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2019-04-09; City Council; Resolution 2019-045
RESOLUTION NO. 2019-045 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED LICENSE AGREEMENT WITH T-MOBILE, LLC TO OPERATE A WIRELESS COMMUNICATION FACILITY AT THE CALAVERA HILLS COMMUNITY PARK (APN: 167-101-35) Exhibit 1 WHEREAS, the city and T-Mobile West LLC first entered into a license agreement to operate wireless telecommunication facilities at the Calavera Hills Community Park in October 2008 with said license expiring May 9, 2017; and WHEREAS, city staff has negotiated a new license agreement with T-Mobile West LLC, to operate a wireless communication facility at the Calavera Hills Community Park located at APN: 167- 101-35; and WHEREAS, T-Mobile West LLC obtained approval of a Minor Conditional Use Permit (CUP 07- 04x1) on March 15, 2013 to install six wireless antennae to an existing ballfield light structure; and WHEREAS, the License Agreement will generate $45,600 in revenue for the city over the first year of the agreement and will increase a minimum of 3 percent in January of each year. NOW, THEREFORE, BE IT RESOLVED by the City of Carlsbad, California, as follows that: 1. The above recitations are true and correct. 2. That the Agreement, which is attached hereto as Attachment A, is approved as to form, and the City Manager is hereby authorized and directed to execute the Agreement. 3. That the City Manager, or his designee, is hereby authorized to take all actions necessary to implement the license agreement with T-Mobile West LLC, that are consistent with and in full compliance with the terms and conditions expressed in the aforementioned April 9, 2019 Item #2 Page 3 of 70 Agreement, including any Agreement extensions, and to the satisfaction of the City Attorney, including any amendment to the Agreement. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 9th day of April 2019, by the following vote to wit: AYES: Blackburn, Bhat-Patel, Schumacher, Hamilton. NOES: None. ABSENT: Hall. z . ~~fdzl PRIY~T-PATEL, Mayor Pro Tern April 9, 2019 Item #2 Page 4 of 70 AMENDED AND RESTATED COMMUNICATIONS SITE LICENSE AGREEMENT between THE CITY OF CARLSBAD and T-MOBILE WEST LLC EFFECTIVE DATE: ~ /2).;;lO{Cj April 9, 2019 Item #2 Page 5 of 70 TABLE OF CONTENTS BACKGROUND ...................................................... : ....................................................... 1 AGREEMENT ................................................................................................................. 2 1. DEFINITIONS ........................................................................................................... 2 2. LICENSE AREA ....................................................................................................... 5 2.1. Grant and Scope .......................................................... _ ................................ 5 2.2. License Area Condition ................................ , ............................................... 5 2.3. Certified Access Specialist Disclosure .......................................................... 6 2.4 . Right to Record ............................................................................................. 6 2.5. Limited Power of Attorney ............................................................................ 6 3. USE ........................................................................................................................... 6 3.1. Permitted Use; Equipment ............................................................................ 6 3.2. Prohibited Uses ............................................................................................ 7 3.3. Access .......................................................................................................... 7 3.3.1. Licensee Access ..................................................................................... 7 3.3 .2. Entry and Inspection ............................................................................... 7 3.4 . Utilities .......................................................................................................... 8 3.5. Tests and Surveys .................................................................... · .................... 8 3.6. -Modifications; Alterations .......................................................... ." ................... 8 3.7. Equipment Removal; Replacements; Routine Maintenance ......................... 9 3.8. Construction and Installation Activities ......................................................... 9 3.8.1. Structu ral Review .................................................................................... 9 3.8.2 . Performance Standards .......................................................................... 9 3.8.3. Licensee's Contractors ............................................................................ 9 3.8.4. Labor and Material Costs ........................................................................ 9 3.8.5. Coo rdination; Supervision ..................................................................... 10 3.8.6. Staging Area ......................................................................................... 10 3.8.7. As-Built Site Plans ................................................................................. 10 3.9. Mineral and Water Rights ........................................................................... 10 3.9.1. General .................................................................................................. 10 3.9.2. Mineral Rights ................... , ................................................................... 11 3.9 .3. Notice and Relocatio n ........................................................................... 11 4. TERM ................................................................................................... ~ ................. 12 April 9, 2019 Item #2 Page 6 of 70 4.1. Initial Term; Renewal Term(s) .................................................................... 12 4.2. Holdover Term ......................................................................... · ................... 13 5. LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT ..................................... 13 5.1. Base License Fee ............. : ......................................................................... 13 5.2. Annual Adjustments .................................................................. , ................. 13 5.3. Renewal Term Appraisal Option ................................................................. 13 5.4. Late Charges ............................................................................................... 14 5.5. Interest ....................................................................................................... 14 5.6. Administrative Fees .................................................................................... 14 5.7. Access Route Repair .................................................................................. 14 5.8. Payment Procedures .................................................................................. 15 6. GOVERNMENTAL APPROVALS ........................................................................... 15 6.1. Proprietary Capacity Acknowledgment.. ..................................................... 15 6.2. Permits and Other Governmental Approvals····:········································· 15 7. MAINTENANCE ........................................... _ .......................................................... 16 7.1. Licensee's Maintenance Obligations .......................................................... 16 7.2 . City's Maintenance Obligations .................................................................. 16 8. INTERFERENCE .................................................................................................... 17 8.1. Licensee's Interference Obligations ............................................................ 17 8.2 . City's Interference Obligations .................................................................... 17 8.3. City's Governmental Communications ........................................................ 17 9. TAXES ................................................................ ~ ................................................... 18 9.1. Title to Licensee's Equipment and Improvements ...................................... 18 9.2. Taxes .......................................................................................................... 18 9.3. Licensee's Tax and Assessment Obligations ............................................. 18 9.4. Licensee's Right to Contest Taxes or Assessments ................................... 18 10. LIENS ................................................................................................................. 18 11. INDEMNIFICATION ............................................................................................ 19 11.1. Licensee's General Indemnification Obligations ......................................... 19 11.2. Licensee's Indemnification fo r Personnel Injuries ....................................... 20 11 .3. Licensee's Defense of the City ................................................................... 20 12. ENVIRONMENTAL PROVISIONS ..................................................................... 20 12.1 . Licensee's General Environmental Obligations .......................................... 20 12.2. Hazardous Substances .............................................................................. 20 ii April 9, 2019 Item #2 Page 7 of 70 12.3. Licensee's Response to Hazardous Substance Release ........................... 21 12.4. ·Self Help ..................................................................................................... 21 12.5. Licensee's Environmental Indemnification Obligations ............................... 21 12.6. Licensee's Liability for Hazardous Substance Release .............................. 22 13. INSURANCE ....................................................................................................... 22 13.1. Licensee's Insurance Obligations ............................................................... 22 13.1.1. Required Endorsements·: ............................ : ........................................ 23 13.1.2. Claims-Made Policies ............................................................................ 23 13.1.3. General Aggregate Limit ....................................................................... 23 13.1.4. Insurer Qualifications ............................................................................ 23 13.1.5. Certificates; Effective Dates .................................................................. 24 13.1.6. Self-Insurance ....................................................................................... 24 13.2. No Limitation on Indemnification Obligations .............................................. 24 13.3 .. City's Termination Right ............................................................................. 24 14. ASSIGNMENT; SUBLICENSE ....................... , ................................................... 24 14.1. Assignment ................................................................................................. 24 14.2. Sublicense (Collocation) ............................................................................. 25 14.3. Continuing Obligation (Novation) ................................................................ 25 15. DEFAULT; REMEDIES ...................................................................................... 25 15.1. Defaults and Cure Periods ........................................... : ............................. 25 15.2. Sums Paid During Default ............................................................ ., ............ 26 15.3. No Consequential Damages ....................................................................... 26 15.4. No Personal Liability for City Officials, Employees or Agents ..................... 26 15.5. Cumulative Remedies ................................................................................ 26 16. TERMINATION ................................................................................................... 26 16.1. Grounds for Termination ............................................................................. 26 16.2. Early Termination Fee ..................................... , .......................................... 27 17. REMOVAL AND RESTORATION ....................................................................... 27 18. CONDEMNATION .............................................................................................. 27 18.1. Permanent Takings .................................................................................... 27 18.1.1. Termination and Award ......................................................................... 28 18.1.2. No Statutory Right to Terminate .................. : ......................................... 28 . 18.2. Temporary Takings ..................................................................................... 28 19. DESTRUCTION ...................................................................................... · ............ 28 iii April 9, 2019 Item #2 Page 8 of 70 20. NOTICES ........................................................................................................... 29 21. BANKRUPTCY ................................................................................................... 29 22. SECURITY DEPOSIT ................................................................................ : ........ 30 22.1. Amount ....................................................................................................... 30 22.2. Application or Use ...................................................................................... 30 23. MISCELLANEOUS ................................................... : ......................................... 31 23 .1. Interpretation; Construction .................................. _. ..................................... 31 23.2. Unenforceability; Severability ..................................................................... 32 23.3. Time for Perfo rmance; Force Majeure ........................................................ 32 23.4. Integration; Entire Agreement. .................................................................... 32 23.5.. Successors and Assigns ............................................................................ 32 23.6. Amendments or Modifications .................................................................... 32 23.7. Waivers ·······················••.•············································································· 32 23.8. Governing Law; Venue; Attorneys' Fees .................................................... 33 23.9. Government Claims Act .............................................................................. 33 23.10. Public Records Act Disclosure .................................................................... 33 23.11. Estoppels .................................................................................................... 33 23.12. Brokers ....................................................................................................... 34 23.13. Survival ....................................................................................................... 34 23.14. Submission for Inspection ; No Offer ........................................................... 34 23.15. Execution; Counterparts ............................................................................. 34 23.15. Deletion of Original License ......................................................................... 