Company's sole cost and expense, including but not limited to the fees and costs associated with the permits and government approvals described in Article 3, pursuant to plans approved in advance in writing by the City. The license granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Company covenants, as a material part of the consideration for this license, to keep and perform each and every term, covenant and condition of this Agreement. Company shall be responsible for all maintenance associated with the Telecommunications Facilities . City shall be responsible for all maintenance associated with the streetlight portion of the Replacement Streetlight, including but not limited to, the working streetlight itself, the wires and equipment necessary to operate the streetlight, and the physical pole. In the interest of the safety of its employees, City shall have the right, upon at least four (4) hours notice to Company, to temporarily turn off the power to the Telecommunications Facilities if any required maintenance for the streetlight portion of the Replacement Streetlight requires City employees to be within ten (10) feet of the transmitting antennas. For purposes of this paragraph, City shall contact Company at 888-662-4662. Notwithstanding Company's construction and installation of the Replacement Streetlight, it is the parties' intention that Company's interest in the Replacement Streetlight is restricted to this License and the City retains all rights, title and interest in the Replacement Streetlight. Company shall have 24 -hours -a -day, 7 -days -a -week access to the License Area at all times during the Term and Renewal Term of this License at no additional charge to the Company. 2. Uses Company shall use the Replacement Streetlight and License Area for the sole purpose of constructing, maintaining, securing and operating a wireless telecommunications antenna and related facilities including any ground support equipment such as electric meters, vaults, above ground boxes, switch gear, transformers, etc., described in Exhibit "D", to transmit and receive radio communication signals on various frequencies (between 1850 and 1990 MHZ) (collectively, the "Telecommunications Facilities" or "Facilities"), all in compliance with the approved site plans and related drawings dated November 23, 2004, on file with the City Planning Department, and the conditions of approval contained in the Telecommunications Facilities Permit No. TP 2003-003 ("Telecom Permit"), issued by the Planning Department in accordance with Chapter 15.70 of the Newport Beach Municipal Code. The Telecommunications Facilities and operating frequencies may not be expanded or modified except upon written approval of an amended Telecom Permit and as may be required by this Agreement. Construction and operation of the Telecommunications Facilities shall be at Company's sole expense. Company shall keep the Replacement Streetlight and License Area free from hazards or risk to the public health, safety or welfare. Except as provided under this Agreement, or required by laws, Company shall not make or permit to be made any alterations, additions or improvements to the Replacement Streetlight and License Area, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the Replacement Streetlight and License Area without the prior written consent of City . Notwithstanding the foregoing, Company shall have the right to place warning signs on or about the Replacement Streetlight or License Area in the manner required by Federal, State or local law. 3. Telecommunications Permit And Government Approvals In addition to the Telecom Permit, Company shall obtain an Encroachment Permit from the Public Works Department and, if required by City, a Building Permit from the Building Department. Company shall comply with all conditions of approval contained in the Telecom Permit, the Encroachment Permit, and if required, the Building Permit. Company shall obtain all other governmental licenses, permits and approvals required by Federal, State or local governmental agencies, enabling Company to construct, operate, repair and remove the Telecommunications Facilities in the License Area. 4. Term: The initial Term of the license granted hereunder ("Term") shall commence on the Commencement Date and continue for a period of five (5) years. For purposes of this Agreement, the "Commencement Date" shall be the first day of the month following the date this Agreement is executed. After the Commencement Date, this License shall not be revoked or terminated except as expressly provided in this Agreement. This Agreement shall automatically be extended, on the same terms and conditions as set forth in this Agreement, for up to three (3) successive terms of five (5) years each ("Renewal Terms") unless at least thirty (30) days prior to the expiration of the Term or any Renewal Term, Company notifies City in writing of Company's intention not to extend this Agreement and by the end of the then current Term or Renewal Term the Company also complies with the surrender conditions of Section 17 below. Notwithstanding the above, this Agreement shall not be automatically extended if Company has defaulted in the performance of any term or condition of the Agreement and has failed to cure such default after notice as provided in this Agreement. 5. Fees and Costs: a. Company shall pay to City a License Fee in an amount of One Thousand One Hundred and 00/100 Dollars ($1,100.00) per month, adjusted in accordance with paragraph (b) immediately below (the License Fee, as adjusted herein, is referred to as the "License Fee"), due on the Commencement Date, and on the first day of each month during the Term and each Renewal Term thereafter. The License Fee for any partial month shall be prorated in accordance with the actual number of days in that month. b. Beginning in year two of the Term of this Agreement, the License Fee shall automatically increase each and every year during the Term and any Renewal Term, upon the anniversary of the Commencement Date, with the exception of any anniversary date on which the fee is being increased under Section 6, below, to "Market Rate" (as defined below). The amount of increase shall be four percent (4%) of the License Fee in effect immediately preceding the increase. C. A ten percent (10%) late fee shall be added to the License Fee if not received by City within fifteen (15) days following the due date. 6. Adjustment of License Fee Upon Renewal: