COUNTY OF SAN MATEO
New Cingular Wireless PCS, LLC,
a Delaware Limited Liability Company
FA # 10095739
Pescadero Quarry Communication Site
PERMITTEE: New Cingular Wireless PCS, LLC
TABLE OF CONTENTS
1. PARTIES 1
2. PREMISES 1
3. IMPROVEMENTS AND INSTALLATIONS 1
4. USE 2
5. PRIMARY TERM 3
6. EXTENDED TERM 3
7. PERMIT FEE 3
8. TERMINATION 5
9. HAZARDOUS MATERIALS ACTIVITY 7
10. NATURE OF PERMIT 7
11. ACCESS 7
12. CLAIMS 8
13. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS 8
14. PERMITS 8
15. MAINTENANCE 8
16. UTILITIES 8
17. ALTERATIONS OR ADDITIONS 9
18. REMOVAL OF IMPROVEMENTS UPON EXPIRATION OR TERMINATION. 9
19. FIXTURES 10
20. EQUIPMENT CONFLICT 10
21. TAXES 12
22. DEFAULT; REMEDIES 12
23. LIABILITY - VANDALISM 13
24. INDEMNIFICATION AND INSURANCE 14
25. ENTRY BY PERMITTOR/PERMITTEE 16
26. HOLDING OVER 16
27. AUTHORIZED REPRESENTATIVE OF THE COUNTY OF SAN MATEO 17
28. NOTICE 17
29. ASSIGNMENT BY PERMITTEE 18
30. CONSENT 18
31. ENTIRE AGREEMENT AND BINDING EFFECT 18
32. PROCESSING FEE 19
33. RESERVATIONS 19
34. LIENS 19
35. SAN MATEO COUNTY NO SMOKING ORDINANCE 19
36. NON-DISCRIMINATION 20
37. GENERAL PROVISIONS 20
EXHIBIT A - PROPERTY MAP
EXHIBIT B - SITE PLAN/CONSTRUCTION DRAWINGS
PESCADERO QUARRY COMMUNICATION SITE, PESCADERO
1. PARTIES. This Permit Agreement ("Permit"), dated for reference purposes only this 14th Day of September, 2010, is made by and between the COUNTY OF SAN MATEO, a political subdivision of the State of California ("County" or "Permittor"), and New Cingular Wireless PCS, LLC, a Delaware Limited Liability Company ("Permittee"). Permittor and Permittee agree as follows:
2. PREMISES. Permittor is the owner of that certain parcel of real property commonly known as the Pescadero Quarry Communication Site, located at 1000 Pescadero Creek Rd., Pescadero, California (the “Property”), and more particularly described in Exhibit A (Property Map).
The Premises consist of a portion of the Property including (i) approximately 1,300 square feet of ground space for the installation and operation of the equipment described in Exhibit B (Site Plan/Construction Drawings), (ii) three (3) omni directional antennas mounted on steel posts approximately nine feet (9’) in height above the ground level, and (iii) the non-exclusive right of access over and through such portions of the Property as are necessary for Permittee's Use of the Premises, and more particularly shown in Exhibit A. In connection with its use of the Premises, and for the Term of this Permit, Permittor grants Permittee a non-exclusive and non-possessory license for the placement and use of wiring and conduit, as shown in Exhibit B. It is the intent of the Parties that the License hereby granted shall be co-terminus with the Permit.
3. IMPROVEMENTS AND INSTALLATIONS. Permittee shall have the right to make and maintain improvements to the Premises in accordance with the plans attached as Exhibit B (Site Plan/Construction Drawings), which are hereby approved for construction by Permittor. Said approval shall not be construed as, and is subject to, issuance of a Use Permit and a Building Permit as required and issued by the San Mateo County Department of Planning and Building. Permittee shall obtain the prior written consent of Permittor, which consent shall not be unreasonably withheld, conditioned or delayed, for any modifications to the Premises not shown in Exhibit B. Permittee shall obtain all necessary governmental approvals and permits prior to commencing any improvements or modifications, and shall provide Permittor with ten (10) days written notice prior to the start of construction. All contractors and subcontractors of Permittee for work performed at the Premises shall be duly licensed by the State of California, and all work shall be performed in a good, safe and workmanlike manner.
Prior to the installation of equipment, Permittee must obtain any and all licenses required in order to operate the site for the intended use. Copies of said license(s) shall be provided by Permittee to Permittor upon receipt by Permittee.
4. USE. Permittor may use and occupy the Premises for the installation, construction, removal, replacement, maintenance, and operation of a wireless communication site utilizing the equipment listed in this Section and as shown on the attached Exhibit B (Site Plan/Construction Drawings), and for no other equipment or purposes without the prior written consent of Permittor, which consent shall not be unreasonably withheld, conditioned or delayed.
Equipment shall consist of three (3) omni directional antennas mounted on steel posts, radio transmitting and receiving equipment, conduits, wires, batteries, back-up generators, utility lines and facilities, supporting structures, storage facilities and related equipment, together with cabling between the equipment and exterior antennas (“Equipment”).
Permittee acknowledges that, subject to the limitations set forth in Section 20 (Equipment Conflict) but otherwise without effecting the rights and obligations of the Parties hereunder, Permittor may, in its sole discretion, grant to other operators the right to install and use similar facilities at the Property.
Permittee shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein, which will in any way increase the existing rate of or affect any fire or other insurance upon the Premises or the Property, or cause cancellation of any insurance policy covering the Premises or the Property. Permittee shall not use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose, nor shall Permittee cause, maintain or permit any nuisance in, on or about the Premises or the Property. Permittee shall not commit or suffer to be committed any waste in or upon the Premises or the Property.
