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08-081 Encroachment agreement between City and Ominpoint Communications ENCROACHMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND OMNIPOINT COMMUNICATIONS, INC. This Agreement is entered into as of ~J-I~ Z9, ZOOS ("Effective Date") by and between the City of Cupertino, California, a California municipal corporation ("CITY") and Omnipoint Communications, Inc., a Delaware corporation, d/b/a T-Mobile ("COMPANY"). Recitals WHEREAS, COMPANY has made application to the CITY for an Encroachment Permit to install telecommunications facilities in the CITY right-of--way, hereinafter referred to as "ENCROACHMENT"; WHEREAS, CITY has approved the project plans and specifications, true copies of which are on file in the office of the City Engineer of Cupertino, and incorporated herein by reference; WHEREAS, CITY has a duty to regulate the construction, installation, operation and maintenance of ENCROACHMENTS in the public right of way, public easement and public service easement within the CITY to protect the public health, safety and welfare; and WHEREAS, COMPANY agrees to comply fully with all applicable terms, provisions and requirements of legislation enacted by the CITY; and NOW, THEREFORE, Agreements In consideration of the Recitals set forth above, the terms and conditions of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 INSTALLATION AND MAINTENANCE OF COMPANY EQUIPMENT 1.1 Permitted Installation. Subject to the issuance of encroachment permits, during the term of this Agreement, COMPANY may install its equipment ("EQUIPMENT") as shown on the T- Mobile SF 14949 Tin Tin Market improvement plans by MSA Architecture and Planning ("Work"), which improvement plans are attached hereto and made a part hereof, within CITY right-of way, as shown on the aforementioned improvement plans. 1 1.2 Encroachment Permits. COMPANY shall obtain encroachment permits from CITY for the installation of the EQUIPMENT and for any other work within the CITY's public right-of- ways. The installation of any aboveground Equipment shall require the approval of the CITY's Department of Public Works, not to be unreasonably withheld, conditioned or delayed. COMPANY shall submit detailed engineering plans of the proposed work certified by a professional engineer, including, but not limited to maps showing planned construction, a description of the nature an extent of underground work, a description of aerial work, a description of all planned above-ground facilities, such as amplifiers, generators and node boxes, a map of the location of all such facilities, a description of all noise-producing facilities, and a map showing the planned location of all conduit and other information as may be required by the City Engineer. COMPANY shall also submit all fees and bonds commonly required for such work. All work within the CITY right-of--way shall be performed in strict compliance with an encroachment permit. COMPANY shall comply with all applicable regulatory requirements, including, without limitation, compliance with the California Environmental Quality Act, and CITY requirements regarding directional boring. Within ten (10) business days of receiving City's written request, COMPANY shall promptly submit to CITY accurate as-built plans and record drawings certified by a professional engineer showing in detail, to the reasonable satisfaction of the City Engineer, and with as much accuracy as possible, the location, depth, and size of all COMPANY facilities in the CITY right-of--way. 1.3 Encroachment Permit Fee. It is further agreed that COMPANY shall pay any and all necessary direct expenses for inspection, checking, etc., incurred by CITY in connection with said Project, and that COMPANY shall have deposited the fee with CITY, within twenty (20) days of the full execution of this AGREEMENT. The fee is five percent (5%) of Company's construction costs in the right-of--way. Should construction cost vary materially from the estimate from which said sum is calculated, the City Engineer shall notify COMPANY of any additional sum due and owing as a result thereof. 1.4 Encroachment Permit Bonds. Prior to, or upon, execution of the permit, COMPANY shall have deposited with the CITY a performance bond naming CITY as obligee in the amount equal to one hundred percent (100%) of the value of the Work to be performed by or on behalf of COMPANY within and affecting the CITY right-of--way to guarantee and assure the faithful performance of COMPANY's obligations under this Agreement. At the same time, COMPANY shall have deposited with the CITY a labor and material bond naming CITY as obligee in the amount equal to fifty percent (50%) of the value of the Work to be performed by or on behalf of COMPANY within and affecting the CITY right-of--way to guarantee and assure payment by COMPANY of all laborers and for all material used in performing the Work. CITY shall have the right to draw against the performance bond in the event of a default by COMPANY or in the event that COMPANY fails to meet and fully perform any of its obligations, provided that COMPANY is first given thirty (30) days written notice of any intent to draw against the bond and an opportunity to cure. The form