17-0830_VERIZON WIRELESS_License Agreementa
WIRELESS COMMUNICATIONS SITE LICENSE AGREEMENT
, This Wireless Communications Site License Agreement ("License") is made as of
Al fu'*tzO ,2017 ("Effective Date"), by and between the City of San Juan
Capistfáno, California ("Licensoy''), a general law city and California municipal corporation,
having a mailing address at 3240A Paseo Adelanto, San Juan Capistrano CA 92675, and Los
Angeles SMSA Limited Partnership dlbla Yerizon Wireless, ("Licensee"), with its principal
place of business at One Verizon Way, Mail Stop 4A'W100, Basking Ridge, New Jersey 07920.
Licensor, Licensee and any permitted Sublicensees as provided for in Section 4 are sometimes
referred to herein individually as a "Party" and collectively as the "Parties.o'
I. GRANT OF AUTHORITY
1 . 1 Licensor is the record owner of a piece of real property generally located at 32400
Paseo Adelanto, City of San Juan Capistrano, Californi4 Assessor's Parcel Number 668-101-23,
legally described in Exhibit "4" (the "Property"). Subject to the terms and conditions of this
License, Licensor hereby licenses to Licensee portions of the Property along with certain non-
exclusive access rights, all of which are clearly and particularly described and depicted on
Exhibit "8" attached hereto and incorporated herein by reference. The portions of property
described and depicted in Exhibit B shall hereinafter collectively be refened to as the
"Premisesoo and consist of the following:
1.1.1 approximately 696 square feet for the placement of Licensee's Facilities
(defined below) (the "Equipment Areao') as depicted in Exhibit B; and
1,1.2 those certain underground spaces where Licensee's conduits, utility lines.
wires, cables, pipes and other necessary connections may be installed and maintained between
the Equipment Area and the electric power, telephone, and the edge of the Property nearest to the
ñtel sources for the Property (hereinafter collectively referred to as the ooConnection Area"),
which spaces shall be mutually and reasonably designated by the Parties prior to construction as
depicted in Exhibit B; and
1.1.3 those certain spaces designated for non-exclusive foot and vehicular
access from the edge of the Property to the Equipment A¡ea for construction and maintenance of
the Premises and the Facilities (hereinafter referred to as the "Access Area") as depicted in
Exhibit B.
L2 Licensee shall be responsible for obtaining at its sole cost and expenseo &y
easements, rights of way or other authorizations that may be required from owners of private
property adjoining the Property in order to access the Property for the purposes of this License.
1.3 Subject to the terms and conditions of this License, Licensor licenses to Licensee
use of the Premises, at Licensee's sole cost and expense, for (i) the transmission and reception of
communication signals duly licensed by the Federal Communications Commission, (ii) the
construction, maintenance, repair and replacement of related antennas, equipment, cables,
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facilities and all improvements related thereto on the Premises, as further described in Exhibits B
and C (hereinafter collectively to be referred to as "Facilities"), and (iii) activities related to any
of the foregoing, provided such activities do not require an expansion of the Premises or
Facilities or violate Licensee's duties set forth herein ("Permitted Use").
L4 Licensee shall not use the Premises for any purpose not expressly permitted
hereunder. Licensee shall not (a) create, cause, maintain or permit any nuisance in, on or about
the Prernises or permit or suffer the Premises to be used for any unlawfirl purpose, or (b) do or
permit to be done anything in any manner which unreasonably disturbs the occupants of
Property, or (c) interfere with or disturb in any way (l) the operations of Licensor on the
Property, or (2) subject to the terms of Section 6 of this License, the use of the Property by other
licensees.
1.5 Licensee shall, at Licensee's expense, keep and maintain the Premises in
reasonable condition and repair during the term of this License. Licensee shall be responsible for
maintenance of the Premises.
1.6 Licensee shall install and operate the Facilities in a good and workmanlike
manner that shall at all times be in compliance with federal, state and local law.
L7 Licensee shall not place any signs upon the Premises without the prior written
consent ofthe Licensor, except as provided in Section 21.1.
1.8 Licensee's right to use the Prernises is conditioned on obtaining and maintaining
all federal, state and local permits, certificates, licenses and approvals from all applicable
governmental or regulatory entities ("Govemmental Approvals"). The Parties acknowledge that
Licensor, in executing this License, is acting only in its capacity as the owner of the Property and
not in any govemmental capacity. Licensee shall not consider this License as a Governmental
Approval required for the construction or operation of a wireless communications facility.
2. TERM.
2.1 The initial term of this License shall be five (5) years (the "Initial Termoo),
commencing on the earlier of (i) the date Licensee commences construction or installation of its
Facilities on the Premises, or (ii) December l, 2017, ("Comrnencement Date").
2.2 Provided that Licensee is not then in default of this License, this License shall
automatically renew for fou¡ (4) additional, (five) S-year terms (each being a "Renewal Term"),
unless Licensee notifies Licensor in writing of its intention not to renew this License at least
ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. Licensee's
license of the Premises during each Renewal Term shall be on the same terms and conditions as
set forth herein except that the amount of License Fee shall be as provided in Section 3 below.
2.3 If Licensee shall remain in possession of the Premises after termination of the
License or at the expiration of the Initial Term of this License or any applicable Renewal Term
without a w¡itten agreement, such possession shall be deemed a holdover use under the same
terms and conditions of this License, except that the License Fee shall be 125% of the License
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Fees in effect at the expiration o¡ termination of this License. Nothing contained herein shall
grant Licensee the right to holdover after the term of this License has expired and
notwithstanding the payment of rent during the holdover period, Licensor shall have the right to
require Licensee to vacate the Premises at any time upon thirty (30) days written notice.
3. LICENSE FEES.
3.1 For the first year of the Initial Term, Licensee shall pay Licensor the sum of
523,717.40 ("License Fee"), which shall be paid in twelve (12) equal monthly installments in
advance. The License Fee shall increase annually during the Initial Term and any Renewal Term,
effective as of each anniversary of the Commencement Date, by an amount equal to two percent
(2%) of the license fees paid to Licensor during the prior twelve month period.
