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HomeMy WebLinkAboutContracts & Agreements_34-2002_CCv0001.pdf ATC Site Name&Number:Blue Mountain#1,TI (008032) Customer Site Name& lue Mountain LICENSE AGREEMENT ATC Contract No. )&P �Z 19th day of March This LICENSE AGREEMENT("Agreement")made this 21 u ,2002, ("Effective Date,")by and between American Tower, L.P., a Delaware limited partnership with a Place of business at 1101 Perimeter Drive, Suite 225,Schaumburg, IL 60173 ("Licensor")and City of Redlands, a California corporation with a place of business at P.O. Box 3005, Redlands, CA 92373 ("Licensee"), The attached Terms and Conditions are incorporated herein by this reference. TOWER SITE INFORMATION: Address and/or location of Tower Site: Blue Mountain, .75 South of Intersection of Honey, Colton,CA 92324 Coordinates: Lat.34-1-19.9 N Long. 117-17-46 W NOTICE&EMERGENCY CONTACTS: • Licensee's local emergency contact(name and number):Kyle Wilson(909) 798-7665. • Licensor's local emergency contact(name and number):Crystal Williams (949)955-5802. Notices to Licensee shall be sent to the address above to the attention of Kyle Wilson. Notices to Licensor shall be sent to the address above to the attention of Contracts Manager. APPROVED USE OF TOWER SITE BY LICENSEE: Transmitting frequencies:45.64 MHz and 45.6 MHz Receiving frequencies:45.12 MHz and 45.08 MHz Antenna mount height on tower.50'and 65'AGL(See Exhibit A for specific location description) All other permitted use of the Tower Site including,without limitation, Licensee's Approved Equipment(as defined in Section I herein),frequencies,channels and the identification and location of the Licensed Premises(as defined in Section I herein)at the Tower Site are described in Exhibits A and..B, are incorporated herein by reference and made a part hereof. FEES &TERM The"Monthly License Fee"shall be Five Hundred Dollars($500.00),adjusted on July 1,2002 and on each July Is'thereafter during the Initial Term and during any Renewal Terms by the"Annual Escalator'. If the Commencement Date is earlier than July 1,2002,then the Annual Escalator adjustment made to the Monthly License Fee on July 1,2002 shall be pro-rated for each full calendar month between the Commencement Date and July 1,2002.The Annual Escalator shall be the greater of(i)five percent(5%)per year or(fl)the percentage increase in the CPI for the year ended two calendar months prior to each applicable July I St. The"Site Inspection Fee*shall be: $3,000.00,as adjusted annually by a percentage rate increase equal to the Annual Escalator. The Site Inspection Fee shall be waived for the Approved Equipment listed on Exhibit A that was installed at the Tower Site prior to the Effective Date of this Agreement. Initial Term:The"Initial Term"of this Agreement shall be for a period of five(5)years beginning on May 2,2002. Renewal Terms:The"Renewal Terms"of this Agreement shall be four(4)additional periods of five(5)years each. Electricity for operation of Approved Equipment is to be provided by(check one): Z Licensor at the monthly rate of$25.00,adjusted annually by the Annual Escalator and subject to Sections 3&5 OR C3 Licensor,with such being included in the Monthly License Fee and subject to Sections 3&5.OR M Licensee,at its sole expense. OTHER PROVISIONS: Other provisions: (check one):fZ None[7 As listed below IN WITNESS WHEREOF,the Parties,each in consideration of the mutual covenants contained herein,and for other good and valuable consideration,intending to be legally bound,have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date first above-written;provided,however, that this Agreement shall not become effective as to either Party until executed by both Parties. LICENSOR LICENSEE American Tower,L.P., City of Redlands, a Delaware timi h* a California corporation By:ATC G c.,its Sol n ra By:! By: Its:Vice PresidentIts: Karl N. Haws, Mayor Print Name:Jo#n4-.P4ta=an A&';�.-7teu/ /Azw- CIP Print Name: Date: D March 19, 2002 Attest . L, o r r/*ie::!�P o y z e � .y lord 1/18/02-MRI(WEST) ATC Site Name&Number:Blue Mountain(008032) Customer Site Name&,Number: Blue Mountain TERms AND CONDITIONS 1. GRANT OF LICENSE. Licensor hereby agrees to license to Licensee space for the housing,installation and operation of the communications equipment specifically described in Exhibit A attached hereto ("Approved Equipment")with the location of such Approved Equipment being more specifically described in Exhibits A and 6 ("Licensed Premises")at the communications tower,antenna structure or rooftop facility described in the Tower Site Information section on page I ("Tower Site'). All Approved Equipment shall be and remain Licensee's personal property. Licensor shall maintain the communication facility located on the Tower Site in good condition and in a manner which will not disturb Licensee's reasonable use of the Licensed Premises. Licensee shall also have a right to: (i)install and maintain wires,cables,conduits and pipes either within,over,under or along the Tower Site;and(ii)to use any specific right of way for access to the Tower Site,each at locations mutually agreed upon by Licensor and Licensee. In the event any public utility is unable to use the existing right-of-way,Licensor agrees to grant an additional right-of-way at the Tower Site either to Licensee or to the public utility at no cost to Licensee to the extent permitted under the Ground Lease at a location acceptable to the Licensor. Licensee shall be solely and directly responsible for any and all damage or loss that results from the installation of any cables or utility wires by Licensee or any company or person retained by Licensee(including a public utility company),including, without limitation,any damage or loss that results from the accidental cutting of utility wires or cables of any other party operating at the Tower Site. Licensee shall have the right of access to the Licensed Premises 24 hours per day, 7 days per week,to the extent permitted under the Ground Lease. Licensee shall be responsible for ensuring that Licensor has,at all times, a complete and accurate written list of all employees and agents of Licensee who have been provided the access codes to the Tower Site. 2. EXHIBITS. In the event of inconsistency or discrepancy between Exhibit A and Exhibit B hereto.Exhibit A shall govern. If Exhibit 8 is not approved by Licensor and/or is not attached to this Agreement within thirty(30)days following the