of the performance bond shall be mutually agreed upon by the parties. CITY shall have the right to draw against the labor and material bond in the event that COMPANY fails to make payment to all laborers and for all material used in performing the Work, provided that COMPANY is first given thirty (30) days written notice of any intent to draw against the bond and an opportunity to cure. The performance bond shall be refunded after the expiration of thirty (30) days from the acceptance of the Work by the CITY. The performance bond shall earn no interest. The labor and material bond 2 shall be refunded after the expiration of ninety (90) days from the acceptance of the Work by the City, if no liens on the Work or the underlying property that were placed because of failure by COMPANY to make payment to all laborers and for all material used in performing the Work have been found to exist. The labor and material bond shall earn no interest. 1.5 Coordination with Other Permittees. To the maximum extent possible and to the extent reasonably feasible and not unduly interfering with COMPANY's business plans or customer commitments, COMPANY shall coordinate its construction work with other companies known to be installing infrastructure in the CITY's public right-of--way. Prior to performing any work, COMPANY shall, to the best of its abilities and with the assistance of the CITY, contact all other telecommunications companies and other utilities using or with known plans to use the CITY's public right-of--way to coordinate COMPANY's work. 1.6 Radio Frequency Radiation Assessment. A comprehensive radio frequency radiation (RFR) assessment is required for all proposed personal wireless service facilities established in residential areas and facilities where the antennas are mounted less than 10 meters above ground level. The purpose of the assessment is to ensure that COMPANY'S RFR emissions are within adopted federal RFR exposure standards as embodied in the Federal Communications Commission Guidelines published in 1996. COMPANY's assessment shall be prepared by a California state-registered radio frequency engineer or someone of superior qualifications. The assessment shall document existing ambient RFR emissions in those areas identified by CITY to contain existing RF radiators, and worst case projections of power densities and public exposure, that is ground level exposure and potential upper story residential exposure. This assessment is due prior to the CITY issuing any encroachment permits for installation of facilities. 1.7 Use of Other City Property. COMPANY is not authorized to use any CITY property located outside of the CITY right-of--way, nor any CITY infrastructure located within the CITY right-of--way, without the express written agreement of CITY. 1.8 Maintenance and Repair of Facilities. COMPANY shall be responsible for maintaining the EQUIPMENT and any surrounding or adjacent area affected by the use or maintenance of the EQUIPMENT. COMPANY shall be responsible for locating and marking underground utilities associated with the EQUIPMENT when an Underground Service Alert is issued. COMPANY shall be responsible for repairing damage to the EQUIPMENT, including knockdowns of the modified lightpole, in a timely fashion. ARTICLE 2 AUTHORIZED USES 2.1 Permitted Uses. This Agreement authorizes the installation, operation, use, maintenance, repair and removal of the EQUIPMENT in the City's right of way by COMPANY to provide all services it is otherwise permitted to provide, including, without limitation, those telephone services described in its Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission and the lease of unbundled network elements. In order to provide video service to subscribers in the CITY, COMPANY shall obtain all necessary 3 permits and authorities required to do so, and inform the CITY of its intention to provide video service. 2.2 Interference. COMPANY shall not use the Equipment in any way that interferes with the use of the right of way by CITY or lessees or licensees of CITY using the right of way as of the Effective Date. Similarly, CITY shall not permit its lessees, licensees, employees, invitees or agents to to intentionally interfere with the operations of COMPANY. The foregoing notwithstanding, CITY and COMPANY each recognize that unforeseeable emergencies can from time to time arise that may cause either party to temporarily interfere with operations of the other within the public right of way. In such circumstances, the interfering party shall act to notify the other parry and remove the interference in as timely a manner as possible. Both CITY and COMPANY shall make every effort to avoid creating any interference with the operations of the other in the public right of way. 2.3 Access. COMPANY shall have 24-hours-a-day, 7-days-a-week access to its Equipment at all times during the Initial Term of this Agreement and any Renewal Term, at no charge to COMPANY. COMPANY shall employ all necessary measures when accessing Equipment to protect the public safety and to maintain safe pedestrian and vehicle movement that might be affected by such access. ARTICLE 3 PAYMENTS 3.1 Payments. a. ANNUAL RENTAL FEE. COMPANY agrees to pay an annual fee to compensate CITY