3.7 The License Fee shall be payable without offset or deduction at Licensor's
address specified below or to any other person or frrm as Licensor may, from time to time,
designate in writing at least sixty (60) days in advance of any License Fee payment due date. If,
at any time, Licensee fails to make timely payment before the i5th of the applicable month, a
late charge equal to five percent (5%) of such past due amount shall be due, as well as interest
which shall accrue on the past due amount at the rate of twelve percent (12%) per annum or the
maximum allowable by law, whichever is less, until paid in full. This right is in addition to all
rights of Licensor to terminate this License pursuant to Section l0 herein.
3.3 Licensee shall pay additional rent for any Authorized Sublicensees (as defined in
Section 4.2) on the same paymenf terms as the Licensee Fee but in an amount as specified in
Licensoros written consent to such Authorized Sublicensee ("Authorized Sublicensee Fee").
3.4 All sums payable by Licensee under this License, whether or not stated to be
License Fees or Authorized Sublicensee Fees, shall be collectible by Licensor as License Fees,
and upon default in payment thereof Licensor shall have the same rights and remedies as for
failure to pay License Fees (without prejudice to any other right or remedy available therefor).
3.5 INTENTIONALLYDELETED.
3.6 iNTENTIONALLYDELETED
3.7 Licensèe shall have the right to use a direct deposit system with regard to License
Fee payments. Licensor agrees to cooperate with Licensee in providing requisite information to
Licensee for such direct deposit. The irnplementation of the direct deposit system shall be at
Licensee's expense.
4. ASSIGNMENT OR SUBLETTING.
4.1 Licensee shall not assign this License in whole or in part without the prior express
written consent of the Licensor, which consent may be withheld in the Licensor's sole discretion,
notwithstanding sections 1995.260 ønd 1995.270 of the California Civil Code, and as they may
be amended. Notwithstanding the foregoing, Licensee may without Licensor's consent, but with
twenty (20) days prior written notice to Licensor, assign this License and its other rights
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hereunder (including, without limitation its right to renew) to any person or business entity
which is an "Affiliate" of Licensee upon prior written notification to Licensor. For purposes of
this subparagraph, Affiliate shall mean: (i) a corporate entity which owns fifty percent (50%) or
more of the outstanding cornmon stock or ownership units of Licensee, or (ii) a corporate entity
which has fifty percent (50%) or more of its common stock or ownership units owned by
Licensee, or (iii) an entity which purchases substantially all of the assets of Licensee, or (iv) an
entity which is the surviving entity in a merger with the Licensee. Licensee may not sublet or
sublicense any portion of the Premises to an Affrliate unless such a sublet or sublicense is in
accordance with Section 4.2 below.
4.2 Licensee may not sublicense or sublet ali or any portion of the Premises or any of
its rights he¡eunder except with the prior written consent of Licensor, which consent may be
withheld in the Licensor's sole discretion, notwithstanding sections 1995.26A and 1995.270 of
the California Civil Code, and as they may be amended. Licensee must submit sublicense
requests to Licensor in writing together with a final execution copy of the sublicense agreement
and its appendices and exhibits with no redactions. Any sublicense that is entered into by
Licensee with the prior written consent of Licensor shall be subject to the provisions of this
Agreement and shall be binding upon the successors, assigns, heirs and legal representatives of
the respective Parties hereto. As contemplated herein a sublicensee approved by Licensor
pursuant to this Section is known as an "Authorized Sublicensee." Licensee acknowledges that
Licensor may refuse to consent to any proposed sublicense that involves the collocation of a
third party's facilities (including an Affiliates' facilities) unless Licensee and/or the proposed
sublicensee agrees to pay to Licensor additional fees and the proposed sublicensee agrees in
writing to comply with all of the terms and conditions of the License from and after the effective
date ofthe consent to sublicense.
4.3 Any unauthorized assignment or sublicense shall be void and shall immediately
terminate this License.
4.4 Any assignment, sublet or sublicense consented to by Licensor in its sole
discretion shall not operate to release the Licensee from its liabilities and obligations arising
hereunder unless specifically reserved.
5. DUE DILIGENCE PERIOD
5.1 For one hundred eighty (180) days from and after the Effective Date of this
License (the "Due Diligence Period"), Licensee and its agents, engineers, contractors and other
representatives, in accord with the notice requirements of Section 8 below, shall have the right to
enter upon the Property, upon prior notice to Licensor, to inspect, examine, sample and conduct
all engineering tests or studies of the Premises, to apply for Governmental Approvals, and
otherwise do those things that, in the reasonable opinion of Licensee, are necessary to determine
the physical condition of the Premises, Licensor's title to the Property and the feasibility or
suitability of the Premises for Licensee's Permitted Use, all at Licensee's expense. Licensee, at
its own cost and expense, (1) shall repair any damage caused by such examination or inspection
and restore the Property to its condition prior to such testing and activity, and (2) shall provide
Licensor with an insurance certificate, with limits of coverage and from an insurer licensed,
authorized or permitted to do business in the state and reasonably satisfactory to Licensor,
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naming the Licensor as an additional insured for any loss, damage, claims or liability suffered by
Licensor, or by or to any portion of the Property resulting from any of the activities permitted in
this Section 5. Such insurance certificate to be provided to Licensor prior to the commencement
of any such activities.
5.2 Licensee shall not be liable to Licensor or ariy third party on account of any pre-
existing defect or condition on or with respect to the Property, whether or not such defect or
condition is disclosed by Licensee's inspection. If, in the sole and absolute opinion of Licensee,
the Premises are not suitable for Licensee's intended use, Licensee shall have the right at any
time prior to the expiration of the Due Diligence Period to terminate this License by sending
written notice of termination to Licensor. In the event of such termination, Licensor shall have
no obligation to refund, and may retain, the Commitment Fee. Thereafter, neither Licensor nor
Licensee shall have any further obligation or liability under this License except as otherwise
provided herein. Licensee shall indemni$ Licensor and hold it harmless from all expenses,
costs, damages, loss, claims or other expenses and liabilities (collectively, "Claims") arising
from any inspection of the Premises by Licensee and its agentsn engineers, contractors and other
representatives during the Due Diligence Period, excluding, however, any liability arising from
any pre-existing condition or Claims to the extent arising from the negligence or willful
misconduct of Licensor, its employees, agents or contractors.