35 EXHIBIT A: Legal Description of the Property EXHIBIT B: Survey and Legal Descriptions for the License Area, Access Route and Utilities Route EXHIBIT C: Approved Plans for Equipment and Other Improvements EXHIBIT D: Memorandum of License iv April 9, 2019 Item #2 Page 9 of 70 AMENDED AND RESTATED COMMUNICATIONS SITE LICENSE AGREEMENT This Amended and Restated Communications Site License Agreement (this "License") dated ~ fl , 201_9__ (the "Effective Date") is between the City of Carlsbad, (the "CITY") and T-Mobile West LLC, a Delaware limited liability company, by and through CCTMO LLC, a Delaware limited liability company, its attorney in fact, (collectively referred to as "Licensee"). BACKGROUND A. WHEREAS, the City and T-Mobile USA Incorporated ("Original Licensee") entered into a License Agreement dated October 15, 2008 ("Original License") whereby the City licensed use of the License Area (as defined below), all located within the Property (as defined below); B. WHEREAS, the City, in its proprietary capacity as a California municipal corporation, owns or controls that certain real property commonly known as Calavera Hills Community Park in the City of Carlsbad, County of San Diego, State of California (APN: 167-101-35) (the "Property"), as legally described in Exhibit A attached hereto and incorporated herein; C. WHEREAS, Licensee constructs, installs, owns, operates and maintains wireless communication facilities as its primary business; D. WHEREAS, Licensee desires to license from the City certain ground space on the Property (the "License Area") for the Permitted Use (as defined in Section 3.1 (Permitted Use; Equipment) in this License), together with additional non-exclusive space for access and utilities, all as more particularly described and depicted in Exhibit B attached hereto and incorporated herein; E. WHEREAS, the City, in its proprietary capacity as a California municipal corporation, desires to license to Licensee the License Area for the Permitted Use on the terms and conditions in this License; F. WHEREAS, the City and Licensee agree that the Original License shall be amended by deleting it in its entirety and restating the Original License as provided for herein; NOW, THEREFORE, for good, valuable and sufficient consideration received and acknowledged, the City and Licensee agree as follows: Site Name: Calavera Hills Comm Business Unit #: 822887 page 1 / 36 April 9, 2019 Item #2 Page 10 of 70 AGREEMENT 1. DEFINITIONS "Access Route" means the non-exclusive license for physical ingress and egress over the Property from Glasgow Drive to the License Area in the l'ocation shown on Exhibit B. "Affiliate" means any person or entity, corporate or otherwise, that directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under Common · Control with Licensee. "Agent" means any agent, employee, officer, official, contractor, subcontractor and/or representative of a party to this License in relation to the License Area. "Approved Plans" means signed Exhibit C that shows the particular locations and configurations of the Equipment permitted under this License. "Assignment" means as follows: (a) a merger, acquisition, or other transfer of a controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee's sale, assignment, encumbrance, pledge, or other transfer of any part of its interest in or rights with respect to the License Area; and (c) any action by Licensee to permit any portion of the License Area to be occupied by anyone other than itself, including a sublicense. "Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as may be amended or superseded. "Best Management Practices" means all those environmental or operational standards or guidelines for common and accepted practices appropriate for the business that Licensee and its Agents or Invitees engage in on the Property and/or such guidelines as have been articulated by pertinent trade associations, professional associations or regulatory agencies. "Broker" means any licensed real estate broker or other person who could claim a right to a commission or finder's fee in connection with the license contemplated herein. "Claim " means any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect. "Common Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment; Sublicense), two entities that are both controlled by the same third entity. "Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment; Sublicense), as follows: the right and power, directly or indirectly, to direct or cause the direction of the management and policies of a person or business entity, corporation or otherwise, through ownership or voting securities, by contract or otherwise. Site Name: Calavera Hills Comm Business Unit#: 822887 page 2 / 36 April 9, 2019 Item #2 Page 11 of 70 "Court" means San Diego County Superior Court. "Environmental Costs" means any and all damages, fines, costs and fees that arise from: (i) any violation of or material noncompliance with any applicable Environmental Laws; (ii) any violation of or material noncompliance with any environmental provision in this License; (iii) immediate response, remediation and restoration actions; (iv) governmental oversight and participation; (v) actual fees and costs for project managers, attorneys, legal assistants, engineers, consultants, accountants and experts, whether employed with the damaged party or not; (vi) any diminution in value, loss or restriction on use of the Property; and (vi) any damages, fines, costs or fees whether taxable as costs or not, incurred before, at or after any administrative or judicial proceeding, appeal or any other judicial review. "Environmental Laws" means any and all Laws which govern materials, substances, regulated wastes, emissions, pollutants, water, storm water, ground water, wellfield and wellhead protection, cultural resources protection, animals or plants, noise or products and relate to protection for health, safety or the environment and natural resources, including land, sediments, water, groundwater and stormwater. "Equipment" means a communications facility, including antennas, antenna support structures and any associated utility or equipment boxes, and battery backup, transmitters, receivers, radios, amplifiers, ancillary fiber-optic cables, wiring and ancillary equipment for the transmission and reception of radio communication signals for voice and other data transmission, including the means and devices used to install Equipment at the License Area, peripherals, and ancillary equipment and installations, including wiring, cabling, power feeds and any approved sign age attached to Equipment, and other things that are or may be reasonably related to Licensee's communication facility as shown in Exhibit "C" attached hereto and incorporated herein. "ETF" is an acronym for "early termination fee" and is defined in Section 16 (Termination). "Governmental Approvals" means any governmental or regulatory licenses, permits and other approvals necessary for Licensee to install, operate and maintain Equipment on the License Area. "Government Claims Act" means California Government Code§§ 810 et seq., as may be amended or superseded. "Hazardous Substance" means any and all substances, materials, pollutants, contaminants or products defined as or designated as hazardous, toxic, radioactive, dangerous or regulated wastes or materials or any other similar term in or under any applicable Environmental Laws. The term "Hazardous Substance" also includes, but is not limited to, (1) fuels, petroleum or petroleum-based products; or (2) any material or substance defined as a "hazardous substance," or "pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 Site Name: Calavera Hills Comm Business Unit #: 822887 page 3 I 36 April 9, 2019 Item #2 Page 12 of 70 (codified as 42 U.S.C. §§ 9601 et seq.) or California Health & Safety Code§ 25316, as both may be amended or superseded . "Holdover Fee" means the increased fee assessed in the event that Licensee continues to use or occupy the License Area after the License expires or terminates, and as is defined in Section 4.2 (Holdover Term). "Holdover Term" means the month-to-month license on the same terms and conditions that License automatically converts to in the event that Licensee continues to use or occupy the License Area after the License expires or terminates, and as is defined in Section 4.2 (Holdover Term). "Impositions" means any and all taxes, assessments, charges, excises and exactions whatsoever, and as is defined in Section 9.3 (Licensee's Tax and Assessment Obligations). "Indemnified Parties" means the City, its Agents, Invitees, employees and their respective heirs, successors and assigns. "Interference" means the same as defined by 47 C.F.R. § 2.1, as may be amended, which defines the term as the effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radio communication system, manifested by any performance degradation, misinterpretation or loss of information which could be extracted in the absence of such unwanted energy. "Invitee" means any client, customer, invitee, guest, tenant, subtenant, licensee, sublicensee, site manager or assignee and sublicensee of a party to this License in relation to the License Area. "Laws" means all present and future statutes, ordinances, codes, orders, regulations and implementing requirements and restrictions of federal, state, county and municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question. "License Area" means that certain ground space on the Property more particularly described and depicted in Exhibit B attached hereto and incorporated herein. "Permitted Use" means construct, install, operate, maintain, remove and repair the Equipment, in certain locations and configurations to transmit and receive wireless communications signals operated in compliance with all applicable Laws, and as is defined in Section 3.1 (Permitted Use; Equipment). "Property" means that certain real property commonly known as Ca/avera Hills Community Park in the City of Carlsbad, County of San Diego, State of California (APN: 167-101-35-00), as legally described in Exhibit A attached hereto and incorporated herein. Site Name: Calavera Hills Comm Business Unit#: 822887 page 4 / 36 April 9, 2019 Item #2 Page 13 of 70 "Release" means, with respect to any Hazardous Substance, any actual or imminent discharging, disposing, dumping, emitting, emptying, escaping, injecting, jettisoning, leaching, leaking, pouring, pumping, releasing, or spilling on, under or about the License Area, Access Route, Utilities Route or Property. "Staging Area" means certain space on the Property contiguous with the License Area to the extent reasonably necessary to construct and/or install the Equipment that Licensee may use on a temporary and non-exclusive basis, and as is defined in Section 3.8.6 (Staging Area). "Tests" means tests, surveys and other reasonably necessary inspections, and as is defined in Section 3.5 (Tests and Surveys). "Utilities Route" means the non-exclusive license for utility installation on, under or over the Property from Glasgow Drive to the License Area in the location shown on Exhibit B. 2. LICENSE AREA 2.1. Grant and Scope Subject to the terms and conditions in this License, the City licenses to Licensee exclusive use of the License Area, together with a non-exclusive right to use the Access Route and Utilities Route, for only the Permitted Use under this License and for no other purpose whatsoever without the City's prior written consent, which the City may withhold in its sole and absolute discretion for any or no reason. Licensee acknowledges that this License does not grant Licensee any ownership interest in the Property in whole or in part. This License and all Licensee's rights and/or privileges to use the License Area will remain subject and subordinate to all leases, subleases, licenses, sublicenses, easements, reservations, covenants, conditions, restrictions and exceptions, whether recorded or unrecorded, that exist prior to the Effective Date of the Original License. 2.2. License Area Condition Except as may be specifically and explicitly provided otherwise in this License, the City makes no warranties · or representations whatsoever about the Property's condition , fitness or suitability for Licensee's use. Licensee expressly warrants and represents to the City that Licensee or its agent inspected the Property and the License Area, and any environmental or other conditions on the Property and the License Area, and accepts the License Area in its present "AS-IS" and "WITH ALL FAULTS" condition. Licensee expressly acknowledges and agrees that neither the City nor its Agents made any warranties, representations or promises to Licensee or its Agents about the condition of the Property, in whole or in part, the condition of the License Area, in whole or in part, or the condition of any aspect about the Property or License Area including without limitation any structures or improvements, utilities or Hazardous Substances. Site Name: Calavera Hills Comm Business Unit#: 822887 page 5 / 36 April 9, 2019 Item #2 Page 14 of 70 . 2.3. Certified Access Specialist Disclosure Pursuant to California Civil Code § 1938, and to the extent applicable to this License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has not inspected any License Area in whole or in part to determine whether it meets all applicable construction- related accessibility requirements. 2.4. Right to Record This License does not create or convey any real property ownership right, title or interest in the License Area, in whole or in part, except as expressly provided otherwise herein. Licensee shall have the right to record a memorandum of this License, in the same or substantially similar form shown in Exhibit D (the "Memorandum"), attached hereto and incorporated herein, with the appropriate recording officer within the County of San Diego. Any changes to the Memorandum will be subject to the City's prior written approval, which will not be unreasonably withheld, conditioned or delayed. Within a reasonable time after a written request from Licensee, the City shall execute and deliver to Licensee a Memorandum, for no additional consideration. Licensee shall not have the right to record any other instrument against the Property without the City's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Following expiration or termination of this License, Licensee shall deliver to the City, within thirty (30) days of Licensee's receipt of the City's written request, a quit claim deed or other recordable instrument reasonably acceptable to the City that removes the Memorandum and any other encumbrance from title to the Property in connection with this License. 2.5. _ Limited Power of Attorney CCTMO LLC, a Delaware limited liability company ("CCTMO"), warrants and represents to the City that T-Mobile West LLC granted a limited power of attorney to and appointed CCTMO LLC its attorney in fact to review, negotiate and execute all documents related this License on behalf of T-Mobile West LLC and CCTMO LLC is entitled to and vested with all the rights, powers and privileges of T-Mobile West LLC as if CCTMO LLC were the Licensee under this License, including the right to review, negotiate and execute extensions, renewals, amendments or waivers of this License or other similar or related documents, including collocation agreements, subleases, easements, licenses. 3. USE 3.1. Permitted Use; Equipment During the term of this License, Licensee may use the License Area to construct, install, operate, maintain, remove and repair the Equipment, in the locations and configurations more particularly described i.n Exhibit C attached hereto and incorporated herein (the "Approved Plans"), to transmit and receive wireless.communications signals operated in compliance with all applicable Laws (the "Permitted Use"), for purposes reasonably Site Name: Calavera Hills Comm Business Unit #: 822887 page 6 / 36 April 9, 2019 Item #2 Page 15 of 70 necessary to accomplish the Permitted Use, but for no other purpose whatsoever without the City's prior written consent, which the City may withhold for any or no reason in the City's sole discretion. 