for the use of CITY right of way under the terms of this Agreement. The Annual Fee will be calculated at a base rate of One Thousand Seven Hundred Dollars and No Cents ($1,700.00) per month for the location of COMPANY equipment at the streetlight location and within a five-foot-wide easement in CITY right of way adjacent to 20041 Bollinger Road, Cupertino, California, as shown on the T-Mobile SF 14949 Tin Tin Market improvement plans by MSA Architecture and Planning, attached hereto and made a part hereof. The rental fee shall be due and payable in advance to CITY. The annual rental fee for the upcoming year shall be due and payable to CITY on the anniversary date of the Commencement Date (as defined below). Rent not received by CITY on or before the 30`h day after the anniversary date shall be considered in default. The rental area will initially contain the equipment shown on the aforementioned improvement plans, including a modified lightpole, antennas, coaxial cable, and associated equipment. Additional equipment of a significant nature added to the rental area during the term of the Agreement shall be subject to prior review by CITY, as well as to an increased rental fee to be negotiated in such events by CITY and COMPANY. Significant additional equipment shall include, but not be limited to, equipment that alters the appearance of the original installation, 4 equipment that alters the basic service provided by COMPANY, as described in Article 2, above. Nothing in this agreement precludes the imposition of a franchise fee in the event that CITY enacts enabling measures applicable to providers of communications services such as those provided by COMPANY. b. ELECTRICITY CHARGES COMPANY shall be solely responsible for the payment of all electrical utility charges and connection charges to the applicable utility company based upon the antennas usage of electricity and applicable tariffs. COMPANY agrees to reimburse the CITY for any additional electrical utility charges incurred by the CITY solely based upon attachment of the antennas, provided the CITY shall furnish to COMPANY sufficient documentation form the utility company indicating with reasonable certainty that the additional charge was directly attributable to COMPANY antennas. 3.2 Rate Adjustment. The rate in Article 3.1 above will be adjusted annually according to this paragraph notwithstanding any other provision to the contrary: a. The rate shall be increased annually on January 1 by an amount equal to four percent (4%) of the rate for the previous year. b. The rate shall be adjusted annually on January 1 to include any additional equipment of a significant nature installed in the previous year. 3.3 Time of Payment. The first payment under this Agreement shall with twenty (20) days of the full execution of this Agreement. Thereafter, COMPANY shall annually make payment on the fifth business day after January 1 thereafter. A late payment charge on any unpaid amount shall accrue from the due date until paid at a rate of one and one-half percent (1-1/2%) per month until paid. CITY shall have the right to audit COMPANY's rent rolls to ensure proper calculation of payments, subject to any reasonable COMPANY requirements to ensure confidentiality of the records. 3.4 Place of Payment. Payment pursuant to this Article 3 shall be made to: City of Cupertino, Finance Department, 10300 Torre Avenue, Cupertino, CA 95014. ARTICLE 4 TERM AND TERMINATION 4.1 Term and Extension. This Agreement shall commence within three (3) of the Effective Date, or upon the date that COMPANY commences installation of its Equipment, which first occurs, ("Commencement Date"), and expire five (5) years after the Commencement Date of this 5 Agreement ("Initial Term"). This Agreement shall thereafter automatically be extended for up to three (3) additional five (5) year terms ("Renewal Terms"), unless COMPANY delivers to CITY a notice of non-extension at least thirty (30) days prior to the expiration of the existing term, in which case this Agreement shall expire and not be further extended. Except to the extent that COMPANY has the right to continue to use and/or maintain the Equipment, COMPANY shall discontinue use of the equipment immediately upon expiration of this Agreement and within one hundred and twenty (120) days after expiration of this Agreement, COMPANY shall either completely remove the Equipment or, with CITY approval, abandon the Equipment in place. Notwithstanding the foregoing, the City Engineer may require a shorter removal period due to exigent circumstances and may authorize a longer period if it is in the public interest. If COMPANY fails to remove the facilities within the prescribed time period and CITY has not approved abandonment in place, CITY may remove the facilities at the expense of COMPANY, and COMPANY shall promptly reimburse the CITY for any and all expenses, including administrative overhead. Any removal or relocation work by COMPANY shall only be done pursuant to this Agreement. 