The City shall conduct rent surveys and appraisals of rents or license fees paid for similar facilities in similar California locations. The Telecommunications Committee shall then meet to review such rent surveys and appraisals and make a recommendation to the City Manager's office for the "Market Rate" of the Telecommunications Facilities. Sixty (60) days prior to the start of the second (2nd) Renewal Term, and each Renewal Term thereafter, the City Manager shall establish the Market Rate of the Telecommunications Facilities based upon the Telecommunications Committee recommendations. The Parties recognize that the annual increase in the License Fee as required by Section 5(b) may cause the License Fee to be greater than, less than, or equal to the Market Rate. If the Market Rate is greater than the License Fee as adjusted by the annual increase in Section 5(b) above, then the License Fee for the second (2nd) Renewal Term, and each Renewal Term thereafter, shall be adjusted to the higher Market Rate for that Renewal Term. If the Market Rate is less than or equal to the License Fee as adjusted by the annual increase in Section 5(b) above, then the License Fee for the Renewal Term shall be the License Fee at the expiration of the term immediately preceding the Renewal Term. 7. Adjustment of License Fee Upon Modification of Uses: The License Fee set out in this paragraph is based upon the Facilities, Replacement Streetlight and License Area permitted by the Telecom Permit. Changes in the Facilities, Replacement Streetlight or License Area may increase the value of this License Agreement. To the degree that a change in the Facilities requires amendment or modification to the Telecom Permit, City and Company understand and mutually agree that a corresponding increase in the Market Rate of the Telecommunications Facilities may be reflected in an adjustment to the License Fee. Such an adjustment may be defined at the time at which Company seeks City's approval for modifications in the Telecommunications Facilities described in Section 2, and shall be mutually agreed to by the Parties as a condition of the City's approval of such expanded service by the Company. 8. Interference with City Telecommunications: a. Company agrees that its operation of the Telecommunications Facilities shall at all times comply with all Federal Communications Commission ("FCC") requirements and shall not cause any direct or indirect interference with the operation of the Replacement Streetlight as a streetlight or City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist ("City's facilities"). b. In the event of any interference with City Police and Fire Department public safety communications, Company shall work with the affected Department to correct the interference within four (4) hours of City's written or telephone notice to Company. In the event of interference with City's streetlights or own wireless communications system or external radio signals and communications other than Police or Fire Department, Company shall work with City to correct the interference within twenty-four (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Facilities and if Company is unable to correct interference to City's satisfaction, Company shall cease its operation of the Telecommunications Facilities at the end of such time period until the cause of the interference is corrected to City's satisfaction, except for periods of intermittent testing. If Company fails to correct any interference caused by Company, City may, in addition to and without compromising any other available remedy cut off power to the facility in the manner set forth in Section 9 below. C. Prior to making any changes to the frequency or operating conditions approved by the Telecom Permit, Company shall submit plans for the proposed changes to City for its review and approval. Company agrees to fund any studies required to ensure that any contemplated changes will be compatible with the City's facilities. No Company change shall occur prior to the City's approval. 9. Emergency: a. Company understands that the Telecommunications Facilities are located on a public structure or within public property and emergency situations may develop from time -to -time that require power to the Telecommunications Facilities to be immediately shut off and thereby interfere or temporarily terminate the Company's use of its Facilities on the Replacement Streetlight and License Area. Notwithstanding Section 8 of this Agreement, Company agrees that if such a situation occurs, and there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Company in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Telecommunications Facilities and any equipment of Company's located on the Replacement Streetlight for the duration of the emergency. Company agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Telecommunications Facilities or other communication facilities by the shut-off of power. b. Company agrees to install a clearly marked & accessible master power "cut-off" switch on their equipment for the purpose of assisting City in such an emergency. C. Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Telecommunications Facilities pursuant to Section (9)(a) is not intended to constitute a termination of this Agreement by either party and such event is a risk accepted by the Company. Company and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. The License Fee, prorated to a 365 -day year, shall be abated for any day, or part thereof, in which power to the Telecommunications Facilities is shut off pursuant to Sections 8 or 9 of this Agreement. d. City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this Section. 10. Acceptance of License Area: Except as otherwise stated in the Agreement, Company shall accept use of the Replacement Streetlight, Streetlight and License Area in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the Replacement Streetlight, Streetlight and License Area, including its suitability for the use intended by Company. To the best of City's knowledge, the Replacement Streetlight, Streetlight and the License Area has not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in Section 26. Company has conducted its own appropriate due diligence investigation of the Replacement Streetlight, Streetlight and License Area prior to its execution of this Agreement. 