Cell Site Name: SB101 City of Fontana Her/Heritage Circle Park Fixed Asset No.: BUN 827332/IE04101A
Address: Baseline Road/Heritage Circle, Fontana CA 92336
FOURTH AMENDMENT TO WIRELESS COMMUNICATIONS SITE LICENSE AGREEMENT THIS FOURTH AMENDMENT TO WIRELESS COMMUNICATIONS SITE LICENSE AGREEMENT (“Fourth Amendment”), dated as of the later of the signature dates below (the “Effective Date”) is made by and among the CITY OF FONTANA, a California municipal corporation, having a mailing address of 8353 Sierra Ave., Fontana, California 92335 (“Licensor”), and T-MOBILE WEST TOWER LLC, a Delaware limited liability company, by and through CCTMO LLC, a Delaware limited liability company, its attorney in fact (“Licensee”), having a mailing address of 8020 Katy Freeway, Houston, Texas 77024.
WHEREAS, Licensor entered into a Wireless Communications Site License Agreement, dated September 14, 2000 (the “Original Agreement”), with Licensee’s predecessor in interest, Pacific Bell Wireless, LLC, a Nevada limited liability company (“Original Licensee”), as amended by that First Amendment to the Communications Site License Agreement dated January 2, 2001, as further amended by that Second Amendment to the Wireless Communications Site License Agreement dated April 25, 2001 and by that Third Amendment to Wireless Communications Site License Agreement, dated on or about July 22, 2019, a memorandum of which was recorded in the official records of San Bernardino County, California (the “Official Records”) on September 13, 2019 at Document No. 2019-0326047 (hereinafter the Original Agreement and all subsequent amendments are collectively referred to as the “Agreement”), whereby Licensor leases to Licensee certain premises therein described, that are a portion of the real property located at Baseline Road/Heritage Circle, Fontana CA 92336 (“Land”) for purposes of installing Licensee’s communications equipment (such portion of the Land is hereinafter, the “Premises”); and WHEREAS, the name of the Original Licensee was changed from “Pacific Bell Wireless, LLC” to “TMO CA/NV, LLC” pursuant to the Amendment to Articles of Organization filed with the Secretary of State of the State of Nevada on February 15, 2005, and TMO CA/NV, LLC merged into T-Mobile West Corporation pursuant to a Certificate of Merger of Domestic Corporation and Foreign Limited Liability Company filed with the Secretary of State of the State of Delaware on June 26, 2009, and “T-Mobile West Corporation” converted to “T-Mobile West LLC” pursuant to a Certificate of Conversion filed with the Delaware Secretary of State on June 25, 2012, and T-Mobile West LLC assigned its interest in the Agreement to Licensee pursuant to a Memorandum of Assignment and Assumption Agreement dated November 28, 2012, and Licensee granted Limited Power of Attorney to CCTMO LLC on November 30, 2012; WHEREAS, Licensee is the ultimate successor-in-interest to Original Licensee under the Agreement and is duly authorized and has the full power, right and authority to enter into this Fourth Amendment and to perform all of its obligations under this Fourth Amendment; WHEREAS, Licensee, through its agent and manager CCTMO LLC, seeks Licensor’s consent to make modifications and upgrades to the existing mobile/wireless communications facilities on the Premises; and WHEREAS, Licensor and Licensee desire to amend the Agreement on the terms and conditions contained herein.
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
Incorporation of Recitals. The recitals set forth above are incorporated herein as if set forth in their entirety.
Term Extension. At the end of the final Renewal Term presently set forth in the Agreement, which the Parties agree is December 21, 2030, the Term will automatically renew for four (4) separate consecutive additional periods of five (5) years each (each being defined as a “Renewal Term”) upon the same terms and conditions of the Agreement, provided that Licensee is not then in default under the Agreement beyond any applicable cure periods, and unless Licensee notifies Licensor in writing of Licensee’s intention not to renew the Agreement at least sixty (60) days prior to the expiration of the existing Term.
Rent Increase. Commencing on December 22, 2030, the Rent shall increase to Three Thousand and 00/100 Dollars ($3,000) per month. The Rent shall be payable and subject to adjustment in the same manner and on the same terms as described in Section 5(a) and 5(b) of the Original Agreement.
Consent to Modifications. Pursuant to Section 6(b) of the Original Agreement, Licensor hereby consents to Licensee’s request to make certain modifications and upgrades to the existing mobile/wireless communication facilities on the Premises as are specifically described and depicted in Exhibit B-3 of this Fourth Amendment (the “T-Mobile Modifications”).
Signing Bonus. Within sixty (60) days of Licensee’s receipt of a fully executed copy of this Fourth Amendment, Licensee shall pay to Licensor a one-time amount of Five Thousand and 00/100 Dollars ($5,000.00) for the full execution of this Fourth Amendment (the “Conditional Signing Bonus”). In the event that this Fourth Amendment is not fully executed by Licensor for any reason, Licensee shall have no obligation to pay the Conditional Signing Bonus to Licensor.