3.2. Prohibited Uses Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any manner that materially interferes with the maintenance or operation of the City's park, or constitutes a nuisance under applicable Laws. Licensee shall take all reasonable precautions to eliminate any such nuisances or hazards in connection with its uses and activities on or about the License Area. Licensee acknowledges and agrees that its rights under this License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area, except signs that may be required under applicable Laws. 3.3. Access 3.3.1. Licensee Access Except as may be specifically provided otherwise in this License, Licensee may use the Access Route, twenty-four (24) hours per day and seven (7) days per week, for overland vehicular and pedestrian ingress and egress between the License Area and Glasgow Drive for purposes reasonably related to the Permitted Use. The City may, upon thirty (30) days' written notice to Licensee, impose reasonable rules and regulations on the manner in which Licensee uses the Access Route that do not materially alter or impair Licensee's access to the License Area or interfere with Licensee's Permitted Use, as follows: (1) for the locations in which Licensee, its Agents, Invitees and other personnel may park vehicles and equipment on the Access Route; (2) necessary to secure the Property; (3) necessary to ensure access to the Property for all users authorized by the City; and (4) necessary to maintain the safety of the traveling public on and around the Property. The City will issue . to Licensee, and Licensee shall safeguard and not share with others, any keys or codes necessary to access the License Area via the Access Route, except for Licensee's authorized employees, agents, contractors, sublessees, licensees and their authorized employees, agents and contractors. 3.3.2. Entry and Inspection The City and its Agents may, after seventy-two (72) hours' written notice to Licensee and with an escort designated by Licensee, enter onto and inspect the License Area. During the six (6) months before the expiration of the Term, the City may exhibit the License Area to prospective licensees at times approved by Licensee and in the presence of Licensee or its Agent. In the event of emergency, where the City cannot reasonably comply with the foregoing notice requirement, the City shall have the right to access the License Area and the City shall, within forty-eight (48) hours following actual notice of emergency Site Name: Calavera Hills Comm Business Unit #: 822887 page 7 / 36 April 9, 2019 Item #2 Page 16 of 70 access, inform Licensee of (i) the date and time of emergency access and (ii) the nature of the event requiring emergency access. If, under such emergency circumstances, Licensee is not present to open the License Area, the City may enter by any means without liability to Licensee except for failure to exercise reasonable care under the circumstances. The City's actions under this Section 3.3.2 will not constitute an actual or constructive eviction or relieve Licensee of any obligation with respect to making any repair, replacement, or improvement or complying with any Laws. No provision of this Section 3.3.2 shall be construed as obligating the City to perform any maintenance, repairs, alterations or improvements. 3.4. Utilities Licensee shall be solely responsible to secure its own utilities for its Permitted Use and will not be permitted to submeter from any electrical service.provided to the City. Licensee shall timely pay when due all charges for all utilities furnished to the Equipment. The City shall reasonably cooperate, at no cost to the City, with Licensee's efforts to secure such utilities for Licensee's Permitted Use. · 3.5. Tests and Surveys At any time throughout the Term, Licensee will have the right, but not the obligation, to conduct necessary tests, surveys and other reasonably necessary inspections (collectively "Tests") on the License Area, Access Route and/or Utilities Route to determine suitability for the Permitted Use; provided that (1) Licensee has first furnished the City with all up-to-date insurance documentation required in Section 13 (Insurance) under this License; (2) Licensee has provided the City with at least 24 hours' prior notice; (3) Licensee complies with all the City's reasonable rules and regulations necessary to avoid undue interference with other authorized activities or operations on the Property; and (4) Licensee shall promptly return any areas on the Property affected by c1ny Tests to the condition that existed immediately prior to such Tests, reasonable wear and tear excepted. 3.6. Modifications; Alterations Except as expressly provided otherwise in this License, Licensee may not modify or alter the Equipment or the License Area in any manner other than as shown on the Approved Plans without the City's prior written consent, which the City will not unreasonably withhold, condition or delay ("City's Consent"). After Licensee completes any approved modification or alteration, Licensee shall produce or cause to be produced a revised Exhibit C that shows all Equipment and other improvements in their current, as-built location and configuration. Such revised Exhibit C will not become effective until both parties sign each page thereto. Site Name: Calavera Hills Comm Business Unit#: 822887 page 8 / 36 April 9, 2019 Item #2 Page 17 of 70 3.7. Equipment Removal; Replacements; Routine Maintenance At any time after the Effective Date, Licensee will have the right to remove, repair or replace any Equipment with "like-for-like" or substantially similar and technologically equivalent Equipment and perform routine maintenance without the City's prior consent; provided, however, that Licensee must provide the City notice within thirty (30) days after any removal, repair or replacement work occurs, excluding routine maintenance and repairs. 3.8. Construction and Installation Activities 3.8.1. Structural Review Licensee may not commence any construction or installation activities on the Property that involve new structures or any material increased loading on existing structures without prior written approval from the City Engineer or the City Engineer's designee. Licensee shall submit its written request for approval together with complete engineering plans, specifications and a structural analysis report, all' in a form reasonably acceptable to the City Engineer. The City Engineer may (but is not obligated to) review all or part of such materials and may reasonably approve or reject them for cause. 3.8.2 . Performance Standards Licensee, its Agents, employees, contractors and subcontractors shall perform all work on the Property and License Area in a good, safe and workmanlike manner, in strict compliance with the Approved Plans and all applicable Laws. All installed Equipment must be high quality, safe, fire resistant, and approved by the City if required by any Laws. 3.8.3. Licensee's Contractors Licensee shall use only qualified and trained persons and appropriately licensed contractors for all work performed on or about the License Area. At least ten (10) business days before any work commences on or about the License Area that requires the City's prior approval herein, Licensee shall provide notice to the City with: (1) a schedule with all activities to be performed in connection with the work; and (2) a list with all the names, contractor's license numbers and business addresses for all contractors who will perform the work. · 3.8.4. Labor and Material Costs Licensee shall be responsible for all direct and indirect costs · (labor, materials, and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use or furnished to the License Area at Licensee's direction or for Licensee's benefit. Site Name: Calavera Hills Comm Business Unit #: 822887 page 9 / 36 April 9, 2019 Item #2 Page 18 of 70 3.8.5. Coordination; Supervision Licensee must coordinate all its installation, construction and other work on or about the License Area with the City so as to avoid any material interference (physical, electronic or otherwise) with any existing utilities, substructures, facilities, the City or the City's municipal functions and/or operations. The City may, but will not be obligated to, supervise any construction activities in connection with this License that require the City's prior review and approval. 3.8.6. Staging Area For no more than ninety (90) continuous days after Licensee commences construction work, Licensee may use, on a temporary and non-exclusive basis, certain space on the Property contiguous with the License Area to the extent reasonably necessary to construct and/or install the Equipment and subject to the City's prior approval not to be unreasonably withheld, conditioned or delayed ("Staging Area"). The City may withhold or revoke its consent to allow Licensee to use any Staging Area when Licensee's use materially interferes with other persons or entities authorized to use the Property. 3.8.7. As-Built Site Plans Within ninety (90) days after Licensee completes any construction work on the Property that requires the City's prior review and approval herein, Licensee shall furnish the City with as-built site plans that depict all the Equipment and any improvements in the then- current location and configuration. Licensee shall also provide such as-built site plans in a native or portable document format. 3.9. Mineral and Water Rights 3.9.1. General The City reserves the right to install, lay, construct, maintain, repair and operate such sanitary sewers, drains, stormwater sewers, pipelines, manholes and connections; water, oil, and gas pipelines; telephone and telegraph power lines; and the appliances and appurtenances necessary or convenient in connection therewith, in, over, upon, through, across and along the License Area, and any part thereof, and to enter the License Area for any and all such purposes. The City also reserves the right to grant franchises, easements, rights-of-way and permits in, over, upon, through, across and along any and all portions of the License Area for all such purposes described in the preceding sentence. The City shall not exercise any rights reserved under this Section 3.9.1 so as to interfere unreasonably with Licensee's operations or access under this License or to impair the security of any secured creditor of Licensee. The City shall provide seventy-two (72) hours advance notice to Licensee to access the License Area pursuant to this Section, whether by the City or a third party, and the City or third party shall be accompanied by a representative of Licensee. The City agrees that rights granted to third parties by reason of this Section 3.9.1 must contain provisions that the surface of the License Area will be Site Name: Calavera Hills Comm Business Unit#: 822887 page 10 / 36 April 9, 2019 Item #2 Page 19 of 70 restored as nearly as practicable to its original condition upon the completion of any construction. 3.9.2. Mineral Rights The City reserves to itself, its successors and assigns, and excepts from the License Area, any and all oil, oil rights, petroleum, minerals, mineral rights, natural gas rights, and other hydrocarbon substances by any name known whatsoever, geothermal resources (as defined in California Public Resources Code § 6903), and all products derived from any of the foregoing, that may be within or under the land, together with the perpetual right of drilling, mining, exploring, prospecting and operating therefore. and storing in and removing the same from the License Area or any other land, including the right to whipstock or directionally drill and mine from lands other than those conveyed hereby, oil or gas wells, tunnels and shafts into, through or across the subsurface of the License Area, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts · under and beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel, equip, maintain, repair, deepen and operate any such wells or mines; without, however, the right to enter, drill or re-drill, tunnel or re-tunnel, equip, maintain, repair, mine, store, explore, prospect, remove, whipstock or directionally drill or to bottom and/or operate on, from or through the surface or the upper 500 feet of the subsurface of the License Area. The City further reserves to itself, its successors and assigns and exempts from the License Area, any rights to subsurface storage of brine, carbon, water or other substances. The City further reserves to itself, its successors and assigns, the exclusive right to grant and transfer all or a portion of the rights reserved in this Section 3.9.2. All rights contemplated by this Section 3.9.2 shall be subject to Section 3.9.3, below. 3.9.3. Notice and Relocation In the event that the City determines in good faith that the License Area is needed by the City for the purposes contemplated by Section 3.9.2, above, the City shall have the one- time right to require the relocation of the Equipment, or any part thereof, to c;rn alternate ground location ("Relocation Right") provided that (i) the relocation shall be performed exclusively by Licensee or its agents at Licensee's sole cost and expense, (ii) the relocation shall not result in any interruption of the communications services provided by Licensee to its customers, including, but not limited to, Licensee's continuous access, maintenance and operation of the Equipment, until such time that all licensees and sublicensees are successfully relocated, and (iii) the relocation shall not unreasonably impair, or in any manner unreasonably alter, the quality of communications services provided by Licensee to its customers on and from the Relocation Site as defined below. 3.9.3.1. Relocation Process To exercise the Relocation Right, the City shall provide written notice to Licensee not less than twenty-four (24) months prior to the relocation date and shall propose an alternate site to which Licensee may relocate the Equipment ("Alternate Site Location"). Licensee shall have sixty (60) days from the date of the notice to evaluate the Alternate Site Site Name: Calavera Hills Comm Business Unit#: 822887 page 11 / 36 April 9, 2019 Item #2 Page 20 of 70 Location, including, but not limited to, conducting tests to determine the technological feasibility of the Alternate Site Location and obtaining written approval of all wireless telecommunications providers on the License Area. If Licensee fails to approve the Alternate Site Location in writing within such sixty (60) day period, Licensee will be deemed to have not approved such Alternate Site Location. If Licensee does not approve such Alternate Site Location, the City may then propose another Alternate Site Location by providing notice to Licensee in the manner set forth above; provided, however, that the City shall not have to give Licensee 24-months' notice for a subsequent Alternative Site Location. Upon Licensee's approval of any proposed Alternate Site Location, both parties will enter into a written agreement concerning the relocation of the Equipment ("Relocation Agreement") to the Alternate Site Location ("Relocation Site"). The City shall undertake reasonable efforts to provide an Alternate Site Location reasonably acceptable to Licensee. If no Alternate Site Location is available or if Licensee does not approve an Alternate Site Location, the City or Licensee may, upon twenty-four (24) months' written notice, terminate this License in accordance with the notice requirements set forth herein. 