PERMITTEE ACKNOWLEDGES AND AGREES THAT THE PREMISES ARE ACCEPTED IN THEIR “AS IS” CONDITION, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, AND SUBJECT TO ALL APPLICABLE LAWS, RULES AND ORDINANCES GOVERNING THEIR USE, OCCUPANCY AND POSSESSION. PERMITTEE REPRESENTS AND WARRANTS TO PERMITTOR THAT PERMITTEE HAS INVESTIGATED AND INSPECTED, EITHER INDEPENDENTLY OR THROUGH AGENTS OF PERMITTEE’S OWN CHOOSING, THE CONDITION OF THE PREMISES AND THE SUITABILITY OF THE PREMISES FOR PERMITTEE’S INTENDED USE. PERMITTEE HAS DETERMINED, BASED SOLELY ON ITS OWN INVESTIGATION, THAT THE PREMISES ARE SUITABLE FOR PERMITTEE’S BUSINESS AND INTENDED USE. PERMITTEE ACKNOWLEDGES AND AGREES THAT NEITHER PERMITTOR NOR ANY OF ITS AGENTS HAVE MADE, AND PERMITTOR HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE RENTABLE AREA OF THE PREMISES, THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PREMISES OR THE PROPERTY, THE PRESENT OR FUTURE SUITABILITY OF THE PREMISES FOR PERMITTEE’S BUSINESS, OR ANY OTHER MATTER WHATSOEVER RELATING TO THE PREMISES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. PRIMARY TERM. Unless sooner terminated pursuant to the provisions hereof, the Primary Term of this Permit shall be for five (5) years commencing upon October 1, 2010 (the "Effective Date") and expiring on September 30, 2015 (the “Expiration Date”). Payment of the Base Permit Fee due hereunder shall commence on the Effective Date.
6. EXTENDED TERM. Subject to the limitations set forth in this section, Permittee shall have the option to renew this Permit for one additional five (5) year term beyond the primary term. Said renewal shall be under the same terms, covenants and conditions as the initial agreement, except for adjustment of the Permit Fee as specified in Section 7D (Extended Term Fee Adjustment) of this permit agreement.
Notwithstanding anything to the contrary contained in this Permit, Permittee's right to extend the Primary Term by exercise of the foregoing option shall be conditioned upon the following:
A. NOTICE: Permittee shall give Permittor written notice of its election to exercise its option not later than one hundred eighty (180) days prior to the expiration of the Primary Term or the first Extended Term.
B. ASSIGNMENT: Except for the permitted assignment pursuant to Section 29 (Assignment by Permittee), if all or a portion of the Premises under this Permit has been assigned, this option shall be deemed null and void and neither Permittee nor any assignee shall have the right to exercise such option during the term of such assignment.
C. CONTINUOUS OPERATION: Permittee must have been in continuous operation in accordance with Section 4 (Use) except for reasonable periods of downtime and to the extent within Permittee’s reasonable control during the Primary Term in effect at the time Permittee exercises its option.
D. PERMITTOR’S RIGHT TO TERMINATE OPTION: In the event Permittor receives written notice from Permittee of Permittee’s intent to exercise its Option to Extend, and Permittor determines, in its sole and absolute judgment, that the Premises or the Property have a more appropriate use including, but not limited to, any County or public use, the Permittor (or its authorized agent as set forth in Section 27), shall have the right to refuse to grant Permittee’s option to extend by giving Permittee written notice within thirty (30) days of receipt of Permittee’s notice exercising its Option to Extend, and this Permit shall terminate at the expiration of the term then in effect.
7. PERMIT FEE.
A. BASE PERMIT FEE. Subject to the adjustments hereinafter set forth, Permittee agrees to pay Permittor, as Base Permit Fee for the Premises, the annual sum of Twenty Eight Thousand Eight Hundred, AND NO/100 DOLLARS ($28,800.00) payable in equal monthly installments of Two Thousand Four Hundred AND NO/100 DOLLARS ($2,400.00) in advance on or before the first day of each and every calendar month ("Base Permit Fee"). Within ten (10) days after the parties execute this Permit; Permittee shall pay to Permittor the Base Permit Fee for the first full month. All payments shall be delivered to Permittor at the following address, or such other address as Permittor shall designate in writing to Permittee:
Department of Public Works
Accounts Receivable (Ref. No. 5213)
555 County Center, 5th Floor
Redwood City, CA 94063
B. PRORATED PERMIT FEE. The Base Permit Fee and all other fees and charges for any period during the term hereof which is for less than one (1) full calendar month shall be prorated based upon the actual number of days of that calendar month.
C. BASE PERMIT FEE ADJUSTMENT. On each Adjustment Date, the Base Rent for the following twelve-month period shall be adjusted to equal one hundred and three percent (103%) of the Base Rent for the lease year preceding such Adjustment Date. By definition herein, the first Anniversary Date shall occur on the first day of the first full month following the first twelve (12) months after the Effective Date of the Primary Term. By example, if the Effective Date of this Permit is September 14, 2010, the first Anniversary Date for the permit fee adjustment would be October 1, 2011, and annually thereafter on each October 1st throughout the Primary Term, or any extension thereof as provided in Section 6 herein (Extended Term) of this Permit.
D. EXTENDED TERM FEE ADJUSTMENT. During the first year of the extended term, if exercised, the Base Permit Fee shall be adjusted as set forth in 7C (Base Permit Fee Adjustment) above or, at the election of Permittor delivered to Permittee in writing within thirty days of receipt of Permittee’s notice, shall be adjusted to then current fair market permit fees for like space. Current fair market permit fees shall be established in accordance with the County’s radio site equipment rates or any replacement schedule formulated by the County of San Mateo, provided, however, in no event shall the Base Permit Fee be reduced below the Base Permit Fee for the permit year prior to commencement of such Extended Term. The Permit Fee for the initial year of each Renewal Term shall be determined and agreed to by both parties at least sixty (60) days prior to the commencement date of the applicable Renewal Term. If an agreement on fair market permit fees cannot be reached by the parties within sixty (60) days prior to the commencement date of the applicable Renewal Term, the Base Permit Fee for the Renewal Term shall be the rate proposed by the Permittor provided, however, that Permittee may, at any time during the subsequent twelve months, terminate this Permit by giving Permittor thirty (30) days written notice. If Permittor does not, within such twelve-month period, deliver to Permittor written notice of termination, this Permit shall continue in full force and effect for the entire Extended Term. All other terms and conditions hereof shall apply.