Parking Restrictions. Licensee or Licensee’s sublicensees, contractors, agents, personnel or invitees shall not park or store any vehicles, equipment, or other appurtenances on the sidewalk or parkway adjoining the Premises and Baseline Road at any time, except as approved and depicted in Exhibit B-3; provided that Licensee will notify Licensor in writing prior to any overnight parking or storage of construction vehicles or equipment within the permissible areas shown in Exhibit B-3. Licensee hereby acknowledges that this prohibition is intended to ensure the unobstructed and safe passage of pedestrians, including but not limited to students from the nearby primary and secondary schools via the existing sidewalk. Any violation of this provision shall constitute a breach of the Agreement and shall be grounds for Licensor to immediately declare Licensee in default of the Agreement; provided that to cure such violation, Licensee will pay a fine in the amount of One Thousand and 00/100 Dollars ($1,000.00) for the first violation, Two Thousand and 00/100 Dollars ($2,000.00) for the second violation, and Three Thousand and 00/100 Dollars ($3,000.00) for the third and subsequent violations, within thirty (30) days following receipt of Licensor’s written notice of violation together with photo documentation evidencing the violation, which photos will include clear images of (i) the vehicle or equipment, (ii) the location of the vehicle or equipment, and (iii) the license plate number including state of issuance. In furtherance of the foregoing, Licensee may install signs at the Premises and areas surrounding the Premises related to the restrictions set forth in this Section upon written approval from Licensor, such approval not to be unreasonably withheld, conditioned or delayed.
Governmental Approvals. All parties acknowledge that Licensor, in executing this Fourth Amendment, is acting only in its proprietary capacity as the owner of the Land and Premises, and not in any regulatory fashion. Licensee shall not consider this Fourth Amendment as approval of any applicable permits, licenses or other governmental approvals required for the construction or operation needed for the use described herein. Any required permits or approvals for the T-Mobile Modifications shall be obtained by Licensee at Licensee’s sole expense. Furthermore, it is understood and agreed that Licensee’s ability to install the T-Mobile Modifications is contingent upon its obtaining, prior to construction of the T-Mobile Modifications, all of the certificates, permits, authorizations, and other approvals, including, but not limited to, the preparation and approval of a traffic control plan, that may be required by any federal, state, or local authorities (collectively, the “Governmental Approvals”; individually, a “Governmental Approval”). Licensor shall bear no responsibility or liability under the Agreement and this Fourth Amendment for Licensee’s inability to make use of the Premises for the T-Mobile Modifications due to a failure to obtain any required permit, authorization, or approval. If Licensee fails to receive such permits, authorizations, or approvals within one (1) year of the Effective Date, Licensor’s consent to the installation of the T-Mobile Modifications shall be withdrawn by Licensor’s written notice to Licensee; provided, however, the Agreement and remaining terms of this Fourth Amendment shall remain in full force and effect.
Notice Address. Licensee’s notice address as stated in the Agreement is amended as follows:
Licensee: T-Mobile West Tower LLC
12920 S.E. 38th Street
Bellevue, Washington 98006
Attention: Leasing Administration
With a copy to:
T-Mobile West Tower LLC
c/o CCTMO LLC
Attn: Legal - Real Estate Department
8020 Katy Freeway
Houston, TX 77024
Other Terms and Conditions Remain. In the event of any inconsistencies between the Agreement and this Fourth Amendment, the terms of this Fourth Amendment shall control. Except as expressly set forth in this Fourth Amendment, the Agreement is otherwise unmodified and remains in full force and effect. Each reference in the Agreement shall be deemed also to refer to this Fourth Amendment.
Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement.
Ratification.
Licensor and Licensee agree that Licensee is the current licensee under the Agreement, the Agreement is in full force and effect, as amended herein, and the Agreement contains the entire agreement between Licensor and Licensee with respect to the Premises.
Licensor and Licensee agree that no known breaches or defaults exist as of the date of this Fourth Amendment.
Licensor and Licensee each represent and warrant that they are duly authorized and have the full power, right and authority to enter into this Fourth Amendment and to perform all of their obligations under the Agreement as amended.
Each party agrees to provide such further assurances as may be requested to carry out and evidence the full intent of the parties under the Agreement as amended hereby, and ensure Licensee’s quiet enjoyment of the Premises under the Agreement as amended hereby.
Recordation. Licensee, at its cost and expense, shall have the right to record a memorandum of this Fourth Amendment (“Memorandum”) in the Official Records at any time following the execution of this Fourth Amendment by all parties hereto.
Signatures Required; Counterparts. This Fourth Amendment shall have no force or effect whatsoever unless and until it has been executed by Licensor and Licensee. This Fourth Amendment may be executed in two or more counterparts, each of which will be deemed an original and all of which together constitute one agreement. Counterparts and/or signatures delivered by facsimile, pdf or other electronic means have the same force and effect as the use of a manual signature. Both Licensor and Licensee wish to permit this Fourth Amendment to be electronically signed in accordance with applicable federal and California law. Either party to this Fourth Amendment may revoke its permission to use electronic signatures at any time for future documents by providing notice pursuant to the Agreement. The parties agree that electronic signatures, by their respective signatories are intended to authenticate such signatures and to give rise to a valid, enforceable, and fully effective Fourth Amendment. [continues on following page]
IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute this Fourth Amendment as of the latter dates set forth below. “LICENSOR”
CITY OF FONTANA,
a California municipal corporation
By:
Name:
Its:
Date:
“LICENSEE”
T-MOBILE WEST TOWER LLC,
a Delaware limited liability company
By: CCTMO LLC,
a Delaware limited liability company
Its: Attorney in Fact
By:
Name:
Its:
Date:
Exhibit B-3
Site Plan for Modifications
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