Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
1 CITY OF DIAMOND BAR
WIRELESS COMMUNICATIONS SITE LICENSE AGREEMENT
DISH Wireless LLC
This Wireless Communications Facilities Site License (the “License”) is made and entered into this _____ day of __________, 2024, by and between the City of Diamond Bar, a municipal corporation (herein “City”), and DISH Wireless L.L.C., a Colorado limited liability company (herein “Licensee”) (hereinafter collectively referred to as “Parties”).
RECITALS
I. City is the fee title owner of the real property known as Peterson Park located at 24142 Sylvan Glen Road, City of Diamond Bar, California (the “Property”) described more particularly in Exhibit A attached hereto, which description is fully incorporated herein by this reference; and
II Licensee desires to License space on the Property from City on the terms and conditions herein to install and operate a telecommunications site consisting of cabinets, generators, cabling, conduit, backhaul fiber, electrical feeds and similar supporting communications equipment to be contained in an equipment enclosure on the west side of the existing monopole tower located on the Property, and antennas and appurtenant equipment to be collocated on said existing monopole tower currently occupied by New Cingular Wireless PCS/AT&T, as more fully described herein and in Exhibit C (the “Facilities”).
LICENSE
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, conditions, and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties to this License do hereby agree as follows:
1. Licensed Premises:
1.1 License Area: City Licenses to Licensee a portion of the Property of approximately 216 square feet as more particularly described in Exhibit B (the “Premises”), as well as additional space on the existing monopole tower for the installation of its antennas and required cabling, conduit, backhaul fiber and electrical feed needs. Licensee acknowledges that City is providing the Premises in an "as is" condition, without warranty, express or implied, as to its condition or usability, except as specifically provided in this License.
1.2 Licensee Access: City shall provide Licensee, Licensee’s employees, agents, and subcontractors access to the Premises after Licensee provides City with 24 hours’ notice. Provided, however, that in the event of an “emergency or special circumstance”, which would leave the Facilities inoperable during normal nonbusiness hours, Licensee may access the Premises (and, as necessary, the Property) to make necessary repairs and shall provide notice to City as soon as reasonably Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
2 practicable. For purposes of this License, the phrase “emergency or special circumstance” shall be interpreted to mean natural disasters, including, but not limited to flooding, wind, and earthquakes, and any other circumstance in which the structural integrity of the Facilities is in jeopardy or in which the Facility is rendered inoperable.
2. Use of Licensed Premises: To the extent provided in this License, Licensee may use the Premises to facilitate provision of wireless communication services, including the transmission and the reception of communication signals of various frequencies. Subject to the terms and conditions of this License, Licensee may install, construct, maintain, repair, replace and operate on the Premises the Facilities, as approved by City in writing prior to taking such actions. Licensee shall apply for and obtain all licenses, permits, and any and all other necessary approvals that may be required for Licensee’s use of the Premises.
Notwithstanding the foregoing, full execution of this Agreement shall be City’s approval for Licensee to procure all permits and/or entitlements and construct in accordance with the plans attached hereto as Exhibit C, subject to the Governmental Approvals and other requirements stipulated to in this Agreement.
3. License Term:
3.1 Initial Term: The initial term of this License shall commence on the earlier of the date Licensee obtains all permits necessary for Licensee to commence construction of the Facilities, or six (6) months after the execution of this License (the “Commencement Date”) and shall continue for five (5) years from that date (the “Initial Term”) unless terminated earlier pursuant to Section 8 below. The Parties agree to acknowledge the Commencement Date in writing.
3.2 Renewal Term: City grants Licensee an option to renew this License for a total of twenty (20) years, renewable in each of three (3) consecutive five (5) year increments (each, a “Renewal Term”). This License shall automatically renew for each Renewal Term unless Licensee provides City notice of its intention not to renew not less than forty-five (45) days prior to the expiration of the then current Term. For the purpose of this License, the “then current Term” shall mean either the Initial Term or the Renewal Term, whichever is in effect at the relevant time. The Initial Term and the Renewal Terms shall be collectively referred to herein as the “Term.”