E. LATE CHARGES. Permittee hereby acknowledges that late payment by Permittee to Permittor of the Permit Fee or other sums due under the provisions of this Permit will cause Permittor to incur costs not contemplated by this Permit, the exact amount of which would be extremely difficult to ascertain. Such costs include, but are not limited to, administrative processing of delinquent notices and accounting charges. Accordingly, if any installment of the Permit Fee or of any sum due from Permittee is not received by Permittor or postmarked within five (5) days after said amount is due, then Permittee shall pay to Permittor a late charge equal to five percent (5%) of the permit fee in effect at that time or Fifty Dollars ($50.00), whichever is greater. A late charge shall be applied each month that the permit fee or any sum due is delinquent. The parties hereby agree that such late charges represent a fair and reasonable estimate of the cost that Permittor will incur by reason of the late payment by Permittee. Acceptance of late charges by Permittor shall in no event constitute a waiver of Permittee's default with respect to such overdue amount, nor prevent Permittor from exercising any of the other rights and remedies granted under the provisions of this Permit.
Any Fee, if not paid within five (5) days following the due date, shall bear interest from the due date until paid at the rate of ten percent (10%) per year or, if a higher rate is legally permissible, at the highest rate an individual is permitted to charge under law (the “Interest Rate”). However, interest shall not be payable on late charges incurred by Permittee nor on any amounts on which late charges are paid by Permittee to the extent this interest would cause the total interest to be in excess of that which an individual is lawfully permitted to charge. Payment of interest shall not excuse or cure any default by Permittee.
A. BY PERMITTEE: Permittee shall have the right to terminate this Permit at any time upon thirty (30) days prior written notice to Permittor for any of the following reasons:
i. If the approval of any agency, board, court or other governmental authority necessary for the construction and/or operation of Permittee’s communications facility cannot be obtained, or is revoked, or if Permittee determines the cost of obtaining such approval is commercially infeasible, or
ii. If Permittee determines that the Premises is not appropriate for locating Permittee’s communication facility for environmental and/or technological reasons including, but not limited to, signal interference.
ii. If Permittor determines that the Property or any portion thereof, including the Premises, has a more appropriate use including, but not limited to, any County or public use, or sale; or
iii. If Permittor remains in default under Section 22 (Default; Remedies) of this Permit after the applicable cure periods.
If Permittor terminates this Permit under the provisions of the above Section 8(B)(ii), Permittor shall use commercially reasonable efforts in assisting Permittee in identifying a “Replacement Location” on the Property.
In the event an adequate Replacement Location can be identified, Permittor and Permittee shall execute an amendment to this Permit modifying the description of the Premises and development and use conditions as necessary and appropriate, and this Permit shall remain in full force and effect. Permittee shall pay all relocation costs incidental to such substitution of the Premises.
In the event that that an adequate Replacement Location cannot be located, Permittee shall have the right to terminate this Permit upon at least ninety (90) days advance written notice to Permittor, and this Permit will terminate on the same terms and conditions as if it had expired at the end of the Term.
C. NOTICE. Upon termination as provided for under the terms of Section 8A (Termination by Permittee), or Section 8B (Termination By Permittor), neither party will owe the other party any further obligation under the terms of this Permit, except as may otherwise be specifically provided herein and except for Permittee’s responsibility to remove all of Permittee’s communications equipment from the Premises and restore the Premises to its original condition, as near as practicable, save and except normal wear and tear and acts beyond Permittee’s control.
In the event of any damage to, destruction of or condemnation of all or any part of the Premises which renders the Premises unusable or inoperable, either party shall have the right, but not the obligation, to terminate this Permit and all of its duties and obligations hereunder by giving written notice to the other party within thirty (30) days after such damage, destruction or condemnation unless said damage was caused by the negligence or willful misconduct of the party issuing such notice. Permittee acknowledges that it has no property interest in the Premises and that Permittor alone shall be entitled to any condemnation proceeds paid as a result of any condemnation of the Premises, except for any relocation payments owing to Permittee under California law. Upon the expiration or termination of this Permit for any reason, Permittee shall remove its equipment and all personal property in accordance with Section 18 (Removal of Improvements) hereof.
9. HAZARDOUS MATERIALS ACTIVITY. Permittee shall not store, handle or generate hazardous materials/waste/underground tanks on the Premises except for fuel, batteries, and solvents used in connection with an emergency generator and only in the event of disruption of electrical service to the Premises. In the event that Permittee does store, handle, or generate hazardous materials on the Premises, Permittee shall be deemed to be in breach of this Permit and shall be subject to such remedies as are available to Permittor under law, and as provided herein. Additionally, Permittee shall be liable for the payment of all costs of investigation and remediation of hazardous materials on the Premises that may be required in the event that Permittee does store, handle, or generate hazardous materials on the Premises, and shall relieve, indemnify, protect, and save harmless Permittor against any and all claims and liabilities, of any kind or nature whatsoever, arising out of the presence of any such hazardous materials introduced to the Premises by Permittee.
Hazardous material means any material that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the work place or the environment. Hazardous materials include, but are not limited to, hazardous substances, hazardous waste, and any material which a handler or the administering agency has a reasonable basis for believing would be injurious to the health and safety of persons or harmful to the environment if released into the work place or the environment. Examples of such hazardous materials are, but are not limited to: waste oil, solvents, gasoline and compressed gases.
Permittor represents and warrants to Permittee that there is no pending claim, lawsuits, proceeding or other legal, quasi-legal or administrative challenge concerning the Property or Premises, the operation thereof, or any condition existing thereon which relates to the presence of any Hazardous Materials in, under or around the Property. Permittor further represents and warrants, to the best of Permittor’s knowledge, that there are no Hazardous Materials present in, on, under or around the Property and/or Premises in violation of any applicable law.