3.9.3.2. No Additional Terms Upon relocation of the Equipment, all references to the License Area in this License shall be deemed to refer to the Relocation Site (including any access and utility easements). The Relocation Site shall be surveyed by a licensed surveyor at the sole cost of Licensee, in which event such survey shall replace and supersede the description of the License Area contained in Exhibit B to this License. Unless otherwise provided in the Relocation Agreement or any other written agreement of the parties, the relocation of the Equipment shall not affect, alter, modify or otherwise change any of the terms and conditions of this License. 3.9.3.3. Relocation Period The "Relocation Period" shall mean that period of time commencing on the date Licensee has received all required permits and approvals for the Relocation Site and ending twelve (12) months thereafter. The relocation of the Equipment to the Relocation Site shall be substantially completed within the Relocation Period, to the extent reasonably feasible. The then current License Fee shall be reduced by one hundred percent (100%) during the Relocation Period and the term of this License shall extend by a period of time equivalent to the Relocation Period. 4. TERM 4.1. Initial Term; Renewal Term(s) The initial term under this License (the "Initial Term") will commence on the Effective bate and will automatically expire ten (10) years from the Effective Date, unless earlier terminated in accordance with this License. After the Initial Term expires, this License will automatically renew for two (2) additional 5-year terms (each a "Renewal Term") unless Licensee is in default at the time the Initial Term or first Renewal Term, if any, expires or Site Name: Calavera Hills Comm Business Unit#: 822887 page 12 / 36 April 9, 2019 Item #2 Page 21 of 70 Licensee irrevocably notifies the City that Licensee does not intend to renew this License within ninety (90) days before the Initial Term or first Renewal Term, if any, expires. (The parties refer to the Initial Term and any applicable Renewal Term(s) as the "Term".) 4.2. Holdover Term Licensee will have no right or privilege whatsoever to use or occupy the License Area in any manner or for any purpose after this License expires or terminates. In the event that Licensee continues to use or occupy the License Area after this License expires or terminates, this License will automatically convert to a month-to-month license on the same terms and conditions (the "Holdover Term"), except that (1) the License Fee will be automatically increased to one hundred fifty percent (150%) over the License Fee payable in the immediately previous year (the "Holdover Fee"), unless the City and Licensee are negotiating in good faith to extend the term of this License or enter into a new agreement, then the Holdover Fee will be reduced to one hundred twenty-five percent (125%) for the first twelve (12) months following expiration or earlier termination of this License, and will continue to increase in accordance with Section 5.2 (Annual Adjustments) and Section 5.3 (Renewal Term Adjustments); and (2) either the City or Licensee may terminate such license on thirty (30) days' written notice for any or no reason. 5. LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT 5.1. Base License Fee Licensee shall pay the City Three Thousand Eight Hundred Dollars ($3,800.00) (the "License Fee") each month, in advance, without any prior demand, setoff, deduction or counterclaim for any reason, unless otherwise allowed pursuant to this License or agreed to in writing by the City and Licensee. 5.2. Annual Adjustments On January 1 each year throughout the Term, the License Fee will be automatically increased three percent (3%) over the License Fee payable in the immediately previous year; provided, however, that no such automatic increase will occur in the first year of any Renewal Term when the parties adjust the License Fee as provided in Section 5.3 (Renewal Term Adjustments). 5.3. Renewal Term Appraisal Option Prior to the commencement of the first Renewal Term, the City shall have the option to obtain an independent valuation of the License Area to determine an appropriate License Fee (the "Appraisal Option"). In the event the City exercises the Appraisal Option , an appraisal of the License Area shall be made by a licensed independent real estate appraiser selected by the City, at the City's sole cost and expense. The City may, in its discretion, elect to make use of the appraised value as the new License Fee, effective as Site Name: Calavera Hills Comm Business Unit#: 822887 page 13 / 36 April 9, 2019 Item #2 Page 22 of 70 of the commencement of the first Renewal Term, in lieu of the then existing License Fee and in lieu of the annual rent increase scheduled to occur on that date. In no event shall the License Fee increase more than ten percent (10%) of the License Fee amount for the previous year. The License Fee shall be increased annually thereafter in accordance with Section 5.2. In the event the City does not elect to make use of the appraised value as the new License Fee, the License Fee shall be increased by three percent (3%) pursuant to Section 5.2, effective as of the commencement of the second Renewal Term, and the License Fee shall continue to adjust annually thereafter pursuant to Section 5.2. 5.4. Late Charges In the event that Licensee fails to pay any License Fee or any other amount payable to the City within ten (10) days after such amounts are due and unpaid, such amounts will be subject to a late charge equal to six percent (6%) of unpaid amounts. Licensee and the City agree that the late charge is a reasonable estimate of the amount that the lateness of the License Fee will cost the City. 5.5. Interest Any License Fees and all other amounts payable to the City other than late charges will bear interest at ten percent (10%) per annum or the highest rate permitted by Law (whichever is greater) from the due date when not paid within ten (10) days after due and payable to the City. Any sums received shall be first applied towards any interest, then to the late charge and lastly to principle amount owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee. 5.6. Administrative Fees Within sixty (60) days after the parties fully execute this License, Licensee shall pay to the City a nonrefundable administrative fee equal to Eight Thousand and 00/100 Dollars ($8,000.00) (the "Administrative Fee") to cover the City's costs to review and execute this License. In addition, for any approval under this License for which the City's prior consent is required, Licensee shall reimburse the City for its reasonable costs directly related to the City's review and consideration of the request within sixty (60) days of Licensee's receipt of documentation reasonably evidencing such costs. In no event shall such reimbursement exceed Five Hundred and 00/100 Dollars ($500.00). 5.7. Access Route Repair Throughout the Term, and in addition to the License Fee and any other sums paid by Licensee to the City in connection with this License, Licensee shall repair, at Licensee's sole cost and expense, any surface or other portion of the Access Route that is damaged by or during Licensee's access to the License Area to the condition immediately prior to such damage. In the event Licensee fails to make such repairs, the City may demand that Site Name: Calavera Hills Comm Business Unit#: 822887 page 14 / 36 April 9, 2019 Item #2 Page 23 of 70 Licensee reimburse the City within sixty (60) days after the City tenders to Licensee a reasonably detailed statement with reasonable supporting documentation evidencing the City's reasonable costs and expenses for such repair. In the event that Licensee objects to any expense on such statement, Licensee will be permitted to reasonably inspect any invoices and/or receipts directly related to the disputed expenses so long as Licensee first pays the full amount under protest. In the event such dispute is resolved in favor of Licensee, the City shall reimburse Licensee such amounts paid under protest to the City to the extent resolved in favor of Licensee. 5.8. Payment Procedures Licensee shall deliver all payments due under this License to 1635 Faraday Ave., Carlsbad, CA 92008. The designated place of payment may be changed from time-to- time upon written notice. Payments must be made by check payable to the City of Carlsbad. No payment by Licensee or receipt by the City of a lesser amount than payment due will be deemed to be other than a payment made on account for the total payment due, nor will any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction. The City's acceptance of such checks or payment will be without prejudice to the City's right to recover the balance of the amount due or pursue any other remedy in this License. 6. GOVERNMENTAL APPROVALS 6.1. Proprietary Capacity Acknowledgment The City and Licensee expressly acknowledge and agree the City enters this License solely in its proprietary capacity as the owner or controller of the Property and not in its regulatory capacity as a local public agency. Licensee acknowledges and agrees that any federal or state Laws applicable to the City in its regulatory capacity will not be applicable to the City in its proprietary capacity and Licensee will not seek to have such Laws applied to the City or any approval, disapproval, act or failure to act in connection with this License. Licensee further acknowledges and agrees that (1) only the terms and conditions in this License will govern the criteria and timeframes for the City's decisions or actions in its proprietary capacity in response to Licensee's requests for approvals in connection with this License; (2) any approval or disapproval the City may issue in its proprietary capacity in connection with this License will not be deemed to be an approval or disapproval the City may be required to issue in its regulatory capacity; and (3) any approval or disapproval the City may issue in its proprietary capacity will not give preference to Licensee or Licensee's applications over other persons or applications in any regulatory proceeding solely based on this proprietary relationship. 6.2. Permits and Other Governmental Approvals Licensee warrants and represents to the City that Licensee possesses all Governmental Approvals necessary for Licensee's Equipment already installed on the License Area pursuant to the Original License. Licensee shall not commence any new work at the Site Name: Calavera Hills Comm Business Unit#: 822887 page 15 / 36 April 9, 2019 Item #2 Page 24 of 70 License Area until Licensee obtains all necessary Governmental Approvals, which includes without limitation a conditional use permit, grading permit, building permit, and/or any other permit obtained through any other governmental agency with jurisdiction over the Property or the Equipment, and tenders full and complete copies for each Governmental Approval to the City. Subject to the provisions and limitations in Section 6.1 (Proprietary Capacity Acknowledgment), and only to the extent permissible under applicable Laws, the City, in its proprietary capacity as the owner and licensor of the Property, will reasonably cooperate with Licensee's efforts to obtain and maintain all necessary Governmental Approvals. 7. MAINTENANCE 7 .1 . Licensee's Maintenance Obligations At all times throughout the Term, Licensee shall maintain, repair and secure its Equipment and all other personal property and improvements brought onto the Property in a reasonably good, orderly and safe condition. Licensee shall keep the License Area free of debris, graffiti and any other dangerous, noxious or offensive condition which would create a hazard or undue vibration, heat, noise or interference, and shall correct any such conditions within forty-eight (48) hours after notice. Licensee shall post, and at all times maintain in good condition, a sign on the License Area, in a location reasonably acceptable to both the City and Licensee, that contains (1) the site operator name; (2) the site identification or reference number that corresponds with this facility; and (3) a working telephone number that connects to a live person that can exert power-down control over the Equipment. 7.2. City's Maintenance Obligations The City shall not be responsible for repairs to or maintenance of the License Area, Staging Area while being used by Licensee, or Equipment, or for any associated costs except to the extent caused by the intentional misconduct or negligent acts or omissions of City or its Agents. The City shall maintain, at its sole expense, the Access Route in a manner sufficient to allow access, weather and seasonal conditions permitting. For Access Route maintenance purposes, the City shall assess Licensee any Access Route maintenance fees pursuant to Section 5 above. Licensee acknowledges that the Access Route as currently constructed and maintained is sufficient to provide it with access. The City, under no circumstances, shall be required to expand or enlarge the Access Route. The Access Route may be altered in design or location by the City provided that the alteration does not materially impair Licensee's ability to access the License Area. If Licensee causes any damage to the Access Route, Licensee shall promptly repair same at its sole expense in accordance with Section 5. 7 of this License. Site Name: Calavera Hills Comm Business Unit#: 822887 page 16 / 36 April 9, 2019 Item #2 Page 25 of 70 8. INTERFERENCE 8.1. Licensee's Interference Obligations Licensee shall not operate the Equipment, cause or allow others to operate the Equipment or use the License Area in a manner that causes Interference with other communication transmission or reception equipment lawfully used by the City, its Agents or any third parties authorized by the City to use the Property that predate the Original License. Any such Interference will be deemed a default under this License and, after Licensee receives notice that such Interference exists, Licensee will be responsible to promptly eliminate any such Interference at no cost to the City. The City agrees to reasonably cooperate with Licensee's efforts to locate the Interference source. In the event that Licensee does not promptly cure such Interference, the parties acknowledge that continued Interference with communication transmission or reception equipment lawfully used by the City, its Agents or any third parties authorized by the City to use the Property may result in irreparable harm and, therefore, the City will have the right to bring an action against Licensee to enjoin such Interference or terminate this License, subject to applicable cure periods. · · 8.2. City's Interference Obligations The City shall not operate communications equipment on the Property, or cause or allow any third parties authorized by the City to use the Property to operate communications equipment on the Property, in a manner that causes Interference with other communication transmission or reception equipment lawfully used by Licensee, its Agents or Invitees. Any such Interference will be deemed a default under this License and, after the City receives notice that such Interference exists, the City, at no cost to Licensee, will be responsible to eliminate such Interference within seventy-two (72) hours or as soon thereafter as is reasonably practicable. Licensee agrees to reasonably cooperate with the City's efforts to locate the Interference source. In the event that the City does not promptly cure such Interference, the parties acknowledge that continued Interference with communication transmission or reception equipment lawfully used by Licensee, its Agents or Invitees may result in irreparable harm and, therefore, Licensee will have the right to bring an action to enjoin such Interference or terminate this License, subject to applicable cure periods. Nothing in this Section 8.2 is intended to limit, prohibit or enjoin the City · from entering into any agreements with any third parties for uses on the Property similar to the Permitted Use. 8.3. City's Governmental Communications Licensee acknowledges that the City uses communications equipment on the Property in connection with its governmental, regulatory and/or operational functions and that such equipment and/or the frequencies on which such equipment operates may change from time to time. Notwithstanding anything in this License to the contrary, any temporary Interference with Licensee's operations or Equipment caused by any communications equipment used during an emergency by the City in its capacity as a local public agency Site Name: Calavera Hills Comm Business Unit#: 822887 page 17 / 36 April 9, 2019 Item #2 Page 26 of 70 in connection with its governmental or regulatory functions will not entitle Licensee to terminate this License, but shall entitle Licensee to bring an action to enjoin such Interference. 