6. INTERFERENCE.
6.1 Licensee shall operate its Facilities in a manner that will not cause interference
with the use or enjoyment of the Property by Licensor and other lessees or licensees in and/or on
the Property as of the date of this License. Licensor hereby acknowledges that Licensee's use of
the Premises for Licensee's Permitted Use shall not constitute an impermissible interference. All
operations of Licensee shall be lawful and in compliance with all Governmental Requirements
(as hereafter defined), rules and regulations including, but not limited to those of the Federal
Commünications Commission ("FCC") and the Federal Aviation Administration ("FAA").
"Governmental Requirements" shall mean all requirements under any federal, state or local
stâtutes, rules, regulations, ordinances, or other requirements of any duly constituted public
authority having jurisdiction over the Property (including, without limitation, the Premises).
Should Licensee be notified by any government agency of any violation, it must share said notice
with Licensor within thirty (30) days of notice and Licensee shall provide Licensor
documentation from the government agency that Licensee has remedied the violation. Licensee
shall indemnifu Licensor and hold it harmless from all expenses, costs, damages, loss, claims or
other expenses and liabilities arising from any interference caused by Licensee's failure to
comply with applicable FCC or FAA rules and regulations. Licensee shall be responsible for all
costs associated with any tests deemed necessary to resolve any and all interference as set forth
in this License. If such interference caused by Licensee's failure to comply with FCC or FAA
rules and regulations has not been corrected within thirty (30) days after Licensee receives notice
thereof from Licensor, Licensor may require Licensee to remove the specific items from the
Facilities causing such interference.
6.2 Licensor shall not alter its existing or contemplated use of the Property in any way
which materially interferes with the operations of Licensee. Without limiting the generality of
the foregoing, Licensor hereby acknowledges that in the event of any interference with
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Licensee's Permitted Use as a result of the transmission or reception (or both) of radio,
microwave or other telecommunications signals by a future lessee, licensee or occupant of the
Property, Licensee's rights hereunder to conduct Licensee's Permiued Use shall be and remain
superior to the rights of any such future lessee, licensee or occupant, subject, however, to the
provisions of Section 6.3 below. Licensor fuither acknowledges that interference with
Licensee's operations shall cause Licensee to suffer irreparable injury and entitle Licensee, in
addition to exercising any other rights hereunder or under applicable law, to seek the immediate
enjoinment of such interference against the interfering party. In the event the Property, or any
portion of it, is subsequently developed or redeveloped, Licensor (or its suscessor to the
Property) may relocate the Access A¡ea and Connection Area, at the expense of Licensor or its
successor to the Property.
6.3 Licensor reserves the right to license other portions of the Property to other
persons during the term ofthis License. Accordingly, Licensor agrees that any other person or
entity who may install eqriipment subsequent to the Commencement Date in and/or on the
Property will be permitted to install only such communications equipment that is of the type and
frequency that will not cause any material interfeience to Licensee's Facilities or those of pre-
existing Authorized Sublicensees. To the extent that Licensee's operations or those of
Authorized Sublicensees are not within the parameters of its FCC license, this protection from
co-located interference will not be applicable, but it shall be applicable with respect to those
operations, or portions thereof, falling within the FCC license parameters. In the event that
Licensee or any Authorized Sublicensee commences to use the Premises in a manner as to which
Licensee or Autho¡ized Sublicensee is not licensed by the FCC at the time of initial installation
of Facilities, but with respect to which Licensee or Authorized Sublicensee thereafter obtains
necessary FCC licensure, Licensee's or Authorized Sublicensee's right to conduct such particular
use shall be subordinate to the use of the Property by Licensor, other licensees or occupants
thereof existing on or befo¡e the date on which Licensee or Authorized Sublicensee commences
such use, and Licenso5shall be under no obligation to exercise the duties concerning interference
described above.
7. IMPROVEMENTS & UTILITIES.
7.l Prior to installing or allowing any Facilities to be installed in or on the Premises,
Licensee shall submit detailed engineering plans and specifications of the planned installation to
Licensor for Licensor's written approval, which approval shall not be unreasonably withheld,
delayed or conditioned. Licensor's review of Licensee's plans shall include a review of the
appearance of the Facilities. The Facilities to be instalied must be in compliance with all
applicable federal, state, and local laws, including but not limited to local zoning requirements,
and adhere to all technical standards set forth in this License including as depicted in applicable
exhibits. Licensor's approval of any installation is not a representation that such installation of
Faeilities is in compliance with all applicable govemmental laws, ordinances, rules and
regulations or that such facilities will not cause interference with other communications systems,
if any, then in operation on the Property. Nofwithstanding anything contained in this License to
the contrary, Licensor's approval or review of,plans shall not be required for like-kind equipment
exchanges or minor or routine repairs or alterations within the Premises.
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7.2 Ali work by Licensee shall be performed in compliance with applicable laws,
ordinances, Governmental Requirements and Governmental Approvals. During Licenseeos
construction of its Facilities, Licensee shall have, and Licensor hereby grants to Licensee, a
temporary construction easement to use portions of the Property reasonably necessary for the
temporary storage of materials and staging of construction. Licensee and its contractors and
subcontractors shall be solely responsible for the transportation, storage and safekeeping of
materials and equipment used in the performance of any work, for the removal of waste and
debris resulting therefrom on a daily basis, and for any damage caused by them to any
installations or work performed by Licensee's contractors and subcontractors. Upon completion
of construction, Licensee shall remove any items temporarily stored or placed by Licensee in
such construction easement area and retum such area to Licensor in the condition existing prior
to construction (subject to normal wear and tear). Licensee shall be responsible for obtaining at
its sole cost and expense, any tempoËry construction easements, rights of way or other
authorizations required from owners of private property adjoining the Property in order to access
the Property for construction purposes.