3.3 Conditions Precedent: This License is conditioned upon Licensee receiving a license from the Federal Communications Commission (“FCC”) and obtaining all governmental permits and approvals, including that of City (collectively, the “Governmental Approvals”), enabling Licensee to construct and operate the Facilities where the Premises are located. If Licensee does not receive all of the Governmental Approvals, or the License is terminated by License prior to the Commencement Date, this License shall be null and void and of no force or effect and Licensee shall pay City $2,500.00 within 15 days thereof, for reimbursement of costs of document preparation and administration time associated with this License
4. Payment of Rent: At the Commencement Date, Licensee agrees to pay to City the amounts set forth in this section, each month in advance, on the first of each month, a fee for said Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
3 Premises for the Initial Term of the License and all Renewal Terms, payable to the City of Diamond Bar, 21810 Copley Drive, Diamond Bar, California, 91765, Attn: Finance Director. In addition, Licensee agrees to do and perform all other covenants and agreements contained in this License.
4.1 Base Fee Payment: On the Commencement Date, Licensee shall pay City Two Thousand Five Hundred Dollars ($2,500.00) per month for each month of the Term (the "Base Fee"). If the Commencement Date is a date other than the first day of the month, the Base Fee for the first calendar month shall be paid on the Commencement Date and prorated on the basis of the number of actual days in such partial month.
The Parties acknowledge that the initial Base Fee shall be paid within sixty (60) days of the Commencement Date, and all subsequent fees shall be paid in accordance with this Section 4.
4.2 Cost of Living Adjustment: The Base Fee shall be automatically increased on each anniversary of the Commencement Date by three percent (3%), compounded annually.
4.3 Late Charge: Licensee acknowledges that late payment by Licensee to City of Base Fee will cause City to incur costs not contemplated by this License, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges. Therefore, if any installment of Base Fee due from Licensee is not received by City within ten (10) days of becoming due, Licensee shall pay to City an additional sum of three percent (3%) per month of the overdue Base Fee as a late charge. The Parties agree that this late charge represents a fair and reasonable estimate of the costs that City will incur by reason of such late payment by Licensee. Acceptance of any late charge shall not prevent City from exercising any of the other rights and remedies available to City.
5. Property Taxes: Licensee recognizes and understands that this License may create a possessory interest subject to property taxation pursuant to Revenue and Taxation Code sections 107.1 and/or 107.7 and that Licensee may be subject to the payment of property taxes levied on such interest. Licensee shall timely pay all property taxes and assessments directly attributable to Licensee’s possessory interest. In no event shall City be liable for any taxes owed as a result of this License. If Licensee fails to make property taxes and assessments when due, City may, but shall not be obligated to, pay such amounts and Licensee agrees to reimburse City all such amounts plus City’s administrative costs of such payment, and collection costs if any.
6. City Inspection and Entry; Access for Inspections:
6.1 City and/or its authorized representatives shall have the right to enter the Premises upon reasonable prior notice to Licensee (which shall not be less than twenty-four (24) hours unless the City determines that exigent circumstances warrant a shorter period of time, so long as such entrance does not unreasonably interfere with Licensee’s use of the Premises):
A. To determine whether the Premises are in good condition and whether Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
4 Licensee is complying with its obligations under this License.
B. To do any necessary maintenance and to make any restoration to the Premises that City has the right or obligation to perform.
C. To serve, post, or keep posted any notices required or allowed under the provisions of this License.
D. To run electric or telephone conductors, pipes, conduits, or ductwork where necessary or desirable over, under, or through the Premises in a manner which will not unreasonably interfere with Licensee’s use of the Premises.
6.2 City shall not be liable in any manner for any inconvenience, disturbance, loss of business, or nuisance arising out of City’s entry on the Premises as provided in this section, except for damage resulting from the acts or omissions of City or its authorized representatives. Licensee shall not be entitled to an abatement or reduction of rent if City exercises any rights reserved in this section.
7. Construction and Maintenance of Facilities and Premises:
7.1 Licensee’s Construction: Licensee shall have the right to install, construct, maintain, repair, replace, and operate the Facilities on the Premises. The Parties intend that the antennas and appurtenances related thereto which are a part of the Facilities shall be constructed and maintained at all times and in such manner as to make the cabinetry blend into the surroundings, that the Facilities will not interfere with the City’s existing or future use of the Property for park purposes or for other City purposes all in accordance with detailed plans approved by the City. Therefore, construction by Licensee of any improvement, structure or work on the Premises shall be permitted only upon the express written consent of the City, which City may either grant or withhold in its reasonable discretion.
