P-50389 PEBENITO AZ -- SUBLICENSE V4B (CLEAN).PDF
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Sublicensor Site: Pebenito, AZ (v4)
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Sublicensee Site: Tortilla Flats
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TOWER ATTACHMENT
COMMUNICATIONS SITE SUBLICENSE AGREEMENT
(County)
C-78-20-___-___-00
P-50389
THIS TOWER ATTACHMENT COMMUNICATIONS SITE SUBLICENSE AGREEMENT
(“Agreement”) is entered into this day of ____________, 20__ , by and between Commnet Four
Corners, LLC, a Delaware limited liability company authorized to do business in Arizona
(“Sublicensor”), and Maricopa County, a political subdivision of the State of Arizona (“Sublicensee”)
(individually a “Party” and collectively “the Parties”).
The Parties hereto agree as follows:
1.
Definitions. The following terms shall have the meanings indicated:
“Additional Payments” shall mean all sums of money, charges, or other amounts
Sublicensee is required to pay, whether to Sublicensor or another entity, and whether
pursuant to this Agreement or otherwise related to Sublicensee’s rent or other payments,
Sublicensee’s equipment, or Sublicensee’s use or occupancy of the Sublicensed Space,
which shall be payments in addition to the Rent, including but not limited to any sales,
rent, use and occupancy taxes, Forest Service and other governmental fees, and any other
taxes, fees, assessments, costs or expenses.
“Commencement Date” shall mean the earlier of (a) the date upon which Sublicensee
commences installation of the Equipment or (b) June 1, 2020.
“Equipment” shall mean only the equipment of Sublicensee allowed under this
Agreement and specifically described in Exhibit “A,” attached hereto and made a part
hereof .
“Effective Date” shall mean the date this Agreement is fully executed.
“FAA” shall mean the Federal Aviation Administration.
“FCC” shall mean the Federal Communications Commission.
“Government Approvals” shall mean all licenses, approvals and permits required for
Sublicensee’s Use of the Sublicensed Space.
“Hazardous Materials” shall mean hazardous or toxic materials, wastes or substances,
any pollutants, and/or contaminants, or any other similar substances or materials which
are defined or identified as such in any federal, state or local laws, rules or regulations
(whether now existing or hereinafter enacted) pertaining to environmental regulations,
contamination, cleanup or any judicial or administrative interpretation of such laws, rules
or regulations.
“Owner” shall mean the United States of America, acting through the Department of
Agriculture, Forest Service.
“Premises” shall mean that certain real property and/or structures, to the extent in which
Sublicensor has lease rights as described in the Prime Lease.
“Prime Lease” shall mean that certain Communications Use Lease between Owner and
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Sublicensor fully executed on September 7, 2010, a copy of which has been provided to
Sublicensee, and any future amendment, supplement, or replacement thereof.
“Rent” shall mean $1,500.00 per month.
“Sublicensed Space” shall mean the non-exclusive space for attachment of the
Equipment to the Tower, at the elevations and direction of radiation described and/or
shown on the attached Exhibit “A”.
“Sublicensee’s Use” shall mean installing, operating and maintaining, at Sublicensee’s
sole cost and expense, Equipment in the Sublicensed Space.
“Subsequent Users” shall mean any communications service providers installing
equipment on the Tower after the Commencement Date.
“Tower” shall mean Sublicensor’s tower, pole or antenna support structure located on
the Premises, as such may be modified or replaced from time to time by Sublicensor.
2.
Grant. Subject to the terms and conditions of this Agreement and the Prime Lease,
Sublicensor hereby grants Sublicensee the nonexclusive right to use the Sublicensed Space for
Sublicensee’s Use. Sublicensee may install only the specific Equipment and use only the frequencies
listed on Exhibit “A”. Sublicensor shall continue to have the right to occupy the Premises and the Tower
and to grant others rights to occupy or utilize the Premises and the Tower at Sublicensor’s sole
discretion. Sublicensee acknowledges and agrees that Sublicensee will obtain its own rights for ground
space, and for ingress and egress. Sublicensee shall not access the Premises or the Tower except
following forty-eight (48) hours prior notice via telephone to Sublicensor’s Network Operating Center
(NOC) at 720-733-5360 or pursuant to such other notice requirements as Sublicensor may require from
time to time. Notwithstanding the foregoing, in the case of an emergency, Sublicensee shall have the
right to immediately enter the Sublicensed Space and shall make every effort to contact Sublicensor to
provide notice prior to entry. Sublicensee’s Use is subject to rules and procedures that Owner or
Sublicensor may establish and modify from time to time, provided that Sublicensee is provided with a
copy of said rules and procedures, and any modifications thereto.
3.
Prime Lease. This Agreement is subject to all terms and conditions of the Prime Lease,
as it may be amended, modified, supplemented or replaced from time to time. Sublicensee shall not
cause or commit or permit to be committed any act or omission which shall violate any term or condition
of the Prime Lease. In the event of the termination of the Prime Lease for any reason, then this
Agreement shall concurrently terminate without any further obligation or liability of Sublicensor.
4.
Term.
(a) Initial Term. The initial term of this Agreement shall commence on the Effective
Date and expire 5 years after the Commencement Date, unless extended or sooner terminated in
accordance with this Agreement; provided, that if the Commencement Date falls on a day other than the
first of the month, the initial term shall expire five (5) years after the first day of the month following the
Commencement Date.