10. NATURE OF PERMIT. This Permit does NOT constitute the grant of a lease, deed, easement, or conveyance or transfer of any property interest.
11. ACCESS. Permittee acknowledges that the Property is an operating public facility. Permittor acknowledges that Permittee's equipment will operate on a twenty-four (24) hour a day, seven (7) day per week basis, and reasonable full time access is required. Permittor shall determine the allowable access route to the Premises, which shall be subject to modification by Permittor from time to time.
Subject to the provisions of Section 3 (Improvements and Installations) and Section 17 (Alterations and Additions) hereof, and subject to the allowable access route as determined by Permittor, Permittee may enter the Premises at any time without prior notice being given to Permittor for the maintenance and operation of Permittee’s existing communications facilities.
County reserves for itself and any of its designated Agents, the right to enter the Premises as follows: (i) on a regular basis without advance notice to supply any necessary or agreed-upon service to be provided by County hereunder; (ii) on an occasional basis, at all reasonable times after giving Permittee reasonable advance written or oral notice, to show the Premises to prospective Permittees or other interested parties, to post notices of non-responsibility, to conduct any environmental audit of Permittee’s use of the Premises, to repair, alter or improve any part of the Premises, and for any other lawful purpose; and (iii) on an emergency basis without notice whenever County believes that emergency access is required. County shall have the right to use any means that it deems proper to open gates or doors in an emergency in order to obtain access to any part of the Premises, and any such entry shall not be construed or deemed to be a forcible or unlawful entry into or a detainer of, the Premises, or an eviction, actual or constructive, of Permittee from the Premises or any portion thereof.
12. CLAIMS. Permittee shall at all times indemnify and save Permittor harmless from all claims for labor or materials in connection with construction, repair, alteration, or installation of structures, improvements, equipment, or facilities within the Premises, and from the cost of defending against such claims, including attorney fees.
13. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS. In the event of damage to or destruction of the Premises or any portion thereof by reason of the negligence or willful misconduct of Permittee, its agents, officers, employees or invitees, Permittee shall, within thirty (30) days, commence and diligently pursue to complete the repair, replacement, or reconstruction of improvements necessary to permit full use and occupancy of the Premises at Permittee's sole cost.
14. PERMITS. Permittor acknowledges that Permittee will contact the appropriate governmental agencies for the purpose of obtaining all permits and approvals necessary for the construction, operation, and maintenance of Permittee’s communication facility. Permittor agrees to fully cooperate with Permittee in obtaining the necessary permits and, without limiting the generality of the foregoing, to execute any applications, maps, certificates, or other documents that may be required in connection with the permits.
15. MAINTENANCE. Permittee expressly agrees to maintain the Premises and Equipment at Permittee’s sole expense, in a safe, clean, wholesome, and sanitary condition, to the reasonable satisfaction of Permittor and in compliance with all laws, rules, and regulations applicable to Permittee’s specific use thereof.
Permittee shall not allow any offensive or refuse matter, nor any substance constituting an unnecessary, unreasonable or unlawful fire hazard, nor any material detrimental to the public health to accumulate or remain on the Premises. It is expressly understood that Permittor shall have no responsibility whatsoever to make any improvements or repairs or perform any maintenance to Permittee’s Premises.
16. UTILITIES. Permittee expressly agrees that Permittee shall be responsible for obtaining and providing any and all electrical and electronic communication services to the Premises required for Permittee’s use, including, but not limited to, the cost to install, connect, maintain and operate said facilities. Permittor will cooperate with Permittee in Permittee’s efforts to obtain utilities from any location provided by Permittor or the servicing utility, including signing any permit or other instrument reasonably required by the utility company. Said responsibility for all costs associated with utilities shall include the installation of a separate electrical meter, if applicable. Provided adequate capacity is available from Permittor's existing service, upon Permittee’s written request, Permittor shall allow Permittee to install sub-metering equipment on Permittor’s existing utility services. Permittee agrees to install, at Permittee’s cost, the required equipment, meters and connections and to make any other necessary modifications and will reimburse Permittor monthly for Permittee’s use of utilities at a rate equal to Permittor’s unit cost for the utilities. The specifications of such equipment shall be submitted to Permittor for written approval prior to installation, which approval shall not be unreasonably withheld.
17. ALTERATIONS OR ADDITIONS. Permittee shall not make, construct, install or suffer to be made any alterations, additions (including antennas, wires, supports, poles or towers) or improvements to or on the Property, the Premises, or any part thereof, without the written consent of Permittor first had and obtained, except that Permittee may exchange or replace the communication equipment located on the Premises which has been previously approved by Permittor with similar equipment of substantially the same (or smaller) size and weight. In the event Permittor consents to the making of any alterations, additions or improvements to the Premises and/or the Property by Permittee, the same shall be made by Permittee at Permittee’s sole expense.
18. REMOVAL OF IMPROVEMENTS UPON EXPIRATION OR TERMINATION. Upon the expiration or termination of this Permit for any reason including, but not limited to, bankruptcy, Permittee shall immediately (and in no event later than seven (7) days after termination) remove from the Premises the Equipment and any other property placed on the Premises by Permittee or any of Permittee’s Agents. Such removal shall be performed in such a manner as to not interfere with the continuing use of the Premises by Permittor and others. Permittee shall, at Permittee’s sole expense, repair any damage to the Premises, or any facilities or equipment on the Premises, caused by such removal. Upon any failure of Permittee to remove the Equipment and any other possessions of Permittee pursuant to this Section, Permittor shall have the option, but not the obligation, to remove the Equipment from the Premises and store the Equipment, all at Permittee’s expense, upon thirty (30) days advance written notice to Permittee. Any damages to the Equipment occasioned by such removal and storage are expressly waived by Permittee. Any Equipment so removed will be returned to Permittee upon payment in full of all removal and storage costs and any past due Permit Fees, plus an administrative charge equal to ten percent (10%) of the total of said removal, storage, and past due Permit Fee costs. Notwithstanding the foregoing, any Equipment not retrieved by Permittee within sixty (60) days after removal from the Premises by Permittor shall be deemed abandoned by Permittee and shall become the property of Permittor without further action by either party. Such abandonment shall not relieve Permittee of liability for the costs of removal and storage of the Equipment.