7.2 Construction of Improvements: All improvements to the Premises shall be made in a good and workmanlike manner, at Licensee’s expense, in accordance with the requirements of all laws, ordinances, and regulations applicable thereto, including zoning requirements and building code requirements of the City and any other governmental agency having jurisdiction over the Premises and Facilities at the time the improvements are constructed. City agrees to cooperate with Licensee in connection with applying for any permits for the construction of the aforementioned improvements. It is understood and agreed that such cooperation shall not be implied to include any expenditures of funds on the part of City or any implied promise or warranty that such permits, discretionary, or otherwise, will be issued to Licensee.
Licensee shall bear all costs of requesting and obtaining permits, discretionary or otherwise, required for construction of the Facilities, and shall pursue such permits with all reasonable diligence. Licensee shall provide reasonable notice to the City prior to entering the Premises for purposes of constructing the Facilities, and shall coordinate the scheduling and logistics of same with the City to avoid any interference with the City’s operations, administrative and training programs. Once construction commences, any and all improvements made by Licensee with respect Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
5 to the installation of the Facilities shall be diligently pursued to completion.
7.3 Mechanic’s Liens: Licensee shall not allow or permit to be enforced against the Premises, or any part thereof, and shall defend, indemnify, and hold City harmless from any mechanic’s, material suppliers’, contractors’, tax, or subcontractors’ liens arising from any claim, for damage, or growing out of the work of any construction, repair, restoration, replacement, or improvement made by or alleged to have been made by or on behalf of Licensee. Licensee shall pay or cause to be paid all of such liens, claims, or demands before any action is brought to enforce the same against the Premises. 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 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 City with a security bond in a form and amount City deems sufficient to allow the lien of record to be discharged as a matter of law.
7.4 Care During Construction: Licensee shall exercise great care during construction. All applicable City-approved standards and specifications, and all City conditions of approval shall be followed. City shall approve all work in writing prior to commencement.
7.5 Licensee Maintenance of Facilities and Premises: Licensee’s maintenance of the Facilities and Premises shall include, but is not limited to:
A. Maintenance of all landscaping installed by Licensee, if any; B. Repairs and/or replacements to Licensee’s Facilities caused by acts of third parties, including theft, graffiti, and intentional acts; C. Maintaining, in good, clean, safe, and sanitary condition and repair, the Premises and all of Licensee’s personal property. All Facilities on the Property must be maintained in a first-class condition without rust, paint, or surface deterioration. All maintenance must conform to the standards utilized by City; and
D. All work necessary to comply with Federal, State, County, City, and other governmental agencies and bodies having jurisdiction.
7.6 Relocation: In the event relocation is made necessary by the City during the Term, Licensee will shall remove or relocate its Facilities at City expense. If City provides a suitable alternate location for the Facilities on the Property or other City property, Licensee shall relocate to the alternate location and City's only liability to Licensee shall be the Licensee's actual cost thereof. Licensee shall relocate the Facilities within 12 months of City’s notice thereof. In the event the Facilities are condemned by way of eminent domain, Licensee shall remove the Facilities at no cost to the City and return the Premises to their original condition or as otherwise approved by the City. The City may, in its discretion, provide a suitable alternative location for the Facilities on the Property, wherein Licensee may relocate the Facilities at no cost to Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
6 the City.
7.7 Abandonment: If use of the Facilities is abandoned for 60 consecutive days, Licensee shall be responsible for removing the Facilities and returning the Premises to their original condition.
8. Termination:
8.1 City’s Right to Terminate:
A. City may pursue any remedies available to it under applicable law, including, but not limited to, the right to terminate this License, upon the earliest of any of the following events:
1. Licensee’s failure to pay the Base Fee within fifteen (15) days of receipt of written notice thereof;
2. Licensee’s failure to comply with any term, covenant, or condition of this License after Licensee has been given written notice of the violation and has had thirty (30) days to cure same or, if such default is not curable within such thirty (30) day period, has not proceeded to commence such cure within such thirty (30) day period and diligently proceeds to completion;
3. Interference by the Facilities with other pre-existing non-emergency electrical or non-emergency radio or telecommunications equipment installed on or around the Property, which interference is not cured by Licensee within ten (10) days following written notice thereof; or
4. Licensee or the Facilities interfere with City’s non-emergency operations, or non-emergency use of the Property by City or third parties after Licensee has been given written notice of the violation and has had thirty (30) days to cure same or, if such default is not curable within such thirty (30) day period, has not proceeded to commence such cure within such thirty (30) day period and diligently proceeds to completion; or
5. Licensee or the Facilities interfere with or impede City's or another public agency’s emergency operations or use of the Property for the provision of emergency services if such default is not cured immediately upon notice (telephonic or written) of such violation.