9. TAXES 9.1. Title to Licensee's Equipment and Improvements All Equipment and other improvements constructed, installed or placed on the License Area by Licensee or at Licensee's request or direction will be and at all times remain Licensee's personal property and will not be deemed fixtures or real property for any purpose, whether such objects would be deemed fixtures or real property under applicable Laws or not. 9.2. Taxes Licensee understands and acknowledges that (1) Licensee is responsible for all property taxes imposed as a result of the use of the Property by Licensee; and (2) this License may subject Licensee to certain taxes under California Revenue and Taxation Code § 107.6, as may be amended or superseded, and agrees it is solely responsible for the payment of these taxes. 9.3. Licensee's Tax and Assessment Obligations Licensee agrees to pay when due and prior to delinquency any and all taxes, assessments, charges, excises and exactions pursuant to Section 9.2 (collectively, "Impositions"). Licensee shall not allow or suffer any lien for any Impositions to be imposed on the License Area or Equipment. In the event that the City receives any Imposition notices on or in connection with the License Area or Equipment, the City shall promptly (but in no event later than 30 calendar days after receipt) forward the same, together with reasonably sufficient written documentation evidencing any increases in the taxable or assessable amount attributable to Equipment. 9.4. Licensee's Right to Contest Taxes or Assessments Licensee will have the right to contest any Impositions that Licensee disputes in good faith, so long as no lien attaches to the Property and Licensee complies with any bond, deposit, collateral or other requirements under applicable Law. 10. LIENS Licensee shall keep the License Area free and clear from any and all liens or other impositions in connection with any work performed, material furnished or obligations incurred by or for Licensee. Licensee will inform all contractors and material suppliers that provide any work, service, equipment or material to Licensee in connection with the License Area that the License Area is public property not subject to any mechanics' liens Site Name: Calavera Hills Comm Business Unit#: 822887 page 18 / 36 April 9, 2019 Item #2 Page 27 of 70 or stop notices. In the event that any Licensee contractor or material supplier files any lien or imposition that attaches to the License Area, Licensee shall promptly (but in no case later than thirty (30) days after discovery) cause such lien or imposition to be released. However, if Licensee shall in good faith contest the validity of any such claim, lien, or demand, then Licensee shall, at its expense, defend itself and the City against same and shall pay and satisfy any settlement or adverse judgment that may be entered thereupon prior to the execution thereof. In the event of any such contest, Licensee shall provide the City with a security bond in a form and amount the City deems sufficient to allow the lien of record to be discharged as a matter of law. In the event that Licensee does not cause such lien or imposition to be released within the thirty (30) day period or provide the City with a security bond, the City will have the right, but not the obligation, to cause such lien or imposition to be released in any manner the City deems proper, which includes without limitation payment to the lienholder, with prior written notice to Licensee. Licensee shall reimburse the City for all reasonable costs and expenses incurred to cause such lien or imposition to be released (which includes without limitation reasonable attorneys' fees) within sixty (60) days after Licensee receives a written demand from the City together with reasonable documentation to support such costs and expenses. 11. INDEMNIFICATION 11.1. Licensee's General Indemnification Obligations Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the Indemnified Parties harmless from and against any and all Claims incurred in connection with or arising in whole or in part from: (1) death or personal injury to any person or property damage or other loss that occurred on or about the License Area or arises in connection with Licensee's, its Agents' or Invitees' authorized or unauthorized uses on or about the License Area; (2) any failure or refusal by Licensee to observe or perform any term, covenant or condition in this License to be observed or performed on Licensee's part; (3) Licensee's, its Agents' or Invitees' uses or occupancy, or manner of use or occupancy, of the License Area; (4) any unlawful exposure to RF emissions or EMFs from Licensee's Equipment or uses on or about the License Area; (5) the License Area condition or any occurrence on or about the License Area attributable to the events described in clauses (1 ), (2), (3) or (4) in this Section 11; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether liability without fault is imposed or sought to be imposed on the Indemnified Parties, but except to the extent that such Claim(s) arise from the Indemnified Parties' willful misconduct or negligence. Licensee's obligations under this Section 11 include, without limitation, reasonable fees, costs and expenses for attorneys, consultants and experts, and the City's costs to investigate any Claim. Licensee specifically acknowledges and agrees that it has an independent obligation to defend the Indemnified Parties from any Claim that actually falls within this Section 11, and which obligation arises at the time the Indemnified Parties tender such Claim to Licensee and continues at all times until such Claim's final resolution. Licensee's obligations under this Section 11 will survive the expiration or termination of this License. Site Name: Calavera Hills Comm Business Unit#: 822887 page 19 / 36 April 9, 2019 Item #2 Page 28 of 70 11.2. Licensee's Indemnification for Personnel Injuries Licensee acknowledges that (1) the City has delegated to Licensee control over the License Area; and (2) the City is not a co-employer of any employee of Licensee or any employee of Licensee's Agents, and the City shall not be liable for any Claim by Licensee's or its Agent's employee(s). Licensee agrees to fully indemnify, defend and hold the City harmless in the same manner as provided in Section 11.1 (Licensee's General Indemnification Obligations) against any Claim by any employee of Licensee or its Agents that arises in connection with Licensee's or its Agents' access, uses or other activities on or about the License Area, except to the extent that such Claim(s) arise from the Indemnified Parties' intentional misconduct or negligent acts or omissions. 11.3. Licensee's Defense of the City In the event that any action or proceeding is brought against any Indemnified Party in connection with any Claim, the City wjll use good faith efforts to send prompt written notice to Licensee. At the time Licensee receives such written notice, Licensee shall, at Licensee's sole cost and expense, resist and defend su.ch action or proceeding with legal counsel reasonably acceptable to the City. Licensee shall not admit any liability or enter into any compromise or settlement on any Indemnified Party's behalf without the City's prior written consent, which may not be unreasonably withheld or delayed. If City's delay in providing such consent will adversely affect any compromise or settlement decision Licensee has full rights to proceed in the best interest of Licensee and the Indemnified Parties and enter into such settlement. The City's legal counsel, at the City's sole expense, will be permitted to cooperate with Licensee and its legal counsel and to participate in any action or proceeding brought against any Indemnified Party in connection with any Claim. 12. ENVIRONMENT AL PROVISIONS 12.1. Licensee's General Environmental Obligations Licensee shall manage and conduct its, its Agents' and Invitees' activities on or in connection with the Property: (1) in compliance with all applicable Environmental Laws and applicable provisions in this License; (2) in cooperation with the City and the City's efforts to maintain compliance with all applicable Environmental Laws; and (3) in accordance with all Best Management Practices applicable to the Equipment and the Permitted Use. Licensee shall manage its, its Agents' and Invitees' activities on or about the Property, and as may be appropriate, secure the License Area, so as to prevent any noncompliance with any applicable Environmental Law or any applicable environmental provision in this License. 12.2. Hazardous Substances Licensee, its Agents and Invitees may use only those Hazardous Substances on or about the Property that are normally associated with the Permitted Use, and only in strict Site Name: Calavera Hills Comm Business Unit#: 822887 page 20 / 36 April 9, 2019 Item #2 Page 29 of 70 compliance with all applicable Environmental Laws. Licensee shall use best efforts to minimize Hazardous Substance use on the Property and, to the extent commercially reasonable, use non-hazardous alternatives in Licensee's operations. 12.3. Licensee's Response to Hazardous Substance Release In the event any actual, threatened or reasonably suspected Release occurs for which Licensee is responsible under this License, Licensee shall immediately undertake and diligently pursue, at Licensee's sole cost and expense, all action or actions necessary or appropriate to investigate, contain, stop, accomplish source control, remove and perform interim remediation in connection with such Release. Licensee shall promptly send the City written notice after Licensee discovers facts about (1) an actual or reasonably suspected violation in connection with any Environmental Law related to the Property or this License; or (2) an actual or reasonably suspected Release on, under, from or adjacent to the Property arising from Licensee's use of the License Area. 12.4. Self Help Except in an emergency or pursuant to a governmental order that requires immediate action, the City shall have the right (but not the obligation) to perform Licensee's environmental obligations under this Section 12 or any applicable Environmental Laws after the City provides Licensee with seven days' written notice and a demand to perform the obligations in issue. The City shall charge Licensee, and Licensee shall promptly reimburse the City upon demand, for any reasonable Environmental Costs, which shall bear interest at the statutory rate then in effect from the date the City expends any such funds. However, the City may not perform Licensee's obligations under this Section 12 when, within the Seven (7) day notice period, Licensee promptly notifies the City, begins and continues thereafter to diligently pursue full performance to completion for all obligations stated in the City's notice. 12.5. Licensee's Environmental Indemnification Obligations In the event that Licensee breaches or fails to perform any of its environmental obligations contained in this Section 12, or if any act, omission or negligence by Licensee or its Agents or Invitees results in any contamination on or about the Property or the License Area, in whole or in part, or in a Release from, on, about, in or beneath the Property or the License Area, in whole or in part, or any Environmental Law violation, then Licensee, on for itself and its successors and assigns, shall indemnify, defend and hold harmless the City,. including its Agents, and their respective successors and assigns from and against any and all Claims (including damages for decrease in value of the Property or License Area, any loss or restriction on the use of usable space on the Property or the License Area and sums paid to settle any Claims, which include without limitation attorneys' fees, consultants' fees, experts' fees and related costs) that arise during or after th.e Term and in relation to such Release or violation; provided, however, Licensee shall not be liable for any Claims to the extent such Release or violation was caused by the City's or its Agents' negligence or willful misconduct. Licensee's Indemnification Site Name: Calavera Hills Comm Business Unit#: 822887 page 21 / 36 April 9, 2019 Item #2 Page 30 of 70 obligation includes costs incurred in connection with any activities required to investigate and remediate any Hazardous Substance brought onto the Property or the License Area by Ucensee, its Agents or Invitees and to restore the Property or the License Area to its condition that existed immediately before Licensee introduced such Hazardous Substance or to correct any Environmental Law violation(s). Licensee specifically acknowledges and agrees that it has an independent obligation to defend the City and the other Indemnified Parties from any Claim that actually falls within this Indemnification provision, and which obligation arises at the time such Claim is tendered to Licensee by the Indemnified Party and continues until the Claim is finally resolved. Licensee shall afford the City a full opportunity to participate in any discussions with regulatory agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding involving Hazardous Substances. 12.6. Licensee's Liability for Hazardous Substance Release Without limiting the Indemnification obligations in Section 12.5 (Licensee's Environmental Indemnification Obligations), Licensee will be responsible for all response, remediation and restoration obligations in connection with any Release and associated Environmental Costs that results from or occurs in connection with Licensee's occupation, possession or use of the Property and/or License Area from the Effective Date, throughout the Term and after this License expires or terminates. Notwithstanding the preceding sentence, as between the City and Licensee, Licensee will not be responsible for any Releases or associated Environmental Costs caused by the City, its Agents, contractors, invitees, licensees or other lessees after the Effective Date so long as Licensee has complied with all applicable conditions for non-liability established in 42 U.S.C. §§ 9607(b) or (q) as may be amended. 