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11-12-2008 CC Rpt A13COUNCIL AGENDA STAFF REPORT CITY CLERK USE ONLY Meeting Date: November 12. 2008 .y r_ ,.. Public Hearing: ❑ Discussion Item: ❑ 1,10V Consent Item: ❑ , Oi �mv oruiw+o vau Jii' Er .,, �,,j • �IFLf it :.` NOVEMBER 4, 2008 TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: CITY MANAGER SUBJECT: EXECUTION OF A COMMUNICATIONS LICENSE AGREEMENT AND APPROVAL OF EASEMENTS FOR ACCESS AND UTILITY PURPOSES WITH AT&T WIRELESS RECOMMENDATION: 1) Authorize execution of a Communications License Agreement with AT&T Wireless. 2) Authorize execution of a grant of easement for access and utility purposes. BACKGROUND/ANALYSIS: AT&T Wireless is requesting that the City Council approve the execution of a Communications License Agreement to allow an unmanned wireless telecommunication facility for AT&T to be installed on an existing Southern California Edison (SCE) tower on City -owned open space, located west of Peyton Drive and east of Lost Trail Drive. With increasing demand for communication services, the proposed AT&T telecommunication facility will expand the wireless coverage to the residents of Chino Hills and the surrounding community. The project site is designated on the General Plan Land Use Map as Open Space, and is zoned Planned Development PD 24-145. Site Development Permit 05SDP19 was approved by the Community Development Director on May 23, 2006. On September 17, 2007, staff approved a request by AT&T for an extension of time of one year for 05SDP19 due to delays in pulling permits created by the merger of Cingular Wireless with AT&T in 2006-2007. On October 21, 2008, the Planning Commission approved AT&T's request for a second extension of time for 05SDP19 due to delays caused by leasing and easement related matters that stalled the project from being completed within the one-year extension. AT&T is proposing to install six (6) panel antennas on an existing Southern California Edison (SCE) tower and install four (4) equipment cabinets inside an equipment shelter within a lease area of 1,200-square feet adjacent to the SCE tower. To minimize the visual impact of the wireless facility, the applicant is proposing a variety of trees, shrubs, and vines to screen the equipment shelter from adjacent residents and Peyton Drive. AT&T is proposing to access the site through the existing access easement off of Lost Trail Drive. An existing gate between Lost Trail Drive and the existing access easement will November 12, 2008 Page 2 SUBJECT: EXECUTION OF A COMMUNICATIONS LICENSE AGREEMENT AND A GRAND OF EASEMENT FOR ACCESS AND UTILITY PURPOSES WITH AT&T WIRELESS provide access to the project site from Lost Trail Drive. The applicant is also proposing to trench their utility cables southeast of the project site and tie-in to an existing SCE power and Verizon telco connections (see Exhibit "A"), Listed below is the Existing Land Use, General Plan and Zoning designation for the proposed site and surrounding areas. Location I General Plan Land Use Site Open Space North Low Density Residential South Low Density Residential East I Institutional West Low Density Residential Zoning Existing Use j PD 24-145 Vacant Open Space R-S Low Density ( Single -Family Residence Residential t PD 24-145 Single -Family Residence 1-1 institutional - Private Chino Valley Community Church PD 24-145 1 Single -Family Residence COMMUNICATIONS LICENSE AGREEMENT: Per the Site Development Permit 05SDP19 Conditions of Approval, the applicant is required to enter into a License Agreement with the City of Chino Hills. The existence of the License Agreement does not relieve the applicant of any obligations to obtain permits as required by City Code(s). The attached agreement (Exhibit "B") was reviewed and approved by the City Attorney and AT&T. If approved as written, AT&T Wireless would be required to pay an annual rent of $18,065.11. Also, the License Agreement shall have an annual increase based on the greater of: 1) 4% of the rent identified in the License Agreements; or, 2) the CPI increase for the Los Angeles -Riverside -Orange County areas. The term for the License Agreement is for an initial five-year term. AT&T Wireless has the option to extend the agreement based on a five-year term and the conditions set forth in the agreement for up to three (3) successive terms for a total of twenty -years, unless terminated in accordance with the terms established in the License. PUBLIC COMMENTS: This project was processed as a Site Development Permit, which does not require that notices be sent to the surrounding property owners. Public notices were not mailed for this project. As of the writing of this staff report, staff has received no comments from the public. REVIEW BY AFFECTED DEPARTMENTS: The Communications License Agreement was reviewed by the City Attorney's Office, the Contract Compliance Officer, the Finance Department, and the Community Development Department. The easement documents for access and utilities (Exhibit "C") were reviewed and approved by the City's Engineering Department. November 12, 2008 Page 3 SUBJECT: EXECUTION OF A COMMUNICATIONS LICENSE AGREEMENT AND A GRAND OF EASEMENT FOR ACCESS AND UTILITY PURPOSES WITH AT&T WIRELESS FISCAL IMPACT: As negotiated, the City will receive an annual rent of $18,065.11, which equates to $1,505.43 per month. Additionally, the License Agreement shall have an annual increase based on the greater of: 1) 4% of the rent identified in the License Agreements; or, 2) the CPI increase for the Los Angeles -Riverside -Orange County areas. Re ectfully submitted, • aA Ijeugt4s N. La Belle City Manager DLB:CK:jw Attachments: Exhibit "A" — Site Development Plans Recommended by: Christine Kelly Community Development Dire or Exhibit "B" — License Agreement Exhibit "C" — Grant of Easement for Access and Utility Purposes GLENERAt_ NOTES ^r, to 2ne[[4 r ••¢mrxIUv,Anciuv w•mn v.>+r [.l�rnaa: Le.w m. HE _11 ¢3t� i ygr �ITE V b aw Vicinity Map 1.1 11,W uI ..1E iF"II r11i�lICJ+ nl,I VIE Ez .. .... 111 lu_ f `11 1-11:1V F+N`il-, IPIC LET' I!9+1 ..IN nA "r Ca`.1 f'rY.AP(I H+rl`rua rrrER.IO( IaID IYE T4lr it f`rt L.rn.nC . I I:. IVIIH lD .ir1 l:llE IF XNN Fe.w . Ffam1 Empf r IFI, PIeHi 011 TIC LIT, C. 'UFll 1UHT LE, H"E. uWd ra IIr.A.. ,:'yn. LOSI 111 L1.1 Umr''AI �SYMB 5 e' EE IPh F'EI CPCi IiEVAtIt TTTAAA N '$. S�Vj� :CE111, PEFEPCUUE CIIIIIIll PEFERCI+IE vu PF'OPb^� V12 'EE+SE LIVE UTRITS PURVFYORS v aiEG - H 11IV `U1i n\vEF uL I r uINO HILLi .a 1 - 1Hr r, o PN1. I,LCiur IR - v4Fl:U1 [I CHI., .DIHUFli i.y:FE PIIIP CC,UH f.ING11I AR WIRFt PEP NETWORK ADMINISTPITIVF: G rUO aiLPUK PC Rt "}PO Inecen5: `. - IrI en-s1_•.AJr q PPLIQAfIT ARCHITECT I:CW IIIIII`f. WIFEL , F('., l:' Us, e, <IIu?LI... : F:un 11 1,I I VI:ir1-rA,.,, I'CEII CUD,I 11.: ILEF :'blm 1f1 PL!'a 0I a1 :ZM1 E ISERE 'IF t Eehll- ft .rU1_ ",',A "1 CP J'7115 1`HHI.0 `IJ 9-I::•-"1."+A `n ONC xJ9-_51-112O E_URYEYOR u ID Cn1 NS LVSn(I `1L`, LA`rvE ar,P,,;1Ai to PPu"nT"tro c.I,om ADA 6GMPUAN{JE Owf ER 'III .11w PFLE PEP `I :vlvl pnvlln LFn.0 rgnnC �Q HING H.—IDUa r-. .v `_I Ir}'r M,xIC R-I c1Y`1[.CIIIIPL .ILL, a"L. L)T II_ITY COOR DiN LTOF F xu+ xiif'. �.. I:Itt IaI ELYi. Faf•AIr'i irC Sw-M+-''aT PevaF 'l1-J:J-6JU0 'TI NEW PROJECT: � µCOuxuMNGipx FC5S5 II EOUIPMENf MSiPIIATYJV, LEGAL. 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Lu wtnl CF qo a•I e' GMrn lrt :� minuHN Ln 1 11 GF rRcv E(C E ura':EUEHT ca< THPEE ,RI[:• rrF vl'IIGrII i'.. _i 11 I uIAM `.ICfi _r ' t I1Llrtnr 71, I11u t•F •IF ivR1C1011 >I[ T=sCP tR-- [III A`..O.2ui I, :.i Cr[ `0''H VtI1H iHC iVF _ -v V11(Pf IC !II/A'.CLiO _ tl'L II Lt IHE . i —EIC 1111CF ELL -� 1-Iv:vICF FVLrI VIv �� , �-III—III-'III: 14 COAX CABLE AT CONCRETE ENCASEMENT All ^ESO007-01-82 mt un SCE TOWER ANTENNA INSTAL1ATiON 14650 LOST TRAIL DRIYC CHINO HILLS, CA 91709 DETAILS— z Il.ra,raA—% COMMUNICATIONS LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is entered into between Southern California Edison ("SCE") and New Cingular Wireless PCS, LLC a Delaware limited liability company (referred to herein as "Licensee"), and the City of Chino Hills, a municipal corporation ("Licensor"), this _ day of , 2008. WHEREAS: a. Licensor is the fee title owner of that certain real property located in Chino Hills, California, APNs 1032-231-68 and 69, and described more particularly in Attachment A hereto, which description is fully incorporated herein by this reference ("Real Property"); b. SCE is the owner of an easement and right of way that encumbers all or a part of the real property pursuant to that certain Grant of Easement to SCE, dated August 7, 1941 in Book 1493, Page 370 and recorded on August 14, 1941 of Official Records in the Office of the County Recorder of San Bernardino County, State of California, a copy of which is attached hereto as Attachment B ("Easement"). Nothing in this Agreement shall limit, expand, modify, degrade, or terminate SCE's rights under the Easement. C. Licensee desires to license from Licensor, on a non-exclusive basis, the right to use that certain portion of the Real Property, and those certain related easements through the Real Property for physical access and utilities, as depicted in Attachment C hereto which is fully incorporated herein by this reference ("Premises"); d. Licensee desires to use the Premises for the installation, maintenance, and operation of Licensee's communications equipment, including antenna and appurtenant antenna support structure(s), poles, dishes or masts, radio frequency transmitting and receiving equipment, primary, back-up and temporary power units, interconnection equipment, equipment cabinets, cabling, wiring, lines, conduits, pipes and accessories as more particularly described throughout this Agreement (collectively, "Communications Equipment"). Licensee's initial plans respecting installation of Communications Equipment and construction of related improvements on the Premises is depicted in Attachment D and fully incorporated herein by this reference. A description of the Communications Equipment, including the proposed frequencies and configuration of operation is provided in Attachment E and fully incorporated herein by this reference; and d. Licensor is willing to make the Premises available to Licensee, subject to the covenants and conditions hereinafter set forth, on a non-exclusive basis, in order to facilitate the efficient and orderly deployment of communications facilities in the City of Chino Hills. e. SCE and Licensee have entered into that certain Standard Agreement No. Qa 114, dated January 20, 2006 ("Standard Agreement"), which Standard Agreement, incorporates by reference, and is subject to, that certain Master Tower Agreement dated ca .c AT&T ES007-01 1 Initials: / W October 3, 2001 (hereinafter collectively the "Master Agreement") together which set forth the terms and conditions which govern the attachment of Licensee's communications equipment to SCE's tower, Solely as between Licensee and SCE, in the event of any conflict between the terms and conditions of the Master Agreement and this Agreement, the Master Agreement shall govern unless such would in any way affect the rights of Licensor hereunder. Licensor is not a party to the Master Agreement and is not subject to any of the terms and conditions contained therein. AGREEMENT NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties as set forth herein, and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Grant. During the term of this Agreement, subject to the terms, conditions, and covenants set forth herein, Licensor hereby grants to Licensee, on a nonexclusive basis, a license to use the Premises for the purposes permitted in Section 2. Additionally, Licensor grants to SCE, on a nonexclusive basis, a license for the sole purpose of allowing Licensee to install its equipment within SCE's easement subject to all of the terms and conditions contained in this Agreement. If Licensee's license expires for any reason, the license granted to SCE in this paragraph will automatically expire concurrently therewith. 