Effective Date,then Exhibit A shall govern. Any such inconsistency or discrepancy between Exhibits A and B as set forth in the foregoing sentence shall be deemed a material default by Licensee hereunder. Pursuant to Section 9,below,an amendment to this Agreement shall be prepared to reflect each addition or modification to Licensee's Approved Equipment to which Licensor has given its written consent("Amendment')which shall update Exhibits A and B hereto. Within forty-five (45)days following the commencement of installation of any additional Approved Equipment, Licensee shall provide Licensor with as-built drawings or construction drawings of the additional Approved Equipment as installed in both hard copy and electronic form ("Construction Drawings"), such Construction Drawings shall include the location of any shelters, cabinets,grounding rings,cables,and utility lines associated with Licensee's use of the Tower Site. Upon receipt, Licensor shall insert hereto the Construction Drawings as Exhibit C to the Amendment. In the event that Licensee fails to deliver the Construction Drawings as required by this section, Licensor may cause such Construction Drawings to be prepared on behalf of Licensee and Licensor shall assess a fee for such Construction Drawings at cost, including in-house labor,plus twenty percent(20%),which upon invoice shall become immediately due and payable. In the event of inconsistency or discrepancy between between Exhibit A to the Amendment(with respect to Approved Equipment and antenna locations) together with Exhibit B to the Amendment(with respect to ground space installation locations)and Exhibit C to the Amendment hereto, Exhibits A and Ito the Amendment shall govern, notwithstanding any approval or signature by Licensor or its employees. 3, LICENSE FEES;TAXES;ASSESSMENTS.The Monthly License Fee,as adjusted by the applicable Annual Escalator, shall be payable in advance on the first day of each calendar month beginning upon the Commencement Date. If the Commencement Date is not the first day of a calendar month,the Monthly License Fee for the first partial month shall be prorated on a daily basis. The Monthly License Fee for any last partial month in the term of this Agreement shall also be prorated on a daily basis. Licensee shall be solely responsible for all utility charges directly attributable to the Approved Equipment, except as otherwise provided on page I of this Agreement. Licensor shall be responsible for the payment of any applicable taxes or governmental assessments against the Tower Site or personal property and improvements thereon owned and maintained by Licensor, Licensee shall be responsible for the payment of any applicable taxes,fees or governmental assessments against any equipment, personal property and/or improvements owned,leased or operated by Licensee or directly associated with Licensee's use of the Licensed Premises. Licensee agrees to pay or reimburse Licensor for any and all taxes,fees,or other costs and expenses assessed upon or paid by Licensor to the United States Forest Service or Bureau of Land Management attributable to Licensee's Approved Equipment,Licensee's use of or Licensee's presence at the Tower Site. All payments due under this Agreement shall be made to Licensor at the address listed on page I or such other address as Licensor may notify Licensee of in writing and/dr upon such invoice. All payments due under this Agreement shall be rounded up to the nearest whole dollar amount. The CPI means the Consumer Price Index for All Urban Consumers, U-S, City Average (1982-1984=100),as published by the United States Department of Labor,Bureau of Labor Statistics. If the Index is discontinued or revised, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as if the Index had not been discontinued or revised. 4. TERM. The Initial Term of this Agreement shall be as specified on page 1. This Agreement shall automatically be renewed for the Renewal Terms, if any,also stated on page 9 unless either Party gives to the other one hundred eighty ^ " ATC Site Name dbNumber Blue Mountain(O08032) Customer Site Name&Number: Blue Mountain (180)days written notice of termination prior to the expiration of the then-current term. Upon expiration,cancellation or termination of this Agreement for any reason, Licensee shall:(I)remove the Approved Equipment and any other property of Licensee from the Licensed Premises at Licensee's sole risk,cost,and expense; (ii)deliver the Licensed Premises in substantially the same and in as good a condition as received(ordinary wear and tear excepted);and(iii)repair any damage caused by the removal of the Approved Equipment within 10 days of the occurrence of such damage. Inthe event that Licensor's right to license space to Licensee at the Tower Site is subject to a right of first refusal for the benefit of a third party or consent from the underlying lessor of the Ground Lease, Licensor shall reserve the right to terminate this Agreement in the event that such third party fails to refuse,consent or waive(or is deemed to have refused or waived)such right urconsent. 5� COMMON EXPENSES; UTILITIES. Licensee shall reimburse Licensor for Licensee's pro-rata share nfcosts and expenses incurred by Licensor for the maintenance, repair and replacement of common facilities at the Tower Site including,without limitation,damage to fences,gates,access roads,and the tower structure. Notwithstanding the foregoing,the cost and expenses associated with any damage which is directly attributable to the acts or omissions of Licensee orLicensee's contractors shall bmborne solely byLicensee. Licensee shall not barequired bupay any share of costs nrexpenses incurred horeplace the tower structure. |nthe event that Licensee also licenses space within obuilding or shelter owned by the Licensor on the Tower Site, Licensee shall also reimburse Licensor for its pro-rata share of all common expenses incurred for the operation, maintenance,repair and replacement associated with such building or shelter, including,without limitation,the physical structure cf the building, HVAC system,and common utility expenses. In the event that Licensee is connected to a generator or back-up power supply owned by the Licensor,Licensee shall also reimburse Licensor for its pro-rata share of all expenses incurred for the operation, maintenance,repair and replacement associated with such generator, including,without limitation,fuel expenses and replacement. For the purposes uf this section, a"pro-rata share"of costs and expenses shall be determined based on the number of licensees using the Tower Site unthe first day cf the month inwhich aninvoice immailed hmLicensee. Licensee shall reimburse Licensor for common expenses within thirty(30)days following receipt of an invoice from Licensor. Licensor and/or Licensee shall be responsible for the utility costs associated with the operation of Licensee's Approved equipment as set forth on page 1; provided, however,that(a)in no event shall Licensor provide Licensee with telephone service;and(b)in the event that Licensor provides access to electricity or utilities to Licensee for a fixed fee or inclusive in the MonthlyLicense Fee Licensor reserves the right to reasonably increase such fees based on any change in equipment or increased requirements byLicensee. Common expenses for Licensee shall be capped atannual rate of $3,000. 