11. No Interest in Property: Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the Replacement Streetlight, Streetlight, License Area, or any public right-of-way, other than a real property license to use and access the Replacement Streetlight and License Area, revocable pursuant to the terms of this Agreement and for a term as set forth in this Agreement. 12. Reservation of Riahts: Company understands, acknowledges and agrees that any and all authorizations granted to Company under this Agreement are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 13. Utilities: Company shall not do, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the Replacement Streetlight, except as may be specifically permitted by the Telecom Permit. The Replacement Streetlight shall be separately metered. In addition to the License Fee, Company shall be responsible for the cost of all utility services necessary for the operation of the Telecommunications Facilities, and if required by City, shall have such utilities installed underground and/or connected if already installed, and maintained at Company's sole cost and expense (along with all ongoing use charges). If required, Company shall submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. 14. Inspection: City shall be entitled to enter the License Area at any time to visually inspect the Replacement Streetlight and Telecommunications Facilities for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 15. City Retention Rights: Company's right to use the Replacement Streetlight and License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the Replacement Streetlight and License Area for any purpose that does not interfere with Company's use of the Replacement Streetlight and License Area as provided herein. 16. Company's Retention of Title: Title to the Telecommunications Facilities and any equipment placed on the Replacement Streetlight and License Area by Company shall be held by Company or its equipment lessors, successors, or assigns. The Telecommunications Facilities shall not be considered fixtures. Company has the right to remove any or all of the Telecommunications Facilities at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) days after an early termination of this License. 17. Surrender: Upon expiration or termination of this Agreement, Company at its sole cost and expense, shall within sixty (60) days of written notice from City, remove the Telecommunications Facilities, restore the Replacement Streetlight and License Area to its original condition or to a condition reasonably satisfactory to and approved by City reasonable wear and tear excepted, and vacate the Replacement Streetlight and License Area. Should Company fail to restore the Replacement Streetlight and License Area to a condition reasonably satisfactory to City, City may perform such work or have such work performed by others and Company shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Company shall continue to pay the License Fee until the Replacement Streetlight and License Area is so restored as required by this Agreement. 18. Assignment: a. All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. This Agreement and the rights and obligations of Company shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, without the express written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned and may be withheld if assignee is of lesser financial status than Company when this Agreement was executed. Any attempted transfer in violation of this Section shall be void. Except as provided below, the transfer of the rights and obligations of Company to any successor in interest or entity acquiring fifty-one percent (51 %) or more of Company's stock or assets, shall be deemed an assignment requiring consent. Company shall provide City at least thirty (30) days advance written notice of any proposed transfer. b. If Company desires at any time to effect a transfer, it shall first deliver to City (1) a written request for approval, (2) the name, address and most recent financial statements of the proposed transferee and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Agreement arising from and after the effective date of assignment. C. Notwithstanding Section 18(a) above, Company may, without prior approval from time -to -time, do any of the following: Grant to any person or entity a security interest in some or all of Company's Telecommunications Facilities which lien shall be subordinate and junior to this License; and 2. Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30%) or greater interest in Company (a "Parent") or in which Company or a Parent has a thirty percent (30%) or greater interest (an "Affiliate"); (ii) to any entity with which Company and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or network assets of Company or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Telecommunications Facilities is operated, upon FCC approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until Company cures any defaults under this Agreement and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of Company's post, current and future obligations under the Agreement. d. No assignment by the Company shall release Company from continuing liability under this Agreement with the exception of a buyout of the Company by another entity which formally assumes all post, current and future obligations of the Company under this Agreement. 19. Taxes: Company shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Telecommunications Facilities authored herein. City hereby gives notice to Company, pursuant to Revenue and Tax Code Section 107.6, that this Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Company. Company has the right to appeal any unreasonable assessments to the taxing authority. 20. Relocation: Company agrees that whenever any City improvements may be required (for example, the widening of a street or replacement of a bridge), the City may require the relocation of any such Telecommunications Facilities at the Company's expense, without making any claim against the City for reimbursement or damage therefore. City may provide Company with a temporary location, if feasible, to install and operate temporary transmitting/receiving facilities, including a so—called "COW" or cell -on -wheels. 