2. Use. (a) Licensee shall use the Premises only for providing communications services relating to the transmission and reception of radio communications signals on the frequencies identified in Attachment E. Such use includes Licensee's right to install, construct, operate, maintain, repair, replace, and secure Communications Equipment in accordance with the terms and conditions of this Agreement. Should Licensee desire to use frequencies not identified in Attachment E, then Licensee shall provide notice to Licensor in the form of a supplemental Attachment E depicting the frequencies to be used along with an intermodulation study showing that Licensee's frequencies will not cause interference to an existing carrier, if any, or any existing City owned communications equipment, if any, on the SCE tower. (b) The precise location of the Communications Equipment, and any construction or improvements of the Premises, shall be subject to Licensor's prior written approval in accordance with Section 6 of this Agreement. (c) Licensee shall at all times, at Licensee's sole cost and expense, install, operate, maintain, repair, and remove the Communications Equipment in accordance with all applicable federal, state and local laws, codes, ordinances, rules and regulations (collectively, "Laws'), and shall obtain all necessary governmental licenses, permits and approvals (collectively, "Approvals") required to install, operate, maintain, repair, and remove the Communications Equipment. AT&T ES007-01 ®0 Initials: CW 3. Term. (a) The initial term of the license granted hereunder ("Term") shall commence on the Commencement Date and continue for a period of five (5) yearsthereafter. For purposes of this Agreement, the `Commencement Date" shall be the first to occur of (i) the first day of the month during which Licensor approves the Final Plans pursuant to Section 6(a) herein, provided that such approval includes all required building permits necessary to allow Licensee to construct its facilities on the Premises, or (ii) six (6) months after the date of this Agreement as first set forth above. Licensee shall give written notice to Licensor upon commencement of installation or construction relating to the Communications Equipment. This License shall not be revoked or terminated except as expressly provided herein. (b) Licensee shall have the option to extend the Term, on the same terms and conditions as set forth in this Agreement, for up to three (3) successive terms of five (5) years each ("Renewal Terms") subject to Section 5 herein; provided that Licensee shall notify Licensor in writing of Licensee's intention to extend this Agreement at least 90 days prior to expiration of the Term or the then -existing Renewal Term, as the case may be. Notwithstanding the foregoing, Licensee shall not have the right to extend the Term hereof, and any notice by Licensee of its intention to extend this Agreement shall be of no effect, at any time when Licensee is in default under this Agreement. (c) Notwithstanding anything to the contrary in the Master Agreement or in the Standard Agreement, Licensee and SCE hereby agree that effective upon termination of this Agreement for any reason, including but not limited to non -renewal or early termination of this Agreement, the Standard Agreement shalt automatically terminate without any liability thereunder to SCE or Licensee. 4. Fees and Costs. (a) On or before the Commencement Date, and on or before thirty (30) days prior to each anniversary of the Commencement Date during the Term and each Renewal Term, Licensee shall pay to Licensor an annual license fee in an amount of Eighteen Thousand Sixty Five Dollars and Eleven Cents ($18,065.11), adjusted in accordance with paragraph (b) immediately below (the annual license fee, as adjusted herein, is referred to as the "License Fee"). (b) The License Fee shall automatically increase each and every year of this Agreement, during the Term and during each Renewal Term, upon the anniversary of the Commencement Date. The amount of increase shall be the greater of., (1) four percent (4%) of the License Fee in effect immediately preceding the increase, or (2) the annual increase in the Consumer Price Index (All Items, Base 1982-84 = 100) based upon the most recent report by the U.S. Bureau of Labor Statistics for all urban consumers in the Los Angeles -Riverside -Orange County area. Notwithstanding the foregoing, the License Fee upon which the annual increase is calculated may be adjusted prior to and effective upon each Renewal Term in accordance with Section 5 below. AT&T ES007-01 (c) Except as otherwise provided in Section 9 below, the parties hereto agree that the License Fee is fully earned on the date that it becomes due. Any refund or offset of any portion of the License Fee shall occur only as required under Section 9 below. 5. Adiustment of License Fee Uoon Renewal. (a) Following Licensee's notification of intent to extend this Agreement pursuant to Section 3 above, Licensor, and Licensee shall meet and confer regarding the fair rental value of the Premises. The parties may agree that the then -existing License Fee is less than the fair rental value for the Premises and adjust the License Fee accordingly. If the parties do not agree upon a License Fee reflecting the fair rental value within fifteen (15) days following the meet and confer date, either party may request an appraisal. (b) If either of the parties requests an appraisal of the rental value, Licensor and Licensee shall each appoint in writing an independent and qualified real estate appraiser meeting the criteria enumerated in paragraph (c) of this Section, within thirty (30) days of the request for an appraisal. If either party fails to appoint an appraiser, then the appraiser appointed by the party so appointing an appraiser shall make the required appraisal acting alone, and the decision of such appraiser as to the fair rental value of the Premises shall be conclusive and binding upon Licensee and Licensor. If the two (2) appraisers are appointed by the parties as stated in this paragraph, they shall meet promptly and attempt to set the License Fee for the Renewal Term. If they are unable to agree within thirty (30) days after the second appraiser has been appointed, they shall attempt to elect a third appraiser meeting the qualifications stated in paragraph (c) within ten (10) days after the last day the two appraisers are given to set the License Fee. in the event that the two (2) appraisers so selected do not choose the third appraiser within such ten-day period, either party may, at Licensee's expense, apply to the presiding judge of the Superior Court of the State of California for the County of San Bernardino for the appointment of the third appraiser. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. Within thirty (30) days after the selection of the third appraiser, a majority of the appraisers shall make the fair rental value appraisal of the Premises. If a majority of the appraisers are unable to set the License Fee for the Renewal Term within the stipulated time period, the three (3) appraisals shall be added together and their total divided by three (3); the resulting quotient shall be the License Fee for the Premises during the Renewal Term. If, however, the low appraisal and/or the high appraisal are/is more than fifteen percent (15%) lower and/or higher than the middle appraisal, the low appraisal and/or the high appraisal shall be disregarded. If only one appraisal is disregarded, the remaining two (2) appraisals shall be added together and their total divided by two (2); the resulting quotient shall be the License Fee for the Premises during the Renewal Term. if both the low appraisal and the high appraisal are disregarded as stated in this paragraph, the middle appraisal shall be the License Fee for the Premises during the Renewal Term. The appraisers shall conduct an appraisal of at least five (5) comparable locations to arrive at the estimated fair rental value of the Premises. Said appraisal shall be conducted at the sole cost of Licensee. For purposes AT&T ES007-01 of this Section, "comparable locations" shall be those sites determined in the best professional judgment of the appraiser, and the methodology used shall evaluate the highest possible comparable use of the Premises that the market will bear considering zoning regulations in effect at the time of the appraisal. If the appraisal determines that the then -existing License Fee is lower than the appraised value, the License Fee shall be increased in accordance with the appraised value, unless the parties agree upon an alternative amount or the Licensee withdraws its request for renewal. (c) All proposed appraisers shall be qualified to do appraisals in the State of California, shall be an MAI appraiser in good standing or other appraiser acceptable to Licensor, and shall have at least ten (10) years experience appraising commercial and industrial properties in Southern California. 6. Improvement. Installation. Early Access. (a) Final plans respecting installation of Communications Equipment and construction of related physical improvements to the Real Property ("Final Plans") shall be prepared at Licensee's sole cost and expense and submitted to the Licensor for its written approval prior to any installation or construction of Communications Equipment on the Real Property. Final Plans shall be in a form and provide such content as may be reasonably required by the Licensor. Final Plans shall, at a minimum, describe the specific location of all Communications Equipment and construction of all related improvements, including any and all utilities such as an emergency or back-up battery, transportable generator power, communications lines proposed to connect the Communications Equipment and the minimum point of entry (MPOE) or other point of presence of the telephone service provider at the Real Property. (b) Following execution of this Agreement and prior to the Commencement Date, Licensor shall reasonably accommodate Licensee and its authorized agents with respect to entry onto the Premises for the purpose of making inspections and engineering surveys and other tests and analyses to determine the suitability of the Premises for Communications Equipment, and to develop Final Plans; provided, however, that Licensee shall comply with any and all of the notice requirements or other limitations regarding access set forth in Attachment F hereto and fully incorporated herein, and that such access shall not interfere with any business or operation at the Premises or the Real Property. Following the Commencement Date and throughout the Term or Renewal Term of this Agreement, Licensor shall provide Licensee with access to the Premises as stated in Section 7(h) below. (c) Licensor shall not unreasonably withhold, delay, or condition its approval of Final Plans. Notwithstanding the foregoing, Licensor has absolute discretion with respect to approval of (i) any proposed improvement or construction not described in Exhibits C or D at the time this Agreement is executed by Licensor, and (ii) the specific location of any improvement or facility (subject only to technical feasibility). (d) Licensee shall not commence any construction at the Premises or install any equipment or facilities until and unless approved in the Final Plans or subsequently authorized in writing by the City Manager of the City of Chino Hills or his or her AT&T ES007-01 5 Initials: ®Q authorized designee. In the event that Licensee desires to relocate the Communications Equipment, or any part thereof, to a different place on the Premises, separate written approval from Licensor respecting such relocation shall be required. Any such relocation shall be at Licensee's sole cost and expense. (e) Licensee shall, at Licensee's sole cost and expense, perform all work necessary to prepare, add, maintain, and alter the Premises for Communications Equipment in accordance with the Final Plans. All construction and installation work shall be performed in a good and workman -like manner by licensed and bonded contractors, and in accordance with applicable Laws. All such contractors shall maintain insurance in such amounts, against such risks and in such forms as Licensor shall reasonably require, including naming Licensor as an additional insured as set forth in Section 12 herein. Licensee shall be required to separately obtain all necessary Approvals respecting such work by the appropriate governmental entities. (f) Licensee acknowledges that neither Licensor nor any agent of Licensor has made any representation or warranty with respect to the condition of the Premises or the Real Property or with respect to the suitability of either for the conduct of Licensee's operations. The commencement of any construction or installation shall conclusively establish that the Premises and Real Property are acceptable to Licensee and are in a satisfactory condition. 