6. Three or more violations during any 12-month period.
B. Additionally, upon a finding by City’s City Council that the Premises are needed for other City purposes, City shall have the right, after the expiration of the first Renewal Term, to terminate this License without liability upon one (1) year’s written notice of termination to Licensee.
Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
7 8.2 Licensee’s Right to Terminate: Licensee may terminate this License due to City’s failure of proper ownership or authority, or if such termination is a result of City’s default hereunder. Further, Licensee shall have the right, but not the obligation, to terminate this Agreement without further liability upon thirty (30) days prior written Notice to City due to any one or more of the following: (i) changes in applicable law which prohibit or adversely affect Licensee’s ability to operate Licensee’s Equipment at the Premises; (ii) Licensee, in its sole discretion, determines that Licensee’s permitted use of the Premises described in Section 2 hereof is obsolete or unnecessary; (iii) City or a third party installs any structure, equipment, or other item on the monopole, the Property or an adjacent property, which blocks, hinders, limits, or prevents Licensee from being able to use the Licensee’s equipment for Licensee’s permitted use; (iv) with six (6) months’ prior notice to City, upon the annual anniversary of the Commencement Date; or (v) at any time before the Commencement Date at Licensee’s sole discretion.
8.3 Return of Premises Upon Termination:
A. Time and Condition. Except as otherwise provided herein, Licensee shall at its sole expense remove the Facilities within sixty (60) days following expiration or termination of this License. Upon the expiration or termination of this License, Licensee shall surrender the Premises to City in a condition at least as good as existed on the date Licensee executes this License, less ordinary and reasonable wear and tear.
B. [Intentionally Omitted].
9. Interference:
9.1 Licensee’s Obligations: Prior to occupancy of the Premises and operation of the Facilities by Licensee or its agents, assigns or Licensee's employees, Licensee agrees to:
A. Submit to City, within forty-five (45) days prior to operation, proposed plans for antenna type and size, along with operating frequencies, effective radiated power, and other necessary on-air technical data at City’s discretion for City’s review and approval. If City does not respond in writing to Licensee within ten (10) days following Licensee’s request for approval, such request will be deemed to have been approved by City.
B. Install or cause to be installed, all equipment according to generally accepted standard engineering practices and in a good and workmanlike manner.
C. Use all feasible efforts to investigate the cause of and mitigate any interference caused by Licensee on existing radio frequency equipment of City or any other public agency following written notification of interference from City. Interference, if any, with City's or other public agency’s emergency communications capabilities shall be resolved immediately and at Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
8 Licensee’s expense.
9.2 Non-Interference: The Facilities and the use thereof shall not interfere with the use of any other communication or similar equipment of any kind and nature owned or operated by City or other occupants of the Property existing as of the Effective Date; provided, however that subsequent to the installation by Licensee of the Facilities, City agrees not to install and to exercise commercially reasonable effort to not allow installation of new equipment on the Premises if such equipment causes interference with Licensee’s operations, unless the City or other public agency facilities are essential to the provision of emergency communications or emergency services. All interference claims shall be settled in accordance with the then prevailing interference rules and regulations promulgated by the Federal Communications Commission.
10. Destruction of Premises: If either the Premises or the Property is destroyed or damaged as a result of a catastrophic event to the extent that, in Licensee’s reasonable discretion, Licensee may no longer use the Premises for the intended purposes, Licensee or may elect to either:
A. Terminate this License, effective upon the date of the damage or destruction, by delivering written notice within 30 days of the date of the damage or destruction and a request to terminate; or
B. Repair or reconstruct the Facilities so that Licensee by delivering written notice within 30 days of the date of the damage or destruction. Any such repair or reconstruction shall be completed in an expeditious manner, but in no event longer than 60 days from the date of such notice. The Base Fee shall be abated during any such repair or reconstruction.