4.2 CITY Termination. CITY may terminate this Agreement by giving sixty (60) days written notice upon the occurrence of either of the following: a. Failure of COMPANY to make any payment required by this Agreement, where such failure continues for a period of sixty (60) days after written notice by CITY; or b. Violation of any provision of this Agreement or any encroachment permit issued hereunder, where such violation is not cured within sixty (60) days after written notice by CITY or, where such violation cannot reasonably be cured within sixty (60) days, COMPANY fails to promptly begin such cure and thereafter bring it to completion in a reasonably expeditious fashion. a. 4.3 COMPANY Termination. COMPANY may terminate this Agreement by giving sixty (60) days written notice to CITY. ARTICLE 5 REMOVAL AND RELOCATION 5.1 Removal Due to CITY Project. Upon receipt of a demand from CITY, COMPANY, at its sole cost and expense, shall remove and relocate any EQUIPMENT facilities installed, used and/or maintained by COMPANY under this Agreement when such removal or relocation is made necessary due to any work being done by or on behalf of CITY or other applicable governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs or gutters, installation of landscaping, and/or construction, maintenance or operation of any underground or aboveground facilities by CITY. COMPANY shall complete the removal or relocation within one hundred and eighty (180) days of receipt of written notice from CITY or according to an agreed upon schedule with the CITY of no less than one hundred and twenty (120) days. Notwithstanding the foregoing, the City Engineer may require a shorter period due to exigent circumstances and may 6 authorize a longer period if it will not delay the CITY's project. If COMPANY fails to remove or relocate the facilities within the prescribed time period, CITY may remove the facilities at the expense of COMPANY, and COMPANY shall promptly reimburse the CITY any and all expenses, including administrative overhead. Any removal or relocation work by COMPANY shall only be done pursuant to an encroachment permit. 5.2 Abandonment. If the EQUIPMENT, or any part thereof, is abandoned for a period of one year or more, COMPANY shall notify CITY and shall promptly vacate and remove the EQUIPMENT or the abandoned part thereof at COMPANY's sole expense. Alternatively, CITY may allow COMPANY, in its sole discretion, to abandon the EQUIPMENT in place and convey it to CITY. If COMPANY fails to remove the EQUIPMENT as required by CITY within one hundred and twenty (120) days after receipt of notice from CITY, CITY may, in its sole discretion, (a) remove the EQUIPMENT at COMPANY's sole expense, which COMPANY shall promptly reimburse to CITY, or (b) deem the EQUIPMENT, or any part thereof, to have been conveyed to CITY. Notwithstanding the foregoing, if this Agreement expires or is terminated, the foregoing shall not apply to the extent it is preempted by California Public Utilities Code section 7901 or otherwise prohibited by other applicable law. 5.3 Repair of Rights-of--Way. Whenever the removal or relocation of facilities is required under this Agreement, COMPANY shall promptly repair and return the CITY right-of--way and adjacent property to the condition in which it existed as of the Effective Date, reasonable wear and tear and casualty excepted. If COMPANY fails to do so, CITY shall have the option to perform such work at COMPANY's sole expense, which COMPANY shall promptly reimburse to CITY within thirty (30) days of COMPANYS receipt of an invoice detailing such expenses. ARTICLE 6 TAXES 6.1 Taxes. COMPANY agrees that it will be solely responsible for any and all lawful taxes, fees and assessments relating to its use and maintenance of the EQUIPMENT. Pursuant to Section 107.6 of the California Revenue and Taxation Code, CITY hereby advises, and COMPANY recognizes and understands, that COMPANY's use of the public right-of--way may create a possessory interest subject to property taxation and that COMPANY will be subject to the payment of property taxes levied on such interest. If CITY receives notice of any personal property or real property tax assessment against CITY, which may affect COMPANY and is directly attributable to COMPANY's Equipment installation, CITY shall provide timely notice of the assessment to COMPANY sufficient to allow COMPANY to consent to or challenge such assessment, whether in a Court, administrative proceeding, or other venue, on behalf of CITY and/or COMPANY. Further, CITY shall provide to COMPANY any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Article 6.1. ARTICLE 7 INDEMNIFICATION 7 7.1 COMPANY shall indemnify, defend, and hold harmless the CITY and its officers, officials, agents, employees and volunteers against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, to the extent caused by the installation and maintenance of the EQUIPMENT by COMPANY or COMPANY's employees, officers, officials, agents, transferees or independent contractors, except when such liability arises from CITY's negligence, willful misconduct or criminal acts. ARTICLE 8 INSURANCE 8.1 It is further agreed that: The COMPANY shall take out, and shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of commercial general liability insurance naming the CITY and members of the City Council of the City of Cupertino individually and collectively, as additional insureds. Said separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf of said COMPANY. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage as to COMPANY's negligent acts or omissions, and if the CITY, its members of the City Council individually and collectively, and the officers, agents and employees of the CITY, individually and collectively, have other insurance against the loss covered by said policy or policies, that other insurance shall not be called upon to cover a loss under said additional policy. 8.2 The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of "Best A-7" in accordance with AM Best's guidelines. 8.3 Each of said policies of insurance shall provide coverage in the following minimum amounts: For bodily injury, One Million Dollars ($1,000,000 each person; Two Million Dollars ($2,000,000) each occurrence, property damage, One Million Dollars ($1,000,000) on account of any one occurrence with an aggregate limit of not less than Two Million Dollars ($2,000,000). 8.4 All policies will be issued by insures acceptable to CITY. COMPANY'S minimum coverage obligations hereunder may be satisfied in whole or in part by a combination of primary and umbrella insurance coverage. 8.5 Within ten (10) days of the full execution of this Agreement, COMPANY shall provide the CITY evidence of said foregoing policy or policies of insurance in a format acceptable to CITY. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the CITY at least thirty (30) days advance notice thereof. The CITY shall be shown as additionally insured on a separate "Additional Insured Owners, Lessees or Contractors" (Form A) or (Form B) Endorsement provided along with the evidence of said foregoing policy or policies of Insurance. The commercial general liability requires an 8 endorsement of aggregate limits of insurance per project and an endorsement of primary insurance. 8.6 In event that the Work covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipality or political subdivision of the State of California, the policies of insurance required herein and above shall co-name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY shall equally apply to municipality and political subdivision. 8.7 The COMPANY'S insurance shall stay in full force and effect for the duration of this agreement, and until released by the City Engineer. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Uses Subordinate. This Agreement is not a grant by CITY of any property interest. This Agreement shall not create a vested right of any nature in COMPANY to use the public rights- of-way. This Agreement is subject and subordinate to the prior and continuing right of CITY and its assigns to use any and all of the public right-of--way for any lawful use. It is further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of record as of the Effective Date that may affect the public right-of--way. COMPANY shall be solely responsible for obtaining all necessary permits and approvals from all public and private entities. 9.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be in writing and transmitted through first class United States mail, certified and postage paid, or upon receipt if personally delivered or sent by next-business-day delivery via a nationally recognized overnight courier, to the following address or such other address of which a party may give written notice: City: City of Cupertino City Manager 10300 Torre Avenue Cupertino, CA 95014 Company: T-Mobile USA, Inc. 12920 SE 38a` Street Bellevue, WA 98006 Attn: PCS Lease Administrator With a Copy to: T-Mobile USA, Inc. 12920 SE 38~h Street Bellevue, WA 98006 Attn: Legal Dept. 9 With Copies to: Omnipoint Communications, Inc. 2380-A Bisso Lane Concord, CA 94520 Attn: Lease Administration Manager Attn: Legal Dept. 9.3 Assignment. This Agreement shall not be assigned by COMPANY without CITY's prior written consent, which shall not be unreasonably withheld, and any such attempted assignment shall be void; provided however, COMPANY may assign this Agreement, without CITY's approval, to any person controlling, controlled by, or under common control with COMPANY or entity that, acquires COMPANY's fifty-one percent (51%) or more of COMPANY's stock or assets. Upon such assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder. COMPANY shall give to CITY thirty (30) days' prior written notice of such transfer. The sale, lease or other transfer of interests by COMPANY of its facilities to third parties in the normal course of its business shall not be deemed an Assignment. Nothing in this Agreement shall be deemed to prohibit COMPANY from assigning any monies that may be payable to COMPANY under the provisions of this Agreement. 9.4 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. 9.5 Amendments. This Agreement may not be amended except pursuant to a written instrument signed by all parties. 9.6 Severability. If any one or more of the provisions of this Agreement shall be held by a court competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement. 9.7 Construction of Agreement. This Agreement shall be governed and construed by and in accordance with the laws of the State of California. In the event that suit is brought by a party to this Agreement, the parties agree that trial of such action shall be venued exclusively in the state courts of California, County of Santa Clara, or in the United States District Court, Northern District of California, in the County of Santa Clara. 