7 .3 Licensee is not authorized to contract for or on behalf of Licensor for work on, or
the fumishing of materials to the Premises or any other parl of the Property, and Licensee shall
discharge by payment, bond or otherwise, within thirty (30) days subsequent to the date of its
receipt of notice thereof from Licensor, any mechanic's, laborer's or similar lien filed against the
Premises or the Property for work or materials claimed to have been furnished at the instance of
Licensee.
7.4 Licensee wili notifo Licensor prior to commencing Licensee's installation work
on the Property. Prior to commencing any installation, Licensee will at its own cost and expense
deliver to Licensor a certificate of insurance confirming that insurances required under Section
13 of this License have been obtained and are in place, which policies will include Licensor and
Licensor's offrcials and employees as an additional insured as thei¡ interest may appear under
this License against any claim or liability arising out of Licensee's use and occupancy of the
Premises and the construction and installation operations conducted thereon. Prior to Licensee's
commencement of the installation of the Facilities, Licensee shall provide Licensor with copies
of any Governmental Approvals obtained by Licensee with respect to this License.
7.5 All installation and other work to be performed by Licensee hereunder will be
done in such a manner so as not to interfere materially with, delay or impose any additional
expense upon Licensor in maintaining the Property. In no event will Licensor be required to
consent to any installation or other work by Licensee which would physically affect any part of
the Property outside the Premises (other than with respect to the temporary construction
easement described in Section 7.2hercof, which shall be subject to Licensee's duty to restore
such area as provided therein). Licensee shall repair any damage caused by Licensee to the
Property, reasonable wear and tear excepted.
7.6 The Facilities shall remain the exclusive property of Licensee during the term of
this License, and Licensee shall have the right to remove all or any portion of the Facilities at
any time during the term of this License or following the termination or expiration of this
License as hereinafter provided. Following any termination or expiration of this License,
Licensee shall remove all of its Facilities. In performing such removal, Licensee shall restore the
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Premises and any personal property and fixtures thereon to as good a condition as they we¡e in
prior to the installation or placement of the Facilities, reasonable wear and tear excepted. If
Licensee fails to remove all of its Facilities within ninety (90) days after expiration or earlier
termination of this License, Licensor may remove and dispose of the Facilities within the next
succeeding ninety (90) day period, and Licensee shall reimburse Licensor for the reasonable
costs actually incuned for such removal and restoration of the Premises, or Licensor may deem
the Facilities abandoned, whereupon the Facilities shall become Licensor's property.
7.7 Licensee shall, at Licensee's expense, keep and maintain the Premises in
commercially reasonable condition and repair during the term of this License, including any
Renewal Term. Licensee agrees to maintain its Facilities in proper operating condition and
within applicable industry accepted safety standards. All installations and operations of the
Facilities by Licensee shall comply in all material respects with all applicable rules and
regulations of the FCC and all applicable federal, state, city, county and local codes and
regulations. Licensor assumes no responsibility for the licensing, operation or maintenance of
the Facilities. Licensee has the responsibility of carrying out all of the terms of its FCC license.
7,8 Licensee shall have the right, at Licensee's expense, to install or improve utilities
on the Premises. All utility routes must be approved by Licensor prior to construction. Licensee
agrees to have a separate meter installed for Licensee's electrical power consumption,
whereupon Licensee shall pay the power utility directly for such usâge. Generators may only be
installed and used on the Premises to generate temporary power with the prior written consent of
Licensor.
8. ACCESS.
8.1 Licensee shall have the non-exclusive right of ingress and egress from a public right-of-
way,7 days a week, 24 hours a day, over the Property to and from the Premises for the purpose of
installation, operation and maintenance and repair of Licen3ee's communications equipment.
9. EVENTS OF DEFAULT.
9.1 It shall be an Event of Default if any one or more of the following events shall
occur:
9.1.1 Licensee shall default in the payment when due of any License Fees or
other sum of money specified hereunder to be paid by Licensee, and Licensee does not remedy
such default within fifteen (i5) days after written notice thereof from Licensor; or
9.1.2 Licensee shall default in the performance of any other of the terms,
conditions or covenants contained in this License to be performed or observed by Licensee other
than that specified in 9.1.1 above and the interference provision herein and Licensee does not
remedy such default within thirfy (30) days after written notice thereof is given to Licensee or, if
such default cannot be remedied in such period, Licensee does not commence such efforts or acts
as shall be necessary to remedy the default and continue to prosecute such efforts atrd/or acts to
completion with reasonable diligence.
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9.1.3 Upon the occurrence of an Event of Default and Licensee's failure to cure
the Event of Default within the applicable cure period, Licensor shall have and may pursue all
rights and ¡emedies permitted by applicable law, including but not limited to the following:
(a) Following five (5) days' notice to Licensee, decla¡e to be
immediately due and payable, all License Fees and other charges, payments, costs and expenses
due from Licensee to Licensor and in ¿urears at the time of the Event of Default.
(b) Whether or not Licensor has elected to recover sum set forth in (a)
above, terminate this License on at least five (5) days' notice to Licensee and, on the date
specified in such notice, this License and the term hereby demised and all rights of Licensee
hereunder shall expire and terminate and Licensee shall thereupon quit and surrender possession
of the demised Premises to Licensor in the condition elsewhere herein required in which event
Licensee shall remain liable to Licensor as herein provided.
(c) exercise any and all rights and remedies permitted by applicable
10. TERMINATION BY LICENSEE OR LICENSOR.
10.1 Following the Commencement Date, and except as otherwise provided herein,
provided that no Event of Default exists at the time of issuance of Licensee's written notice, this
License may be terminated by Licensee in the following circumstances:
l0.l .I Upon ninety (90) days prior written notice, and upon payment to Licensor
of a termination fee equal to the lesser of: (i) twelve months of License Fees at the then cur¡ent
rate; or (ii) the number of months remaining in the Licensor's fiscal year (July 1 to June 30) at
the then cunent rate, if Licensee determines in its sole discretion that, based on (i) technology, or
(ii) changes in system design or system usage pattems, Licensee's use of the Facilities (as the
same may have been modified from time to time) is no longer consistent with the optimal
operation of Licensee's communications system, or Licensee determines in its sole and absolute
discretion that the use of the Premises is obsolete or unnecessary. Such termination fee shall be
payable at the time Licensee notifies Licensor of its election to terminate this License.