13. INSURANCE 13.1. Licensee's Insurance Obligations Licensee shall procure and keep in effect at all times during the Term, at Licensee's cost, insurance in the following amounts and coverages: (1) Commercial General Liability insurance (including premises operations; explosion, collapse and underground hazard; broad form property damage; products/completed operations; contractual liability meeting the indemnification obligations herein; independent contractors; personal injury) with limits of at least Two Million and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence; (2) Worker's Compensation Insurance per California statutory limits with Employer's Liability Limits not less than One Million and 00/100 Dollars ($1,000,000.00) each accident or disease; (3) Commercial Automobile Liability Insurance with limit not less than Two Million and 00/100 Dollars ($2,000,000.00) each occurrence combined single limit for bodily injury and property damage, including owned and non- owned and hired vehicles. The required limits may be met by a combination of primary and excess or umbrella insurance. Excess insurance policy must follow form of or be at least as broad as the primary policy. Site Name: Calavera Hills Comm Business Unit#: 822887 page 22 I 36 April 9, 2019 Item #2 Page 31 of 70 13.1.1. Required Endorsements Commercial General Liability Insurance and Commercial Automotive Liability Insurance. policies must contain the following endorsements: (1) name the City, its officers, agents, employees and volunteers as additional insureds; (2) that such policies are primary insurance to any other insurance available to the additional insureds with respect to any Claims that arise in connection with this License; (3) that such insurance applied separately to each insured against whom a Claim is made or brought, except with respect to limits of insurance; (4) that such policies provide for the severability of interests and that an act or omission of one of the named insureds that would void or otherwise reduce coverage shall not void or otherwise reduce coverage as to any other named insured; and (5) that such policies shall afford coverage for all Claims based on acts, omissions, injury or damage that occurred or arose (or the onset occurred or arose) in whole or in part during the policy period. All insurance policies required to be maintained by Licensee under this License shall be endorsed to provide prior written notice of cancellation for any reason, except for non- payment of premium, to both Licensee and the City. In the event that Licensee receives a notice of intent to cancel or notice of cancellation for any coverage required under this License, including notice for non-payment of premium, Licensee shall forward such notice to the City within two (2) business days and promptly take action to prevent cancellation, reinstate cancelled coverage or obtain coverage from a different insurer qualified under Section 13.1.4 (Insurer Qualifications). 13.1.2. Claims-Made Policies In the event that any required insurance under this License is provided under a claims- made form, Licensee shall continuously maintain such coverage throughout the Term and, without lapse, for three (3) years after this License expires or terminates, to the effect that such Claims will be covered under Licensee's claims-made policies should any event during the Term give rise to a Claim brought after this License expires or terminates. 13.1.3. General Aggregate Limit The general aggregate limit for any required insurance under this License must be double the per-occurrence or Claims limits specified in Section 13.1 (Licensee's Insurance Obligations) when coverage includes a general annual aggregate limit or provides that Claims investigation or legal defense costs will be included in such general annual aggregate limit. 13.1.4. Insurer Qualifications Licensee's insurance providers must be authorized to do business in California and must meet or exceed an A.M. Best's Key Rating A-X or its equivalent. Site Name: Calavera Hills Comm Business Unit#: 822887 page 23 / 36 April 9, 2019 Item #2 Page 32 of 70 13.1.5. Certificates; Effective Dates Within ten (10) business days after the Effective Date of this License, Licensee shall deliver to the City all insurance certificates and additional insured endorsements from Licensee's insurance providers in a form reasonably satisfactory to the City that evidences all the required coverages under this License. In addition, Licensee shall promptly deliver to the City all certificates after Licensee receives a request from the City. The City shall not authorize Licensee to access or perform any work on the License Area until and unless all insurance coverages required to be carried by Licensee under this License have been obtained. Licensee shall ensure that all insurance coverages required to be carried by Licensee under this License remain in effect at all time until all Equipment has been removed from the License Area. The requirements in this Section 13.1.5 shall survive the expiration or termination of this License. 13.1.6. Self-Insurance T-Mobile West LLC, CCTMO LLC and their Affiliate assignees may meet the insurance obligations under this License through self-insurance. Notwithstanding the foregoing, any non-Affiliate assignee shall not be permitted to meet its insurance obligations under this License through self-insurance without the prior written consent from the City, which the City shall not unreasonably withhold, condition or delay. In the event the City consents to allow a non-Affiliate assignee to self-insure as an alternative insurance program, such consent will not be deemed an amendment or implied waiver to any other requirement in this License. Any amendment to any insurance requirement must be in a written agreement. 13.2. No Limitation on Indemnification Obligations Licensee's insurance obligations under this Section 13 in no way relieves or decreases Licensee's liability under Section 11 (Indemnification) or any other provision in this License. 13.3. City's Termination Right The City may elect, in its sole and absolute discretion, to terminate this License on written notice to Licensee if Licensee allows any required insurance coverage to lapse and does not reinstate the lapsed insurance coverage within three days after Licensee receives such written notice. 14. ASSIGNMENT; SUBLICENSE 14.1. Assignment Licensee may assign this License at any time without the City's consent (i) to any of Licensee's partners or parent firms; (ii) to Licensee's successors-in-interest; (iii) in connection with the sale, exchange, or other transfer of Licensee's FCC authorization for Site Name: Calavera Hills Comm Business Unit#: 822887 page 24 / 36 April 9, 2019 Item #2 Page 33 of 70 the geographic market area in which the License Area is located or substantially all of Licensee's assets in the geographic market area where the License Area is located; or (iv) in connection with any financing, loan, security interest, pledge, or mortgage of Licensee's property (collectively, "Affiliate Assignments"). An Affiliate Assignment of this License by Licensee shall be effective upon Licensee sending written notice to the City, which notice shall contain the assignees name and contact information, and shall relieve Licensee from any further liability or obligation under this License. Any other assignment or any sublicense shall require the City's prior written approval, which approval the City shall not unreasonably withhold, delay or condition. Any assignment that violates this Section 14.1 shall, subject to applicable cure periods, be voidable at the City's option and grant the City the right (but not the obligation) to terminate this License upon written notice to Licensee pursuant to Section 15. This Section 14.1 shall not preclude Licensee's right to enter into a standard roaming agreement allowing subscribers of other wireless carriers to use the Equipment specifically constructed for Licensee's use. 14.2. Sublicense (Collocation) Subject to the City's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Licensee may sublicense or in any other manner allow a third party to occupy or use antenna space on its Equipment. Any act that violates this Section 14.2 shall grant the City the right (but not the obligation) to terminate this Lease upon written notice to Lessee pursuant to Section 15. 14.3. Continuing Obligation (Novation) Excluding an Affiliate Assignment, no other assignment or sub license will relieve Licensee of its obligation to pay the License Fee and to perform all other obligations to be performed by License under this License, unless the City expressly releases Licensee from such obligations. The acceptance of any payment due under this License by the City from any other person or entity will not be deemed to be a waiver by the City of any provision of this License or be construed to be consent to any assignment or sublicense. 15. DEFAULT; REMEDIES 15.1. Defaults and Cure Periods The parties agree that it will be a default under this License when either the City or Licensee: (1) fails to tender any sums payable pursuant to this License when due, and such failure continues for 10 days after notice from the non-defaulting party; (2) fails to perform any non-monetary term, provision, covenant or obligation under this License, and such failure continues for 30 days after notice from the non-defaulting party; provided, however, that said 30-day cure period will be reasonably extended when the default cannot be cured within 30 days and the defaulting party commences to cure within said 30-day cure period and diligently pursues the cure to completion. Site Name: Calavera Hills Comm Business Unit #: 822887 page 25 / 36 April 9, 2019 Item #2 Page 34 of 70 15.2. Sums Paid During Default Any sums paid from Licensee to the City after Licensee's default will not constitute a cure by Licensee or waiver by the City unless the City acknowledges such cure or waiver in a signed writing. 15.3. No Consequential Damages The parties expressly acknowledge and agree that the License Fee or any other sums payable under this · License do not take into account any potential liabilities for consequential or incidental damages. The parties would not willingly enter this License without a complete, mutual waiver of liability, to the fullest extent permitted by Law, for consequential or incidental damages arising from either party's acts or omissions. Accordingly, without limiting Licensee's Indemnification obligations or other waivers contained in this License and as a material consideration for this License, both parties fully release , waive and discharge forever any and all Claims against each other for consequential and/or incidental damages that arise from or in connection with this License, which includes without limitation any lost profits from disruption to Equipment, any interference with uses or activities conducted by either party under this License, from any cause whatsoever, and whether due to either party's, or its Agents', active or passive negligence or willful misconduct or not, and covenant not to sue each other, or their Agents for such damages. 15.4. No Personal Liability for City Officials, Employees or Agents No elected or appointive board, agency, member, officer, employee or other Agent of the City will be personally liable to Licensee, its successors and assigns, in the event of any default or breach by the City or for any amount which may become due to Licensee, its successors and assigns, or for any obligation of the City under this License. 15.5. Cumulative Remedies Except as may be specifically provided otherwise in this License, any and all rights, benefits and/or remedies provided or afforded to either the City or Licensee under this License or any other instrument or document executed pursuant to this License are and will be cumulative and not exclusive of any legal or equitable rights, benefits or remedies available to either the City or Licensee under applicable Laws. 16. TERMINATION 16.1. Grounds for Termination In addition to any other provision in this License that authorizes the City or Licensee to terminate this License, this License may be terminated as follows: Site Name: Calavera Hills Comm Business Uni!#: 822887 page 26 / 36 April 9, 2019 Item #2 Page 35 of 70 (1) by either the City or Licensee upon 30 days' written notice when the other remains in default beyond any applicable cure period; (2) by Licensee upon written notice to the City at any time prior to the Effective Date if any Tests show, in Licensee's opinion, that the License Area is not suitable for the Permitted Use; (3) by Licensee upon written notice to the City at any time prior to the Effective Date if Licensee cannot obtain all Governmental Approvals required for the Permitted Use after Licensee exhausts in good faith all administrative remedies available to Licensee in connection with an application for such Governmental Approvals; (4) by Licensee upon 30 days' written notice to the City at any time after the Effective Date for any or no reason; · 16.2. Early Termination Fee In the event that Licensee elects to terminate this License pursuant to Section 16.1 (4) (Grounds for Termination), Licensee shall include with its termination notice a lump sum payable to the City equal to the then-current monthly License Fee multiplied by either 12 or the number of months remaining on the Term (whichever is less) (the "ETF"). Licensee will not be obligated to pay any ETF if Licensee terminates this License prior to the Effective Date pursuant to Section 16.1 (1 ), (2) or (3) (Grounds for Termination). 17. REMOVAL AND RESTORATION Licensee shall remove all Equipment at its sole expense upon the expiration or termination of this License, including but not limited to facilities used to house Equipment that the City does not elect to retain. Licensee shall repair any damage to the License Area caused by such removal, and shall return the License Area to the condition which existed on the Effective Date, reasonable wear and tear and damage beyond the control or without the fault or neglect of Licensee excepted. Without limiting the generality of the foregoing, Licensee shall remove all footings, foundations, utilities, wiring and conduits. Licensee shall be deemed in actual possession of the License Area until and unless it completely removes its personal property and restores the License Area consistent with this Section 17. 18. CONDEMNATION 18.1. Permanent Takings. In the event that any entity with the power to condemn permanently takes any License Area in whole or in part, or in the event that the City transfers any License Area in whole or in part to such entity in lieu of eminent domain, the following provisions will apply: Site Name: Calavera Hills Comm Business Unit#: 822887 page 27 / 36 April 9, 2019 Item #2 Page 36 of 70 18.1.1. Termination and Award. This License will automatically terminate on the date the permanent taking or transfer occurs. The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking . Licensee hereby expressly waives any right or claim to any portion thereof, including any claim for loss of business or goodwill. All damages, whether awarded as compensation for diminution in value of the license or to the fee of the License Area, shall belong to the City. Licensee will have no Claim against the City for the value of any unexpired Term of this License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee's loss or damage to Licensee's Equipment. 18.1.2. No Statutory Right to Terminate. The parties understand, acknowledge and agree that this Section 18.1 is intended to fully govern the parties' rights and obligations in the event of a permanent taking. Licensee and the City each hereby waives and releases any right to terminate this License in whole or in part under California Code of Civil Procedure§§ 1265.120 and 1265.130 and under any similar Laws to the extent applicable to this License. 18.2. Temporary Takings. Any taking that affects any License Area in whole or in part for less than 90 days will have no effect on this License, except that Licensee will be entitled to a pro-rata abatement in the License Fee to the extent that such temporary taking materially impairs Licensee's use of the License Area. Furthermore, in the event that the City receives an award, if any, in connection with such temporary taking, Licensee will receive the portion from the award that represents compensation for the use or occupancy of the License Area during the Term but not to exceed the License Fees payable by Licensee for the period of the taking, and the City will retain the balance of the award. 