9.8 Successors. This Agreement is binding upon the successors, assigns and transferees of the parties hereto. 10 9.9 Order of Precedence. To the extent the provisions of this Agreement and any permit required to be obtained by COMPANY from CITY are in conflict, the provisions of the Agreement shall take precedence. 9.10 Waiver of CITY's Lien. CITY hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Equipment or any portion thereof, which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and CITY gives COMPANY the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in COMPANY'S sole discretion and without CITY's consent. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below. Omnipoint Communications, Inc., a Delaware corporation, d/b/a T- o By: saber---- -a`r Vi0 sM~Tif~Vest Region Mo ie eg pprovai r/ , rinkley Date: ' dl~ City of Cupertino: B 2~ . 08 Y Dave W. 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I ANO LIGHT ARN i0 MATCH (E) ~ MOUNTED WITHIN A ZO ~ • 5' Hi. q_5 q_5 GROUND LEVEL BY O1HER5 _ W/p6/ IH, DXN. D $URROUNpWG S1REEi LIGHTS. (NEW ~ RAWNE ON lOP OF A NEN ZO M o6/IO 0 FlF1D CHANGE 3 ` \ T-NOBLE IIGHi POLE BY ORERS) 2i'-0 HT LAiHi POLE (TOTAL POLE ~ \ - \ i ? Hf. W/RAWNE • }2' AG.L) ~ - _ - j - - _ I °t I o~ PRAWN BY: AU US ` ` \ ` ` ~ ~ I + f 1 fNELKED BY: R. ZEMN \ -y/` (I _ (E) JOINT PoLE (N) I I "~3Ay~~„~Y i-MOBILE POWER P O C) 1 5 (N) i-MOBILE Ri WARNING ~ ~ '1 ~ MSA A-5 SIGN Ai (NJ LIGHT SiANp1RD ~ I ~ _ - ~ Archibehlrc A DNInnInW. lnc. I ` ~ 4~Pv111TF !11 (NJ T-MOBILE I • •r~ 61A 66• \ ~ ~ UNDERGROUND PONCR ' i i ' ~ I ~1•~6W^ I Ef II Ih' 'I ~ ` \ , \ \ / AouTE To (x) NErER Ar I I I I r~ SHELTER (APPROX. 36') I I I i fnmm~ 40 csn• IE) CONC. CUFB~ ` ` \ ~ A-5 I I ~ I I NG 1 I I I OCCUPANCY TYPE: B-A ` \ \ ~ I I I I LDNSERLA.TN]N TYPE. III NOTE' 1,; ~ _ ~ A-6 I I I NEW POLE BY i-MOBILE TO NEEf PUBLIC ` ~ I I I I I I WORKS SFECIEIGININS. (E) UNIwALiHf TREES M1 PUBLIC RO.W ~ I I I 10 BE REFIACEp WxH HEALTHIER TREES ' ~ I I j I w THE SAME 6PCCIES BY i-MOBILE. IYP I I I I (E) WERCANFAD6 O< (3) TOTAL (i0 BE OEIERNINEO) ~ ~ I ~ I I I I I I (E) EIECTRK:AI EWDNENi i ~ I I I 1 I I I I I ~ I (E) BIXlARO, IYP. TO BE RENGVEO I 1 I I Q I I I I 1 I I I i ' I 1 I e I I I I f 1 I I ANTENNA PLAN ® 2 ' I I i I I I ) (N) T-WBILE cas axiENw, i i ~ I MWNIEp ON BUADING ROOie ~ I I I ) I I I A-$ I I I I 1 I ' I I g (E) 3' WIDE DWR I I ~L 4 I I 0 3 ! ' I 1 I (N) T-MOBILE NETEF~ I I ~ 4 z - A-6 I I I I cZc N T- r (N) T-MOBILE I C NpB0.E RF PONER PANCL ( ) I WPRNING SIGN Ai e Q I \ II I 1 0 - EWIPMENi BNELIER q_S I IA % \ ~ (N) T-MOBILE ppYM ~ (N) 6't RENP/ABLE~ IPOWER ~ ~ ` ` ` \ I CMK AWTE w11MN A 5' e y BOLLVi05. (A) ioiAL/ T ~ TFIm Bawd , wIDE EASELaNT (:LAO') a-s I ~ ~ ~ F.I ~ i INI i-MOBILE PRE-fABRICAEEO a NOi : L SHELEER Ai LRWNO L£/El BT I ` ` W ~ REFER i0 IMNUPACTURER ~ i~~ ~~'////,/i/ SPECWIGRONS i0 VERIFY I ~ / WAY ~\`q 0 6XELTEF gNENSNNlS ANO O jjI _ ~ ~ q \ / SPECS. i ~ ` \ ~ ~ - oeLE s u NL 124fi ~ ~ ~ (ET Wxaxc ~ \ \ ~ ~ iF/~-~-.~I - (N) i-N I H T ,:22 ~ ~ ~ II OCCUPANCY TYPE: B-A \ ~ ` \ ~r" ~ \ ~ (I,yF ~.y DOxN SIGN AT 4 Q ( ~ LDNSwL1LTI0N ttPE: II ~ \Y \ > ~ \ .y EWWNENi AIELiER A-5 ` ~ (N) T-NWILE PANEL AHIENNAS (3\\ a ~ ~ 1_ill~"'---._,_ I B~CCI~I/~~. LOCAL WNH (2) iW PER ANRNNA. \ I 1_ _ - ~ _IJF "CIL6 O LgUNTED WTHIN A 70b • 5 M ~ \ %I ~1 I - - ~ R At) MWME W LOP Of A NEW 20" x 1 R '111\ I E ~ LEI ~ AACA - _ 2)'-0 Hf. LIGHT POLE (TOTAL a-5 A-5 $ - PWE Hi. N/AADOME - JZ' AG.L) N9IE: \z - NEW PALE AND LNNT AFN i0~ ~ \ SHEET RRF: ~ - : ~ \ , , PROJECT AREA PLAN g BE GLYANIZEO i0 WTCH (E) SURRDUNOING SNIEEf LIGHTS (E) UNHEALTHY TREES IN PUBIC Row. pNTENNABEQUIPNENT _ Q TO BE REPIACEO WITH ZA" BOXEO TREES (E) ROOF OJERHANG _ ~ -I I- _ _ - AZd BY i-MOBILE iYP Oi (Z) iOiaL LAYOUT - A A2 EQUIPMENT LAYOUT PLAN ® 3 PROJECT AREA PLAN A"" ® 1 ~/1'-I'-o' 3/16'•I'-0' 0 I'2' 6' 0 ISSUE STATUS GATE UESCRIPIKNI REY - 09/II/D~ I VOZ/or sox rnxsr.~ - oVm/D Ioox coxsr. D avo./ x. cxN. o./oa x. cHN. z Ds/ID FIELD CINNGE 3 DRAWN BY' AU US CHECKED BY: R ZEHN MSA S5. D, A.ehlfeeL.In 6 PlannlnW, bra unnv. nuaaP.cwn I PImR ~ a \ ON ~N 4~ NOT USED 2 r n (N) FTNCE ENCLOSURE ~ ~ m~ FOR !ALLOW BIN PER W WIOlORO REOUESI (E) DOOR Lj Y O pe.., y ~ (N) i-MOBILE METER (N) WIDE ACCESS OOOA Z ~ t c ~ _ _ O a i (fl BU LgNL A/C OCCUPANCY EfPE. B-A O f (POWER PANEL CONSiNUCHON 1YPE~ RI R~EF~ER i0 WNUFALNRER SPECIFICATIONS i0 VERIFY $ i (NI i-MOBILE PRE-fABRILAIEp SPECS.R OINENSKINS AND Q ( SHELTER Aio R ~D L L BY ~ ~ ~ _ _ _ I ~L ~ ~ ~ _ - I F-' ~ _ ,w„ :,u Q I FG-ti c. u L__-.___..~._.. ~ ~ F-1 E SHEEI nllE: PROJECT AREA PLAN ANTENNA 8 EQUIPMENT LAYOUT A-2.10 NOT USED sow„ 3 NEW FENCE ENCLOSURE PLAN ,/,~`",`_o ® 1 1 ISSUE STATUS I 1 I I 1 I ~ I - ae/~I )/os vum,~Rl CigN 6 REV I 1 1 - 11/02/0 90F CO M?~~ A I I I I - 01/ON/0 1007: Sf. 0 1 I I ~ ~ 02/OA/ PUT. LHN. I 1 I I I ~ 1 OA/OB 0 PIN. LHN. 2 I I 1 I ~ f~ O6 10 0 FIEIA CN.INCE 3 I I I I I I I 1 I I 1 I I I I DRAWN BY: AU US I I I fNEC%ED BY: R ZEMN I I I 1 I I ' ~ MSA I 1 , I I ~ I I A.elllreell...~ ~n~ro. ar_ 'I L \P~ .1 .,.N...