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T- mobile USA Inc. /OHI /OCI Site Reference: JE05406A Orange Grove Park
ENTRY AND TESTING AGREEMENT
THIS ENTRY AN�D TESTING AGREEMENT (`'Agreement ") is made and
I-y
entered into as of the � day of bc4y W
2008, by and between City of Arcadia , ( "Licensor ") and Omnipoint Communications
Inc., a subsidiary of T- Mobile USA Inc., a Delaware corporation ( "Licensee ").
A. Licensor owns, leases, licenses or has the right to use ("Primary
Agreement ") the following described property: 670 E. Orange Grove Park Avenue_,
Arcadia, CA 91005 ( "Site ");
B. Licensee has an interest in subleasing a portion of the Site for use as an
antenna site for the receipt and transmission of wireless communications signals only;
and
C. In order for Licensee to determine the viability and feasibility of the Site
as an antenna site, it is necessary for employees, agents or Licensor approved
independent contractors of Licensee to enter upon and inspect the Site and /or temporarily
locate communications equipment on the Site to conduct short term radio propagation
tests, and to make application with local, state and federal governmental entities for
approval of the Site as an antenna site; and
D. Licensor and Licensee desire to provide for the entry upon, inspection
and /or testing activities and applications concerning the Site pursuant to the terms
contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
undertakings, and other consideration set forth in this Agreement, Licensor and Licensee
agree as follows:
1. Consent. Licensor consents and agrees that, subject to any restrictions
contained in the Primary Agreement, provided however, that Licensee is provided a copy
of the Primary Agreement for review prior to execution of this Agreement, Licensee, its
employees, authorized agents and Licensor approved independent contractors
("Authorized Parties ") may enter upon the ground space of the Site to conduct and
perform some or all of the following activities ( "Permitted Activities "): surveys,
geotechnical soil borings and analyses, Phase I environmental audits, boundary surveys,
radio propagation studies, and such other tests and inspections of the Site which Licensee
may deem reasonably necessary. Licensee shall notify and obtain Licensor's prior
consent before accessing Licensor's tower, monopole and/or equipment. Licensee's
equipment shall not remain at the Site beyond any eight hour period without the prior
written consent of Licensor. Notwithstanding anything to the contrary herein, Licensee
in performing the Permitted Activities shall not interfere with Licensor's operations on
the Site nor cause interference to Licensor's antenna facilities. Licensee agrees to be
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responsible for any and all costs related to the Permitted Activities, including temporary
installation on and operation and removal of equipment on the Site.
2. Access. Licensor agrees that subject to all restrictions contained in the
Primary Agreement between Licensor and the owner of the Site, provided however, that
Licensee is provided a copy of the Primary Agreement for review prior to execution of
this Agreement, the Authorized Parties may enter upon the Site to perform the Permitted
Activities upon execution of this Agreement and may have access to the Site subject to
the restriction in Section 1, for up to thirty (30) days, commencing upon the date of
execution of this Agreement.
3. Removal of Property. Licensee agrees that it shall, upon the conclusion
of the term of this Agreement, remove any and all equipment installed on the Site as a
part of the Permitted Activities, repair any and all damage to the Site that might have
been caused in connection with any of the Permitted Activities, and shall return the Site
to the condition it was in before Licensee's entry onto the Site. In the event any
equipment installed on the Site by Licensee is not timely removed, Licensor shall have
the absolute right upon three (3) days prior written notice to Licensee, to remove and
store such equipment at Licensee's sole cost and expense. In the event the equipment is
stored and Licensee does not both remove the equipment from storage within thirty (30)
days from Licensee's receipt of the above written notice and pay Licensee's removal and
storage costs, Licensor may dispose of such equipment at Licensee's sole cost and
expense.