8. INSTALLATION BYLICENSOR. Licensee shall submit to Licensor its scope of work requirements for the installation of equipment within a reasonable period of time prior to any planned subsequent modification to or installation of additional Approved Equipment(but innoevent less than fifteen (15)business daym). Unless Licensor otherwise notifies Licensee, Licensor shall install or shall cause the installation of the subsequent modification to and/or additional Approved Equipmen at the standard market rate for such services(by experienced antenna system installers and excluding any discounts which maybe offered orare available from time totime). The Parties agree bodiligently and ingood faith negotiate oconstruction contract to install the subsequent modifications to and/or additional Approved Equipment. Ifthe Parties fail Uoagree upon the terms and conditions of the construction contract,they shall select an appraiser to resolve any disputes in accordance with common industry practice. Both Parties agree bubebound bythe appraiser's decision. Licensee and Licensor agree and acknowledge that Licensee's Approved Equipment listed on Exhibit A that was installed at the Tower Site prior to the Effective Date ofthis Agreement ionot subject 0othe provisions cfthis Section H. 7� SITE INSPECTION. Not less than ten (10)days prior to the initial installation by Licensee of the Approved Equipment or before the date of any subsequent modifications to or installation of additional Approved Equipment,Licensee shall pay Licensor the Site Inspection Fee. |nthe event that Licensor installs Licensee's Approved Equipment,Licensor shall waive the Site Inspection Fee with respect tosuch installation. The Site Inspection Fee shall bewaived for the Approved Equipment listed onExhibit A that was installed at the Tower Site prior to the Effective Date of this Agreement. 8 LABEL/NG. Licensee shall identify its equipment and equipment cabinets(unless such cabinet is located in a building owned by Licensee)with labels permanently affixed thereto and stating Licensee's name,contact phone number,and installation date. Licensee's coaxial cables shall belabeled mtboth the top and bottom cfthe tower structure.Should Licensee fail tomoidentify its equipment, Licensor may, Nn its sole discretion, interrupt Licensee's operations md the Tower Site and shall constitute adefault ufthis Agreement. |naddition,should Licensee fail bmlabel its equipment as required by this section, Licensor may label Licensee's equipment and assess against Licensee a fee of one thousand five hundred dollars($1,500.00),as adjusted annually by a percentage rate increase equal to the Annual Escalator,which upon invoice shall become immediately due and payable. g. WORK; ALTERATIONS;STRUCTURAL ANALYSIS&MODIFICATIONS. Licensee agrees that all cdLicensee's property babainstalled upon the Tower Site and all frequencies utilized by Licensee pursuant tuthis Agreement will be{nexact accordance with that specified|nExhibit A attached hereto. Licensee shall submit hoLicensor detailed plans and specifications accurately describing all aspects of the proposed work to be performed including,without limitation,weight and wind load requirements and power supply requirements and evidence that Licensee has obtained all approvals, permits and consents required by,and has otherwise complied with,all legal requirements applicable to the performance of the ^ ' ATC Site Name&Number: Blue Mountain(OO8U32) Customer Site Name&Nooi6cr: Blue Mountain Work. Licensee agrees that it will not make any alterations or additions to the Approved Equipment without the prior written consent ofLicensor ineach case obtained. Anamendment 0uExhibit Abthis Agreement shall beprepared 0oreflect each addition or modification to Licensee's equipment from time to time to which Licensor has given its written consent, Any and all work at the Tower Site shall be performed in accordance with the foregoing standards and by qualified contractors approved of in advance by Licensor(which approval of contractors shall not be unreasonably withheld,except as otherwise provided in the following sentence). Licensor reserves the right,in its sole discretion,to refuse to permit any person or company koclimb any tower structure at the Tower Site. Such contractors shall have valid and current worker's compensation and general liability insurance certificates on file with Licensor, naming Licensor as an additional insured and which otherwise satisfy the insurance coverage requirements described in Section 14 of this Agreement. Licensee shall indemnify,defend and hold harmless Licensor from and against any and all costs,claims,causes of action and liabilities of every nature and kind arising out of the acts and omissions of Licensee, its employees and agents or Licensee's contractors or subcontractors. At its sole election, Licensor may, in its sole but reasonable judgment,perform or cause to be performed a structural analysis to determine the availability of capacity at the Tower Site for the installation or modification of any Approved Equipment and/or additional equipment at the Licensed Premises by Licensee. Nothing herein shall prevent Licensee from performing such analysis for its own account;provided, however,thatLicensor shall approve such vendor in Licensor's sole discretion and Licensee shall provide a complete copy of any structural analysis that it performs to Lioenmormtnm000t0oUcenoornomonsdhanthidy(3O)dayahmUow|nQtheuomp|etionofthatena|yaim' |fLicensor performs such