19. FIXTURES. Permittor covenants and agrees that no part of the improvements constructed, erected, or placed by Permittee on the Premises and/or Property or other real property owned by Permittor shall be or become, or be considered as being, affixed to, or a part of Permittor’s real property, and any and all provisions and principles of law to the contrary withstanding, it being the specific intention of Permittor to covenant and agree that all improvements of every kind and nature constructed, erected, or placed by Permittee on the Premises or other real property owned by Permittor, shall be and remain the property of the Permittee except as provided in Section 18 (Removal of Improvements) of this Permit. Permittee has the right to remove all Permittee’s Equipment at its sole expense on or before the expiration or termination of this Permit. Permittor acknowledges that Permittee may enter into financing arrangements including promissory notes and financial and security agreements for the financing of Permittee’s Equipment (the “Collateral”) with a third party financing entity and may in the future enter into additional financing arrangements with other financing entities. In connection therewith, Permittor (i) consents to the installation of the Collateral to the extent that the Collateral is part of the approved Permittee’s Equipment; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any permit fee due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings.
20. EQUIPMENT CONFLICT. Permittee agrees to use equipment of a type and frequency, which will not cause interference with communications equipment currently under the operation and control of Permittor or any other communications provider under an existing Permit with Permittor as of the Effective Date hereof. If the Permittor’s communication equipment involves public safety communications and if the Permittee’s equipment causes any interference to public safety communications, the Permitee’s equipment will be immediately taken out of service without exception by Permittee. If Permittee’s equipment interferes with the Permittor’s public safety communications, the determination to take out of service the Permittee’s equipment shall be at the Permittor’s sole discretion, except as provided below:
A. Permittee will not cause radio frequency and/or electrical interference to the existing equipment of Permittor or to any other occupant, Permittee, or any other user ("Existing User") of the Property whose equipment was located at the Property upon the earlier of: (i) the Effective Date; or (ii) the date Permittee installs its Communications Equipment, provided that the equipment used by any Existing User or Permittor is operating within the technical parameters specified by its manufacturers and as defined by the FCC. Upon written notice from Permittor to Permittee of such interference, Permittee will take all reasonable steps to correct such interference in a timely manner. If such interference cannot be corrected within five (5) business days from receipt of Permittor’s Notice, Permittee will cease using its Communications Equipment, except for testing, until such time as Permittee corrects the interference to Permittor's satisfaction. In the event Permittee cannot correct the interference, Permittee will have the option to terminate this Permit without further liability hereunder, upon (30) days written Notice to Permittor and Permittee shall remove its equipment in a timely manner and at Permittee’s sole cost and expense.
B. After the date of this Permit, Permittor will not grant a permit to any other party for use of the Property or modify any existing agreement for use of the Property, or change its use of the Property or permit an existing occupant, tenant, permittee or other user of the Property to make any changes to its use of the Property, if such use would in any way materially adversely affect or interfere with the operation of Permittee’s communication equipment. If another occupant, tenant, permittee or other user of the Property causes uncorrected radio frequency and/or electrical interference with Permittee’s communication equipment, Permittor will require the party causing such interference to either correct such interference or stop using the equipment that is causing the interference. If the interference cannot be corrected within five (5) business days from receipt of Permittee’s Notice, Permittor will cause the party creating the interference to cease using its equipment, except for testing, until the interference has been corrected. If the interference cannot be corrected within five (5) business days from receipt of Permittee’s Notice, Permittor will cause the party creating the interference to cease using its equipment, except for testing, until the interference has been corrected. If after thirty (30) days such interference has not been completely corrected to Permittee’s reasonable satisfaction, Permittee will have the option to terminate this Permit without further liability hereunder.
C. Permittee shall not, subsequent to its initial installation of equipment, make any modification to its equipment or the use thereof during the Term that will cause radio frequency and/or electrical interference to the equipment of Permittor then in operation, nor to that of any other occupant, tenant, permittee or other user of the Property. Any such user in operation at the time of such modification or change in use shall be considered an Existing User as set forth in Section 20A above, and the provisions of that Section shall apply.
A. REAL PROPERTY TAXES. Permittor shall pay all real property taxes, if any, levied against the Premises. Permittee shall pay its share of any general and special assessments, if any, to the extent assessed against the Premises as a result of Permittee’s improvements thereto or use thereof during the term of this Permit.
B. PERSONAL PROPERTY TAXES. Permittee shall pay, or cause to be paid, before delinquency, any and all taxes and assessments levied against Permittee's personal property in the Premises.
C. POSSESSORY INTEREST TAX. Permittee recognizes and understands in executing this Permit that its interest in the Premises created herein may be subject to a "Possessory Interest Tax" that the County Assessor may impose on such interest, and any such tax would be the liability of and be paid solely by Permittee. Permittee agrees to pay promptly when due, any Possessory Interest Tax imposed on its interest in the Premises and/or Property.