4. Insurance. Licensee must during the term of this Agreement and at
Licensee's sole cost and expense, obtain and maintain not less than the following
insurance:
4.1 Property insurance, including coverage for fire, extended coverage,
vandalism and malicious mischief upon all Licensee's property located on the Site
in an amount of not less than 90% of the full replacement cost;
4.2 Commercial general liability written on an occurrence basis insuring
operations hazards, independent contractor, hazard, contractual liability with
limits of not less than $1,000,000 combined single limit for each occurrence for
bodily injury, personal injury, death and property damage liability naming
Licensor as an additional insured;
4.3 Statutory worker's compensation and employer's liability insurance;
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4.4 Automobile liability insurance in an amount not less than $1,000,000
combined single limit for bodily injury, death and property damage. Insurance
shall include coverage for all vehicles including hired and non - owned.
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4.5 All insurance policies must be taken out with reputable insurance
companies that are licensed to conduct business in the jurisdiction where the Site
is located and all insurers must be rated A- or better. Prior to entering the Site,
Licensee must deliver to Licensor certificates of insurance representing the
required coverages.
5. Compliance with All Laws. Licensee at its own expense, shall comply with
all applicable laws, regulations, rules and orders with respect to this
Agreement regarding the Site and all Permitted Activities.
6. Termination. Licensor shall have the right in Licensor's reasonable discretion,
to immediately terminate this Agreement and all rights of Licensee including that of
access, upon 30 days written notice to Licensee.
7. Governing Law and Venue. The parties agree that the interpretation and
construction of this Agreement shall be governed by the laws of the State of California,
without regard to such state's conflict of law provisions, and that any action to interpret
or enforce this Agreement shall be maintained exclusively in the courts of Los Angeles
County.
8. Faxed Signature. The parties agree that a faxed copy of the Agreement
with a proper signature is acceptable and shall have the same binding effect as an original
Agreement with proper signature.
9. Indemnity. Licensee hereby agrees to defend, with counsel reasonably
acceptable to Licensor, indemnify and hold Licensor and Licensor's officers, officials,
employees, consultants, attorneys, contractors and agents free and harmless from and
against any and all claims, demands, causes of action, costs, liabilities, expenses, losses,
damages or injuries of any kind in law or equity, including the payment to Licensor of all
consequential damages due to loss of use and reasonable expenses of legal representation,
whether by special counsel or by Licensor's staff, to persons or property, including
wrongful death, to the extent caused by the negligent acts, omissions or willful
misconduct of Licensee, Licensee's partners, affiliates, agents officials, officers or
employees in performance of this Agreement or Licensee's Permitted Activities.
Licensor must give Licensee prompt notice of any claim. Licensee shall defend, with
counsel reasonably acceptable to Licensor and at Licensee's sole expense, any and all
aforesaid suits, actions or proceedings, legal or affirmative, that may be brought or
instituted against Licensor, Licensor's officers, officials, employees, consultants,
attorneys, contractors and agents. Licensee shall pay and satisfy any judgment, award or
decree that may be rendered against Licensor, Licensor's officers, officials, employees,
consultants, attorneys, contractors and agents resulting from such suits, except to the
extent determined to be caused by the negligence or willful misconduct of Licensor or
Licensor's officers, officials, employees, consultants, attorneys, contractors and agents.
Licensee shall reimburse such parties for any and all legal expenses and costs incurred by
one or all of them in connection with this Agreement or the indemnity herein provided if
Licensee is in breach of this section. Licensee's obligation shall survive termination or
expiration of this Agreement, and shall not be restricted to insurance proceeds, if any,
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received by Licensor or Licensor's officers, officials, employees, consultants, attorneys,
contractors and agents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LICENSOR:
By: , p
Name: Donald Penman
Title: City Manager
Date: October 6, 2008
APPROVED AS TO FORM:
P. Deidch; City Attorney
LICENSEE: "Omnipoint Communica ions, Inc. ":
By: :- v
Name:
" �}{--� nvproved as to form
Title: �.19 QAI" " � KSO� u to ania B. Dao
Date:
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