11. Utilities and Provision of Service: Licensee shall determine the availability of and shall, at its sole cost and expense, cause to be installed in, on, and about the Premises all facilities necessary to supply all electricity, telephone, and other similar services required. City shall allow Licensee to have its own electrical metering equipment installed or to take over any existing abandoned and/or available meter. Licensee shall obtain all necessary approvals for the installation of the meter. An electrical plan shall be submitted to City for approval prior to commencement of such work. City agrees to cooperate with Licensee in its efforts to obtain such utility service. During the Initial Term and all Renewal Terms, Licensee agrees to pay directly to the servicing utility when due all charges for electricity, telephone and all other utility services of every kind and nature supplied to and used by Licensee on the Premises or for the Facilities. City shall be responsible for its electrical and other utility service and for the regular payment of electrical and other utility charges attributable to the Property other than the Facilities or the Premises.
12. Indemnification and Insurance:
12.1 Indemnification: Neither City nor any other officer or employee of City shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of Licensee or its officers or employees under or in connection with any Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
9 activities under this License, except to the extent caused by the City’s active negligence or willful misconduct. It is also understood and agreed that to the fullest extent permitted by law, Licensee shall indemnify, defend (with counsel reasonably acceptable to City), protect and hold harmless City and its officers, agents and employees (“City Parties”) from and against any and all claims, demands, judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) arising at any time directly or indirectly from or in connection with (i) any default in the performance of any obligation by Licensee to be performed under the terms of this License, (ii) Licensee’s use of the Premises, or (iii) the conduct of Licensee’s business or any activity, work or things done, permitted or allowed by Licensee in or about the Premises, unless caused by City’s or City Parties’ sole negligence or willful misconduct. The obligations of Licensee under this section shall survive the expiration or earlier termination of this License.
12.2 Assumption of Risk: Licensee, as a material part of the consideration to City, hereby assumes all risk of damage to the Premises and the Facilities, including, without limitation, injury to persons in, upon or about the Premises during Licensee’s use of the Premises, arising from any use of the Licensee’s Facilities or other activities of Licensee or Licensee’s agents, employees, guests, tenants, subtenants, licensees, contractors, or invitees (collectively “Licensee’s Parties”) on the Premises. Licensee hereby waives all claims with respect thereof against City, except as otherwise stated in this License. City shall not be liable for any injury to the Facilities, Premises, or injury to or death of any of Licensee’s Parties, or injury to the Facilities, or injury to or death of any other person in or about the Premises from any cause unless caused by the sole negligence or willful misconduct of the City or City Parties.
12.3 Insurance: Prior to its ability to access the Premises, Licensee shall provide City with proof of insurance, at Licensee’s sole cost and expense, to remain in full force and effect during the entire term of this License. The following policies of insurance shall be maintained:
A. Workers’ Compensation Insurance. Workers’ Compensation Insurance in an amount required by the laws of California and Employer’s Liability Insurance in an amount not less than One Million Dollars ($1,000,000) combined single limit.
B. Liability Insurance. Commercial general liability insurance, written on an occurrence basis, covering claims for bodily injury, including death, property damage, and consequential damages (“Liability Policy”). The Liability Policy shall provide coverage in an amount not less than Two Million Dollars ($2,000,000) per occurrence.
C. Automobile Liability Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than One Million Dollars ($1,000,000) combined single limit covering all owned, non-owned, Licensed, and hired vehicles used in connection with the Facilities.
Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
10 D. General Provisions. All of the foregoing policies of insurance (except for the Workers’ Compensation Insurance) shall name the City as an additional insured and shall be primary insurance and any insurance maintained by City shall be excess and non-contributing. The Workers' Compensation insurer and each insurer of Licensee for property insurance shall waive all rights of contribution and subrogation against City and its respective insurers. Each of such policies of insurance shall be endorsed to name the City of Diamond Bar and its respective officers, directors, agents, and employees (collectively, “Indemnified Parties”) as additional insureds. All policies of insurance required to be obtained by Licensee hereunder shall be issued by insurance companies authorized to do business in California and must be rated no less than A-:VII or better in Best’s Insurance Guide. Prior to engaging in any operations hereunder, Licensee shall deliver to City certificate(s) of insurance and endorsements evidencing the coverages specified above. Such policies shall be endorsed to provide that the coverage afforded thereunder shall not be cancelled nor reduced without the insurer providing City with thirty (30) days’ written notice. The coverage amounts set forth may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated.
13. Damage or Destruction of Improvements to Premises: City shall have no duty or obligation to rebuild the Facilities or the improvements thereon if such Facilities or improvements are substantially damaged during the Term, in whole or in part by any casualty. To the extent that Licensee does not terminate the agreement pursuant to Section 10, Licensee shall maintain, and if damaged during the Term, shall reconstruct the Facilities at Licensee's expense.