22. DEFAULT; REMEDIES
A. EVENTS OF DEFAULT. Any of the following shall constitute an event of default (the “Event of Default”) by Permittee hereunder:
i. A failure to comply with any covenant, condition or representation made under this Permit and such failure continues for fifteen (15) days after the date of written notice by Permittor, provided that if it is not feasible to cure such default within such 15-day period, Permittee shall have a reasonable period to complete such cure if Permittee promptly undertakes action to cure such default within such 15-day period and thereafter diligently pursues the same to completion within sixty (60) days after the receipt of notice of default from Permittor. Permittor shall not be required to provide such notice more than twice in any twelve (12) month period with respect to any material non-monetary defaults and after the second notice in any calendar year, any subsequent failure by Permittee during such 12-month period shall constitute an Event of Default hereunder;
ii. A vacation or abandonment of the Premises for a continuous period in excess of five (5) business days; or
iii. An appointment of a receiver to take possession of all or substantially all of the assets of Permittee, or an assignment by Permittee for the benefit of creditors, or any action taken or suffered by Permittee under any insolvency, bankruptcy, reorganization, moratorium or other debtor relief act or statute, whether now existing or hereafter amended or enacted, if any such receiver, assignment or action is not released, discharged, dismissed or vacated within sixty (60) days.
B. REMEDIES. Upon the occurrence of an Event of Default Permittor shall have the following remedies, which shall not be exclusive but shall be cumulative and shall be in addition to any other remedies now or hereafter allowed by law or in equity:
i. Permittor may terminate Permittee’s right to possession of the Premises at any time by written notice to Permittee. Upon such termination in writing of Permittee’s right to possession of the Premises, this Permit shall terminate and Permittor shall be entitled to recover damages from Permittee as provided in California Civil Code Section 1951.2 or any other applicable existing or future legal requirement providing for recovery of damages for such breach.
ii. Permittor may continue this Permit in full force and effect and may enforce all of its rights and remedies under this Permit, including, but not limited to, the right to recover any fee as it becomes due.
iii. During the continuance of an Event of Default, Permittor may enter the Premises without terminating this Permit and remove all Permittee’s Personal Property, Alterations and trade fixtures from the Premises and store them at Permittee’s risk and expense. If Permittor removes such property from the Premises and stores it at Permittee’s risk and expense, and if Permittee fails to pay the cost of such removal and storage after written demand therefore and/or to pay any fee then due, then after the property has been stored for a period of thirty (30) days or more Permittor may sell such property at public or private sale, in the manner and at such times and places as Permittor deems commercially reasonable following reasonable notice to Permittee of the time and place of such sale. The proceeds of any such sale shall be applied first to the payment of the expenses for removal and storage of the property, the preparation for and the conducting of such sale, any delinquent amount due under this Permit, and for attorneys’ fees and other legal expenses incurred by Permittor in connection therewith.
Permittee hereby waives all claims for damages that may be caused by Permittor’s re-entering and taking possession of the Premises or removing and storing Permittee’s personal property pursuant to this Section, and Permittee shall indemnify, defend and hold Permittor harmless from and against any and all Claims resulting from any such act. No re-entry by Permittor shall constitute or be construed as a forcible entry by Permittor.
iv. Permittor may require Permittee to remove any and all Alterations from the Premises or, if Permittee fails to do so within ten (10) days after Permittor’s request, Permittor may do so at Permittee’s expense.
C. PERMITTOR'S DEFAULT. Permittor shall not be considered to be in default under this Permit unless:
i. Permittee has given written notice specifying the default; and
ii. Permittor has failed for thirty (30) days to cure the default, if it is curable, or to institute and diligently pursue reasonable corrective acts for defaults that cannot be reasonably cured within sixty (60) days.
This Permit may be terminated without further liability on thirty (30) days prior written notice by Permittee if Permittor does not cure a default as set forth herein.
23. LIABILITY; VANDALISM. Permittee agrees that Permittor shall not be responsible for any damage to Permittee’s property due to vandalism or natural disasters or for the cost of repair or replacement thereof.
24. INDEMNIFICATION AND INSURANCE.
A. Permittee, at no cost to the County, shall procure and keep in effect at all times during the Term insurance as follows:
B. Should any of the required insurance be provided under a claims-made form, Permittee shall maintain such coverage continuously throughout the Term and, without lapse, for a period of three (3) years beyond the expiration or termination of this Lease, to the effect that, should occurrences during the Term give rise to claims made after expiration or termination of this Lease, such claims shall be covered by such claims-made policies.
25. ENTRY BY PERMITTOR/PERMITTEE.
A. BY PERMITTEE. Permittee shall give ten (10) days advance written notice to Permittor prior to the commencement of Permittee’s installation and construction of its communications facility. Thereafter, and subject to the provisions of Section 11 (Access) and Section 14 (Permits) of this Permit, Permittee has the right to enter the Premises at any time without prior notice being given to Permittor for the installation, construction, maintenance, operation, modification or addition of Permittee’s existing communications facilities.
B. BY PERMITTOR. Permittor reserves and shall have the right to enter the Premises at any and all reasonable times, to inspect same, supply any services to be provided by Permittor to Permittee hereunder, to show the Premises to any prospective purchasers or Permittees, to post notices of non-responsibility, and to alter, improve, repair or restore the Premises as Permittor may deem necessary or desirable, without abatement of permit fee, so long as Permittor does not unreasonably interfere with Permittee’s operations. For each of the aforesaid purposes, Permittor shall at all times have and retain a key with which to unlock all of the gates and/or doors in, upon and about the Premises, excluding Permittee’s vaults, cabinets, safes and files. Permittor’s right to enter the Premises is subject to: (a) Permittor having given not less than twenty-four (24) hours prior notice to Permittee, and (b) an employee or agent of Permittee being present during each and any entry to the Premises.
C. EMERGENCY - BY PERMITTOR. Other provisions of this Section notwithstanding, in the event of an emergency, Permittor shall have the right to use any and all means which Permittor may deem proper to gain entry to the Premises without liability to Permittor except for any failure to exercise due care for Permittee’s property. Any entry to the Premises obtained by Permittor by any said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Permittee from the Premises or any portion thereof.