10.1.2 Upon Licensee terminating in accordance with this Section, Licensee shall
surrender and vacate the Premises and deliver possession thereof to Licensor on or before the
termination date in the condition required under this License for surrender of the Premises.
10.2 After the second i2nd) frve (5) year Renewal Term, in the event that the Licensor
determines in good faith that the Premises are needed by the Licensor for its core public
purposes, the Licensor shall have the right, upon two (2) years' written notice to Licensee, 1o
terminate the License. Notwithstanding the foregoing, if, after such termination notice has been
given, Licensor determines that an altemate ground location on the Property is available and
Licensee determines such location is acceptable to Licensee, Licensee may relocate the
Facilities, or any part thereof, to the alternate ground location on the Property at Licensor's sole
cost and expense. If such relocation ocsurs, then this License shall continue in full force and
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effect, except that the description of the Premises shall be changed to reflect the new location of
the Facilities.
11. CASUALTY AND CONDEMNATION.
11.1 If at any time during the term of this License all or "substantially all" (meaning
the remaining portion thereof shall not be of suffrcient size or condition to permit the
continuation of Licensee's Permitted Use in a commercially reasonable manner) of the Facilities
upon the Premises shall be damaged and/or destroyed by frre or other casualty, then Licensee
may terminate this License by providing written notice to Licensor, which termination shall be
effective as of the date of such damage and/or destruction, and whereupon Licensee shall be
entitled to collect all insurance proceeds payable on account thereof and to the reimbursement of
any prepaid License Fee, to be apportioned as of the termination date.
11.2 If at any time during the term of this License all or "substantially all" (as
described in the preceding subsection 11.1) of the Premises or the improvements located on the
Properfy shall be taken in the exercise of the power of eminent domain by any govemmental or
other authority, or by deed in lieu of condemnation, then Licensee may terminate this License by
providing written notice to Licensor, which termination shall be effective as of the date of the
vesting of title in such taking and any prepaid License Fee shall be apportioned as of said date
and reimbursed to Licensee. Licenso¡ and Licensee shall each be entitled to pursue their own
separate awards with respect to such taking, but in any event, Licensee's award shall be limited
to lost improvements investment, relocation, and loss of business. In the event of any taking of
less than all or substantially all of the Premises, this License shall continue and each of Licensor
and Licensee shall be entitled to pursue their own separate awa¡ds with respect to such taking.
12, TAXES.
1Z.l Licensee shall pay any personal property taxes assessed on, or any portion ofsuch
taxes attributable to, the Facilities. Licensor shall pay when due all real property taxes and all
other fees and assessments attributable to the Premises and the Property. However, Licensee
shall pay, as additional License Fee, any increase in ¡eal property taxes levied against the
Premises (excluding any additional taxes that relate to the period prior to the Commencement
Date, i.e., rollback taxes) and all use and occupancy taxes, if any, which is directly attributable to
Licensee's use of the Premises, and Licensor agrees to fumish written documentation of such
increase to Licensee.
L3.2 Licensor hereby provides notice pursuant to California Revenue and Taxation
Code Section 107.6, and Licensee acknowledges that this License may create a possessory
interest and Licensee may be subject to property taxes levied on such interest by the appropriate
taxing authority, as described in California Revenue and Taxation Code Section 107. Licensee is
required to pay any such tax directly to the appropriate taxing authority.
13. INSURANCE, RELEASE AND HOLD HARMLESS.
13.1 Licensee shall, at Licensee's sole cost and expense, procure and continue in force
during the term of this License, including any Renewal Term:
-t0-
License Site Namc: Capistrano Depot
DWT 309364 l3v2 005205 l -000033
6t 147.02300U92539¡ 9.5
l3.l.l Workers Compensation insurance at statutory limits, including Employers
Liability coverage with limits of $1,000,000 each accidenl$1,000,000 disease-
employee/$ 1,000,000 disease-policy limit;
13.I.2 Commercial General Liability insurance at minimum combined single
limits of $3,000,000 per-occunence for bodily inju¡y and property damage and $5,000,000
general aggregate including products/completed operations ($1,000,000), and XCU (Explosion,
Collapse, Underground) hazards and Contractual Liability; and
13.1.3 Commercial Automobile Liability insurance a combined single limit of
$1,000,000 each accident for bodily injury and property damage, covering all owned, non-
owned, and hired car coverage;
13.1.4 "All-risk" property insurance insuring the Facilities and its appurtenant
personal property for full replacement costs.
13.2 Any Subcontractor(s) hired by the Licensee shall maintain substantially the same
insurance coverage as that required of the Licensee. It is the responsibility of the Licensee to
assrue compliance with this provision. Licensor accepts no responsibility arising from the
conduct, or lack ofconduct, ofthe Subcontractor.
13.2.1 Builders Risk coverage as follows:
(a) All Risk Builders Risk insurance, including collapse coverage, is
required on a completed value form if the contract is for the construction of a structure or
building.
(b) The Builders Risk policy must provide transit and off-premises
coverage if the contract \Mith the buildor makes Licensor responsible for materials.
13.2.2 Intentionally Deleted.
13.2.3 V/ith reference to the foregoing insurance requirements:
(a) Licenso¡ shall be included as an additional insured with respect to
General Liability, Automobile Liability, and Builders' Risk.
(b) All liability policies shall contain no cross liability exclusions or
insured versus insured restrictions.
(c) A waiver of subrogation in favor of Licensor shall be contained in
the V/orkers' Compensation and all liability policies.
(d) All insurance policies that include Licensor as an additional
insured must be primary soverage, regardless of the application of other insurance.
(e) Insurance must be purchased from insurers licensed, authorized or
permitted to do business in the State of Califomia and that have a minimum rating assigned by
-l I,
License Site Name: Capistrano Depot
DWT 309364 I 3v2 005205 I -000033
6 l r47.02300V92539 I 9.5
A.M. Best & Company's Key Rating Guide of "4" Overall and a Financial Size Category of*vlI".