14. Assignment and Subleasing:
14.1 Assignment: Licensee shall not voluntarily assign or transfer its interest under this License or in the Premises without first obtaining the prior written consent of City, which consent shall be not unreasonably withheld. The transfer of the rights and obligations of Licensee to a parent, subsidiary, or other affiliate of Licensee, or to any successor in interest or entity acquiring fifty-one (51%) or more of Licensee’s membership interests or assets, shall not be deemed an assignment and City’s consent shall not be required for such transfer. Any assignment without City’s consent (when such consent is required) shall be voidable and, at City’s election, shall constitute cause for exercise of City’s remedies under applicable law and this License, including termination of the License. No consent to any assignment shall constitute a waiver of the provisions of this section. Notwithstanding the foregoing, it is understood that Licensee shall not be relieved from liability hereunder by virtue of any assignment. As a condition precedent to any such assignment which requires City’s consent, Licensee agrees to provide written notice to City of its intention to assign at least thirty (30) days before the proposed effective date of any such proposed assignment which notice shall include the identity of the proposed assignee, copies of the proposed assignment documentation and current financial statements of the proposed assignee. As a further condition precedent to any assignment, the Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
11 assignee must assume, in writing, all of Licensee’s obligations under this License.
14.2 Subleasing: Licensee shall not sub-License or permit any colocation on any portion of the Premises except as expressly provided herein without the prior written consent of City.
14.3 Colocation: Licensee shall cooperate with existing or future communications operators for colocation as long as there is no adverse impact on Licensee or on City from an operational, maintenance, and repair standpoint; provided that any such colocation must be approved by the City and such communications operators shall be required to be bound by all terms of this License or similar license, including, but not limited to, the provision of insurance herein.
15. Renewal/Holding Over: Upon the expiration or termination of this License, Licensee shall surrender the Premises to City. If Licensee shall remain in possession of the Premises after the expiration or termination of the License, with the consent of City, either express or implied, such holding over shall be construed to create a month to month license subject to all the covenants, conditions, and obligations hereof, and Licensee hereby agrees to pay City, as holdover Base Fee, an amount equal to one hundred twenty-five percent (125%) of the existing Base Fee, as adjusted. Nothing above shall be construed to give Licensee any rights to so hold over and to continue in possession of the Premises after the expiration of the Term without the express consent of City.
16. Environmental: Licensee and its agents, employees, or contractors subcontractors or other representatives shall not bring upon the Premises, or permit or authorize any other person or entity to bring upon the Property, including the Premises, any hazardous materials, hazardous substances, hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil or any fraction or derivative thereof).
Notwithstanding the foregoing, Licensee may bring such fuels and lubricants onto the Premises as may be required for operation of construction vehicles during construction and backup power for generators during, maintenance or repair of the Licensee’s Facilities. In addition, Licensee may also bring onto the Premises, any lead-acid batteries, cleaning solvents, and other chemicals necessary for proper utilization and maintenance of the Licensee’s Facilities. In bringing any materials or substance onto, or using any materials and substances on, the Premises, Licensee shall comply with all federal, State, and local government laws, regulations, and rules. Licensee shall be solely responsible for any damages or costs incurred by City due to any environmental contamination, arising from the presence or use on Licensee’s behalf of any hazardous materials or substances that Licensee, its agents, employees, contractors, subcontractors or other representatives bring onto the Premises.
17. Miscellaneous:
17.1 No Waiver: No covenant, term, or condition thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed. Any waiver or the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance by City of performance other than full performance by Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
12 Licensee after the time the performance shall have become due shall not constitute a waiver by City of the breach or default of any covenant, term, or condition unless otherwise expressly agreed to by City in writing.
17.2 Attorney’s Fees and Costs: If either Party hereto shall bring any action for any relief against the other, declaratory or otherwise, arising out of this License, including any suit by City for the recovery of the Base Fee or possession of the Premises, the prevailing Party shall be entitled to have and recover from the other Party the prevailing Party’s reasonable fees and costs (including attorneys’ fees), which shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to a judgment. Reasonable attorney fees shall be determined by multiplying the reasonable number of hours incurred by the prevailing party's attorney(s) after commencement of such action by the lowest hourly rate paid by either party. No "lodestar multiplier" shall be applied.