7. Operation. Colocation. and Reaulations,. (a) Licensee shall comply with all Laws in designing, locating and operating the Communications Equipment, including but not limited to the Wireless Communication Facilities Ordinance in the Chino Hills Municipal Code, and those laws and regulations that are now or may hereafter be promulgated by the Federal Communications Commission ("FCC"). Licensee shall upon request at its sole cost and expense produce evidence of such compliance. (b) in addition to any tests that may be required by the FCC, Licensee shall, in the event Licensee increases the operating output of the Communications Equipment greater than twenty percent (20%) over the initial operating levels or the levels at the time of the last test, perform reasonable tests at its sole cost and expense to demonstrate that all applicable FCC regulations governing the emission of electro- magnetic frequency radiation from the Communications Equipment are complied with Licensee shall upon reasonable request perform more frequent testing (or specific additional testing if appropriate) at its sole cost and expense if there is evidence or reasonable concern respecting compliance with such standards. Licensee shall provide Licensor with copies of all such tests. (c) Licensee shall comply with the "Technical Requirements for Third Party Colocation" set forth in Attachment G hereto and fully incorporated herein ("Colocation Rules") with respect to the initial design, location and operation of the Communications Equipment ("Initial Design") at the Premises, and in relocating, maintaining, modifying, reconfiguring or changing the frequency or operation of such equipment after it is initially installed ("Reconfiguration"). If at any time Licensor reasonably believes that 06 AT&T ES007-01 6 Initials: - Licensee is not in compliance with any provision of the Colocation Rules, Licensee shall upon request produce to Licensor the information that is reasonably requested in order to adequately verify Licensee's compliance. (d) Licensee shall abide by the time limits and other standards of approval for requests by third party communications providers ("Other Carriers") to colocate on the Premises or Real Property as set forth in the Colocation Rules, including but not limited to the following: a. Responding in writing to a proposed Other Carrier's preliminary plans and technical specifications within fifteen (15) business days, with failure to so respond being deemed an approval of the plans and specifications, as set forth in A. 1. of the Colocation Rules; b. Negotiating in good faith with a proposed Other Carrier with respect to any objections the Licensee may have regarding the Other Carrier's plans and specifications, as set forth in A.2. of the Colocation Rules; and C. Acting in good faith in conditioning any approvals of a proposed Other Carrier's plans and specifications. (e) The Communications Equipment and Licensee's use thereof shall not disturb or interfere with (i) any communications equipment, computer equipment or similar equipment of any kind and nature owned or operated by Licensor at the Real Property, or (ii) any communications equipment or use at the Real Property which is authorized by Licensor and established in accordance with the Colocation Rules by an Other Carrier. In the event that the Communications Equipment as installed and configured results in material interference with Licensor or any Other Carrier, then Licensee shall immediately terminate such interference. (f) Licensor shall, with respect to any license or other agreement entered into by Licensor with an Other Carrier after execution of this Agreement that authorizes the installation of communications transmitting equipment on the Real Property, include a provision that (i) prohibits such Other Carrier from interfering with the communications operations of Communications Equipment as it is then configured, and (ii) requires the Other Carrier to comply with all the provisions set forth in the Colocation Rules in designing, locating and operating its transmitting equipment, and in reconfiguring or changing the frequency or operation of such equipment. (g) In the event that any Other Carrier fails to abide by any provision set forth in the Colocation Rules, and if Licensee demonstrates that such failure results in material interference with the operation of Communications Equipment, Licensor will endeavor to promptly terminate such interference to the extent that Licensor has authority to do so. Licensor shall have the right, but not the obligation, to file a lawsuit on Licensee's behalf in order to terminate such interference. (h) Following the Commencement Date and throughout the Term or applicable Renewal Term of this Agreement, Licensor shall provide access to Licensee, Licensee's employees, agents, contractors and subcontractors to the Premises at all 00 AT&T ES007-01 7 Initials: C f SG— — times, twenty-four (24) hours per day, seven (7) days per week, subject to the provisions of Attachment E. Licensor hereby grants to Licensee such rights of ingress and egress over Licensors Real Property and other applicable easements held by Licensor for the purpose of access from the nearest public right-of-way to the Premises as may be necessary and consistent with the use of the Premises authorized by this License Agreement and specifically delineated in the Final Plans. (I) Subject to such reasonable rules that Licensor may in its discretion from time to time establish, Licensor shall allow Licensee's employees, agents, contractors and subcontractors to park vehicles in the parking spaces identified for such purpose in Attachment E. Such spaces shall be used only to the extent necessary for Licensee's authorized use of the Premises as provided hereunder. 8. Taxes, Utilities, and Maintenance. (a) Licensee shall be solely liable for any and all taxes that result, directly or indirectly, from the installation, maintenance, or operation of the Communications Equipment. Notice is hereby given to Licensee pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest that may be subject to property taxes levied on such interest. Licensee shall pay and discharge prior to delinquency any and all possessory interest taxes or other taxes levied against Licensee's right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this Agreement. In the event that any increase in Licensor's real property taxes results from Licensee's installation, maintenance or operation of Communications Equipment (includipg any improvements to the Premises authorized under this Agreement), then Licensee shall reimburse Licensor the full amount of such increase within thirty (30) days following receipt of a written invoice of the amount owed. Licensor shall provide reasonable evidence of any such tax increase upon request. (b) Licensee shall fully and promptly pay for all utilities furnished to the Premises for the use, operation, and maintenance of Communications Equipment Licensee shall upon request install at Licensee's sole expense a separate electric meter, and shall pay for its electricity consumption directly; if a separate meter is not available, Licensee shall pay the cost of electricity as is reasonably apportioned by Licensor. Licensee shall pay for telephone service directly to the telephone utility. To the extent that any utility is provided by Licensor, Licensee shall reimburse Licensor for the full amount of any and all related costs incurred by Licensor, which result, directly or indirectly, from the provision of such utility. Licensee shall pay as additional rent the cost of utility service provided to the Premises and attributable to Licensee's use ("Utility Charge"). Licensee shall pay the estimated cost of the Utility Charge monthly in advance, commencing on the date that Licensee first starts using utility service furnished by Licensor. Licensor and Licensee estimate the Utility Charge to be One Hundred Ten Dollars ($110.00) per month. At either Licensor or Licensee's request (which request shall not be more frequent than once every twelve (12) months), Licensee shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on the readings from the privately installed sub -meters. if the actual AT&T ES007-0 t 008 Initiais� Utility Charge varies from the estimated Utility Charges paid, the Licensor and Licensee shall adjust the Utility Charge to reflect Licensee's actual usage. No Utility Charge is due unless and until Licensee uses the utility services provided by Licensor. In no event shall Licensee's use of the Premises or Real Property interfere with existing utilities thereon. (c) Licensee shall maintain the Premises throughout the Term and all Renewal Terms in good condition, ordinary wear and tear excepted. Licensee shall not be required to make any repairs to the Real Property, except as stated in Section 11 below and except for damage to the Real Property caused by Licensee, its employees, agents, contractors, subcontractors, subtenants, or invitees. 