(Ð Certificates of Insurance shall be prepared and executed by the
insurance company or its authorized agent.
13.3 Licensee hereby releases Licensor and Licensor's properfy manager, if any, and
their respective agents, employees, officers, directors, council members and partners
(collectively the "Releasees") from, and shall not hold Releasees liable for consequential
damages, loss of income or damage to or loss of property or persons, or loss of use of any
property, in or about the Premises from any cause whatsoever or from any activity related to this
Agreement unless such damage, loss or injury directly results from the negligence or willful
misconduct of the Releasees,
13.4 Except to the extent due to or caused by the negligence or willful misconduct of
the Releasees, Licensee agrees to indemnifu, defend and hold Releasees harmless ftom and
against injury, loss, damage or liability (or any claims in respect of the foregoing), costs or
expenses (including reasonable aftomeys' fees and court costs) which may be imposed upon or
incurred by or asserted against Releasees occurring during the term of this License, or during any
period of time prior to the Effective Date hereof or after the expiration date of this License when
Licensee may have been given access to or possession of all or any part of the Premises arising
from:
13.4.1 any work or act done in, on or about the Premises or any part thereof at the
direction of Licensee, its agents, contractors, subcontractors, servants, employees, licensees or
invitees, including but not limited to the installation, use, maintenance, repair or removal of the
Facilities, except if such work or act is done or performed by Licensor or its agents or employee;
13.4.2 any negligence or other wrongful act or omission on the part of Licensee
or any of its agents, contractors, subcontractors, servants, employees, sublicensees, licensees or
invitees;
13.4.3 any accident, injury or damage to any person or property occurring in, on
or about the Premises or any part thereof; and
13.4.4 any failure on the part of Licensee to perform or comply with any of the
covenants, agreements, terms, provisions, conditions or limitations contained in this Agreement
on its part to be performed or complied with.
13.5 Licensor agrees to indemnifu, defend and hold Licensee harmless from and
against any and all injury, loss, damage or liability (or any claims in respect of the foregoing),
costs or expenses (including reasonable attomeys' fees and court costs) arising from any act,
omission or negligence of Licensor or its employees or agents, or the breach of this Agreement
except to the extent attributable to the negligence or intentional act or omission of Licensee, its
ernployees, agents or independent contractors.
License Sile Name: Capislrano Depot
DWT 309364 I 3v2 005205 I -000033
6 r 147,02300\2925391 9.5
- l2-
13.ó Each parly hereto hereby waives any and every claim which arises or which may
arise in its favor and against the other party hereto during the term of this License or any
extension or renewal thereof for any and all loss of, or damage to, any of its property located
within or upon or constituting a part of the Property, to the extent that such loss or damage is
recovered under an insurance policy or policies. Each party shall have their respective insurance
company issue any such insurance policy with a provision waiving such insurance cornpany's
right of subrogation.
14. NOTICES.
l4.l All notices, requests, demands and other communications hereunder shall be in
writing and shall be mailed, certified mail/retum receipt requested, or sent by overnight canier to
the following addresses:
If to Licensor:
City of San Juan Capistrano
32400 Paseo Adelanto,
San Juan Capistrano, CA92675
Attn: City Manager
If to Licensee:
Los Angeles SMSA Limited Partnership
dlblaYerizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
or to such other address as each party may designate for itself by thi*y (30) days' like notice
given in accordance with this Section. t
14.1.1 Notices will be deemed to have been given upon either receipt or
rejection. Actual written notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
15. QUIET ENJOYMENT, TITLE AND AUTHORITY.
15.1 Licensor covenants and warrants that (i) it has full right, power and authority to
execute this License and has the power to grant all rights hereunder; (ii) it has good and
marketable title to the Properfy free and clear of any liens, mortgages, restrictions o¡ other
encumbrances that will interfere with Licensee's Permitted Use of the Premises; (iii) its
execution and performance of this License will not violate any laws, ordinances, covenants, or
the provisions of âny mortgage, lease, license or other agreement binding on Licensor; (iv)
Licensee shall have the quiet enjoyment of the Premises, and Licensee shall not be disturbed as
long as Licensee is not in default beyond any applicable grace or cure period; and (v) if the
Premises are encumbered by a deed to secure debt, mortgage or other security interest, Licensor
will make a reasonable, good faith effort to provide promptly to Licensee a Subordination, Non-
Disturbance and Attornment Agreement ("SNDA") on such lender's or mortgagees then current
-t3-
License Site Name: Capistrano Depot
DWT 3093ó413v2 0052051 -000033
6 I 147.02300U92539 I 9.5
,
form. Licensor will permit Licensee to contact such holder directly and will cooperate with
Licensee in connection with any such discussions between Licensee and such holder concerning
an SNDA.
16. HAZARDOUS SUBSTANCES.
16.1 For purposes of this License, the term "Håzardous Substances" means: (a) any
substance, products, waste, or other material of any natu¡e whatsoever which is or becomes
listed, regulated, or addressed pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the
Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the
Hazardous Materials Transportation Conservation and Recovery Ac| 42 United States Code
Section 1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic
Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous
Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance
Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water
and Toxic Enforcement Act, Health and Safety Code Section25249.5 et seq.; Califomia Health
and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the
California Hazardous Waste Management Act, Health and Safety Code Section 25l7}.l et seq.;
Califomia Health and Safety Code Section 25501 et seq. (Hazardous Materials Release
Response Plans and Inventory); or the Califomia Porter-Cologne Water Quality Control Act,
Water Code Section 13000 et seq., all as amended (the above cited Califomia state statutes are
hereinafter collectively referred to as the "State Toxic Substances Law"); 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 conceming any Hazardous
Substance, now or at any time hereinafter in effect; (b) 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 based on negligence, trespass, intentional tort,
nuisance or strict liability or under any reported decisions of a state or federal court; (c)
petroleum or crude oil, other than petroleum and petroleum products which a¡e contained within
regularly operated motor vehicles; and (d) asbestos.