~uwlwi N>. P (N) i-wOBIIE .rcs LOAN ROUTE WITHIN A B' WqE wum/D eem ~ I CASEMENT (l110')e N~_ \ 3 A-5 ~ \ \ NOTE: . NEW POLE BY t-MOBILE ro MEE] ` PUBLIC wgMS SPELIFlLAigNS. M~ V ~-ITl ~ ~ ~ \ (N) T-MOBRE PANEL ANTENNAS (3) iOTAI WIM (2) , ~ ~ \ ` TAU PEP ANTENNA. MOUNTED WITHM 4 ZD"s r 5' Nt. 4~ \ T ~ AAOOME ON TOP OF A NEW 20 % 7]'-0" Hi. LgNT PqE (TOTAL PoLE Hf. W/W100NC SZ' AG.I) Z y A-B A-5 ` _ (E) UNHEALnfY TREES IN PUBLIC R.O.W. ~ 1 ro eE REPLACED WITH ]A" BONED TREES F Z - ~ ` ` ' ` BY i-MO&lE. iW OF (Z) roTAL 6i A 2 ~ a \ gh ~ \ _ ~ ~ CURB ) y,~ (E) TREE ro REMNN F NEw PaE ulo LA11T aRM ro - ' ~ \ `1~ \ 0 BE GILVANIZED TO 1Wi[H (E) 3 AIRRWNPNG STgEEi lgHiS. ~ ` ~~Rll a ~ ~ GRADING NOTES: © - Ba(/R~ ~ ' = ~li l~ ' FFF~ / \ N I. COMPACTOR IS gESPONSIBLC FOR OUST CONTROL RRpb ANO INSURRiC THE AAU AAMCENT ro INE WORK IS ~ _ _ (RpK,~ LEFT q A CLFAN CONDITMIN. _ ~ 1~ ` W Z. THE CONiAACTOR SHALL REVIEW STANDARD OETAII _ ¢0 6-% ON TREE PROlECT10N PRgR f0 ACCOMPLISHING - \Z/ AM WORN OR REMOIING ANY TREES. J. UnUZE BEST MANAGEMENT PRACTICES (BMP'S). AS (E) L1411r IF1 DRNEWAY ~ O~ .',E - REOURCO BY TIC STATE NATCq AESWRCES CONTRM ~ %1 StAIAARp i0 \ ~ ~ - - ~ BOARD. Fqi ANY ACTMtt, WHCH pSTURBS 500.. 2 I ~ REMNN ~ ~ ~ _ - A-d ~ \ - F-1 ~cy~ ~ E SHEET 111LE. ENLARGED P(pN AT 8 ANTENNA lIX'ATIDN - A-3 ENLARGED PLAN AT NEW ANTENNA LOCATION ~/~.E-o ® ~ --------I----------- ~ ISSUE STATUS (N) I-MOBILE PANEL AHICNHAS (3) 1 ~ ; TOTAL WITH (2) iLN PER ANTENNA, 1 _ 1 - De~i/0 vUxlNxcFICiDMUia. F~ MOUNTED WITHIN A 20"s ~ 5' Hi. 1 _ 1 - II/01/01 9014 GON6T. RADONE DN ipP OF q NEW 20' % I 1 - 01 0)/ Ippw GOx61. 0 21'-0 Ni. IIGHr PoLE (TOTAL 1 1 OE/Oa R%x cHx ~ POLE HI. w/AAOOME - }2' A.G.L) 1 1 / 1 1 I F (N) I-MOBILE PANEL ANRNNAS (3) w/0e/ RuI. CHx. 1 1 _ 1 ~ O6 i0/0 FIELD CINNGE J (N) L-NOB%E iLN'S, ttP OF 2 PER 1 , i0P OF POLE/3 ANTENNAS + MD NTED WRHM A~20 RFAFfEFFA, NEW PpIE Axp LGHr qRN r0 ANTENNA (6) TAUS IOIAL WI1H q 1 1 4J2 A.CL ? 1- RAppNE pN TOP OF A NE1Y ZO• % SNEEF MErgl CWER PAINTED i0 1 21'-0• Nr. LIGHT POIC (tOTAL BE GEVANIZED ro ATCH (C) N1iCN AT BASE a ApWME 1 1 DRAWN BY: AU l15 SURROUNOINL STREET LIGHTS. 1 1 FOLE Ni. w/Ap00NE 12~ AG L) 1 ANTENNA R40 CENTER 1 ' 1 . ~ CHECKED BY: R. ZEHN (N) 20's % 2]' Hl. LK;HT PoLE Br 1 'j f 1 _i 2 y T-MOBILE 10 REFUGE E%ISRNG. 1 1 429'-6 AG.L' 1 p 1 (NEW LGMI PALE BY OTHERS) ~ 1 A-5 A-5 MSA 1 1 , 1 ArcNlbeNrc 4. /IwnlnB. da 1 _ 1 J BONOM OF RADOME / ~ ~ ~ ~ (NJ iMA LOGTKINS (E) BUILINNG 1 1 -t !2T' AG.I. _ i ~~~il„ A Isl 1 1 ~A~ ,1 3 b A aw (E) LILM POLE Tp ff REPUCEO ~R' 1'~?~ ' 1 1 WITH (N) i-MOBLE 21'-O• Ni. ])1~... 1yd ~'{~~Y^";T'~ w,+u. Fwa<P.eam 1 1 LIGHT POLE. (NEW LIGHT POLE BY Y- y iO 7~ ( ~ atF ~ R~ ~rfi e (N) i-MOBILE GPS ANiFNIk ------------J OTHERS) A_5 uouxrfD ox (E) BUILONG ~ ~"'r~';, r° ~ 35~ wAL1 ~{R alms (E) UINEAIIHr TXEE$ N PUBLIC ~x R.O.w. i0 BE REPUCEO WITH 21' BO%EO TREES BY T-MOBILE. 11P (E) SIDENAU OF (2) roiAL NEW PoLE BY 7-MOBAE t0 MEET FVBLIC WORKS SPECR1GIgN5. ~ ~ ~ " - I (E) PUNIER . FINISH GRADE _ _ - 41 (E) ELECTRIGL EWIPMENT ) 35'-0' 35'-0 (N) T-MOBILE CBA PRE-EABRIGTEp SHELTER Ai (E) UNOSGPE 1 e (N) 6 e REMOVABLE GROUIO LEVEL BY OTHERS t mpi p_5 BOLUROS. (A) TOTAL F >dd ~ [.1 ~ NORTH ELEVATION ;~",`_R. D 1 c ~ s, E _ ~ R' ~ PoW: NEW POLE BY T-MOBILE ro NEEi P1,BLIL woR%s sPECIrprKwa. : ~ a, (N) r-MOBILE PANEL ANTENNAS (J) IOigl WITH (2) ~ PolE ANO LIGHT ARY r0 cZ i _ TlN PER ANRNIU, 1w1UNTE0 NTNN q 20 W ~ 5' HT. BE CAIVANIZED r0 MATCH (E) c a _ RACONE ON TOP OF A NEW ZO• % 21'-p' M. LIGHT SURROUNgNG STREET LIGHTS. yQqy _ FOP APOLE/J ANTENIkS PoLE (FOND. POLE HT W/PAOONE 32' A.C.L) 1 All 432 aG.L. 2 9 a A-5 p-5 Qi ANIENN4 Rqp CENTER - (E) INHULiHY TREES IN PUBLK; ROW. i0) RENAINSigNWVO 4~ 7 229'-B AG.I t0 BE REPLACED WITN 21' BO%Ep TREES C BY i-MOBLE. M A (Z) IpTAL (E) TREE i0 REWN~ . BOROM A RApONE ~ - ~ ~5 ~ (E) URUrv PoLE R9TN ~ 422' AG L. 4. rt ,TM ~AT"i5~_<., k~~~~}0.~' ~ rPAxSFORNER ((N) (E) LIGHT POIC TO BE REPIpCEO ~~^~~{pP a0~ ~ ; (N) INA LOUtgNS ~ 14'-~~11EE 1 WI1H (N) T-MOBLE 20• % 2I'-0 - ! ~f qAa ~hA 'i1 ~I ~ ~ i-Mp@LE PgYER P.OC.) T 'H"~ Hr UGxT FOIE (NEW LICNT POLE rt' 1 } H-Lxk,.~a;y+~~_y,~ ~ ~ s (E) BUILOWJt ~1 ~Br orHERS~A ~tl~i~ ~A~ ~5~ iF~ ~ ~~~A~-.~@: _ ~ ~ ~ ~ " i ~ A' ~ w a A fit (E) e~ Lnxc `icy, . ~ih l~ ~fr,~A~~ 5 ~ ~ u ~ Hoo a Slhcon w ~ ' ` ors ~.r.. x (E) BOlURO E i (El WALL ~ o . ~ ' ' ' ~ , . SHEET TITLE: ' "1 _.___-_._.~:~.nW:.K 'sTf:Yrl..._',.. _a-.._.a.. NV FINSH GRADE ' CE) DRNEWAY _~4.~ _._r.ua._..__-.. -yaa-._~_. 8 ELEVATIONS ~ WEST ELEVATION SLNE R ® 2 A-4 T • •Mobile~~ August 22, 2008 City Clerk: Kimberly Smith 10300 Torre Avenue Cupertino, CA 95014 Re: OCI Site Number SF14949/ Cupertino, CA Dear Ms. Smith, General Order 159-A (GO-159-A) of the California Public Utilities Commission (CPUC) requires cellular carvers to send a notification letter of a ~.