21. Termination: a. This Agreement may be terminated by either party: (1) for cause, for failure to comply with any covenant, condition or term hereof by the other party, including payment of the License Fee which failure is not cured within thirty (30) calendar days of receipt of written notice of default. If such breach, other than payment of the License Fee, is not capable of cure within such thirty (30) calendar -day period, then no breach or default shall be deemed to have occurred by reason of such failure so long as the defaulting party promptly commences and diligently prosecutes such cure to completion within a reasonable time period; or (2) Company fails to construct and commence operation of the Telecommunications Facilities authorized by this Agreement within one (1) year of the date of this Agreement provided that Company received all the necessary permits and approval or ceases to operate the Telecommunications Facilities for a continuous period of six (6) months. b. City may also terminate this Agreement, without cause, upon one hundred and eighty two (182) calendar days advance written notice to the other party that the License Area is necessary for a public purpose. City agrees to cooperate with Company to identify alternate locations to relocate the Telecommunication Facilities. C. Company may also terminate this Agreement by providing City with advance written notice: (i) if Company is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Company from installing, removing, replacing, maintaining or operating the Telecommunications Facilities or using the License Area in the manner described in Section 2 of this Agreement; or (ii) if, prior to the Commencement Date, Company determines that the License Area is not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference. d. Any termination is subject to the Company's compliance with the surrender obligations of Section 17, above. 22. Construction: a. Company agrees to take all prudent action to protect the Telecommunications Facilities, Replacement Streetlight and other City facilities from any damage or injury caused by any work performed by or on behalf of Company regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of the Replacement Streetlight, its Telecommunications Facilities or the failure, deterioration or collapse of such Replacement Streetlight or Telecommunications Facilities. 10 b. Company shall, at its sole cost and expense, continually maintain in a first- class manner, and repair any damage to the Replacement Streetlight and License Area, to the extent such damage is caused by Company or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Company shall immediately notify the City Manager and the appropriate public safety agency (e.g. police and fire department) of any damage or injury caused by work authorized pursuant to this Agreement. C. Without limitation of any other remedy available hereunder or at law or in equity, if Company fails to repair or refinish any such damage, after providing written notice, City may, at its sole discretion, but not be required to, repair or refinish such damage and Company shall reimburse City of all reasonable costs and expenses incurred in such repair or refinishing. d. Company, prior to the construction of the Telecommunications Facilities, shall submit to the City, and throughout the Term and each Renewal Term, maintain in effect, a bond, letter of credit or other security, in the principal amount of One Thousand and no/100 Dollars ($1,000.00) ("Security") to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form reasonably acceptable to the City, and shall remain in effect throughout the term of this Agreement. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and the removal of the Facilities upon expiration or termination of this Agreement should Company fail to do so as required by this Agreement, including attorneys' fees and costs reasonably necessary to enforce the terms of this Agreement. The Security shall in no way limit the liability or obligations of Company or its insurers under this Agreement. If the funds represented by the Security become exhausted, Company shall immediately provide City with a new security in the amount necessary to provide full required Security. 23. Maintenance: Company shall take good care of the Telecommunications Facilities, Replacement Streetlight and License Area and keep the Telecommunications Facilities, Replacement Streetlight and License Area neat, clean and free from graffiti, dirt and rubbish at all times. 24. Multiple Companies: The Parties recognize that this Agreement contemplates installation and use by multiple entities or companies, other than City, seeking to place telecommunications facilities in or about the Replacement Streetlight, License Area or Real Property. Company shall use its best efforts to coordinate its activities with those other such entities to reduce the costs of all such parties and to avoid interference with each such party's realizations of benefits of this and similar agreements. If City deems reasonably necessary, City shall coordinate if any such cooperative efforts. City will not enter into a subsequent agreement with another entity to place telecommunications facilities within the License Area or in proximity to the License Area if Company has shown to City's satisfaction, after compliance with this Section, that the proposed telecommunications facilities are technically incompatible with the operation of the Telecommunications Facilities under this Agreement. 25. Indemnification and Insurance: Company shall indemnify, release, defend and hold harmless City, its officers, agents, and employees against any and all claim, demand, suit, judgment, loss, liability or expense of any kind, including attorneys' fees and administrative costs, arising out of or resulting in any way, in whole or in part, from the latent or patent defects in design and construction of Replacement Streetlight, Telecommunications Facilities or any acts or omissions, intentional or negligent, of Company or Company's officers, agents or employees in the performance of their duties and obligations under this Agreement, except to the extent such claims are caused by the active negligence, or willful misconduct of City, its officers, agents and employees. a. During the term of this Agreement, Company shall maintain, at no expense to City, the following insurance policies with a minimum financial rating of Best A -VII or better; A commercial general liability insurance policy in the minimum amount of One Million and no/100 Dollars ($1,000,000.00) per occurrence for death, bodily injury, personal injury, or property damage; 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of One Million and