16.2 Licensor makes no warranty or representation whatsoever concerning Premises,
including without limitation, the condition, fitness or utility for any purpose thereof, of any
improvements thereto with applicable laws, ordinances or govemmental regulations. Licensee's
right to use Premises is strictly on an "as is" basis with all faults. Licensor hereby disclaims all
warranties whatsoeve¡, express or implied, the condition of the soil (or water), geology, and any
warranty of merchantability or habitability or fitness for a particular purpose. However,
Licensee shall not be responsible for any condition that existed on the Effective Date of this
License or that otherwise did not result from the activities of Licensee.
16.3 Except as otherwise specifically permitted under the terms of this License,
Licensee shall not use, create, generate, store, deposit, dispose of or allow any Hazardous
Substances on, under, about or within the Premises or Property in violation of any federal, state,
or local law, rule, regulation, order, decree or other requirement listed in Section 16.1.
Telecommunications equipment such as eiectronic equipment and cables as well as storage
batteries for emergency power, fuel for temporary generators during power outages, and ordinary
-t4-
License Site Name: Capistrano Depot
DWT 309364 I 3v2 005205 I -000033
6 l 147.02300\292539 r 9.5
paints, solvents and similar substances commonly used in small quantities and necessary for
maintenance of the Licensee's Facilìties are excepted from the preceding prohibition of use by
Licensee of Hazardous Substances on Property, so long as Licensee complies with allapplicable
federal, state and locai laws, rules and regulations governing the use of such items.
16.4 No permanent underground or above ground storage tanks shall be installed on
Premises, excluding, if applicable, Licensee's emergency diesel generator, diesel fuel and any
other fuel tanks or related equipment fastened to a building or strucfure.
16.5 Licensor or its officers, employees, contractors, or agenfs shall at all times have
the right to go upon and inspect the Property and the operations conducted thereon to assure
compliance with the requirements herein stated. This inspection may include taking samples for
chemical analysis of substances and materials present and/or testing soils on Property and taking
photographs, provided that no equipment shall be disturbed until it is determined by Licensee
that such will not endanger the operation of the equipment and Licensor shail be responsible for
any damage caused by this activity.
16.6 Licensee shall, within forty-eight (48) hours of the discovery by Licensee of the
presence of, or believed presence of, a Hazardous Substance as defined herein and in violation of
this License, give written notice to Licensor in the event that Licensee knows or has reasonable
cause to believe that any release of Hazardous Substance has come or will come to be located on,
under, about or within the Premises or Property. The failure to disclose in a timely manner the
release of a Hazardous Substance in violation of this License, including but not limited to, an
amount which is required to be reported to a state or local agency pursuant to law (e.g.,
Califomia's Hazardous Materials Storage and Emergency Response Act, Health and Safety Code
Section 2555A et seq.) shall be grounds for termination of this License by Licensor in addition to
actual damages and other remedies provided by law. Licensee shall immediately clean up and
completely remove all Hazardous Substances placed by Licensee on, under, about or within the
Premises or Property, in a rnanner that is in all respects safe and in accordance with all applicable
laws, rules and regulations.
16.7 In the event Hazardous Substances in violation of this License are discovered,
Licensee shall disclose to Licensor the specific information regarding Licensee's discovery of
any Hazardous Substances placed on, under, about or within Premises by Licensee, and provide
written documentation of its safe and legal disposal.
16.8 Breach of any of these covenants, terms, and conditions, and Licensee's failure to
cure within thirty (30) days of Licensee's receipt of written notice from Licensor, shall give
Licensor the authority to either immediately terminate this License or to shut down Licensee's
operations thereon, at the sole discretion of Licensor. In eithe¡ case, Licensee will coilinue to be
liable under this License to remove and mitigate all Hazardous Substances placed by Licensee
on, under, about or within the Properly. Licensee shall be responsible for, and bear the entire
cost of removal and disposal ol all Hazardous Substances introduced to Premises by Licensee
dwing Licensee's period of use and possession of Premises. Upon termination of this License,
Licensee shall, in accordance with all laws, remove from Premises any equipment or
improvements placed on Premises by Licensee that may be contaminated by Hazardous
Substances.
- 15-
License Site Name: Capistrano Depot
DWT 309364 l3v2 0052051 -000033
6 I I 47 .t2300U92539 I 9.5
,
16.9 Licensee shall defend, indemni$ and hold Licensor and its offrcials, officers,
employees, contractors and agents free and harmless from any and all claims, liability, injury,
damage, costs, or expenses (including, without limitation, the cost of reasonable attorney's fees)
arising as a result of the presence of use of any Hazardous Substances placed or caused to be
placed by Licensee or its partners, affiliates, agents, officials, officers, contractors or employees
on the Premises or Property. Licensor shall defend, indemnify and hold Licensee and its
officials, officers, employees, contractors and agents free and harmless from any and all claims,
liability, injury, damage, costs, or expenses (including, without limitation, the cost of attorney's
fees) arising as a result ofthe presence ofuse ofany Hazardous Substances placed or caused to
be placed by Licensor or its partners, affiliates, agents, officials, officers, contractors or
employees on the Premises. The foregoing indemnity is intended to operate as an agreement
pursuant to, among other requirements, Section 107, subdivision (e) of CERCLA, 42 United
States Code Section9607, subdivision (e), and California Health and Safety Code Section25364,
to insure, protect, hold harmless and indemnify each Party from any liability created by the other
Party pursuant to such sections.
16.10 The terms of this Section 16 shall survive the expiration or earlier termination of
this License.
17, SUCCESSORS AND ASSIGNS.
17.1 This License shall be binding upon and inure to the benefit of the parties, their
respective successors, personal representatives and permitted assigns.
18. ENTRY BY LICENSOR.
18.1 Licensee shall permit Licensor to enter upon Premises at any time, and Licensor
shall be liable for any damage to Licensee's personal property in the course thereof, but only to
the extent that damage was caûsed by the negligence of the Releasees.