an analysis or causes one to be performed, Licensee agrees promptly to reimburse Licensor for all reasonable costs and expenses incurred by Licensor or Licensor's vendor in the performance of such structural analysis within thirty(30) days following receipt ofaninvoice from Licensor. |nthe event ostructural analysis ieperformed after the execution ofthis Agreement by Licensor but prior to the installation of Licensee's Approved Equipment,and such analysis indicates that the existing tower structure can not structurally accommodate the proposed installation of Licensee's Approved Equipment thereon, Licensor orLicensee may terminate this Agreement upon written notice etany time prior 0mthe oommencementof Licensee's installation. With respect to any permitted structural modifications to the Tower or upgrade of utilities by Licensee that are approved by Licensor, Licensor reserves the right to simultaneously upgrade the tower structure or utilities in excess of the modification required to accommodate Licensee's Approved Equipment in order to increase capacity("Excess Upgrade");provided,however,that Licensor shall be solely responsible for the costs associated with such Excess Upgrade. Prior to the Commencement Date and/or prior to any Licensee-requested installation or modification Licensor may elect 0operform ashared site interference study("SS|S^) and Licensee shall pay Licensor afee ofone thousand six hundred dollars($1,600)per study, as adjusted annually by a percentage rate equal to the Annual Escalator. This fee shall be payable at the time of Licensee's application or immediately upon a determination by Licensor that a SSIS is required. .The fee for the SSIS shall not apply to Approved Equipment located upon the Licensed Premises prior to the Effective Date hereof. Licensor's performance of the SSIS shall in no way constitute a warranty or representation from Licensor that Licensee's proposed operations from the Tower Site will not suffer or cause interference with other users, but shall merely be a customary report intended to assist in the prevention of potential interference. 10. RF INTERFERENCE. (m) Interference with aPre-Existing Use. Licensee's use ofthe Tower Site and its operation ofall ofits Approved Equipment thereon(including any subsequent modification or alteration thereto)shall be conducted in a manner that does not interfere electrically,or in any other manner whatsoever with any then pre-existing use of the Tower Site by Licensor or other users ofthe Tower Site (^P/e-EximUngUoe^). Inthe event that any Pre-Existing Use experiences interference caused by Licensee or Licensee's Approved Equipment(including any subsequent modification or alteration thereto), Licensee shall benotifiadinwriting mfsuch interference and Licensee shall power down its equipment and/or cease operations in order to correct and eliminate such interference within seventy-two(72)hours after Licensee's receipt of such notice. If Licensee does not cease all interfering operation within such seventy-two(72)hour period,Licensor shall have the right to disconnect Licensee's Equipment until such time as Licensee can affect repairs to the interfering Approved Equipment. If Licensee is unable to eliminate the interference,or reduce it to a level acceptable to the affected user of the Pre-Existing Use,within a period of thirty(30)days following such initial notice(provided that during such 30 day period,Licensee may operate its equipment intermittently during off-peak hours for testing purposes only),then Licensor may,in addition to any other rights it may have for Licensee's breach hereof,terminate this Agreement. In the event that Licensee is notified of any interference experienced by a Pre-Existing Use on the Tower Site alleged to be caused by Licensee's operations thereon, Licensee shall be obligated to perform whatever actions are necessary, at Licensee's sole cost and expense,to eliminate such interference and shall not be released from its obligation to continue to pay the Monthly Licensee Fee during any period that Licensee can not operate from the Tower Site pursuant&othis Section 1O. (b) interference by a Subsequent Use. Licensor agrees that Licensor and Licensors customers' use of the Tower Site whose equipment is installed or modified subsequent to the Licensee's then-current operation of Licensee's Approved Equipment thereon ("Subsequent Use")shall not. interfere with Licensee's Uhen°curnmntpemmittmd operations. In the event that Licensee experiences interference caused by any Subsequent Use. Licensee shall notify Licensor in writing of such interference and Licensor shall, or shall cause the operator of the interfering Subsequent Use,to power down its equipment and/or cease operations inorder 0ocorrect and eliminate such interference within seventy-two (72) hours after Licensor's receipt of such notice. If such Subsequent Use is unable to operate without causing such intedbnence, or if such interference is not reduced to a level acceptable to Lioonmee, within m period of thirty (30)days (provided that during such 30 day period the Subsequent Use may be operated intermittently during o#-peak hours for testing purposes only), then Licensee may, in addition to any other rights it may have for Limsnmor's breach hereof. terminate this Agreement. In the - ` ATC Site Name&Number:Blue Mountain(008032) Customer Site Name&Number: Blue Mountain event that Licensor is notified ofany interference experienced by Licensee alleged to be caused byaSubsequent Use on the Tower Site. Licensor shall be obligated to perform (or cause to be performed) whatever actions are commercially reasonable and neoosaory, at no cost or expense to L/cenoee, to eliminate such interference- For the purposes of establishing the rights and obligations under this Section 10. the Parties agree that Licensee's Approved Equipment has been in operation at the Tower Site prior to the Effective Date of this Agreement. (c) Interference with Lighting and Building Systems and Building Tenants, |nnoevent shall Licensee's use ofthe Tower Site or operation of any of its equipment thereon be conducted in a manner that interferes with Licensor's lighting system located unany of the towers, building systems,or, inthe event that Licensee's equipment isinstalled nnthe rooftop of a building,with equipment of any kind used by building tenants who are not tenants nfthe Licensor. (d) No Illegal, Unpermitted Use or Unlicensed Frequency Protection. Notwithstanding anything to the contrary herein, Licensee shall not illegally transmit on any frequency,transmit on a channel or frequency not specified in Exhibit A attached hereto,operate at variance from the specifications in its FCC license or the FCC's rules governing Licensee's operation of its Approved Equipment, and Licensor shall not provide any protection to Licensee from interference from parties who are not Licenoo/mtenants et the Tower Site, Nothing inthis Section 1Oshall bedeemed orinterpreted b provide any protection to Licensee from any form of interference from any person in the event that Licensee iaoperating on any unlicensed frequency spectrum orpursuant kzFCC Part 15. 