no/100 Dollars ($1,000,000.00) per occurrence; b. The insurance coverage, shall also meet the following requirements: The insurance shall be primary with respect to any insurance or coverage maintained by City and shall not call upon City insurance or coverage for any contribution; 2. The insurance policies shall be endorsed for contractual liability and personal injury; 3. The insurance policies shall be specifically endorsed to include City, its officers, agents, employees, and volunteers, as additional insureds under the policies; 4. Company shall provide to City's Risk Manager, (a) original Certificates of Insurance evidencing the insurance coverage required herein, and (b) original specific endorsements naming 12 City, its officers, agents, employees, and volunteers, as additional insureds under the policies; 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies so as to cause this Agreement not to comply with the insurance requirements, except upon thirty (30) days written notice to City's Risk Manager; 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five (5) years; 7. The effective date of coverage of the insurance policies shall be the effective date of this Agreement; and 8. The insurance shall be approved as to form and sufficiency by the City's Risk Manager and the City Attorney. C. Company shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Company shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Comapny for City. d. Any deductibles or self-insured retentions in Company's insurance policies must be declared to and approved by the City's Risk Manager and the City Attorney. At City's option, the deductibles or self-insured retentions with respect to City shall be reduced or eliminated to City's satisfaction, or Company shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. e. The limits of coverage provided in Section 25(a) above may be increased to reflect Council adopted coverage as determined reasonably necessary by the City's Risk Manager consistent with industry standards. 26. Hazardous Substances: a. From the date of execution of this Agreement and throughout the Term and any Renewal Term, Company shall not use, store, manufacture or maintain on the Replacement Streetlight and License Area any Hazardous 13 Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of Telecommunications Facilities approved by this Agreement, (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Company shall handle, store and dispose of all Hazardous Substances it brings onto the Replacement Streetlight and License Area in accordance with applicable laws. b. For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended, (the above-cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. C. Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Company set forth in Section 25, Company agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or 14 incur or which may be imposed upon them in connection with the use of the Replacement Streetlight and License Area provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Replacement Streetlight and License Area caused by Company, except for claims or damage caused by the active negligence or willful misconduct of the City, its employees or agents. This Section 26 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. d. City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the Replacement Streetlight and License Area in violation of any law or regulation. City and Company each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section 26. This Section 26 shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Company shall surrender and vacate the Replacement Streetlight and License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Company. 27. Compliance with Laws: Company, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the Replacement Streetlight and the License Area, or the use thereof, including all applicable zoning ordinances, building codes and environmental laws. Company shall not occupy or use the Replacement Streetlight and License Area or permit any portion of the Replacement Streetlight and License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 28. Not Agent of City: Neither anything in this Agreement nor any acts of Company shall authorize Company or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 29. No Third Party -Beneficiaries: City and Company do not intend, by a provision of this Agreement, to create in 15 any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 30. Notices: All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: To City: City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 and with respect to insurance issues: City Risk Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 To Company: T -Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 (Site LA02839) Attn: PCS Lease Administration With a copy to: Attn: Legal Dept. With a copy to: Omnipoint Communications, Inc., a subsidiary of T -Mobile USA, Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 (Site LA02839) Attn: Lease Administration 31. Entire Agreement Amendments: a. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. b. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Company and City. IN C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. d. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Company and City. e. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 32. Waivers: The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 33. Costs And Attorneys' Fees: The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 34. City Business License: Company shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 35. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 17 36. Time is of the Essence: Time is of the essence for this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the date and year first written herein. CITY OF NEWPORT BEACH, A Municipal Corporation zl�ll�lomer Bludau, Ity Manager APPROVED AS TO FORM: ��- Aaron C. Harp, Assistant City Attorney ATTEST: City Clerk 18 OMNIPOINT COMMUNICATIONS, INC., a Delaware corporation, a Subsidiary of T -Mobile USA ,fin ZAwA@g Awa -Director, Engineering OMNIPOINT COMMUNICATIONS, INC., a Delaware corporation, a Subsidiary of T=Mobile'USA David Gallagher; Regional Vice President �_ I Da'6.aP't s, c (PEI. M MEDT. A' --t- :'Va '2tPi-, @ TO IM -1 S srt,,m RV T!E AATc O< ^JGI�PJSA. CALTi. aF CSNNR'. DESCRIDW a Po'_LIII. 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