~tility's intent to construct a cellular facility to CPUC's Safety and Enforcement Division within 15 business days of receipt of all requisite local land use approvals. The notification letter shall state that such approvals have been received, or that no land use approvals are required. As set forth in GO 159-A, copies of the notification letter are required to be served concurrently by mail on the local governmental agency. Where the affected local governmental agency is a city, service of the notification letter to the city shall consist of service of separate copies of the notification letter upon the City Manager, the City Planning Director and the City Clerk. In order to comply with these requirements, I have enclosed a copy of the notification letter for our project within your city limits. If you have any questions or require additional information, please contact Tom Derkas at (925) 521-5987. Sincerely, C Renee Davis Compliance Consultant Omnipoint Communications Inc. A Attachments T-Mobile USA, Inc. 1855 Gateway Blvd., Suite 900 Concord, CA 94520 ATTACHNA ENT A ( e.. 1. Pro~c Lid iBrF Site Identification Number: S~F14949 Site Name: ~ Tin Tin Market Site Address: ~ 20041 Bollinger Avenue County: Santa Clara Site Location: Cupertino, CA 95014 Assessor's Parcel Number: 3119-34-052 Latitude: NAD 83 3~~ - 18 - 41.19 N Longitude: NAD 83 122 - 01 - 27,19 W 2. Project Description: Number of Antennas to be installed: 3 Tower Design: Monopole Tower Appearance: Street Light pole Tower Height: A) Building Height N/A B) Structure Height 32' - 0"' C) Top of Antenna Height 31' - 6" Lease Area: 7' x 11' 3. Business addresses of all Governmental Agen~;ies City of Cupertino, CA 4. Land Use Approval: 5. If Land Use approval was not required: Explain reason for exemption and attach documentation from the jurisdiction (i. e. copy of ordinance) that officially state~~ exemption: A T-Mobil$J~J$4'~ ff&QQ$ 1855 Gateway Blvd., Suite 900 Concord, CA 94520 T • •Mobile•a August 22, 2008 Safety & Enforcement Division California Public Utilities Commission 505 Van Ness Avenue San Francisco, CA 94102 RE: OCI Site Number SF14949/ Cupertino, CA This is to provide the Commission with notice pursuant to the provisions of General Order No. 159A of the Public Utilities Commission of the State of California ("CPUC") that: X (a) The cellular company has obtained all requisite land use approval for the project described in Attachment A. (b) That no land use approval is required because A copy of this notification is also being provided to the appropriate local governmental agency for its information. Should there be an.y questions regarding this project, or if you disagree with any of the information contained herein, please contact Tom Derkas at (925) 521-5987 of Omnipoint Communications, Inc. dba T-Mobile, USA corporate identification number U-3056-C. Very truly your Renee Davis Regulatory Compliance cc: City of Cupertino + T Mobile USA, Inc. 1855 Gateway Blvd., Suite 900 Concord, CA 94520 (1~~``~` OWNER AUTHORIZATION AGREEMENT Market: SF -South Bav Site Number: SF15041C Site Name: Memorial Park Site Address: 21267 Stevens Creek Blvd., Cupertino, CA 95014 RE: Property described as: APN: 326-29-006 (the "Property") Cit~f Cu e~rtino Is the owner of the Property (the "Owner") and has the authority to enter into a lease agreement with Omnipoint Communications, Inc. ("T-Mobile") concerning the portion of the Property that T-Mobile seeks to occupy. Owner hereby grants T-Mobile and its agents a revocable right to enter the Property to perform any reasonable tests that T-Mobile deems desirable to determine the feasibility of constructing and operating its communications facility upon the Property, including but not limited to 1) radio frequency testing; 2) soils testing; 3) on-site feasibility assessment; and ~I) filing of zoning applications (the "Access Right"). Owner may revoke the Access Right at any time by delivering written notice to T-Mobile by certified mail, return receipt requested, at the following address: T-Mobile USA, Inc. With a Copy to: 12920 SE 38~' Street Omnipoint Communications Bellevue, WA 98006 2280 Bisso Lane Attn: PCS Lease Administrator Concord, CA 94520 With a copy to: Attn: Legal Dept. Attn: Lease Administrator This notice will be effective three (3) days after actual receipt by T-Mobile, provided, however, that T- Mobile may still enter the Property to remove any equipment it has placed there. Owner further agrees to cooperate with T-Mobile in obtaining, at T-Mobile's expense, all licenses and permits or authorizations required for T-Mobile's use of the Property from all applicable government and/or regulatory entities (including, without limitation, zoning and land use authorities, and the Federal Communications Commission) including appointing T-Mobile as agent for all land use and zoning permit applications, and Owner agrees to cooperate with an~i to allow T-Mobile, at no cost to Owner, to obtain a title report, zoning approvals, variances, and land-use; permits. T-Mobile agrees to repair any damage to Property caused by T-Mobile's use of the Access Right. T- Mobile further agrees to indemnify, defend and hold Owner harmless from and against any and all damages, losses and expenses arising out of or resulting from any claim, action or other proceeding that is based upon any negligent act or omission or willful misconduct of T-Mobile or its employees or agents, arising in connection with the Access Right.. EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS. MADE NO REPRESENTATIONS OR COMMITMENTS THAT A LEASE AGREEMENT CONCERNING THE PROPERTY WILL BE ENTERED INTO IN THE FUTURE. OWNER: Ci f ert' ~ By. t c , c S..og Name: ~K"t t~ ~J ~/l1 le4 ~ Its: AKa Sv4~o ~=onsvlt~r?9