19. DESTRUCTION In the event that the License Area, in whole or in part, becomes damaged or destroyed, the City will have no obligation to repair, rebuild or replace the damaged or destroyed License Area. Notwithstanding the foregoing, the City shall have an obligation to repair, rebuild or replace any portion of the License Area that is damaged or destroyed due to the City's intentional misconduct or negligent acts or omissions. In the event that the License Area, in whole or in part, becomes so damaged or destroyed that it materially impairs Licensee's Permitted Use, and such damage or destruction resulted from a cause not attributable to Licensee or any other person or entity affiliated with Licensee or under Licensee's direction or control, Licensee may elect to terminate this License within 60 days after such damage or destruction occurs. Site Name: Calavera Hills Comm Business Unit#: 822887 page 28 / 36 April 9, 2019 Item #2 Page 37 of 70 20. NOTICES Except as may be specifically provided otherwise in this License, all notices, demands or other correspondence required to be given under this License must written and delivered through (1) an established national courier service that maintains delivery records and confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows: TO CITY: TO LICENSEE: City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: Curtis M. Jackson Telephone: 760-434-2836 Email: curtis.jackson@carlsbadca.gov T-Mobile West LLC c/o Crown Castle USA Inc. General Counsel Attn: Legal -Real Estate Dept. 2000 Corporate Drive Canonsburg, PA 15317-8564 Telephone: 1-866-482-8890 All notices will be deemed effective on receipt or on attempted delivery when delivery is refused. Telephone, facsimile and email information are provided for convenience and for couriers who may require such information, and any notice given solely through electronic means will not be deemed to be effective notice. Any copies required to be given constitute an administrative step and not actual notice. The parties may change the notice addresses above from time-to-time through written notice to the addresses above or the then-current notice address. 21. BANKRUPTCY In the event that Licensee becomes a debtor in any voluntary or involuntary bankruptcy proceeding under the Bankruptcy Code, the City and Licensee expressly intend, acknowledge and agree that this License will be treated as either an unexpired commercial lease or an executory contract for all purposes in connection with Bankruptcy Code § 365 and subject to the provisions Bankruptcy Code §§ 365(d)(3) and 365(d)(4) as those provisions may be amended or superseded in.the future. Any person or entity to which this License is assigned pursuant to the Bankruptcy Code will be deemed without any further act to have assumed all Licensee's obligations under this License which arose before or may arise after such assignment, and any such assignee shall execute and . deliver to the City a written instrument that confirms such assumption promptly upon a written demand from the City. Any monies or other consideration payable or otherwise to be delivered in connection with such assignment will be promptly paid to the City, will be the City's exclusive property and will not constitute Licensee's or its estate's property for Site Name: Calavera Hills Comm Business Unit#: 822887 page 29 / 36 April 9, 2019 Item #2 Page 38 of 70 the purposes under the Bankruptcy Code. Any such monies or other consideration not paid to the City will be held in trust for the City's benefit as paid to the City as soon as possible. 22. SECURITY DEPOSIT 22.1. Amount At the time Licensee tenders to the City the first License Fee due under this License, Licensee must also tender to the City for deposit a sum equal to Five Thousand Five Hundred .and 00/100 Dollars ($5,500.00) (the "Security Deposit") to secure Licensee's faithful performance of all terms, covenants and conditions in this License. In the event that the City, in its reasonable discretion, following notice and expiration of cure periods pursuant to this License, applies or uses the Security Deposit in whole or in part for the actual costs to cure any default by Licensee under this License, the City shall submit to Licensee reasonable supporting documentation evidencing such costs or expenses within thirty (30) days following the City's use of the Security Deposit (the "Supporting Documentation"). Licensee shall, within sixty (60) days of receipt of written notice with the Supporting Documentation, replenish the Security Deposit in the amount required to maintain the Security Deposit at the amount stated herein. In the event that the costs and expenses exceed the Security Deposit amount, Licensee shall reimburse the City for the difference between the total cost and the Security Deposit ahd the City shall be entitled to keep such sums. Notwithstanding anything in this License to the contrary, the City shall not be prohibited from applying funds from the Security Deposit, in whole or in part, to cure any non-monetary default by Licensee that remains uncured for more than sixty (60) days after notice to the Licensee. The City may, in the City's reasonable judgment, require Licensee to increase the Security Deposit amount from time-to-time when the City determines that Licensee's past acts or omissions in connection with the License Area warrants additional security. 22.2. Application or Use Licensee agrees that the City may use the Security Deposit in whole or in part to remedy any damage to the License Area caused by Licensee, its Agents or Invitees or any failure by Licensee to perform any term, covenant or condition in this License (including without limitation any failure to pay any License Fee or other sums due under this License after any default and following notice and expiration of cure periods pursuant to this License). In the event that the City uses the Security Deposit in whole or in part, the City will not be deemed to have waived any rights under this License, or legal or equitable rights whatsoever. In the event the Property is transferred, the City shall have a duty at the time of the conveyance to return the Security Deposit to the Licensee. The City's obligations with respect to the Security Deposit shall be in the nature of a debtor, and the City shall not be deemed to hold the Security Deposit in trust for any reason . The City may (but shall not be obligated to) keep the Security Deposit separate from general funds. Licensee shall not be entitled to any interest on the Security Deposit. Site Name: Calavera Hills Comm Business Unit#: 822887 page 30 / 36 April 9, 2019 Item #2 Page 39 of 70 In the event of early termination or expiration of this License, the City shall refund the Security Deposit to Licensee within thirty (30) days following full performance of this License by Licensee. 23. MISCELLANEOUS 23.1. Interpretation; Construction The City and Licensee acknowledge and agree that: (1) both parties have been represented by counsel and that both parties have participated in the negotiation and drafting process; (2) the language in this License will always be construed simply and in accordance with its fair and ordinary meaning, without any reference to any common practices, interpretations, customs or definitions that may exist in any industry or trade to which either the City or Licensee may belong; (3) this License will never be construed either for or against either the City or Licensee for any reason; (4) any defined term in this License will be construed to have the same definition when used in both the singular and plural form; (5) the word "or" will not be interpreted as a limitation and will be construed to mean "and/or" unless expressly provided otherwise in this License; (6) the word "including" or phrase "which includes" will not be interpreted as a limitation and will be construed to be followed by the phrase "without limitation" whenever such phrase does not appear in the text; (7) all references to any "Section" or "Exhibit" will be construed to mean a section or exhibit attached to this License unless expressly provided otherwise in this License; (8) the captions contained in this License (a) are only for convenience, (b) will not be used to interpret or construe any term or provision in this License and (c) will not carry any legal effect whatsoever; and (9) this License is not intended to create, does not create and will not be construed to create any third-party benefit or beneficiaries, or any joint venture, partnership, employment or agency relationship between the City and Licensee. Site Name: Calavera Hills Comm Business Unit#: 822887 page 31 / 36 April 9, 2019 Item #2 Page 40 of 70 23.2. Unenforceability; Severability In the event that a court with competent jurisdiction over this License holds any provision in this License invalid or unenforceable with respect to either the City or Licensee, or any third parties to whom this License may become applicable or enforceable, (1) the valid or enforceable provisions will not be affected whatsoever; (2) the application of such invalid or unenforceable provision to persons or entities other than those as to whom it is held invalid or unenforceable shall not be affected; and (3) each provision in this License shall be valid and enforceable to the fullest extent permitted under Law. 23.3. Time for Performance; Force Majeure Time is of the essence of this License. Notwithstanding the provisions in this Section 23.3, the time for performance for any term, provision, covenant or obligation under this License will be deemed extended to account for any time lost due to delays that arise from strikes, civil riots, floods, labor or material shortages or restrictions, governmental intervention or any other cause not within the control of the party whose performance is due. 23.4. Integration; Entire Agreement This License contains the entire agreement and understanding between the parties as to the subject matter concerned in this License, and this License supersedes all prior or contemporaneous agreements, commitments, conditions, discussions, instruments, offers,_promises and/or proposals between or among the City and Licensee in connection with the License Area, whether oral or written . 23.5. Successors and Assigns The parties intend and agree that this License will extend to and bind the parties' respective heirs, personal representatives, successors and assigns. 23.6. Amendments or Modifications All amendments or modifications to this License, if any, must be in a written and fully executed agreement signed by both parties. 23. 7. Waivers No provision in this License may be waived or deemed waived, except in a written waiver signed by the party against whom enforcement of such waiver is attempted. No custom or practice which may develop between the parties in the implementation or administration of the terms of this License will be construed to waive or lessen. any right to insist upon strict and/or timely performance of the terms of this License. Any waiver by either party of.any provision of this License will not be deemed to constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver. Site Name: Calavera Hills Comm Business Unit#: 822887 page 32 / 36 April 9, 2019 Item #2 Page 41 of 70 23.8. Governing Law; Venue; Attorneys' Fees This License shall be governed and construed in accordance wi.th the laws of the State of California without regard to conflicts of laws principles. Sole and exclusive venue for any action or claim between the parties that arises from or in connection with this License will reside exclusively in the Superior Court of the County of San Diego (the "Court"). All parties to this License agree to be subject to the Court's jurisdiction and waive all claims whatsoever that would defeat the Court's jurisdiction to hear and adjudicate any action or claim between the parties that arises from or in connection with this License. The prevailing party in any final or non-appealable decision on the merits that arises from or in connection with this License may be entitled to its reasonable attorneys' fees and costs, which includes without limitation reasonable witness, expert and consultant fees, at the Court's sole discretion. With respect to any provision in this License that provides for payment of attorneys' fees, such fees will be deemed to include reasonable fees incurred through any applicable appeal process and will include, but not be limited to, fees attributable to legal services provided by any in-house counsel and staff to the prevailing or indemnified party. For purposes in this License, all services rendered by all attorneys and their staff will be valued at the average rates for independent counsel prevailing in the County of San Diego, California. 23.9. Government Claims Act Any claim for money damages by Licensee against the City hereunder will be subject to California Government Code§§ 810 et seq. (the "Government Claims Act"). Neither the City nor its council members, commissioners, elected or appointed officers or officials, administrators, directors, managers, employees, attorneys, agents or volunteers will be personally liable to Licensee in the event of any default or breach of the City, or for any amount which may become due to Licensee or any successor in interest, or for any obligations directly or indirectly incurred under this License. 23.10. Public Records Act Disclosure Licensee acknowledges that the City is a public entity under the laws of the State of California. Furthermore, the parties acknowledge that this License constitutes a public record that the City must publicly disclose under (i) the California Public Records Act, California Government Code§§ 6250 et seq.; (ii) Title 17, California Code of Regulations §§ 91000 et seq.; (iii) Article I, § 3, of the California State Constitution; and (iv) any other applicable Law that may require the City to disclose public records. · 23.11 . Estoppels Licensee, at any time and from time-to-time on not less than 30 days' notice from the City, shall execute, acknowledge and deliver to the City or its·designee, an estoppel certificate which states: (a) that Licensee has accepted the License Area (or, if Licensee has not done so, that Licensee has not accepted all or any part of the License Area and specifying the applicable portions of the License Area and reasons for non-acceptance); (b) the Site Name: Calavera Hills Comm Business Unit #: 822887 page 33 / 36 April 9, 2019 Item #2 Page 42 of 70 Effective Date, Effective Date and expiration date for this License; (d) that this License is unmodified and in full force and effect or, if modified, the manner in which this License is modified; (e) whether any defenses then exist against the enforcement of any of Licensee's obligations under this License (and if so, specifying the same); (f) whether any of the City's obligations under this License are outstanding (and if so, identifying any City obligations that Licensee believes that the City has failed to meet); (g) the dates, if any, to which the License Fees have been paid; and (h) any other information that may be reasonably required by any such persons. 23.12. Brokers Neither the City nor License has had any contact or dealings in connection with the license of the License Area, or any communication in connection therewith, through a Broker, whose commission, if any is due, is to be paid pursuant to a separate written agreement between such Broker and the party through which such Broker contracted. In the event that any Broker perfects a claim for a commission or finder's fee based upon any such contact, dealings or communication, Licensee shall indemnify the City from all Claims brought by the Broker. The representations and indemnification obligations in this Section 23.12 will survive expiration or earlier termination of this License. 23.13. Survival The parties to this License intend that all terms and conditions within this License that by their sense or context should survive this License's expiration, termination or cancellation, which includes without limitation Section 4.2 (Holdover Term), Section 11 (Indemnification), Section 13.1.5 (Certificates; Effective Dates), Section 17 (Removal and Restoration), Section 12 (Environmental Provisions), Section 23.8 (Governing Law; Venue; Attorneys' Fees) and Section 23.12 (Brokers), or any provision in this License which necessarily requires performance after this License expires or terminates, will survive this License's expiration, termination or cancellation. 