9. Default, Termination, Remedies. (a) In the event of Licensee's breach of any monetary obligation required herein, Licensor may demand in writing that the breach be cured within ten (10) business days of the receipt of notice by the Licensee. The failure to cure such a monetary breach within the stated period shall constitute a material default of this Agreement, and Licensor may elect to terminate this Agreement immediately by providing Licensee written notice of termination. (b) In the event of a breach of any material covenant or term hereof other than a monetary obligation, the non -breaching party may demand in writing that the breach be cured within thirty (30) days of the receipt of notice by the breaching party. The breaching party shall cure the breach within said thirty (30) days unless the cure cannot be reasonably effected within that period of time, in which case the breaching party shall submit a written letter within said thirty (30) days stating an intent to cure said beach. After receipt of said letter of intent by the non -breaching party, the breaching party shall have such additional time as may be necessary to effect a complete cure so long as the breaching party commences the cure and diligently and continuously thereafter pursues the cure to completion. (c) This Agreement may be terminated by Licensee on thirty (30) days' prior written notice to Licensor upon occurrence of any one or more of the following events, in which case the unused portion of the Annual License Fee shall be refunded in accordance with Section 9(g) below. AT&T ES007-01 (i) prior to the Commencement Date, for any reason or for no reason at all; (ii) upon a material breach by Licensor, which is not cured in accordance with Section 9(b) above; (iii) after the Commencement Date, in the event that communications transmitting equipment installed on the Real Property by any Other Carrier materially interferes with the communications operations of the Communications Equipment, and Licensee is unable to correct such interference through reasonably feasible means; (iv) at any time upon receipt of written notice that a governmental or non -governmental license, permit, consent, approval, easement or 009 g Initials: restriction waiver that is necessary to enable Licensee to install and operate Communications Equipment cannot be obtained or renewed within a required time period through no fault of Licensee; (v) the Premises or the Real Property is damaged or destroyed so as, in Licensee's reasonable judgment, to materially hinder Licensee's existing use of the Premises; or, (vi) Licensor withholds consent to a transfer of the License pursuant to Section 17 wherein the transfer involves the sale of all Communications Equipment on the Premises. (d) This Agreement may be terminated by Licensee on thirty (30) days' prior written notice to Licensor, subject to the payment by Licensee of a termination fee in an amount equal to one -quarter (1/4) of the annual License Fee, upon occurrence of any one or more of the following events, in which case said termination fee shall be deducted from any unused portion of the annual License Fee and the remainder of the License Fee shall be refunded to Licensee in accordance with Section 9(g) below. (i) a material change in circumstances that, for economic, environmental or technological reasons, directly causes the Premises to no longer be appropriate or suitable for Licensee's operations (including without limitation any ruling or directive of the FCC or other governmental or regulatory agency), regardless of fault; or (ii) a communications facility or other structure is erected or installed in the immediate vicinity of the Real Property and materially interferes with communications operations of Communications Equipment, and Licensee is unable to correct such interference through reasonably feasible means. (e) In addition to the express provisions of Section 9(a) above, a material breach of this Agreement shall include, but not be limited to, the occurrence of any one or more of the following events provided that the failure of Licensor to enforce any breach of this Agreement shall not constitute a waiver of its future right to enforce said breach: (i) the failure by Licensee for any reason to obtain and maintain any necessary government license, permit or approval, or failure to satisfy any condition of such license, permit or approval; (ii) the failure by Licensee for any reason to install, construct, operate or maintain the Communications Equipment in accordance with applicable Laws; (III) the installation, removal, or reconfiguration of any Communications Equipment by Licensee without Licensor's prior written approval; (iv) any assignment or attempted assignment of Licensee's rights or obligations hereunder except as provided in Section 17 below. (v) the vacation or abandonment of the Communications Equipment or the Premises by Licensee (abandonment shall include without AT&TES007-01 10 Initials:� 0 0 limitation the failure to maintain operation of the Communications Equipment for a period of ninety (90) days or longer); or (vi) the making by Licensee of any general assignment for the benefit of creditors, or the filing by or against Licensee of a petition to have Licensee adjudged bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Licensee, the same is dismissed within thirty (30) days), or the appointment of a trustee or receiver to take possession of substantially all of Licensee's assets located at the Premises or of Licensee's interest in this Agreement (where possession is not restored within thirty (30) days); or the attachment, execution or other judicial seizure of substantially all of Licensee's assets located at the Premises or of Licensee's interest in this Agreement (where such seizure is not discharged within thirty (30) days). (f) Except as provided otherwise in this Agreement, in the event of a default by either party hereto, the non -defaulting party shall have in addition to its right of termination, the right to any other remedies available at law or in equity. (g) In the event that Licensee elects to terminate this Agreement pursuant to Sections 9(b), 9(c) or 9(d), Licensee shall remove the Communications Equipment and restore the Premises to its condition existing on the Commencement Date (ordinary wear and tear excepted) within thirty (30) days of Licensor's receipt of the notice of termination. In said event, Licensor shall return to Licensee any unused portion of the annual License Fee from the date of effective termination or the date upon which the Premises are fully restored, whichever occurs later, less any termination fee if applicable. (h) In the event that Licensor elects to terminate this Agreement pursuant to Sections 9(a) or 9(b), Licensee shall forfeit any unused portion of the annual License Fee. Upon such termination, Licensee shall remove the Communications Equipment and restore the Premises to its condition existing on the Commencement Date (ordinary wear and tear excepted) within thirty (30) days of Licensee's receipt of the notice of termination. if Licensee fails to restore the Premises within said thirty (30) days, Licensor may recover from Licensee all costs reasonably necessary to remove the Communications Equipment and restore the Premises in accordance with Sections 11 and 15 below. (i) The provisions of this Agreement which by their sense and context are intended to survive termination (including but not limited to the provisions of Sections 9, 11, 12, 13, and 16) shall survive termination. 10. Condemnation and Destruction of Premises. (a) If the whole of the Premises (or any portion thereof which renders the balance of the Premises unsuitable for Licensee's normal operations) are taken by any public or quasi -public authority by condemnation, or sold under threat or in lieu of any AT&T ES007-01 11 Initials: Ugo 11 �k — such taking, whether separately or as part of the Real Property, this Agreement shall terminate as of the date possession is delivered to the condemning authority. Licensee shall have the right to any award specifically designated as compensation for Licensee's interest under this Agreement, the cost of removal of Communications Equipment or any other amounts recoverable under condemnation law. (b) If the Premises or the Real Property is destroyed or damaged so as in Licensee's judgment to hinder its effective use of the Premises, Licensor shall use reasonable efforts to make available to Licensee within five (5) days a temporary site on the Real Property (or on other property owned or controlled by Licensor) which in Licensee's reasonable discretion is equally suitable for Licensee's use and subject to reasonable conditions regarding use and appearance. Licensee may construct, operate, and maintain substitute Communications Equipment thereon until the Communications Equipment is fully restored and operational on the Premises or for a period of eighteen (18) months, -whichever is sooner. 11. Removal of Communications Eauioment. The Communications Equipment and any articles of equipment placed on the Premises by Licensee at its sole expense shall be and remain the personal property of Licensee and may be removed by Licensee at any time during the Term or Renewal Term; provided that Licensee is not in default hereunder, and; provided further that Licensee shall repair any damage caused by such removal and shall restore the Premises and Real Property to its condition existing upon the execution of this Agreement less ordinary wear and tear prior to expiration or earlier termination of this Agreement. If Licensee fails to remove all of its effects from the Premises upon termination of this Agreement for any cause whatsoever, Licensor may, at its option, immediately remove the same in any manner that Licensor shall choose and discard, sell or store said effects without liability of any kind for loss thereof, and repair and restore the Premises and Real Property. Any Communications Equipment lawfully removed by Licensor pursuant to this Section shall become the sole property of Licensor. Licensee agrees to pay Licensor upon demand any and all expenses incurred in connection therewith, including court costs, attorneys' fees, costs of removal, storage costs for the length of time they shall be in Licensor's possession, costs of repairing the Premises and Real Property, and costs of sale. 12. Insurance. Without limiting Licensee's obligation or (lability under Section 13, during the Term and any Renewal Term, and thereafter until the removals required under Section 11 are complete, and prior to the Commencement Date if Licensee enters the Real Property under Section 5(b), Licensee shall maintain, at its own expense, commercial general liability insurance (including contractual liability), including Licensor as an additional insured, providing coverage limits of not less than $1,000,000 per occurrence and $1,000,000 annual aggregate, insuring against any covered liability of Licensee and its employees and agents arising out of and in connection with the installation, maintenance, operation and presence of the Communications Equipment on the Premises. Commercial general liability shall be issued with companies having an AT&T ES007-01 12 Initials: V2 4W - A.M. Best Company rating of A- VI or better. Licensee shall provide to Licensor an endorsement of insurance prior to the Commencement Date and at any time upon request. 13. Indemnification. (a) Licensee shall indemnify, defend, protect, and hold harmless Licensor and its officials, agents and employees from and against any and all claim, cause of action, demand, injury, damage, liability, loss, cost or expense, including but not limited to reasonable attorneys' fees (collectively, "Claim") that arises out of or is in any way related to Licensee's use or occupancy of the Premises, including without limitation the installation, construction, maintenance, operation, or removal of the Communications Equipment; provided, however, that this indemnity shall not apply to the extent that any Claim solely results from the gross negligence or willful misconduct of Licensor, its public officials, agents and/or employees. (b) Licensee shall, promptly upon request by Licensor, cause any mechanic's or materialman's liens filed in connection with any work done on the Premises or the Real Property by or at the request or direction of Licensee to be released by posting an appropriate release bond therefore. (c) SCE shall, promptly upon request by Licensor, cause any mechanic's or materialman's liens filed in connection with any work done on the Premises or the Real Property by or at the request or direction of SCE to be released by posting an appropriate release bond therefore. 