26. HOLDING OVER. In the event that Permittee, with Permittor's written consent, holds possession of the Premises or any portion thereof after the date upon which the Premises are to be surrendered, Permittee shall pay to Permittor a monthly permit fee increase of ten (10) percent above the monthly permit fee in effect upon the date of such expiration and otherwise subject to all provisions of this Permit except those pertaining to the duration of the term of this Permit or any extensions thereof. Permittee's use and occupancy will continue from month-to-month, at will, until terminated by Permittor or Permittee by the giving of thirty (30) days' written notice to the other. Nothing in this Section is to be construed as consent by Permittor to the occupancy or possession of the Premises by Permittee after the expiration of the term or any extension thereof.
27. AUTHORIZED REPRESENTATIVE OF THE COUNTY OF SAN MATEO. The County Manager, or the designee of the County Manager, shall be the only authorized agent of the County of San Mateo for purposes of giving any notices (including, but not limited to, termination under the terms hereof), enforcing any provision, or exercising any rights, options, privileges, or obligations of the County of San Mateo under this Permit. This Permit shall not be valid or have legal effect unless executed by the President of the Board of Supervisors of the County of San Mateo pursuant to a Resolution adopted in accordance with the California Government Code.
28. NOTICE. All notices or demands are deemed to have been given or made when delivered in person or delivered by certified or registered mail, return receipt requested, postage prepaid, United States mail, and addressed to the respective parties as follows:
County of San Mateo
County Manager's Office
Real Property Division
455 County Center, 4th Floor
Redwood City, CA 94063
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site # N128830, Cell Site Name: 440/PESCADERO (CA)
Fixed Asset No. 10095739,
12555 Cingular Way, Suite 1300
Alpharetta, GA 30004
With a required copy of the notice sent to AT&T Legal at:
If sent via certified or registered mail:
Attn: AT&T Legal Department
New Cingular Wireless PCS, LLC
Re: Cell Site # N128830, Cell Site Name: 440/PESCADERO (CA)
Fixed Asset No. 10095739
PO Box 97061
Redmond, WA 98073-9761
If sent via nationally recognized overnight courier:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site # N128830, Cell Site Name: 440/PESCADERO (CA)
Fixed Asset No. 10095739
16331 NE 72nd Way
Redmond, WA 98052-7827
The address to which any notice or demand may be given to either party may be changed by thirty (30) day prior written notice.
29. ASSIGNMENT BY PERMITTEE. Permittee shall not voluntarily or by operation of law assign, transfer, sublet, or otherwise transfer or encumber all or any part of Permittee's interest in this Permit or in the Premises without Permittor's prior written consent. Any assignment or encumbrance without Permittor's consent shall be voidable and, at Permittor's election, shall constitute a default. No consent to any assignment or encumbrance shall constitute a further waiver of provisions of this Section. Notwithstanding the foregoing, Permittee shall have the right to assign this Permit, without Permittor's consent to any corporation which controls, is controlled by, or is under common control with Permittee, to any corporation resulting from merger or consolidation with Permittee, or to any partnership in which Permittee, the general partner of Permittee, or any corporation which controls, is controlled by, or is under common control with the general partner of Permittee, is a general partner, or to any person or entity which acquires substantially all of Permittee's assets, provided that such assignee assumes in full all of Permittee's obligations under this Permit. Notwithstanding anything to the contrary contained in this Agreement, Permittee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Permittee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof.
30. CONSENT. Whenever under this Permit the consent or approval of either party is required or a determination must be made by either party, no such consent or approval shall be unreasonably withheld or delayed, and all such determinations shall be made on a reasonable basis and in a reasonable manner.
31. ENTIRE AGREEMENT AND BINDING EFFECT. This Permit and any attached exhibits, as signed by the parties hereto, constitute the entire agreement between Permittor and Permittee; no prior written promises, and no prior, contemporaneous or subsequent, oral promises or representations shall be binding. This Permit shall not be amended or changed except by written instrument signed by the parties hereto. Section captions herein are for convenience only and neither limit nor amplify the provisions of this instrument. The provisions of this Permit shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of said Permittor and Permittee. This Permit shall not be effective or binding on any party until fully executed by both parties hereto.
32. PROCESSING FEE. Not Used.
33. RESERVATIONS. This Permit shall at all times be subject to such rights-of-way for such sewers, pipe lines, conduits, and for such telephone, telegraph, light, heat or power lines, as shall have been duly established or as may from time to time be reasonably determined by Permittor.
This Permit is subsequent to and subject to all prior exceptions, reservations, grants, easements, leases or licenses of any kind whatsoever as the same appear on record in the office of the County Recorder, County of San Mateo, State of California. Permittee covenants not to disturb the quiet and peaceful enjoyment of any and all parties having any legal right, title, interest or privilege in and to the Premises and that the use of the Premises by Permittee shall at all times be conducted with proper regard for such rights, titles, interests and privileges.
A. Permittee shall keep the Property free from any liens arising from any work performed, materials furnished, or obligations incurred by or at the request of Permittee.
B. If any lien is filed against the Property as a result of the acts or omissions of Permittee, or Permittee’s employees, agents, or contractors, Permittee must discharge the lien or bond the lien off in a manner reasonably satisfactory to Permittor within thirty (30) days after Permittee receives written notice from any party that the lien has been filed.
C. If Permittee fails to discharge or bond any lien within such period, then, in addition to any other right of remedy of Permittor, Permittor may, at Permittor’s election, discharge the lien by either paying the amount claimed to be due or obtaining the discharge by deposit with a court or a title company or by bonding, or by such other methods reasonably acceptable to Permittor provided that such methods are specified in writing by Permittor to Permittee.
D. Permittee must pay on demand any amount paid by Permittor for the discharge or satisfaction of any lien, and all reasonable attorneys’ fees and other legal expenses of Permittor incurred in defending any such action or in obtaining the discharge of such lien, together with all necessary disbursements in connection therewith.
35. SAN MATEO COUNTY NO SMOKING ORDINANCE. Permittee is aware that on April 18, 2006, the County of San Mateo modified its Ordinance Code, adopting Section 4.96.040, which prohibits smoking in all County facilities whether owned or leased. Permittee understands that said Ordinance authorizes County to enforce the provisions contained therein and Permittee agrees to enforce the provisions of said ordinance on the Premises.