23.14. Submission for Inspection; No Offer Prior to the Effective Date, the parties may submit this License to each other for inspection and examination purposes and such submission will not constitute an offer to license the License Area. This Licensee will become effective only upon full execution by both the City and Licensee. 23.15. Execution; Counterparts. This License may be executed simultaneously or in one or more counterparts. In the event that the parties elect to execute this License in one or more counterparts, Licensee shall execute first, the City shall execute second, each executed counterpart will be deemed to be an original but all counterparts taken together will constitute one and the same agreement. Site Name: Calavera Hills Comm Business Unit#: 822887 page 34 / 36 April 9, 2019 Item #2 Page 43 of 70 23.15. Deletion of Original License. The City and Licensee agree that effective as of Effective Date of this License, the Original License is hereby amended by deleting it in its entirety and restating the Original License as provided for in this License. [END OF LICENSE -SIGNATURES BEGIN ON NEXT PAGE] Site Name: Calavera Hills Comm Business Unit#: 822887 page 35 / 36 April 9, 2019 Item #2 Page 44 of 70 IN WITNESS WHEREOF, the parties have executed this License on the Effective Date first written above: LICENSOR: City of Carlsbad By: Its: ~NA&t;-z Date: (Z.At~('1 APPROVED AS TO FORM: By: Wsbc:¥ City Attorney Date: ~'Jb / ( ':j I APPROVED BY CITY COUNCIL RESOLUTION Noa?Q,q~otlj ATTEST: By ~ dL~ ~' arbarEngleson 1 V City Clerk Date: __ z/;_~__;_/ ...,.(,'---'_.9.__ ____ _ LICENSEE: T-Mobile West LLC, a Delaware limited liability company By: Its: Date: By: Its: Date: [END OF SIGNATURES -EXHIBITS BEGIN ON NEXT PAGE] Site Name: Calavera Hills Comm Business Unit#: 822887 page 36 / 36 April 9, 2019 Item #2 Page 45 of 70 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY SITUATED IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA: BEING A PORTION OF LOT "J" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON NOVEMBER 16, 1896, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF CARLSBAD TRACT NO. 81-47 IN SAID CITY AND STATE, ACCORDING TO MAP NO. 10565 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON JANUARY 17, 1983; THENCE SOUTH 69°28'42", WEST, 754.99 FEET (RECORD 754.89 FEET PER MAP NO. 10565), ALONG THE NORTHERLY SUBDIVISION BOUNDARY OF SAID TRACT NO. 81- 47, TOTHEMOSTNORTHWESTERLYCORNEROF SAID TRACT NO . 81-47, SAID POINT BEING ON THE CENTERLINE OF GLASGOW DRIVE AS DEDICATED TO THE PUBLIC PER MAP NO. 10565; THENCE CONTINUING SOUTH 69°28'42" WEST, 30.02 FEET TO THE WESTERLY LINE OF GLASGOW DRIVE AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 69°28'42" WEST, 623.26 FEET TO A POINT ON THE EASTERLY LINE OF AN EASEMENT FOR PUBLIC ROADWAY PURPOSES PER DOCUMENT NO. 85-263533, RECORDED JULY 24, 1985, SAID POINT BEING ON A CURVE CONCA VE WESTERLY AND HAVING A RADIUS OF 1042.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 85°33'46" EAST; THENCE NORTHWESTERLY, ALONG SAID EASTERLY LINE OF TAMARA CK A VENUE, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 23°03'26", 419.33 FEET; THENCE NORTH 18°37'12" WEST, 197.62 FEET TO THE BEGINNING OF A TANGENT CURVE CONCA VE SOUTHEASTERLY AND HAVING A RADIUS OF 75.00 FEET; THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90°00'00", 39.27 FEET; THENCE ALONG THE SOUTHERLY LINE OF AN EASEMENT FOR PUBLIC ROADWAY PURPOSES PER DOCUMENT NO. 85-075424, RECORDED FEBRUARY 26, 1986, NORTH 71 °22'48" EAST, 384.68 FEET; THENCE LEAVING SAID SOUTHERLY LINE, SOUTH 18°57'12" EAST, 150 .00 FEET; THENCE NORTH 71 °22'48" EAST, 130.00 FEET TO THE WESTERLY LINE OF SAID EASEMENT FOR PUBLIC ROADWAY PURPOSES PER DOCUMENT NO. 86- 075424, RECORDED FEBRUARY 26, 1986 THENCE ALONG SAID WESTERLY LINE, SOUTH 18°37'12" EAST, 460.04 FEET TO THE TRUE POINT OF BEGINNING. Site Name: Calavera Hills Comm Business Unit#: 822887 Exhibit A April 9, 2019 Item #2 Page 46 of 70 EXHIBIT B SURVEY AND LEGAL DESCRIPTIONS FOR THE LICENSE AREA, ACCESS ROUTE AND UTILITIES ROUTE (see survey and legal descriptions attached behind this cover) Site Name: Calavera Hills Comm Business Unit#: 822887 Exhibit B April 9, 2019 Item #2 Page 47 of 70 EXHIBIT C APPROVED PLANS FOR EQUIPMENT AND OTHER IMPROVEMENTS (see site plans and drawings attached behind this cover) Site Name: Calavera Hills Comm Business Unit#: 822887 Exhibit C April 9, 2019 Item #2 Page 51 of 70 OJ ~ c-cn CD s· z CD W ~ ~ c .. ~-0 ~w :ltii, ~~ "'"' oo I 00 -· ---1= en 0 0 3 3 m >< :r rr ;:::;: 0 ~ ■ ·Mobile· 7 --, 1 ~ • • Mobile -11 l!!" E.•ST 1.il1,\S'n t,.1.1-U,, SLUE :!I,• n:-.-r 11un.1:,,.1 rrnn~:u ~1·,.1 T-MOBILE SITE NUMBER: SD06378A CROWN CASTLE BU #: 822887 \.,__------< ( lie&,~I~~! T-MOBILE SITE NAME: CALAVERA HILLS COMM SITE ADDRESS: 291J7 GL.\SGQ\'(1 Dll CARLSBAD, CA fJ200H SITE TYPE: MONOPOLE COUNTY: SAN DIEGO "' 1Jlll:Sll.C.~U1 U~),:LI ,.~., TOWER HEIGHT: 83'-0" JURISDICTION: CITY OF CARLSBAD ;c "I T-MOBILE L700 I/ SITE INFORMATION ,/ DRAWING INDEX 'I' LOCATION MAI' ...., ·r-~rnnn.r-: SITE l',;IJ~IHER: .~rrF.:-:J.MI: ~ITE M,rl/iF'\.~ MAl'/l'AJICEl./1. \lltt.1•» 1·11N$r.:rr·r:n,·,:,.: 1 • .-TTTI.'tlf l.H/T o-..::i; T\'~I':, 1;!tU1'.:-,;l) l'.l li\'\Tl0,\' J!'jl.J5tlll""llll~~ .\.D •. 1.t:U)!l'l.U ... l"I'. 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C-.J)(!AACTOt l!I TO IIIrUc TO 1-IICDILE'S ~ Cl/k!l[l/1 fV&IO FRn:u~-o c..-r~ Sl-£tr (RM) FJ©R ru CO'!STIIJ:TION 1. mu ci1il£ LDiG'!H r.. ...,,;,.o~"'Art. co,,m..-:,c~ ro n;:w •.i;:~n o.JU: L.£.~111!; Plnor, ro 01um""~-l:\ll'il0.~11, a~ 1t.-.t,,LtAl1[!fl or c.,ou:!;. l. frCUl IN!)l:.0.lt!l !"CP,~al OllJIP~tN"I IIYIIRl[ICAIIU:(flf:SJ (JT\' I l!OOF.L Qn' QCV 'TWL-.:AW~ on· QTY 1.r."ICTII I OTV ,\V,\~-60(1-611") IJT\' OT\' I: -'"\\ I~· ·Mobile·/ .1!r:'' EM"r G(1A5'"n :k0.\D.Sl1fl'E~-rJ:-7 -~J!l(l, C,\J.ff(JJINI.\ -~1 7/, I [ \ < ~,£!~~~-: / ""''"-'--'""""'·'"~" < I T-t.JOBILE SlTE NU1\LfH!lt: SD06.1?!1A Bll #-: R22RR7 · CAI.A VERA HILLS CO~L\tl 2?97 GT .:\SC;{)\\." Oil C/\R.L51MD, CA ')2008 Exrs·nNG 83'-0" ~IONOPOLG \.. \.. ISSUP.Di;;OR: ' I r ,/ TIIIS DOCUMENT IS PR£LIMINAilY IN NATURE AND IS NOT A FINJ\L, S[GNED AND SEALED DOCUMENT , ...... +~ -~-~ r., . .,:,.,,.,. •..• , ·~,{~1~~f~~j1~~t!filr~~NJ [ l "r~I : .. A., .. 1 I April 9, 2019 Item #2 Page 54 of 70 Site Name: Calavera Hills Comm Business Unit#: 822887 EXHIBIT D MEMORANDUM OF LICENSE (see attached) Exhibit D April 9, 2019 Item #2 Page 63 of 70 WHEN RECORDED RETURN TO: Prepared by: Parker Legal Group, PC 600 West Broadway, Suite 700 San Diego, CA 92101 A.P.N. 167-101-35-00 Space above this line for Recorder's Use MEMORANDUM OF AMENDED AND RESTATED COMMUNICATIONS SITE LICENSE AGREEMENT This Memorandum of Amended and Restated Communications Site License Agreement is made effective this ta<-day of .LipA..'.c..1. , 201.i_ by and between the CITY OF CARLSBAD, a California municipal corporation, with a mailing address of 1200 Carlsbad Village Dr., Carlsbad, California 92008 (the "City") and T-MOBILE WEST LLC, a Delaware limited liability company, by and through CCTMO LLC, a Delaware limited liability company, its attorney in fact, with a mailing address of 2000 Corporate Drive, Canonsburg, Pennsylvania 15317 ( collectively referred to as "Licensee"). I. The City and T-Mobile USA Incorporated ("Original Licensee") entered into a License Agreement dated October 15, 2008 (the "Original License"), whereby the City licensed use of the License Area (as defined below), all located within the Property (as defined below). LLC is the current licensee under the Original License as successor in interest to Original Licensee. 2. The City and Licensee have entered into an Amended and Restated Communications Site License Agreement dated /lp;u_Q I~ , 201:i_ (the "License") whereby the City licensed certain ground space to Licensee, together with non-exclusive space for access and utilities, located in San Diego County, California (the "License Area"), all located within certain real property owned by the City (the "Property"). The Property, of which the License Area is a part, is more particularly described in Exhibit "A" attached hereto. COPY Site Name: Calavera Hills Comm Business Unit#: 822887 1 Documentary Transfer Tax$ _____ _ _ Computed on full value of property _ Computed on full value less liens & encumbrances remaining at time of sale _ Computed on full value oflease surpassing the 35-year term limit __ _ _ Computed on leased area of the property Signature ofDeclarant or agent -Firm Name April 9, 2019 Item #2 Page 64 of 70 3. By the License, the City and Licensee amended the Original License by deleting it in its entirety and restating the Original License as provided for in the License. 4. The License Area may be used for the purpose of constructing, maintaining and operating a communications facility, including tower structures, equipment shelters, cabinets, meter boards, utilities, antennas, equipment, any related improvements and structures and uses incidental thereto. 5. The initial term of the License is for ten (10) years, commencing ~/lp=t""vvJ.~-~~'~2 __ , 2019 and expiring /lpA...i..fl ll_ , 2029 (the "Initial Term"). The License provides for two (2) extensions of five ( 5) years each, with the final extension expiring on A..p,.1; o IL , 2039. 6. In the event of any inconsistency between this Memorandum and the License, the License shall control. 7. The terms, covenants and provisions of the License shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of the City and Licensee. 8. This Memorandum does not contain the social security number of any person. 9. The License does not contain any rights of first refusal or any other restrictions on the City's right to transfer its right, title or interest, in whole or in part, in or to the Property or the License. 10. A copy of the License is on file with the City and Licensee. Site Name: Calavera Hills Comm Business Unit#: 822887 [Execution Pages Follow] 2 April 9, 2019 Item #2 Page 65 of 70 IN WITNESS WHEREOF, hereunto and to duplicates hereof, Landlord and Tenant have caused this Memorandum to be duly executed on A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truth ulness, accurac , or validi o that document. OF CALIFORNIA ) ) ss. ) On ___________ before me, _________________ , Notary Public, personally appeared _ __,, _________________________ , who proved to me on the basis o satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instru nt and acknowledged to me that he/she/they executed the same in his/her/their authorized capaci ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon beH f of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJU foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC under the laws of the State of California that the (Seal) [Tenant Execution Page Follows] Site Name: Calavera Hills Comm Business Unit#: 822887 3 April 9, 2019 Item #2 Page 66 of 70 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego before me, Mor:gen Fry, Notary Public (insert name ai:,d title of the officer) personally appeared Sc..o-\"t C..'nt\d W\c...+( who proved to me on the basis of satisfactory evidence to be the person~ whose name~ is/are-- subscribed to the within instrument and acknowledged to me that he/i.hii.lthii,' executed the same in his/l'ler1ltheir authorized capacity(tes,), and that by his/,i,or/thoi.r signature~ on the instrument the person~ or the entity upon behalf of which the person~ acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. i············f '• MORGEN FRY : . , Notary Public -California z 1 _ · · ? San Di@io County ~ z ~ • , Commission# 2268605 - 0••' My Comm. Expires Dec 2'4, 2022 (Seal) April 9, 2019 Item #2 Page 67 of 70 LICENSEE: T-MOBILE WEST LLC, a Delaware limited liability company State of Texas County of (~,..., ".> Before me, 1 ro-c.-, I l-h -'V\ .u-v r , a Notary Public, on this day personally appeared (. <!,,J,,r,7 ½1-f h<---~~.. , Vt~ Pr-v~, dh.-t: of CCTMO LLC, a Delaware limited liability company, as Attorney in Fact for T-MOBILE WEST LLC, a Delaware limited liability company, known to me ( or proved to me on the oath of ______ or through driver's license, state id card, resident id card, military id card, or passport) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this / ff,-- ~ J-(j_ __ (Personalized Seal) Notary Public's Signature 1';!~~~~~~~~~~~~[ Licensee Execution Pages Continue] $~t~~tt~ TRACI T. CHENEVERT ff/J,.:·.~g Notary Public, State of Texas ~~--.~ .. :._~~ Comm. Expires 02-26-2022 ,, ;I:.·••" 1(..'' '11,fim,;,,,,' Notary ID 125596639 Site Name: Calavera Hills Comm Business Unit#: 822887 4 April 9, 2019 Item #2 Page 68 of 70 State of Texas County of t\:tWY)t:; LICENSEE: T-MOBILE WEST LLC, a Delaware limited liability company By: CCTMO LLC, a Delaware limited liability company Its: Attorney In Fact Before me,. Rebecca Julie Byrne , a Notary Public, on this day personally appeared D'Jy\'\\£\ @\l\X\~ , CP-0 of CCTMO LLC, a Delaware limited liability C{)Illl)Y, as Attorney in Fact for T-MOBILE WEST LLC, a Delaware limited liability company, known to me ( or proved to me on the oath of t-..1 \~ or through driver's license, state id card, resident id card, military id card, or passport) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this ___ \C\ ___ day of f{\lU'lh , 20 l 6\ . (Personalized Seal) Site Name: Calavera Hills Comm Business Unit#: 822887 5 ,,,1U1p1,,,, REBECCA JULIE BYRNE ,, i-1':' II. ,,. ~S-.1(•"'•.~,,~ Notary Public State of Texas -~· -~~ f i~:.. )ij comm. Expires 01-23-2022 -::.;~,-·of·-i<c,,~~ Notary ID 131419446 ,,, .. ,, April 9, 2019 Item #2 Page 69 of 70 EXHIBIT A TO MEMORANDUM (Legal Description of the Property) SITUATED IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA: BEING A PORTION OF LOT "J" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON NOVEMBER 16, 1896, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF CARLSBAD TRACT NO. 81-47 IN SAID CITY AND STATE, ACCORDING TO MAP NO. 10565 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON JANUARY 17, 1983; THENCE SOUTH 69°28'42", WEST, 754.99 FEET (RECORD 754.89 FEET PER MAP NO. 10565), ALONG THE NORTHERLY SUBDIVISION BOUNDARY OF SAID TRACT NO. 81- 47, TO THE MOSTNORTHWESTERL Y CORNER OF SAID TRACT NO. 81-47, SAID POINT BEING ON THE CENTERLINE OF GLASGOW DRIVE AS DEDICATED TO THE PUBLIC PER MAP NO. 10565; THENCE CONTINUING SOUTH 69°28'42" WEST, 30.02 FEET TO THE WESTERLY LINE OF GLASGOW DRIVE AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 69°28'42" WEST, 623.26 FEET TO A POINT ON THE EASTERLY LINE OF AN EASEMENT FOR PUBLIC ROADWAY PURPOSES PER DOCUMENT NO. 85-263533, RECORDED WLY 24, 1985, SAID POINT BEING ON A CURVE CONCA VE WESTERLY AND HAVING A RADIUS OF 1042.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 85°33'46" EAST; THENCE NORTHWESTERLY, ALONG SAID EASTERLY LINE OF TAMARACK A VENUE, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 23°03'26", 419.33 FEET; THENCE NORTH 18°37'12" WEST, 197.62 FEET TO THE BEGINNING OF A TANGENT CURVE CONCA VE SOUTHEASTERLY AND HAVING A RADIUS OF 75.00 FEET; THENCE NORTHWESTERLY, NORTHERLY AND NORTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90°00'00", 39.27 FEET; THENCE ALONG THE SOUTHERLY LINE OF AN EASEMENT FOR PUBLIC ROADWAY PURPOSES PER DOCUMENT NO. 85-075424, RECORDED FEBRUARY 26, 1986, NORTH 71 °22'48" EAST, 384.68 FEET; THENCE LEAVING SAID SOUTHERLY LINE, SOUTH 18°57'12" EAST, 150.00 FEET; THENCE NORTH 71 °22'48" EAST, 130.00 FEET TO THE WESTERLY LINE OF SAID EASEMENT FOR PUBLIC ROADWAY PURPOSES PER DOCUMENT NO. 86- 075424, RECORDED FEBRUARY 26, 1986 THENCE ALONG SAID WESTERLY LINE, SOUTH 18°37'12" EAST, 460.04 FEET TO THE TRUE POINT OF BEGINNING. Site Name: Calavera Hills Comm Business Unit#: 822887 6 April 9, 2019 Item #2 Page 70 of 70