11 SITE RULES AND REGULATIONS. Licensee agrees to comply with the reasonable rules and regulations established from time totime at the Tower Site by Licensor in its discretion,which may be modified by Licensor from time to time upon receipt by Licensee of such revised rules and regulations or in accordance with Licensor's obligations under the Ground Lease. Such rules and regulations will not unreasonably interfere with Licensee's normal business operations. 12� CASUALTY; CONDEMNATION. For purposes nfthis Agreement itshall bedeemed aCasualty Event,if the Licensed Premises or the Tower Site is destroyed or condemned, in whole or part,whether by eminent domain or otherwise. In the event that the Licensed Premises or the Tower Site is wholly destroyed or condemned,whether by eminent domain or otherwise,this Agreement shall terminate without further liability to either Party except for payment of the Monthly License Fees due upbuthe time ufsuch destruction orcondemnation. ifthe Licensed Premises are partially destroyed of condemned and are usable by Licensee for its purposes,then Licensor shall,within one hundred and twenty(120)days (which shall be extended for any delays directly caused by governmental action or inaction), repair the Licensed Premises or the Tower Site with a reasonable reduction of the Monthly License Fee to Licensee during the period of repair. In the event that the site repair or reconstruction has not commenced within one hundred eighty(180)days following such Casualty Event, Licensee may terminate this Agreement upon written notice to Licensor prior to the commencement of any such repair orn*construnUonufthe Tower Site. If, however,any such partial destruction or condemnation occurs within six (6)months prior to termination of this Agreement, either Party may terminate this Agreement without further liability except for payment of the Monthly License Fees up to the time of such destruction or condemnation. Any Monthly License Fees prepaid by Licensee shall be returned to it as part of the operation of this section. 13 COMPLIANCE WITH LAWS. Licensor is responsible for ensuring that the tower structure at the Tower Site is operated in compliance with all governmental lighting and marking requirements. Licensor shall indemnify and defend Licensee from and against any loss,cost,or expense sustained or incurred by Licensee as a result of Licensor's failure to comply with duly issued governmental regulations relating 0ntower lighting and marking. Notwithstanding anything Vothe contrary inthe Agreement, Licensee shall at all times comply with all applicable laws and ordinances and all rules and regulations of municipal,state and federal governmental authorities relating to the installation, maintenance, location,use, operation,and removal of the Approved Equipment and other alterations or improvements authorized pursuant to the provisions of this Agreement. 14, INDEMNIFICATION;INSURANCE. Each Party shall,to the fullest extent permitted by|aw, indemnify,defend and hold harmless the other Party,its respective AffiHotes. and their respective directors, employees,officers,shareholders, successors and assigns against all claims, losses,costs, expenses, damages, and lia6ifities(except as otherwise provided in Section 15 of this Agreement)arising from: (i)the negligence,willful misconduct or strict liability of such Party,or its agents,employees, representatives,contractors,or(ii)any material breach by such Party of any provision of this Agreement. In addition to the foregoing, Licensee shall indemnify Licensor for all costs and expenses associated with actions taken by Licensor to resolve any interference caused by f icensee or Licensee's Approved Equipment pursuant to Section 1O(a). (:).and (d). Neither Party shall be responsible or liable to the other for any damage arising from any claim to the extent attributable to any acts or omissions of other licensees at the Tower Site, Without limiting the foregoing inany wav, both Parties,each at their sole cost and expense, agree to maintain comprehensive general liability and casualty insurance(including without limitation, an umbrella policy of no less than five million dollars(S5,000,000.00))in amounts reasonably satisfactory to the other Party with respect to its property and obligations hereunder. Notwithstanding anything to the contrary,Licensor may provide all or some of the insurance coverage limits required under this Section 14 through an umbrella policy. Such insurance policies shall contain a provision that such policy shall not be canceled or amended without thirty(3O)days notice Uathe other Party. Upon the execution ofthis Agreement. Licensee shall deliver boLicensor a certificate evidencing such insurance coverage, on which Licensor shall be named as an additional insured with respect to the Tower Site.Further,Licensee shall deliver to Licensor a certificate evidencing such insurance coverage within thirty(30) -w `-,:�`; - ` ATC Site Name &Number: Blue MouotainT0088]2) Customer Site Nomc&Number: upon 45 day ziorwrittetic e - days ofeach renewal ofsuch policy. Licensor reserves the right,fro m�R­i,—,Aiu:ttrw. foincrease the required liability limits described above in accordance with then-current customary insurance requirements in the tower industry nationally. Licensor shall provide Licensee with a certificate of insurance and will provide renewai 15. WAIVER OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING TOTHE CONTRARY fNTHIS AGREEK0ENT r EACH PARTY HEREBY VVA|yES THEQ/��HTTQRECOVER|NC|DENTuL. SPEC|/\LCONSEC\UENT|.4L(|NCLUQlNC� ' r LOST PROFlTS),PUNITIVE,EXEMPLARY AND SIMILAR DAMAGES AND THE MULTIPLIED PORTION OFANY ' DAMAGES EVEN |FADVISED OFTHE POSSIBILITY OF SUCH DAMAGES OR |F SUCH POSSIBILITY WAS � ~ REASONABLY FQRSEEABLE. ~ � 10 NOTICES. Any required or permitted notice or demand shall be made by certified mail, postage prepaid or via nationally � recognized overnight courier service addressed tothe other Party at the address set hurthonpage 1. Either Party may � modify, add,or delete notice addresses from time to time by notice given in accordance with this section. Any notice or � demand shall bedeemed&zhave been given ormade ut the time itisdeposited inoUnited States Post Office orwith a � private overnight courier service. , r 1T ASSIGNMENT; SUBLEASING. Licensee may assign this Agreement as a whole with Licensor's prior written consent; � provided, however,that Licensor's consent will not be required for an assignment to any person or entity which is controlled n by, controlling orunder common control with Licensee("AffiUaUae^). For these purposes, ^oontm|^means ownership, � directly or indirectly,of 50%or more of the voting stock,equity or beneficial interest or a general partner of any partnership. In no event may Licensee sublet,sublease, or permit any other similar use of the Tower Site or Licensed Premises by any other party. In no event may Licensee diplex or combine signals or grant any shared use rights for itself or others. /nthe event of a permitted assignment hereunder, Licensee shall be relieved of any of its obligations under this Agreement arising unorafter the effective date cfsuch permitted assignment. Any permitted assignee shall expressly assume,and become bound by, all ofLicensee's obligations under this Agreement. Licensor may freely assign, transfer,nrsublease this Agreement and,in such event,Licensor shall be relieved of all of its obligations under this Agreement from and after the date ofsuch assignment,transfer,orsublease. This Agreement shall bebinding upon the successors and permitted assigns of both parties. Licensee shall pay Licensor a fee of$500.00 (which fee shall increase annually by a percentage rate increase equal to the Annual Escalator)in each instance in which Licensee requests an assignment of this Agreement or in which Licensee seeks an estoppel certificate, nondisturbance agreement, subordination agreement or other similar agreement. Notwithstanding anything Uzthe contrary, Licensor may condition its consent 0uany assignment,un among other things, requiring that the assignee execute a new form of license agreement so long as the Monthly License Fee and Initial and Renewal Terms of such agreement are consistent with those set forth in this Agreement. 18 QUIET ENJOYMENT. Licensor covenants and agrees that, upon Licensee's paying the Monthly License Fee and observing and performing all of the terms, covenants and conditions to be observed and performed by Licensee under this Agreement, Licensee shall be entitled to quiet enjoyment of the Licensed Premises during the term of this Agreement. 19SUBORDINATION TOGROUND LEASE. The Parties acknowledge and agree that inthe event Licenoor'arights inthe Licensed Premises and/or any part of the Tower Site is derived in whole or part pursuant to an underlying lease, sublease, permit,easement or other right of use agreement("Ground Lease"), all terms, conditions and covenants contained in this Agreement shall be specifically subject to and subordinate to the terms and conditions of an applicable Ground Lease. In the event that any of the provisions of the Ground Lease are in conflict with any of the provisions of this Agreement(other than those provisions relating to the length of term, termination rights or financial consideration),the terms of the Ground Lease shall control. Further,Licensee agrees to be bound by such Ground Lease as applicable to the access and occupancy of the Licensed Premises. In the event that the Ground Lease expires or terminates prior to the expiration of the Initial Term or applicable Renewal Terms,this Agreement shall automatically terminate upon termination of Licensor's right 0opossession cf the Tower Site and shall remove its equipment and any improvements from the Tower Site inaccordance with this Agreement and any applicable provisions under the Ground Lease. Licensor agrees not totake any action with respect bothe Ground Lease os then in effect which will cause the Ground Lease to be prematurely terminated during the term cfthis Agreement. Licensor hereby warrants and agrees that it shall exercise any existing renewal option available to /tpursuant tothe Ground Lease through the end ofthe term cfthis Agreement, Upon Licensee's written request, Licensor shall provide a copy of any applicable Ground Lease with the economic terms and other terms that Licensor deems reasonably confidential redacted, unless prohibited bythe terms o/such Ground Lease, Notwithstanding the foregoing, Licensor shall not be required to pay any form of consideration to obtain the approval or consent of any lessor under a Ground Lease. 20� DEFAULT, Either Party shall have ten (10)days after receipt(or refusal to accept delivery,which refusal shall be deemed receipt for the purposes hereo�of written notice from the other Party to cure any monetary default (pnovided. however,that if Licensee fails to make any payment of the Monthly License Fee when due and cures such default two(2)times within any twelve (12)month period,then any further failure within the same twelve (12)month period shall be an automatic default with no cure period)and,except as otherwise provided in this Agreement with respect to RF interference.labeling and Construction Drawings,thirty(30)days after receipt of written notice from the other Party to cure any non-monetary default. Except with respect to RF interference,so long as the Party charged with the default diligently pursues a cure during the prescribed time period, that Party shall be given additional time reasonablv necessary to cure the default. If subsequent to . ` ATC Site Name X:Number: Blue Mountain(008032) Customer Sheylame&Number: Blue Mountain the foregoing requisite periods of time,there continues to be an event of default,the non-defaulting Party may terminate this Agreement upon written notice to the defaulting Party and may institute any other available proceedings at law or in equity b/ recover damages from the defaulting Party. 