A. Permittee shall comply with any applicable provisions of Section 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
B. No person shall, on the grounds of race, color, religion, ancestry, sex, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Permit.
C. Permittee shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Permit. Permittee’s equal employment policies shall be made available to Permittor upon request.
D. With respect to the provision of employee benefits, Permittee shall comply with the County Ordinance that prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.
37. GENERAL PROVISIONS.
A. COMPLIANCE WITH LAW. Permittee shall not use the Premises or permit anything to be done in or about the Premises which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Permittee shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force, and with the requirements of any board of fire insurance underwriters or other similar bodies now or hereafter constituted, relating to, or affecting the condition, use or occupancy of the Premises. The judgment of any court of competent jurisdiction or the admission of Permittee in any action against Permittee, whether Permittor be a party thereto or not, that Permittee has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between Permittor and Permittee.
B. RULES AND REGULATIONS. Permittee shall faithfully observe and comply with the rules and regulations that Permittor shall from time to time promulgate. Permittor reserves the right from time to time to make all reasonable modifications to said rules. The additions and modifications to those rules shall be binding upon Permittee upon delivery of a copy of them to Permittee. Permittor shall not be responsible to Permittee for the nonperformance of any said rules by any other Permittees or occupants, or the public.
C. AUTHORITY OF PARTIES.
i. Corporate Authority. If either party hereto is a corporation, each party executing this Permit on behalf of the corporation represents and warrants that he or she is duly authorized to execute and deliver this Permit on behalf of said corporation, in accordance with a duly adopted resolution of the board of directors of the corporation or in accordance with the by-laws of the corporation, and that this Permit is binding upon the corporation in accordance with its terms.
ii. Partnership. If either party hereto is a partnership or other unincorporated association, each party executing this Permit on behalf of the partnership or other association represents and warrants that he or she is duly authorized to execute and deliver this Permit on behalf of the partnership or association, in accordance with the partnership agreement or the agreement of said association.
D. WAIVER. The waiver by either party of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition on any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of the permit fee hereunder by Permittor shall not be deemed to be a waiver of any preceding breach by Permittee of any term, covenant or condition of this Permit, other than the failure of the Permittee to pay the particular permit fee so accepted, regardless of Permittor's knowledge of such preceding breach at the time of the acceptance of such permit fee.
E. JOINT OBLIGATION. "Party" shall mean Permittor or Permittee; and if there be more than one Permittee or Permittor, the obligations hereunder imposed upon Permittees or Permittors shall be joint and several.
F. TIME. Time is of the essence of this Permit and each and all of its provisions in which performance is a factor.
G. RECORDATION. Neither Permittor nor Permittee shall record this Permit, except that if either party requests the other party to do so, the parties shall execute a short form memorandum hereof in recordable form.
H. QUIET POSSESSION. Upon Permittee paying the permit fee and other fees or charges reserved hereunder and observing and performing all of the terms, covenants and conditions on Permittee's part to be observed and performed hereunder, Permittee shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Permit.
I. INABILITY TO PERFORM. This Permit and the obligations of Permittee hereunder shall not be affected or impaired because Permittor is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond the reasonable control of Permittor.
J. NEGATION OF PARTNERSHIP. Permittor shall not become or be deemed a partner or a joint venturer with Permittee by reasons of the provisions of this Permit.
K. SALE OR TRANSFER OF PREMISES. In the event of any sale or transfer of the Premises, Permittor shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Permit arising out of any act, occurrence or omission occurring after the consummation of such sale or transfer; and the purchaser or transferee, at such sale or transfer or any subsequent sale or transfer of the Premises shall be deemed, without any further agreement between the parties or their successors in interest or between the parties or their successors in interest or between the parties and any such purchaser or transferee, to have assumed and agreed to carry out any and all of the covenants and obligations of Permittor under this Permit.
L. NAME. Permittee shall not use the name of the Premises or of the development, Property or facility in which the Premises may be situated for any purpose other than as an address of the business to be conducted by Permittee in the Premises.
M. SEPARABILITY. Any provision of this Permit which shall prove to be invalid, void, illegal or unenforceable shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full force and effect.
N. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
O. SIGNS AND AUCTIONS. Permittee shall not place any sign upon the Premises or conduct any auction thereon without Permittor's prior written consent.
P. PROVISIONS, COVENANTS AND CONDITIONS. All provisions herein, whether covenants or conditions, on the part of either party shall be deemed to be both covenants and conditions.
Q. CAPTIONS, TABLE OF CONTENTS. The captions and the Table of Contents of this Permit (if any) shall have no effect on the interpretation of this Permit.
R. PAYMENTS IN U.S. MONEY. Permit fee and all sums payable under this Permit must be paid in lawful money of the United States of America.
S. SINGULAR AND PLURAL. When required by the context of this Permit, the singular shall include the plural.
T. CHOICE OF LAW. This Permit shall be construed, interpreted and governed in accordance with the laws of the State of California.
U. VENUE. The venue for any court action to interpret or enforce this agreement or to litigate any claim arising out of this agreement shall be had in State Court of the County of San Mateo.
BALANCE OF PAGE INTENTIONALLY BLANK
IN WITNESS WHEREOF, Permittor and Permittee have executed this Permit as of the date and year first above written.
Date_______________ NEW CINGULAR WIRELESS PCS.LLC,
a Delaware Limited Liability Company
By: AT&T Mobility Corporation
Date_______________ COUNTY OF SAN MATEO,
a Political Subdivision of the State of California
By Richard S. Gordon
President, Board of Supervisors
Clerk of the Board
SITE PLAN/CONSTRUCTION DRAWINGS
Pages Attached: 1
Prepared By: Jeffrey Rowe & Associates, Inc.
Dated: April 20, 2010