I9. MISCELLANEOUS.
l9.l The prevailing party in any litigation arising hereunder shall be entitled to its
reasonable attorneys' fees and court costs. With respect to any provision in this License
providing for payment or indemnification of attorneys' fees, such fees shall be deemed to include
reasonable fees incurred through any applicable appeal process and shall include fees att¡ibutable
to legal services provided by any in-house counsel and staff to the prevailing or indemnified
party. For purposes hereof, the services of in-house attorneys and their staff shall be valued at
rates for independent counsel prevailing in the metropolitan area in which such counsel and staff
practice.
19.2 This License constitutes the entire agreement and understanding of the parties and
supersedes all offers, negotiations and other agreements. There are no representations or
understandings ofany kind not set forth herein.
19.3 Either party hereto that is represented in this transaction by a broker, agent or
commission salesperson (a "Representative") shall be fully and exclusively responsible for the
- l6-
License Site Name: Capistrano Depot
DÌ{T 309364 l3v2 005205 I -000033
6 I r47.02300\292539 I 9.5
payment of any fee, commission or other compensation owing to such Representative, and shall
indemniff and hold the other party harmless from and against any claim to a fee, commission or
other compensation asserted by such Representative, including reasonable attorneys' fees and
costs incurred in defending such claim.
19.4 This License shall be interpreted and construed in accordance with the laws of the
State of California without regard to conflict of law provisions and both parties agree to
exclusive personal jurisdiction and venue the state courts of California, Orange County, or in the
United States District Court for the Northern District of California.
19.5 If any term of this License is found to be void or invalid, such invalidity shall not
affect the remaining terms of this License, which shall continue in full force and effect.
20. INTENTIONALLY DELETED.
21. RF SIGNAGE AND NOTICES.
21.1 Licensee, and any Authorized Sublicensees, shall install signs in compliance with
applicable laws including OSHA 1910.145 and OSHA CFR 1926.200.
22. AMENDMENTS.
22.1 The provisions of this License may be amended only by mutual consent of the
Parties expressed in writing and executed by authorized representatives of both parties.
23. NORELOCATION,4.SSISTANCE.
23.1 Licensee acknowledges that Licensee is not entitled to relocation assistance, or
any other benefits under the Uniform Relocation Assistance Act, or any other applicable
provision of law upon termination of this License.
24. TIME.
24.1 Time is of the essence of this License.
License Site Name: Capistrano Depot
DWT 309364 I 3v2 005205 I -000033
6r t47.02300U92539 19.5
-t7-
IN \ilITNESS MEREOF, the Parties hereto have executed this License as ofthe date
aforesaid.
LICENSOR
CITY OF SAN ruAN CAPIS
By:
Dare: 6- Z' tZ
Approved as to Form
City Attorney
LICENSEE:
Los Angeles SM$A Limited Partnership
d/b/a Verizon
By AirTouch
By:
Printed Name:
Title
Date:ð
License Site Name: Capistrano Depot
D\{T 30936413v2 005205 l -000033
6 I I 47.02300\292539r 9.5
City
General Partner
-t8.
EXIIIBIT íA"
PROPERTY
The street address of the Property is: 32400 Paseo Adelanto, City of San Juan Capishano,
Califomia
The Assessor's Parcel Number is: 668-101-23
THAT PORTION OI'LOT 60 OF TRA('T NC). IO3. IN THE C¡TY OF SAN JUAN CAPISI'RÂNO, COUNTY OF
ORÁ¡\cË, STATU CIF CALIFORNIA, AS SHOWN ON ¡1 MAP RECORDEÞ lN ÍSOOK ll, P,\CES 29 TO 33
INCLUS¡VE OF IVIISCELLANEOUS MAPS. RECORDS OF ORÂNGE COUNTY, CAI-IIORNIA, DDSCRIIIED As
FOLLO\I'S:
BECTNN¡NG AT TllE SOUTHEÂST CORNER OF LOT 5e OF SAID fþ![lp!0];
T¡.IENCE NORTT{ 87O 55'3OU WEST ALONC THE SOUTI{ERLY LINE OF SAID LOT 59 AND THE WESTERLY
PROLONGATION TI{EREOF, 392.00 FEET;
THENCE SOUTH 2Ù 04'30" IVEST 555,53 FEET;
THENCE SOTJTI{ 8?" 55' 3ON EAST 38O.OO FËET TO ÀN TNTERSECTION WIT}I TI]E WESTI]RLY LINE OF THE
RIGHT OF WAY OF lHE ATCHISON, TOPEKA AND SANTA FE RAILTVAY RTCI{T OF WAY, AS SHOWN ON
SAID MAP;
THENCTJ NORTI{ERLY I\LONC SAID WESTERLY LINE 10 THD POINÎ OF BECTNNNC,
I:XCEPTINC TIIEREFROM, THÂT I'ORTION INCLUDED WITHIN THE L¡ln*D DESCRIBED IN DEED TO
0YHARzABALANDoTHERs,REcoRDEÞJL'NEl6,l970lNoF
SAID ORANCECOUNTY,
EXCEPT THEREFROM THA'I' PORTION OF SAID LAND CON\¡EYIJD 10 THE ORANCE COUNTY FLOOD
CONTROL DISTRICT AS SET FORTH AND DESCRIBED IN THAT CERTAIN DOCI,,IMENT RECORDËD JULY 28.
201I AS INSTRUiV{1i\1 NO. 201 100036s??J OF OFFICI^I. ttIjCORDS.
License Site Name: Capislrano Depot
DWT 309364 l3v2 005205 I 400033
6 t t 47 .02300U92539 I 9.5
I
-19-
a
EXHIBIT *8"
PREMISES
See attached.
License Site Name: Capistranû Depol
DwT 309364 I 3v2 005205 I -000033
6 r 147.02300\2925391 9.s
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EXHIBIT "C'
FACILITIES
THIS EXHIBIT SHALL CONTAIN AN ENGINEERED DRAIWING OF THE FACILITIES
INCLUDING SUPPORT STRUCTURES AND EQUIPMENT SHELTERS, AS TVELL AS
OTHER IMPROVEMENTS AND A LTST OF COMMUNICATIONS ANTENNAS AND
EQUIPMENT TO BE INSTALLED.
' Antennas Number Tvoe
LICENSEE SHALL PROVIDE AN AS-BUILT DRAWING AND PHOTOS WITHTN I
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