21COLLECTIONS. Subject to the provisions of Section 20 above, Licensor may take any collections actions it deems necessary without further notice to Licensee, including,without limitation,the disconnection or removal and storage of any and all of Licensee's equipment, including the Approved Equipment or all other Licensee property located on the Tower Site, Licensee shall pay all reasonable attorney's fees,court costs, removal and storage fees(including any damage caused thereby), and other items of cost or expense reasonably incurred by Licensor in recovering the Monthly License Fee orother fee orcharge. No endorsement or statement on any check or letter accompanying a check for payment of any monies due and payable under the terms ofthis Agreement shall badeemed anaccord and satisfaction,and Licensor may accept such check or payment without prejudice to its right to recover the balance of such monies or to pursue any other remedy provided hylaw urinthis Agreement. Licensor shall accept any such partial payment for the account ofLicensee. Past due amounts under this Agreement will bear interest from the date upon which the past due amount was due until the date paid otarate equal to: (i)eighteen percent(18%)per annum;or(ii)at a lower rate if required by law in the state in which this Agreement isbnbeperformed. |naddition, Licensee shall beassessed mlate payment fee equal hntwenty-five percent(25%)of the then-current Monthly License Fee for any payment or reimbursement due to Licensor under this Agreement which iaoverdue byten (1O)days ormore and such fee shall be assessed for each thirty(30)day period thereafter that any such amount(or portion thereof)remains unpaid. 22� GOVERNMENTAL APPROVALS; PERMITS. /nthe event that any governmental permit,approval orauthorization required for Licensor's use of,operation of,or right to license space to Licensee at the Tower Site is challenged,terminated or withdrawn by any governmental authority or third party as part of any governmental,regulatory,or legal proceeding, Licensor may terminate this Agreement. |nthe event that Licensor does not terminate this Agreement,Licensee may elect tminstall orcontinue huoperate its equipment atits sole cost and risk. Licensee understands and agrees that,|nthe event of a governmental or legal order requiring the removal of Licensee's equipment from the tower or removal of the tower structure or any structural modification required to accommodate Licensee's Approved Equipment, Licensee shall do so promptly etits sole cost and expense. Licensor shall cooperate with Licensee/nLicensee's efforts Unobtain any permits or other approvals that may be necessary for Licensee's installation and operation of the Approved Equipment; provided, however such cooperation shall be subject to the foregoing:(a)Licensor shall not be required to expend any funds or undertake any liability or obligation in connection with such cooperation; (b) Licensor reserves the right to obtain such required approvals or permits on Licensee's behalf,at Licensee's sole cost and expense;and(o)innoevent may Licensee encourage, suggest,participate inorpermit the imposition of any restrictions or additional obligations whatsoever on the Tower Site orUnanou/ucurrent urfuture use orability tnlicense space at the Tower Site aupart oforinexchange for obtaining any such approval orpermit. |nthe event that Licensee's shelter urcabinets are installed above athird-party or Licensor-owned shelter or building, Licensee shall be solely responsible for obtaining any required consents or permits in connection with such shelter orcabinet installation. Licensee hereby consents 0athe stacking ofothird-party orLicensor owned platform,shelter or cabinets above or below Licensee's shelter or cabinets provided Licensor or such third party shall be solely responsible for all costs and expenses associated with obtaining any required consents or permits in connection with such shelter or cabinet installation above Licensee's equipment. /naddition tothe foregoing,inthe event that Licensee has not been requested to install a stackable shelter and does not utilize a stackable shelter, Licensee agrees that Licensor shall have the right to require Licensee to replace its shelter with a stackable,shelter upon no less than thirty (30)days prior written notice at the sole cost and expense of a subsequent licensee who installs a stacked shelter above Licensee's equipment shelter. 21 REPLACEMENT OF TOWER. Licensor reserves the right,in its sole discretion,to replace or rebuild the tower structure or the top ofthe tower. In such event, Licensor shall provide Licensee with space at the Tower Site suitable to allow Licensee tocontinue bzoperate the Approved Equipment in a substantially similar manner during the construction period. Licensor shall besolely responsible for the costs associated with removing and re-installing the Approved Equipment. Licensor also expressly reserves the right toerect one ormore towers onthe Tower Site,subject&mLicensor'eobligations hoLicensee under this Agreement. Licensee shall also have the right toestablish atemporary facility onthe Tower Site hmprovide such services as Licensee deems necessary during any such construction by Licensor so long as adequate space is then available. The location ofsuch temporary facilities shall besubject bzLicamsor'sapproval. 24� GOVERNING LABV. This Agreement shall be governed by the laws of the state in which the Tower Site is located,with the exception ofits choice oflaws provisions, /fany provision ufthis Agreement isfound invalid orunenforceable under judicial decree or decision,the remaining provisions of this Agreement shall remain in full force and effect. Any approval, consent,decision,nrelection hzbamade orgiven bya Party may bemade orgiven insuch Party's sole judgment and discretion,unless a different standard(such as reasonableness or good faith)is provided for explicitly. 25� EXCUSABLE DELAYS. If either Party is unable due to causes beyond its reasonable control to carry out its obligations under this Agreement in whole or in part and if such Party gives written notice and full details of an excusable delay (including,without limitation.a force majeure event)to the other as soon as practicable after the occurrence of the event, then the obligations of the affected Party will be suspended to the extent reasonably required as a result of such event. , ~ ATC Site Name&Number:Blue Mountain(0OB032) Customer Site Name&Number: Blue Mountain Excusable Delay means an event that is not within the reasonable control of the affected Party,including,without limitation, war, riots, civil insurrection or acts of a common enemy,fire,flood,strikes or other labor difficulty,acts of civil or military authority, including governmental laws, orders, actions,inactions or regulations, embargo. 