14. Limitation of Liabilitv. (a) Licensor shall not be liable to Licensee or SCE, their affiliates, or any of its or their directors, officers, partners, shareholders, agents, employees or contractors for damage to the Communications Equipment or any other property belonging to Licensee from any cause, except for any damage caused by the gross negligence or willful misconduct of Licensor, its employees, or agents. (b) Licensee and SCE waive all claims against Licensor and its employees for damage to persons or Communications Equipment or Licensee's property arising for any reason other than a claim based on the gross negligence or willful misconduct of Licensor or its agents or employees. (c) Licensor, its officials, agents, and employees shall have no liability for any interruption of utility service, except to the extent caused by the gross negligence or willful misconduct of Licensor or its agents or employees. (d) Licensor and SCE acknowledge that under no circumstance, including but not limited to condemnation or breach of this Agreement, shall they be liable to each other for any incidental or consequential damages, including but not limited to any loss of income, business or profits, arising out of the use of the Premises under this Agreement or any party's performance or non-performance under this Agreement, even AT&T ES007 01 13 InitialsC��� — ®1 if such party has been advised of the possibility of such damages. Licensee and SCE acknowledge that under no circumstance, including but not limited to condemnation or breach of this Agreement, shall they be liable to each other for any incidental or consequential damages, including but not limited to any loss of income, business or profits, arising out of the use of the Premises under this Agreement or any party's performance or non-performance under this Agreement, even if such party has been advised of the possibility of such damages. (e) Licensor shall not be responsible to Licensee for any damages, losses, or liability of any kind occurring by reason of anything done or permitted to be done by any third party, including without limitation any and all damages, losses, or liability arising from (i) the issuance or approval by the City of a permit to any third party, or (ii) any interruption of services provided by Licensee at the Premises due to any third party failure to abide by FCC regulations, Colocation Rules, or any other applicable Laws or agreement with Licensor, or (iii) any action taken by a third party in respect to the Colocation Rules. (f) Licensee and SCE acknowledge and agree that the Other Carriers shall not be deemed Licensor's agent or employee for any purpose. 15. Performance Bond. Prior to the Commencement Date, Licensee shall deposit with Licensor a performance bond in the amount of Ten Thousand Dollars ($10,000) or provide such other security instrument as may be approved by the City Manager in writing. This performance bond or other security shall be used to secure the faithful performance by Licensee of all of the work, construction, installation, payments, removals, terms, covenants, and conditions required by Licensee hereunder within the time periods set forth herein. Any performance bond shall be in a form approved by the City Attorney. 16, Hazardous Substances. (a) From the date of execution of this Agreement throughout the Term and any Renewal Term, Licensee shall not use, store, manufacture or maintain on the Real Property or Premises any Hazardous Substances except (i) in such quantities and types found customary in Communications Equipment operations as is identified on Attachment H hereto and fully incorporated herein, or (il) petroleum and petroleum products contained within regularly operated motor vehicles. Licensee shall handle, store, and dispose of all Hazardous Substances it brings onto the Real Property or Premises in accordance with applicable Laws. (b) For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean AT&T ES007-01 14 Initials: d 14 Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 at seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 at seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time to time may be amended, (the above -cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. (c) Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Licensee set forth in Section 13, Licensee agrees to indemnify, defend with counsel reasonably acceptable to Licensor, protect, and hold harmless the Licensor, its officials; officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the Licensor, or its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the Real Property or the Premises provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Real Property or the Premises. This Section 16 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify Licensor for any claim pursuant to the Hazardous Substance Laws or the common law. (d) Licensor and SCE each respectively agree that it will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about, or within the Real Property or the Premises in violation of any law or regulation. Licensor, SCE and Licensee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section 16. This Section 16 shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Licensee shall surrender and vacate the Real Property and Premises and deliver possession thereof to Licensor on or before the termination date free of any Hazardous Substances released AT&T ES007-01 15 Initials:, rJ into the environment at, on, or under the Premises, which are directly attributable to Licensee. (e) Notwithstanding anything to the contrary contained in this Agreement, Licensee shall not be responsible for any Hazardous Substances which pre-exist the date of this Agreement. 17. Transfer of License. (a) All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. This Agreement and the rights and obligations of Licensee or SCE hereunder shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, by such party without the express written consent of the Licensor, which consent shall not be unreasonably withheld, delayed or conditioned. Any attempted transfer in violation of this Section 17 shall be void. Except as provided below, the transfer of the rights and obligations of Licensee or SCE to any successor in interest or entity acquiring fifty-one percent (51 %) or more of Licensee's or SCE's stock or assets, shall be deemed an assignment requiring Licensor's consent hereunder. Licensee shall provide Licensor at least thirty (30) days advanced written notice of any proposed transfer. (b) If Licensee or SCE desire at any time to effect a transfer, it shall first deliver to Licensor (1) a written request for approval, (2) the name, address and most recent financial statements of the proposed transferee and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of Licensee or SCE, as applicable, under the Agreement arising from and after the effective date of assignment. (c) Notwithstanding paragraph 17(a) above, Licensee may, without Licensor's prior approval and in Licensee's sole discretion, from time to time, do any of the following: (1) grant to any person or entity a security interest in some or all of Licensee's Communications Equipment and/or other personal property of Licensee used in connection with the Premises; and (2) assign financial and/or operating interest in Licensee: (i) to Licensee's parent company ("Parent") or any affiliate of Licensee ("Affiliate"); (ii) to any entity with which Licensee and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of Licensee or any Affiliate; or (iv) to the holder or transferee of the Federal Communications Commission ("FCC") license under which the Communications Equipment is operated, upon FCC approval of any such transfer. Any such assignment shall not be effective until the assignee signs and delivers to Licensor a document in which the assignee responsibility for all of Licensee's obligations under the Agreement arising from and after the effective date of assignment. AT&T ES007-01 16 InitialsL4��"— 0 ,- 18. Title. Licensor warrants and represents to Licensee and SCE that (i) Licensor has full authority to enter into this Agreement and to grant the licenses provided herein; (ii) Licensor has fee title to the Real Property, subject to those matters affecting title shown in Exhibit A and, to Licensors knowledge, there are no undisclosed liens, judgments or impeachments of title on the Real Property that affect this Agreement. 19. Licensor's Non -Interference. Licensor agrees that it will not, without Licensee's prior written consent, cause or knowingly permit any interference with Licensee's use of the Premises as authorized in Section 2 hereof; provided, however, that any colocation required by Licensor or requested by an Other Carrier in compliance with the Colocation Rules, the provisions of this Agreement, and all Laws, and any legal and continuing use, operation or business of the Premises or Real Property existing at the time of the date of this Agreement, shall not be deemed a cause or knowing permission of interference by the Licensor under this Section 19. Notwithstanding anything in this Section 19, however, Licensor's liability is limited as set forth in Section 14 of this Agreement. Moreover, nothing in this Agreement restricts, modifies, or affects in any way the Licensor's rights to enforce its Code, including its Wireless Communications Facilities Ordinance, revoke or suspend any permits or approvals given to the Licensee, or hold any hearings in connection therewith, and such enforcement shall not be deemed an interference with Licensee's use of the Premises. 20. Miscellaneous. (a) If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement shall not be affected thereby and shall continue to be valid and enforceable to the fullest extent permitted by law. (b) The waiver by any party of any breach or violation of any provision of this Agreement shall not be deemed a waiver or continuing waiver by that party of any subsequent breach or violation of the same or any other provision of this Agreement. (c) Any notice or demand required herein shall be given personally, by certified mail, postage prepaid, return receipt requested, or by reliable overnight courier to the address of the respective parties set forth in paragraph (h) of this Section. Any notice served by certified mail or by reliable overnight courier shall be deemed delivered on the date of receipt as shown on the certification of receipt or on the date, receipt is refused as shown on the records or manifest of the U.S. Postal Service or such courier. Any party may from time to time designate any other address for this purpose by written notice to the other party given in the foregoing manner. (d) In the event of any dispute or legal proceeding between the parties arising out of or relating to this Agreement or its breach, the prevailing party shall be entitled to recover from the non -prevailing party or parties all fees, costs and expenses, including AT&T ES007-01 17 Initials: Y- pXZ_ 0- but not limited to attorneys' and expert witness fees, incurred in connection with such dispute or legal proceeding, any counterclaims or cross -complaints, any action to confirm, correct or vacate an arbitration award, any appeals and any proceeding to establish and recover such costs and expenses, in such amount as the court or arbitrator determines reasonable. Without limiting the foregoing, any party entering a voluntary dismissal of any legal proceeding without the consent of the opposing party in such proceeding shall be deemed the non -prevailing party. (e) This Agreement shall be governed, construed, and interpreted under the laws of the State of California. This Agreement shall be construed as a whole and in accordance with its fair meaning. This Agreement shall not be interpreted or construed against the party preparing it. (f) Except for the Master Agreement and Standard Agreement with respect to SCE and Licensee, and except for SCE's easement referenced in Recital (b) with respect to Licensor and SCE, this Agreement including all attachments and