17.3 No Joint Venture: Neither City nor any of its employees shall have any control over the manner, mode or means by which Licensee, its agents or employees, use the Premises or Facilities described herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Licensee’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Licensee shall perform all covenants herein as a tenant of City and shall remain at all times as to City a tenant with only such obligations as are consistent with that role. Licensee shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Licensee in its business or otherwise or a joint venturer or a member of any joint enterprise with Licensee.
17.4 Interpretation: The Parties hereto agree that all provisions hereof are to be construed as both covenants and conditions as though the words imparting such covenants and conditions were used in each separate section hereof. The captions of the sections and subsections of this License are for convenience only and shall not be deemed to be relevant in resolving any questions of interpretation or construction.
17.5 Integration and Governing Law: This License represents the entire understanding of City and Licensee as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this License. This License shall be governed by the laws of the State of California and construed as if drafted by both City and Licensee, or any federal court having jurisdiction over County of Los Angeles. Any action, arbitration, mediation, hearing or other proceeding related to this License shall be conducted only in the County of Los Angeles.
17.7 License Binding on Heirs and Assigns: Each of the terms, covenants, and conditions of this License shall extend to, be binding upon, and inure to the benefit of not only City and Licensee, but each of their respective heirs, representatives, administrators and assigns. Whenever in this License reference is made to either City or Licensee, the reference shall be deemed to include, whenever applicable, the heirs, legal Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
13 representatives, and assigns of each of the Parties, the same as if in every case expressed.
17.8 Corporate Authority: Each person executing this License represents and warrants that he or she is duly authorized to execute and deliver this License on behalf of the party for which he or she is executing this License, in accordance with a duly adopted resolution or approval of the governing body of the party and that this License is binding upon said party in accordance with its terms.
17.9 Notices: Any written notices required pursuant to this License shall be made by certified or registered mail, return receipt requested, or reliable overnight courier and delivered to the following address:
To City: City Clerk
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
To Licensee: DISH Wireless L.L.C.
Attn: Lease Administration
If by overnight courier service:
5701 South Santa Fe Drive
Littleton, CO 80120
If by first-class certified mail:
5701 South Santa Fe Drive
Littleton, CO 80120
17.10 Amendments: This License may not be modified, altered, or amended except in writing signed by both City and Licensee.
17.11 Revocation. Notwithstanding the fact that this Agreement is a license and that a license is normally revocable at will by the grantor, the Parties hereto agree that the license granted by this Agreement is not revocable at will and that this Agreement can only be terminated in accordance with the provisions of this Agreement or as a result of a default that is not cured within any applicable notice and cure period set forth in this Agreement or otherwise as ordered by a court of competent jurisdiction.
Attachments:
Exhibit “A” – Description of the Property
Exhibit “B” – Description of the Licensed Premises
Exhibit “C” – Description of the Facilities/Project Drawings [SIGNATURE PAGE FOLLOWS]
Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
14 IN WITNESS WHEREOF, the Parties hereto have caused this License to be executed by their duly authorized officers.
CITY OF DIAMOND BAR
By: _________________________________
City Manager
Name: ____Daniel Fox_______________
ATTEST:
_________________________________
Kristina Santana
City Clerk
APPROVED AS TO FORM
By:_______________________________
Omar Sandoval, City Attorney
Date:_____________________________
DISH Wireless L.L.C.
By:
Name:
Title:
By:
Name:
Title:
Date:
Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
15 EXHIBIT A
DESCRIPTION OF THE PROPERTY
The real property situated in the State of California, County of Los Angeles, described as follows:
Lot 8 of Tract No. 43756, in the City of Diamond Bar, County of Los Angeles, State of California, as per map filed in Book 1076 Pages 61 to 63 inclusive of Maps, in the office of the County Recorder of said county.
Except therefrom all oil, gas, hydrocarbons, or other minerals in and under the above described said land, without the right to the use of the surface or subsurface to a depth of 500 feet, measured vertically from the surface of said land.
Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
16 EXHIBIT B
DESCRIPTION OF THE LICENSED PREMISES
The Site Plan depicting the area and location of Licensee’s facilities is attached.
A-1 2 1 ··
Site: Peterson Park-24142 Sylvan Glen Rd. Site Number: LSSNA00152A Market: Los Angeles South (SNA)
17 EXHIBIT C
DESCRIPTION OF THE FACILITIES
PROJECT DRAWINGS
(See Attached)
GENERAC A-2
2 1
3 A-3 1
E-1
2 ·