26. MISCELLANEOUS. Time iao[the essence inthis Agreement. The offer oflicense expressed inthis Agreement shall automatically expire and become void if not accepted by Licensee and such acceptance received by Licensor within thirty (3O)days from the Effective Date. The only means by which Licensee may accept this offer of license is by timely returning two unaltered copies of this Agreement, executed on behalf of Licensee,to Licensor. Upon Lkenao/swritten request, Licensee shall promptly furnish Licensor with complete and accurate information in response to any reasonable request by Licensor for information about any of the Approved Equipment or utilities utilized by Licensee at any Tower Site or any of the channels and frequencies utilized byLicensee thereon. |nthe event that this Agreement heexecuted byLicensor,its Affiliates mrany trade name utilized bythe Licensor orits Affi|iutesand such signatory does not hold the real property or leasehold interest in the affected Tower Site,the execution of this Agreement shall be deemed to have been properly executed bythe Licensor orLicenoo/sAffiUatewhich properly holds such interest inthe affected Tower Site. Either Licensor orLicensee may bereferred Uzherein oma^Part/ and both Licensor and Licensee together may bereferred bo herein aothe^Partieu^. At the sole election of Licensor,in the event that Licensee and Licensor enter into a master tower space license agreement("New Agreement")which is applicable to this Tower Site during the Initial Term or any Renewal Term of the Agreement, Licensor may give notice to Licensee that this Agreement is terminated("Termination Date")and Licensee and Licensor shall execute a New Agreement for the Licensed Premises and Licensee's Approved Equipment listed wnExhibit Ahereto within thirty(3O)days following such notice. Such New Agreement shall specify that the commencement date|mthe Termination Date. /fthe New Agreement has pre-determined monthly license fee rates and/or annual escalator rates that conflict with the Monthly License Fee and/or the Annual EscalatDr listed on page 1 of this Agreement,then the license fee rate and/or the annual escalator rate in the Agreement shall govern. Upon the termination or expiration of this Agreement, Licensee shall immediately upon the request of Licensor deliver a release of any instruments of record evidencing such Agreement.Notwithstanding the expiration or earlier termination of the Agreement, Sections 14, 15,20,21 and 26 shall survive the expiration or earlier termination of the Agreement. Nowaiver ofany ofthe provisions of this Agreement shall constitute a waiver of any other provision hereof(whether or not similar),nor shall such waiver constitute a continuing waiver unless expressly agreed to in writing by the affected Party. . This Agreement constitutes the entire agreement of the Parties hereto concerning the subject matter hereof and shall supersede all prior offers, negotiations and agreements,whether written ororal. Norevision ufthe Agreement shall bevalid unless made in writing and signed byauthorized representatives ofboth Parties. 27� SUPERSEDING AGREEMENT. Upon the Effective Date cfthis Agreement,any and all prior agreements between Licensee and Licensor for this Tower Site and Licensed Premises, including but not limited to Site License Agreement dated June 1. 1S01.Contract#8O32UGbyand between Meridian CommunioaUnno[Licenuo�)and CdynfRedlands (^Lioennee^)aeamended July/. 18A3aheUterminate( )and shall*=muhobe*thereupon be superseded bythis Agreement. effective May 1,2002 ATTACHED EXHIBITS: / Exhibit A: List cfApproved Equipment and location ofthe Licensed Premises Exhibit B: Site Drawing indicating the location of Approved Equipment nnthe Tower Site The offer of license expressed in this proposed Agreement shall automatically expire and become void ifnot accepted and executed by Licensee and such acceptance received by Licensor within thirty(30)days of the Effective Date. [REMAINDER OFPAGE INTENTIONALLY LEFT BLANK] ATC Site Name &Number:Blue Mountain(008032) Customer Site Name&Number: Blue Mountain EXHIBIT A Approved Equipment EXHIBIT A LOCATSO70FEQUIPMENT tndaor Cabinets(ATC Bui7dtng) ! Outdoor Sneiter or BTS(Customer 9uiidia�of CAB1 CABINET DIMENSIONS(HXW%D)(ft) 84"X21"XIS" LEASED GROUND SPACE DIMENSIONS(Inside Ucensar's 84"X21"x15" CONCRETE PAD DIMENSIONS(LxW)(ft) N Buildirgj(HxWxD)(ft) /A :N !-'�l I j FP.AiRUCTURE MANUFACTURER/MODEL N/A POWER PROVIDED BY: ATC UTILITY COMPAN PROVIDED X - DIRECT ._..._.J TELCO/INTERCONNECT R , j I EQUIR£MENTS PATS _ Y J Tf j� MICROWAVE FIBER t_J OPTICS GENERATOR REQUIREMENTS APPLICANT L— ATC NONE X PROVIDED PROVIDED ( r ��� �N/A TANK 512E N/A GENERATOR DESCRIPTION FUEL N/A OTHER N/A ANTENNA QUANTITY RECEIVE OR TRANSMIT' RX TX ---MANUFACTURER -- Decibel Decibel TYPE Yagi Yagi .__MODEL# 08230 D8230 ANTENNA WEIGHT 521bs 52Ibs ANTENNA DIMENSIONS(HxWxD) 9.7'X8' 9.7'X8' ANTENNA MOUNT HEIGHT 45' 60' RAD CENTER AGL S0' 65' MOUNT TYPE Clamp Clamp TOWES LEG N/A N/A DIRECTION of RADIATION east I east -TX FREQUENCY 45.64 MHz 45.6 MHz RX FREQUENCY 45.12 MHz 45.08 MHz RECEIVE BAND OF FREQUENCIES 33-SO MHz 33-50 MHz r TRANSMIT BAND OF FREQUENCIES 33-50 MHz 33-50 MHz ANTENNA GAIN 7db 7db #of LINES PER ANTENNA LINE TYPE HelidX � Heiia% LINE DIAMETER 1/2" 112" LICENSOR'S BUILDING? iLX ( LICENSEE'S SHELTER? O is of CABINETS I #of TRANSMITTERS PER CABINET 2 MANUFACTURER ! GE G8 TYPE B MODEL Master II Master 1I TYPE of SERVICE (.. Local Govt LOCA#Govt I CABINET DIMENSIONS(HxWxD) f 15"x21"x84" 15"X21"X84" CALL.SIGN K88980 K8$980. TX FREQ:;ENCY 45.64 4S.6 TX POWER OUTPUT � 30 Watts 30 watts RX FREQUENCY I 45.12 MHz 45.08 MHz i ERP ' 100 Watts t 100 Watts ACTUAL POWER CONSUMPTION I N/A N/A ELECTRIC SERVICE REQUIRED(A-ps/Viths) I 120V S 120V #of OUTLETS .OMBINER/*of PORTS � 08 ProdDets/3 ports D8 Products/3 ports CABINET ALSO CONTAINS NjA... N/A II there are more than f tur transmntefs loCated at the site,please refer to attachment. Is there an attachment: NO Pays i"r I ATC Site Name&Number: Blue Mountain(008032) Customer Site Name&Number: Blue Mountain Exhibit B Site Drawing indicating the location of ground space for Licensee's equipment shelter or space in Licensor's building (as applicable) Licensee's one(1)84"x21"xI 5"cabinet to be located in Licensor's building.