riders constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements, written or oral, concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement shall be effective only if in writing and executed by all parties. (g) Licensee shall reimburse all costs of Licensor, including attorneys' fees and costs, incurred in the preparation and review of this Agreement, Attachments thereto, and any related approval or document necessary to the execution of this Agreement, not to exceed Two Thousand Five Hundred Dollars ($2,500.00). Such costs must be paid to Licensor prior to the Commencement Date and prior to approval of any Final Plans of Licensee. (h) Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (ii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To Licensor: City of Chino Hills 2001 Grand Avenue Chino Hills, CA 91709 ATTN: City Clerk Tel: (909) 590-1511 Fax: (909) 590-5646 ATU ES007-01 18 Initials: C4(' 0 18 To Licensee (for regular mail - First class or Certified): New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration o� mnnn �-�. ES - o t Re: Cell Site #: ter, oaa7 Cell Site Name: Peyfon Or;ve Fixed Asset No: -189Ch9z^9-S i o I o0061 PO Box 1630 Alpharetta, GA 30009 If to Tenant (via overnight mail- FedEx, UPS, DHL, etc...): New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site #: 1+ 50001- 01 Cell Site Name: Fey}-ev, Fixed Asset No: Ifle682+13- to 10006 t 12555 Cingular Way Alpharetta, GA 30004 with a copy to: New Cingular Wireless PCS, LLC Attn: Legal Department Re: Cell Site#S�Es000'7-0 t Cell Site Name: Pey&an Drive Fixed Asset No: 4-9eCs62ts} Io I 0006 I C,1 o 340 Mount Kemble Avenue U� Morristown, NJ 07960 To SCE: Southern California Edison Co. 2244 Walnut Grove Avenue Rosemead, CA 91770 Tel: (626)302-4002 Fax: (626)302-1429 (i) All statements provided in the Recital or Preamble to this Agreement are hereby incorporated as a material part of this Agreement. Q) The person or persons executing this Agreement on behalf of Licensee warrants and represents that he/she has the authority to execute this Agreement on behalf of the Licensee and has the authority to bind Licensee to the performance of its obligations hereunder. AT&T ES007-01 [Signatures on Next Page] 19 Initials:o 9 IN WITNESS WHEREOF, the parties have executed this Agreement as of , 200 . LICENSEE: New Cingular Wireless, LLC, a Delaware limited liability company By AT&T Mobility Corporation a Delaware corpor ion Its Manager Greater Date: Market SOUTHERN CALIFORNIA EDISON, a California corporation By: e "-iA L) - C. KeV' KrAusffaar Manager of Property Acquisition Operations Support - Corporate Real Estate Dept. Date: LICENSOR: THE CITY OF CHINO HILLS, a municipal corporation Name: By: Name: Curt Hagman Title: Mayor ATTEST By: Mary McDuffee City Clerk APPROVED AS TO FORM: 0 Mark D. Hensley City Attorney Date: 20 Initials: �KK d 4 — AT&T ES007-01 ATTACHMENT A LEGAL DESCRIPTION OF THE REAL PROPERTY The Real Property of which the Premises are a part is described as follows: Lots U and Z, inclusive of Tract No. 13250 in the City of Chino Hills, County of San Bernardino, State of California as per map recorded in Book 214 of Maps, pages 41 through 51 in the office of the county recorder of said county. AT&T ES007-01 21 Initials: CM0 2 1 AT&T ES007-01 ATTACHMENT B ORIGINAL GRANT OF EASEMENT AND ROAD EASEMENT (ATTACHED) B-1 Initials: l.K e - .. ... (&VriYlly, 61 Tm Dcam (110,00), shwbl now a (Im U'at'id BWA bt -to " BOUTUMN Wz ad fh*o,bcway to a*& mw an "Owo tmWm UZI oomilamr, cc P, li�f OPw 4to In MbbW % "'. . - . � . I R. 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AWAW U*a of esptean rr fuNmmabk materigi, irltbttn the nth tight of Mtr p To Ot W wag &s1twu to Wnwi w,toowoplakmtf the vxbtr, to woalasws or%mu", a memw w dWieg tosam tra wmfrbn Une.7unw}htgnntogry4he{:y w xUlm, "I slow orchud or Othertrrw ., mitldsth�ob�yrAtlot"M light of wayswp,they shad ma mmtt lheeameta attan shotghthr Vessel ' iF ".F•'1�..:.:._.1-0 abavF "Wo —hq of the V99". ,'amd f-ales say sat"; ",!'g:et,.j t�mae . tsMrtaW .ald aatat, gam the trsaMtikstoe.rgrypr!!!!A4'+h+g,�+,tt!?47!t,tuW.1�F,W , same in crav to magtafa led height'W ft 6t far*w amcgomd AW Arrmd that •so Otte euemmt m wmomL shW be paabd .. b, Oman or ew WW atrtp'to 4"by"�til'gtAotw'ti }4aw'tMdoe mrphMlYld irfflbYt•fiU:'.: ;.%� proWoia Wrlttw eauwtldaotd tlaabn ''•:. .. . � • , Orentoo Well hseo the right to err aYisttne routs mmd m). amen adatklo• tieroto, an has hale of the Qrwtors, so ,boll be ewaonteor, ont momsss,rs to the a mtoseo ten of sotA idgart at Roy. She Qzemtars grant W,tb Orent"i Sts.ammaoaora mad "lips, siw right in rim of rnd W' rep AM trbaod w topped'ry sod sparse,, on the'].'rAwat the Qrentdrs s,U,awt' W ..Ovid rfght of W mtrip fora ASatabDe'of 73 toot faun the s to.rlor hews at the x'4ht of %q wtri9, to anoh bxisbta u In the at X"Ot at the Qranteel its aOxaowra sod auS,saso shell be rossmAz,y mecoras{y fjr! :f°P!r Sat •ops t�,om„wad In._, con" of utd . eleotrlo liras, hot Jo w'port amti�tidf 'p1'risht� o�t'iiy� `rttigt've. heistrt log, then OD Net zo is t«itrotwd "a sgr000d that tb oramt of tb" Waeseub door not om vsr to the or Of tbo OrautM: T t 024 fa ,-*45 .ate stitri'a�' ' �, $otiw awa+taOP'a,�Qai sw*+e� ) .. �� ""�...,�. sue- , '� ,-���•:� � 52..._^ qw WWI stage t)f'_.., ._:-•.i • '.. iris-� s�e�. m'' . ,. Oa. �iNU+.15"i.-Y�Pmtth°c*bb bt aom Vol _ nb Yd tM f..,Wt 'f yto mu-Y i°'�YN� ��ytx1 tha Ynx, �ppwl�d!{a b� loF � t �hps}u3'm1�ajC�x�!a' CoontP �yJLCNta.4'dt a�tteyAa /f" AaWf l k it 6C1+R'e qF 9omul" 6vtinA a!9 CWRM• pg.�•.-----..--"",� .. „ja,tW Ya!T aauthuwasd,, gala `}: ,. �Wa,�aaow`w' Na aa�jItwiwwcalimwfa+�''`.°,«tic,bia�tm*"'ea"ai°!� etF�t�• • Aamt6d In am VO" to be tLa owtol to Hama— � bw1 afd tN+t tlN4f 85"t"090* t !� ffuN .• `�. f� WNt ' auewl .-.-r p Yyary;bvw� � .w?10cata f?ft s `, . ,poeSde ia� � y..y- abwa' FSAA:E N0 7k;lt OATS R04.110. 265nl I0-11-2a 0-7011 r; xm 9gg19 * rALtte101A WORN COWM Uu r-r`RW ; ra -i rrzf lMirr rcan oast Amin ;aromas twn TO IR�Ep + RECp ateafOa rALraOtafA IDPgG CaCl"af ' 28 ssr. �s.__cn �o_._ d jl P.O. Ras tip + ShN 9CRNA )silo n1aDB, cA total f ( ( � td, ��N�D(N(7 At%, atA6 Taal. DIM., WAD E7a. -Wax wort. nds UK Has arrmaIs 0a0.-_-.---- maRei,at ilu6YaTm�n1'R�1^�RUZIaOF M0.gi #1'+ln. —!lA [gallla a I111i TN16 Lf11 Walt Asa 3Jy.,;L�/nKLLaaAKri taUetMG Af i�r/l,E��£KtLpJ�tS� � 1@M(1A�3f G['IA?ANf'6pI11�TR. TI MI�i14R Location) Vrincorparated Area A.P.N. 1017-141-23 ROAD EAUXENT RICIMNO AMERICAN BOXES 0E CALIPuRBIA, INC., a Colorado corporation, does heraby grant to Sou ickgo CALiromiA EOISOS cmmANY, 4 corporation, its succerNarS and aemigns, hereinufter called Grantee, an emeeeent and right of Pay to eonatt Act, recon3truct, us&, maintain and repair a rnedMay in, on, over, along and scrota that certain real property in the County of Ban Barnaraino, State of California, descrabsd as follows: That portion of Lot 1 of Tract 12972, sin recorded In Book 19S, page 23 through 30, ineLuaivn, of Maps, it, the office of the County Recorder of Said County. EEOIFNTRG at a One -loch ifae pipe, tagged RCE 2737E met at h the accepted Rortneast 10"Ar Of said Lot 1; thence South 0. 02' 04^ Meat, 15Y. 7-1featmeasured along the Easterly line of said Lot 2 tb the True point of Beginning; thenct North AY- 57' 56• ffi u want, 273.17 feet to a point, said pant being in a non-tenDent curve, concave to the Neat and having a radius of 77.00 feet, a radial line to amid point bears Barth 76• 25' 31• East; thanes Southerly along Said curve, through a central angle of 30- 09' 26', an arc distance of 40.52 fast to the beginning of a reverse asrvo, oobc34b to the East Rod having a radius of 50,00 feet; .,b thence Boutherly, 'along said last mentioned curving through a 1 central angle of 24• 01' 21-, an are distance of 20.96 feet) _ thenct tanpeut to said last Routine*, outve, South 07• 2'n' 24• East, 166.27 feet etto th Horthwaatarly line of that oertaib A " easeyed to Souchern California Ediaon a: b Company. recorded August 26, 1941 in Book 1493, page 37D of tj official Records in tha office of eeiC County Recorder; thence 66 along said Northwesterly line, Borth W 48' 39• East, 244.95 5 feat; thence leaving said Northwesterly line, South 95- 10' 56` Beat, 3D.93 test to said Easterly libel thence Rortt, 0. 02. 04" Lott, 127.72 feet neacured along Said Easterly line to the True Pont of Beginning. Roaf Lasseter -, _ Aiahwnd Amerisen roaae of Lalitornia, Inc., a Ooiaredu Corp., be, d.C.S,co., a Corp. Serial No. col 12A r. In khd event that public road$ are eonutrnetod, which in Us role opinion of the Orrntse, its auooesaors ar Resign$, will provide Orentaa with Samoa an convenient and adequate at that which -* Orentea, its successors cr aneigns, mey then be U9ing, Orsntek, its succetaars oz &Reign, agree to gottalaim any tuah portion or portions of the rights herein grant" which are no longer required _ hereunder as may be datermi�nnud by Crantre, its succennorn or assigns. TKa =VCOthis AL.f_»aay of 77'114C- - cP.LT ORN IAA, i!NWCC., a Colorado _jd %.,LvV._aeeretarY NTATF. OF CALIFORNIA S on. Cat"= OF ,Y >,d_r,�_____,) d� 1 on this _n any of .?aN6 bafnm Me, a Notary Fuibli;�a and for said Stars, ally only tomeappeared( r,S0� R. a Yt�_ , evidence) known to me (or proved to me on ow basic of astiatwtoiy evidence) v ba ' m )'� Pe 6ito me and '% rsitt7DMb�[_, personally knue tc ma (or proved et ea on 'hu boais a can Sontezo evider:oe) io ln dear; tion secretary of Aichse'd Mexican Nome$ of Celi :urnia, lnc., th,; eoiporeti on cent oeeouted the within iaatrunent, personally known to me for proved to M on the basis of satisfactory evidence) to on the perwana vho maouted the "!thin instrument c;i bahalf of the corporation bfra.n named, and acknowledged to OR that such--orporatien oxanuted the sou, pursuant to Ste by-Iawa or a resolution of its board of directors. wITWAS my hand and official semi. LHOFFICIAL SEAamazei INMnV[B y iM 027 MAI- 'IP ATTACHMENT C DEPICTION OF THE PREMISES (SEE EXHIBIT D) The Premises consist of those specific areas described/shown below where Licensee's communications antennas, equipment, and cables occupy the Real Property. The Premises and the associated utility connections and access, including easements, ingress, egress, dimensions, and locations as described/shown below, are approximate only, and may be adjusted or changed by Licensee at the time of construction to reasonably accommodate sound engineering criteria and the physical features of the Real Property. Approximately one thousand eighty (1,080) square feet of space for placement of Licensee's communications equipment, plus space on the existing structure for the placement of antennas, any required airspace, and space for cable runs, conduit and cable trays necessary to connect communications equipment to antennas (collectively the "Premises"), and an unimpaired, non-exclusive easement and right of way in and over the common areas of the Real Property and the following portions of the Real Property (collectively the "Access Areas"): All areas providing physical access by personnel, equipment and utilities including, but not limited to, ramps, loading docks, walkways, staircases, and ladders; the existing structure on which Licensee's equipment is installed; and all utility ducts and conduits (including telephone and optical conduits) and other means by which power and communications signals may be delivered to or from the Premises. Notes: 1. This Exhibit may incorporate a land survey or Site Plan of the Premises once it is received by Licensee. 2. Setback of the Premises from the Real Property's boundaries shall be the distance required by the applicable governmental authorities. 3. Width of access roads shall be the width required by the applicable governmental authorities, including police and fire departments. 