HomeMy WebLinkAboutC-4733(A) - Telecommunications License Agreement (Streetlight)DocuSign Envelope ID: D8DD4132-5FE8-4FB6-A539-6F6BE5C17F83
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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Approved as to form
Tanta B. coullw
corDOrate
City Controlled Pighl of Way EXHIBIT "A"
Private Property REAL PROPERTY
city Property °
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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-
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