4. The type, number, and mounting positions and locations of antennas and transmission lines are illustrative only. Actual types, numbers, and mounting positions may vary from what is shown above. 029 AT&T ES007-01 C-1 Initials: UiL awr M. !' WXR/MCO TRENCH 2 y,ST I fv$ . �. �._ ,.. .IY'S52 _ �_— -. A9'f9�� �$ _..a+-J ��t "' 3.SI,tCOI� 3Sgca"s .b9d• Nlay}uYs p itigt C � a>e wFaaAnpx _ARi i`W'aP ,Yt1ynR: � atlxN 0•� zf a° xar ' t 1., x % \ f to dme-wzlw T!!i fJ'"��uY 1� YflPA PF➢=4Gt r 1++ 1 // I / R1 SLE 1PNt5FMM Z • 1 o l s ! a It ! NE1v I 0 O xEw i_r roc •' `�4' E'i (P6NFIQ --tip SITE PI,JI(,j F-Irl- 890TOPj'& r 10D= I 3`4 p RIItBLOOpgg7gCA• c�rnTic�v, � F 1 PLAN ar � HI1Pu _AM1EMNpE IASTA R �er�, i<p[ryti�ON, CbiNO W�. LAt �t)d9 9R P�, A-9 ATTACHMENT D INITIAL PLANS REGARDING CONSTRUCTION AND IMPROVEMENTS, AT&T ES007-01 (ATTACHED) D-1 Initials: C - V- ® 3 1 c\z > N \ \ � raors[wn urmomcx \\ \ him O him M rcnintt ra o xRrX;wG x \ Ana PMNE um. av p.6 / ------------------ 4�PE \ �'b- � / WI ws I mttnm Itt � \ `\ XEWNA'E WW. \ �\ �• io \ � \ i ! ' /' • (P-aa:�nmmf (m Nf`u S V8Wfl5 \ � Y T I Y Xnv WNtl6IE `;`,'�. Swt EMS sus SUPrECE. \ . \'S t xnr uETu ccrx soPE / \ A / SEE oErq: /h_s / _ _ _ — \ o =� / ✓ u/c m[x asp ° III / .,•" Ie mix ueus uaa+Eo oPVNmwm PER n . \ / t SECTOR 'C IDLg Sm TOWER '{ 1 VMT 1941 41 / t d XEW N[% rear c 1¢*u SXRwo ms [Ec , ggCI,�R �• / Xfx R) Pµ4 PWmTD 255n � YhiM hMhN.4 WL �/ / E1A110.6'1g7 m O PROPOsm .unENNA / \ � �SS000l-Of-32 .wxhr mw sEcmx m mX 'e' PNRE WE TOWER >NI£NNh INSThiLTION Y Et p� p� pgy[ 98C•A t�i}IW°IiutS�G: 9I]Av / � __ __ �._ ._. .� __ __ — EQ CWIB:NE l[G b� ice"oo. m / O sax ON a ENO \ COWTRUCNON PLAN PEp SEE f/h-$ SITE PLAN '•° r i 11 A-2 ATTACHMENT E COMMUNICATIONS EQUIPMENT AND OPERATIONAL CONFIGURATION, (ATTACHED) AT&T ES007-01 E-1 Initials: - Y 033 Q NORTH ELEVATION . 1rM WEST ELEVATION Iq Y30-Ti �DNEa�� I -YEW fE� PY1El SECTDY w PANt NOIE ON SNEET �-1 96CY9R Teo^ Eca SOUTH ELEVATION I fEJ Ym-tz WW/Y SB hYE SCE T. A [A IkIXIA\ EAST ELEVATION ReP.V .Ixim .. am aeaenn m WIWI Erg Y tlIX1ID EYE 1N —4� m E9000T-01-02 n rw SCE TOWER INIEN,W INSTILLATIDN iffis R ATIONS �- 4-3 PMEI�� VStttCSS k���� 0 gI�B'8XR PPFMd°1 �3 ��, }1 Y __...... •o oetf>fL ANSENNA �Y m FTcf➢HURE 1i i898 N88 M1WK itH.e � /y a � HiP 855 £WHPLLfMf ��ER � 4P£(5) �.t.f Col lWKK6vID Pul. >jA-8 CROSS BEC710N ass 11aE aL�p y�M1NrrGT� l� a¢a1H xf 1d xLLao�s n 1 I t I I I X ate` 0 ppgg tj n tj r 19i 4 NfN,e �i�ESpROT-6t—eR ANiE19 mmmI N_ Ap E,{. ➢iiDe (E5 YMM3 wUI4ATtON ¢SURE V^u�fm �- ,12 A ,ram- poo, l 'j� x s� L � YN1W�Of�� pFlp. W yµ r � PK14'Y 0 ttt y�pyN..4WN�G �E 6 gv W WOO �m P f � t��S��..�iC�R tF* IRw"W'�j[ PPoOA gyp NOt,H �` 4PO�E `�sl� y" L51P�'iry�' '' um1tlO1rir o"`""Oww II =ON, Id. \� wrt n+xRw—� ro�u raa min MKM Inn _ 1 1Ii I�II�III iI I NEW ANTENNA MOUNT AT EXISTING SCETOWER LEG 411=115 te..�� SEV. (eum iuq. tw¢ uvfxs of f1uLmPll. T+ic a =TO COAT (sxoxw 8a ) ULnvD u[ i9IEP j4 �M STEP/1 5i[p p+1 Sn➢%] mA1w�p[M b[No> m en 1. COMRV.iCA TO nwO OMP IMRS N == Au0 A, P s YMme NECESSVM. O..W ymCl. A Nt um,K, .] ro HE NVE m o@1 sPEdMAnoxs. B. MW.. EILCniWl TA 9 WRx FX41 fl0 OF CINE M'D F/LX d0 OF JUWds As Ow- m GCx AS "Wo" (.w TO UMFE E I M NFANFAPROC{MO}. C. IN N' OIIIQV TO V Y.WpNES. EtCH ENO Of EWIY MIF sWiL LL5O at VB6£O NRN 5$ . Pd PION 9 tclflCAnWE. a. 1-02wRo,. GtWIYt G 9IFFOAT WINE mum ro WFF COf%'X MIX vFinaTIMIS Omm.. sro• ON CENTER}. Ifn'CM Oi Cl9lE Rux I nN2lEG CF GOYS I WAL 8EN0.0 m ]'-o{ B'-O•, e'-B• a W I in.. I I Ilea SYPEPFIfX J Oqm . ]'-Bseed• k l0•-0• f i/1•. 'e P R.S NYP S R 0' iNU iro'-0' � l/8•a IW-w IFOu mw-P I sro a 11' CABLE AND CABLE WATERPROOFING ftns wmI ro eE wsrwm OFINOM OF 7G a... srtx. YwWUN Ve S M411 NONCOM wanRw OF sn (B) i• �'OURe. YINIYUY OF 6' G CMN,NIM GYYStHdf ON "m DES of roxouns NIM ON TNN¢ =a stE TOMp 1E4.` OF C0.VWn M TOWER F ; �`, coAx mxmm 'kt � � s" $ SCE Ttib'ER tP0 YJFI) 14 COAXCABLEATCONCRETEENCASEMENT FlglK1A9r ovoRYNnW �aN WC iJY4i Y[MRYO Ytl ovRv m Be a¢.wn rvl m Yvl vH 1 Y.LbOv Iq ]�FLN'6N9M 'uY I � � � I I w �FL�Rtt `V w � X O i, iI ( 0 v � ESOOOI-Ot-EZ SCE TOWER �t�HTEENplt�aylTN4�TylgtUpTryiO[N C NO IW15. U. 91T09 oETa}s �a A-7 i 2 ATTACHMENT F ACCESS RESTRICTIONS AND REQUIREMENTS This section deleted in its entirety AT&T ES007-01 F-1 initials: M1 0 3 S ATTACHMENT G TECHNICAL REQUIREMENTS FOR THIRD PARTY COLOCATION These requirements pertain to initial installation of Communication Equipment on the Premises ("Initial Installation"), and at all times thereafter in the event, that Licensee desires to reconfigure or change the frequency or operation of the Communication Equipment ("Reconfiguration"). A. The Initial Installation and any Reconfiguration must be approved by each of the authorized third parties whose communication equipment is located on the Real Property ("Carriers"). The Carriers in existence on the date of execution of the License Agreement are provided at the end of this Attachment. Such requests and approvals shall be submitted and considered according to the following procedures: 1. Licensee shall submit to the Carriers preliminary plans and technical specifications for the proposed facility or the Reconfiguration. The Carriers shall have fifteen (15) business days to respond to Licensee in writing with the Carriers' approval or disapproval of Licensee's plans and specifications. Any disapproval shall be accompanied by a detailed explanation of the basis for the disapproval. Failure to respond in writing to the plans and specifications shall be deemed approval. 2. If Licensee's plans and specifications are not approved by one or more Carriers, then Licensee shall revise its plans and specifications to meet the objections thereto set forth in the Carriers' written disapproval. No construction, installation, testing, or operation of the Initial Installation or Reconfiguration, as appropriate, shall be permitted unless and until each of the Carriers approve Licensee's plans and specifications. If Licensee disputes the basis or validity of an objection, then it shall resolve its dispute directly wit the objecting Carder(s), unless the dispute concerns Licensor's conduct. 3. If Licensee's plans and specifications are approved by the Carriers, Licensee shall notify each of the Carriers in writing as to the scheduled date and time of commencement of construction and installation of Licensee's transmitting/receiving equipment, or the implementation of the Reconfiguration, as the case may be, not less than five business days prior to such date. 4. Licensee also shall notify each of the Carriers in writing five (5) business days prior to Licensee's pre -operation transmit test as to the date and time such test will commence. The pre -operation transmit test shall be conducted jointly by Licensee and any Carrier who desires to participate, and shall measure: (a) The signal transmit levels at the output after the final filter stage on Licensee's transmit line with all transmitters keyed up at maximum power; (b) Antenna isolation between the output of the final filter stage on Licensee's transmit line and input line to the Carriers' first receive filter in the base station in the Carriers' frequency band of operation; AT&T ES007-01 G-1 Initials:03 9 - (c) The combination of (i) worst case level measured out of Licensee's transmit line added to (ii) worst case antenna isolation. Such value shall be no greater than —114 dBm in Licensee's Federal Communications Commission receive and transmit bands of operation. If any Carrier determines that it is experiencing interference, that Carrier shall notify Licensee to immediately cease the pre -operation or pre -Reconfiguration transmit test and Licensee shall immediately cease such test. Thereafter, each Carrier shall each have two business days to submit its written approval, disapproval or conditional approval of the Initial Installation or Reconfiguration. Failure to submit a disapproval or conditional approval within two (2) business days shall be deemed an approval B. It shall be Licensee's responsibility to ensure that proper filtering and isolation are in place for the pre -operation or pre -reconfiguration transmit test and operation of Licensee's antenna system, Any change fo Licensee's approved antenna type and location and/or change in transmitter types and power output shall be required to follow each of the steps set forth in Paragraph A of this Attachment F. C. One or more Carriers may condition their approval of Licensee's plans and specifications and/or equipment installations on Licensee paying to such Carrier(s) an equitable share of the costs that such Carrier incurs to design, permit, construct, install, maintain, and replace any Common Facilities. For this purpose, "Common Facilities" means any equipment, facilities, structures and improvements that such Carrier installs at the Premises or the Real Property and that the colocating Licensee will use or benefit from, such as but not limited to screening, conduits, cable, utilities and similar facilities. D. Notwithstanding approval by the Carriers in accordance with Paragraph A, the Initial Installation or Reconfiguration must be submitted to Licensor for its approval. A copy of all of the submissions and objections set forth in Paragraph A shall be provided by Licensee to Licensor for this purpose at the same time it is received or provided by Licensee. Licensor shall not unreasonably withhold, condition, or delay its approval. E. Licensee shall at all times during the term of the License Agreement reasonably cooperate with Licensor and the Carriers in regards to addressing problems that may arise respecting existing or proposed colocated facilities at the Real Property. F. Any notice, objection, submission or other communication to the Carriers shall be copied to the City at the address and in the manner provided for notices in Section 20 of the License Agreement, and to each of the Carriers in the same manner at the address provided below or otherwise in writing by that Carrier. Licensor or the Carrier may from time to time designate, in the foregoing manner, any other address for this purpose. G. Licensee agrees that Licensor shall not be liable to Licensee for any approval, failure to approve or other response of a Carrier in regards to Licensee's AT&T ES007-01 G-1 Initials: 0 4 0 request for Initial Installation or Reconfiguration, and that Licensor shall not be required to adjudicate any dispute between Licensee and any Carrier. H. Licensee understands that its violation of these rules or its continuing interference with the communications operations of one or more Carriers may cause the affected parties irreparable harm. Licensee agrees that the Carrier(s) shall be entitled to file an action to enjoin such interference or seek other appropriate remedies. I. Licensee shall provide notice to the Carriers identified below of its agreement to these requirements. J. Licensor agrees that, for the benefit of Licensee, it will impose the same technical requirements colocated Other Carriers authorized to use the Premises and that it will require the same coordination procedures of the Other Carriers in any reconfiguration or change of frequency or operation carried out by such Other Carriers in the future. 41 AT&T ES007-01 G-1 Initials: ATTACHMENT H HAZARDOUS MATERIALS Subject to Licensee's obligations under Section 16 of the attached License Agreement, Licensee shall be permitted to bring such quantities of the following common materials customarily used in telecommunications operations onto the Premises, solely for the purpose of operating and maintaining the Communications Equipment: • 380 lbs lead (with 63 Ibs being largest lead container) • 13 gallon electrolyte (with 2 gal being the largest container electrolyte) • 58 pounds of sulfuric acid • 569 pounds total battery weight • 95 pounds per battery AT&T ES007-01 H-1 Initials: UK 0 4 2 ATTACHMENT H HAZARDOUS MATERIALS Subject to Licensee's obligations under Section 16 of the attached License Agreement, Licensee shall be permitted to bring such quantities of the following common materials customarily used in telecommunications operations onto the Premises, solely for the purpose of operating and maintaining the Communications Equipment: • Batteries ■ Lead ■ Lead Oxide ■ Electrolyte containing dilute sulfuric acid 043 AT&T ES007-01 H-1 initials: l_�� ATTACHMENT H HAZARDOUS MATERIALS Subject to Licensee's obligations under Section 16 of the attached License Agreement, Licensee shall be permitted to bring such quantities of the following common materials customarily used in telecommunications operations onto the Premises, solely for the purpose of operating and maintaining the Communications Equipment: ■ Batteries ■ Lead ■ Lead Oxide ■ Electrolyte containing dilute sulfuric acid AT&T ES007-01 H-1 Initials: i RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site #ES0007-01 Cell Name: Peyton Drive Fixed Asset No: 10100061 P.O. Box 1630 Alpharetta, GA 30009 GRANT OF EASEMENT FOR ACCESS and UTILITY PURPOSES GRANTOR: CITY OF CHINO HILLS, A California General Law Municipal Corporation GRANTEE: NEW CINGULAR WIRELESS PCS, LLC, A Delaware Limited Liability Company Grantor hereby GRANTS to GRANTEE, its successors and assigns, an easement for over, upon under, and across the lands hereinafter described for the purposes of the construction, installation, operation, maintenance and repair of utility facilities appurtenant to Grantee's leased site for a wireless communications facility. The real property subject to this easement is located in the City of Chino Hills, County of San Bernardino, State of California, described as follows: SEE EXHIBITS "A" thru "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF It is further understood and agreed that no other easement or easements shall be granted, on, under or over said strip of land (the "Easement Area") by the Grantee or any person, firm or corporation without the previous written consent of said Grantor. Grantee and his successors and assigns, shall not increase or decrease, or permit to be increased or decreased, the now existing ground elevations of said Easement Area and right-of-way without the prior written consent of Grantor. Grantee, and his successors and assigns, further agree that no building, fences, walls or other structures of any kind; and no tree, shrubs or other plants or vegetation, shall be installed, constructed, erected, placed, planted or maintained in the portion of the easement and right-of-way which is included within any road, and that no changes in the alignment of grading of any such road will be made without prior written consent of the Grantor. Grantee shall also have the right to mark the location of the Easement Area in a manner, which will not interfere with the Grantor's, reasonable and lawful use of said Easement Area. The term of the easement granted here under shall extend until the expiration or termination of Grantee's lease for Grantee's wireless communications facility site for which this easement is appurtenant. Upon expiration or termination of said lease, Grantee shall execute and deliver to Grantor recordable documentation as required by Grantor to terminate and extinguish Grantee's easement rights under this Grant of Easement. This instrument shall be binding upon and inure to the benefit of the successors and assigns of Grantee. M Date BEST: City of Chino Hills Date Mary McDuffee, City Clerk Curt Hagman, Mayor f Z r K W EXHIBIT "A" ACCESS EASEMENT: AN EASEMENT 12 FEET WIDE, WITHIN LOTS "U" AND "Z" OF TRACT No. 13250 IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 214 PAGES 41 TO 51 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTERLINE INTERSECTION OF LOST TRAIL DRIVE AND FOREST MEADOW DRIVE AS SHOWN ON SAID TRACT, THENCE ALONG THE CENTERLINE OF LOST TRAIL DRIVE SOUTH 08'03'40" EAST A DISTANCE OF 55.00 FEET; THENCE NORTH 81'56'20" EAST A DISTANCE OF 39.55 FEET A POINT ON THE EASTERLY RIGHT OF WAY OF LOST TRAIL DRIVE ,SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE CONTINUING NORTH 81'56'20" EAST A DISTANCE OF 40.00 FEET; THENCE NORTH 88'59'47" EAST A DISTANCE OF 69.27 FEET; THENCE SOUTH 56'15'53" EAST A DISTANCE OF 63.50 FEET, THENCE SOUTH 30-45'21" EAST A DISTANCE OF 109.09 FEET; THENCE SOUTH 59-14'39" WEST A DISTANCE OF 40.38 FEET; THENCE NORTH 24'48'37" WEST A DISTANCE OF 29.21 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "A" AND THE END OF SAID STRIP. THE SIDE LINES OF SAID STRIP SHALL BE PROLONGED OR SHOTERNED TO THE EASTERLY RIGHT OF WAY OF SAID LOST TRAIL DRIVE. AS SHOWN IN EXHIBIT "B" (SHEET 10 OF 10) ATTACHED HEREWITH AND MADE A PART THEREOF. CONTAINING 4,218 SQUARE FEET, OF 0.095 ACRES LEASE AREA: A PORTION OF LAND WITHIN LOT U OF TRACT No. 13250 IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 214 PAGES 41 TO 51 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT POINT "A" AS DESCRIBED ABOVE, THENCE SOUTH 65'11'23" WEST A DISTANCE OF 15.00 FEET; THENCE NORTH 24'48'37" WEST A DISTANCE OF 40.00 FEET; THENCE NORTH 65'11'23" EAST A DISTANCE OF 30.00 FEET; THENCE SOUTH 2448'37" EAST A DISTANCE OF 40.00 FEET; THENCE SOUTH 65'11'23" WEST A DISTANCE OF 15.00 FEET TO THE POINT OF BEGINNING. CONTAINING 1200 SQ. FT, OF LAND. CAL VRDR SURVEVING, INC. 411 JENKS CIRCLE SUITE 205 CORONA, CA 92889-1782 PREPARED UNDER MY ARMANDO D. DUPONT, P.L.S. 7780 SHEET 1 OF 10 j 40 C. S� �pC. G Gq .t N L.S.7780 ~ \� Exp. -31.09 c I-* � Job No 07168 PHONE:951-280-9960 FAX:951-280-9746 www.calvada.com E EXHIBIT - "A" LEGAL DESCRIPTION UTILITY EASEMENT: BEING TWO STRIPS OF LAND DESCRIBED AS FOLLOWS: STRIP "A": A STRIP OF LAND 5 FEET WIDE, OVER THAT PORTION OF LOT 9 OF MAP F, FILED IN BOOK 19, PAGE 87 OF SAID COUNTY, AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 14, PAGE 80 OF SAID COUNTY, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTERLINE INTERSECTION OF MORNINGFIELD DRIVE AND LOST TRAIL DRIVE AS SHOWN ON SAID TRACT, SAID POINT BEING ON A CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 350.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 09'28'02" WEST, THENCE EASTERLY ALONG SAID CURVE 75.89 FEET, THROUGH A CENTRAL ANGLE OF 12'25'25"; THENCE SOUTH 87'02'48" EAST A DISTANCE OF 113.93 FEET; THENCE NORTH 02'54'25" EAST A DISTANCE OF 33.00 FEET TO THE POINT OF BEQNNING: THENCE NORTH 00'24'27" EAST A DISTANCE OF 9.03 FEET, THENCE SOUTH 89'36'58" EAST A DISTANCE 29.72 FEET TO THE END OF SAID STRIP. THE SIDELINES OF SAID STRIP SHOULD BE PROLNGED OR SHORTENED TO THE WESTERLY RIGHT OF WAY OF PEYTON DRIVE. CONTAINING 193 SQUARE FEET, OR 0.004 ACRES CAL VADA SURVEYING, INC. 411 JENKS CIRCLE SURE205 CORONA CA 92880-1782 SHEET 2 OF 10 Job No 07168 PHONE.951-280-9960 FAX:951-280-9746 wwwxaivadazom 1 EXHIBIT "A" LEGAL DESCRIPTION STRIP "B": A STRIP OF LAND 5 FEET WIDE, OVER THAT PORTION OF TRACT No. 13250 IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 214 PAGES 41 TO 51 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND OVER THAT PORTION OF LOT 9 OF MAP F, FILED IN BOOK 19, PAGE 87 OF SAID COUNTY, AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 14, PAGE 80 OF SAID COUNTY, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTERLINE INTERSECTION OF MORNINGFIELD DRIVE AND LOST TRAIL DRIVE AS SHOWN ON SAID TRACT, SAID POINT BEING ON A CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 350.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 09'28'02" WEST, THENCE EASTERLY ALONG SAID CURVE 75.89 FEET, THROUGH A CENTRAL ANGLE OF 12'25'25"; THENCE SOUTH 87'02'48" EAST A DISTANCE OF 200.10 FEET TO A POINT ON A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 1400.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 83'37'25" WEST, SAID POINT ALSO BEING THE CENTERLINE OF PEYTON DRIVE, THENCE NORTHERLY ALONG SAID CURVE 759.86 FEET, THROUGH A CENTRAL ANGLE OF 6'32'33"; THENCE NORTH 12'55'08" EAST, 165.36 FEET TO A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 1400.00 FEET; THENCE NORTHERLY 346.63 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1411'09"; THENCE SOUTH 88'43'59" WEST, 52.00 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY OF PEYTON DRIVE BEING THE POINT OF BEGINW THENCE NORTH 85'48'12" WEST A DISTANCE OF 96.41 FEET; THENCE SOUTH 65'11'23" WEST, A DISTANCE OF 64.29 FEET TO THE END OF SAID STRIP THE SIDELINES OF SAID STRIP SHOULD BE PROLONGED OR SHORTENED TO THE WESTERLY RIGHT OF WAY OF PEYTON DRIVE. AS SHOWN IN EXHIBIT "B" ATTACHED HEREWITH AND MADE A PART THEREOF. CONTAINING 803 SQUARE FEET, OR 0.018 ACRES, CAL VADR SURVEVING, INC. 411 JEWS CIRCLE, SUITE 205 CORONA CA 92880,1782 SHEET 3 OF 10 Job No 07168 PHONE:951-280-9960 FAX:951-280-9746 www.calvada.com ram_►, WF _- o LOT ' Uf-� o ' TRACT 132 FMB, 214/41 51 N PROPOSED 30' X 40' _ CtNGUILAR LEASE AREA 8��- :51, - r ;j; ISHEE 7 S651123"W 00 W1,0 R g2� �yo 1 CURVE TABLE CURVE 1 RADIUS 1 DELTA 1 LENGTH Cl t =00' 1 122WZr i 7S.W i LINE TABLE H uNe H uNc�x � acarmc { � u � S?SO sB4'4Y9YV 1 55 57 I i I I j COTTONTAIL CIRLE to I* F. I ! I 52 1 53 5- M�LOT OW 55 rSHEET 5 & I L P.0.8. 0 40 80 t \ LSTRIP AV � SCALE 1"�0' 1AM P.O.C. MORN/NIS FIELD DRIV Np9 S87TIiiWE1�it3„gx�'� n..1 ID 1" IP ?q�/q�g02° SHEET 4 OF 10 �7 I 0.1 lz rl Job No 07168 SuRvey1NG, INC. PHONE: 951-280-9960 F.AX:951-280-9746 www.caivada.com 411 JENKS CIRCLE SUfIE 205 CORONA CA 92880-1782 I EXHIBIT Legend CHAIN LINK FENCE �= POWER POLE RETAINING/BLOCK WALL CONCRETE PAVEMENT W ' 7REE Z PROPERTY LINE LW ' LIGHT o WATER VALVE . c= FIRE HYDRANT EPB ELECTRIC PULL BOX VLT VAULT ICV IRRIGA77ON CONTROL VALVE 0 DIAMETER J DI DRAIN INLET O PVC PIPES V LOT 'W 7X4C7 1325D M B, 21414 —51 '= E a s 0� ¢� w 16'D �VG 0 5 10 SCALE 1'-10' EM G SS Vi `.EPB/ I. r � o »B» a oW � I V �1 UU N I I g�J� ... • °�` UCK ELEC. MET IUL < < << :, a VAULT t < TSB _ MORN/NGRELD DR S87V248 £ 113.93, _ CAI. VADA SURVGY1NG, INC. 411JENKSCIRCLE SUITE205 CORONA CA9288MM SHEET 5 OF 10 Job No 07166 PHONE:951-280-9960 FAX:951-280-9746 www.caivada,com 1 EXHIBIT "B" PROPOSED 5' UTT[J -i- N85�B'T2%i' CAL VADA SURVEYING, INC. 411 JENKS CIRCLE SUITE 205 CORONA CA 9288M782 I I 1 II I I I O Q. I P 0..B STRIP A 1 43'59 E_ '"V I PO{1ER POLE 6) -4111162E o I v- k � O II C� Y wly v NjII 0 5 10 ME Job No 07168 PHONE:951-280-9960 FAX:95.1-280-9746 www.calvada.com EXHIBIT "B" 1 1 1 I 1 M,14 cr 132:50 ' 01 g , , r h—'_'W---_--1--`---' NW W y _ 64,g PROPOSED 5' U7IU7Y EASEMENT ~— _ �9641 r oT — r vi 1 — ram_-_----------- _-� r r r 1 i Ii LOT "22` 1 0 5 10 \ SCALE 1`00 SHEET 7 OF 10 CA1 \/AAA Job No 07168 SURVEVING, INC. PHONE:951-280-9960 FAX:951-280-9746 www.calvada.com 411 JENKS CIRCLE. SU7E 205 CORONA CA 92889d782 i EXHIBIT N � r 99 B 99 LOT � V / r / POINT A" 5 — � r / ` , LOT Z� p \ % \\ LOT "z° 1 \ � i CAL. VADA SURVEVING, INC. 411 JENKS CIRCLE SUITE 205 CORONA CA 92880-1782 SHEET 8 OF 10 0 5. 10 SCALE 1'-10' n Job No 07168 PHONE:951-280-9960 FAX:951-280-9746 www.calvada.com EXHIBIT "B" LOT " V ` \ kZ- \ o \ REA \\ \ /~ \ \ \ v x40 POINT A" \ r / LOT " /" Y i / \ i \ 0 5 1 10 \ SME. 1'=10\ \ r� SHEET 9 OF 10 CRLVADAJob No 0716E SUf;VEYNG INC. S 411 JEMKS CIRCLE SUITE 201COR094 CA 9288D-1782 PHONE:951-280-9960 FAX:951-280-9746 www.calvada.com ru cc FD 1" IP TAG 27376 P.O.C. 1 0 1 N61'56'21 39.5' I 1 EXHIBIT "B" MEADOW DR � ; LOT J° TR41 CT J 3250 A.P.N. 1032-23/-y8 1 N A PROPOSED 12' 1 ACCESS EAS ENT 1 vs _ / a scree r\ �1o' J 66.OD . ' c� r ' ! .r� vp � L 33,06 POINT "A i O N / `l) 1 ! SpVPSrM�N�yVV- O� ' SHEET 10 OF 10 .� CALVADA Job No 07168 SURVEYING, INC. 411 JENKS CIRCLE. SUITE 205 CORONA CA 92880.1782 PHONE:951-280-9960 FAX:951-280-9746 www.calvada.com