(b) Renewal Term. Provided the Prime Lease has not terminated, Sublicensor and
Sublicensee may, upon at least 180 days notice prior to end of the initial term, mutually agree to execute
an amendment to renew this Agreement for up to three (3) additional terms of five (5) years each on the
same terms and conditions as set forth in this Agreement.
5.
Rent.
(a) Rent. Beginning on the Commencement Date, Sublicensee shall pay to Sublicensor
in advance on the first day of each month the Rent, as defined in Section 1 of this Agreement along with
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any and all sales, receipts, use or similar taxes applicable to the Rent. On each annual anniversary of the
Commencement Date for the duration of this Agreement, the Rent for the following year shall increase
by 3% over the Rent that was in effect during the previous 12-month period. Sublicensor’s failure to
timely demand any such increase shall not be construed as a waiver of any right thereto and Sublicensee
shall be obligated to remit all increases notwithstanding any lack of notice or demand thereof.
Sublicensee’s failure to install any part or all of the Equipment shall not reduce Sublicensee’s obligation
to pay the Rent.
(b) Additional Payments. Beginning on the Commencement Date, Sublicensee shall pay,
in addition to Rent, all Additional Payments as defined in Section 1 of this Agreement. Non-payment of
any Additional Payment when due shall constitute a default under this Agreement to the same extent as
would non-payment of the Rent.
(c) Address for Payment. All payments by Sublicensee to Sublicensor shall be made
payable to Sublicensor and remitted to the following address:
Commnet Four Corners, LLC
Attn: Accounts Receivable
400 Northridge Road, Suite 1100
Atlanta, GA 30350
All remittances shall include the following Sublicensor Site Name: Pebenito, AZ. Sublicensor
may from time to time designate any other address for this purpose upon written notice to Sublicensee.
(d) Late Payments. If the Rent is not paid by the 10th day of any month, or any
Additional Payment is not paid within thirty (30) days, then Sublicensee shall pay an additional daily
payment of $5.00 for each day any such the payment remains delinquent. This late charge is not a waiver
of Sublicensor’s right to declare this Agreement in default for failure to pay the Rent or Additional
Payment when due.
6.
Sublicensor’s Interests. The Parties acknowledge that Sublicensor has interests to the
extent valid under the Prime Lease and title or right to occupy the Premises and the Tower is not further
vested in, nor warranted by, Sublicensor.
7.
Tower Replacement or Removal. If Sublicensor determines in its sole discretion to
reinforce, rebuild, or replace the Tower, then upon 30 days prior written notice to Sublicensee,
Sublicensor may, in its sole discretion, require Sublicensee, at Sublicensee’s sole cost and expense, to
relocate its Equipment to a new location on the existing Tower or on the new Tower. If Sublicensee and
Sublicensor are not able to agree on an alternative location on the existing or new Tower for
Sublicensee’s Equipment within the foregoing 30 day notice period, then Sublicensee or Sublicensor may
elect to terminate the Agreement upon written notice to the other Party At the request of either Party,
Sublicensor and Sublicensee shall enter into an amendment to this Agreement to confirm the new
location of Sublicensee’s Equipment.
8.
Equipment Installation and Removal.
(a)
Installation Approvals and Requirements.
(i) Sublicensee shall be solely
responsible for securing any and all Government Approvals prior to any construction on the Sublicensed
Space, at Sublicensee’s sole cost and expense. Prior to the commencement of any Government Approval
process, Sublicensee shall furnish, for review and written approval by Sublicensor, such approval to be in
Sublicensor’s sole discretion, any applications, plans and other information that may be furnished to any
governmental entity. Sublicensor agrees to reasonably cooperate with Sublicensee in obtaining the
Government Approvals, at Sublicensee’s sole cost and expense and Sublicensor shall be reimbursed by
Sublicensee for any of Sublicensor's reasonable costs associated with the foregoing. Sublicensee shall
not encourage, suggest, participate in or permit the imposition of any conditions on the operation of
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Sublicensor’s Tower or communications facility, or on Sublicensor’s current or future use or ability to
license space on the Tower or at the Premises, or on the underlying property. Copies of the Government
Approvals shall be provided to Sublicensor, as obtained.
(ii) Sublicensee covenants that the Equipment and the construction, installation,
maintenance and operation thereof shall not damage the Tower, Premises or improvements thereto or
interfere with the use of the Tower or Premises by Sublicensor or any other subtenants or sublicensees.
Sublicensee shall install and maintain the Equipment in accordance with standards of good engineering
practice to assure that it conforms at all times with Sublicensor’s standards and requirements, including
specifications for the grounding of the Equipment. Sublicensee shall keep the Tower and Premises free of
debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue
vibration, heat, noise or interference or which would interfere with Sublicensor’s business operations.
(iii) Prior to the commencement of any construction, installation, modification
or replacement of Equipment by Sublicensee, Sublicensee shall furnish, for review and approval by
Sublicensor, plans and specifications, a list of Sublicensee’s contractors and installers, and any other
information that may be required by Sublicensor. Sublicensee shall not commence the construction or
installation until Sublicensee has received written approval and a written notice to proceed (“Notice to
Proceed”) from the Sublicensor. If required by Sublicensor, Sublicensee shall conduct, at Sublicensee’s
sole cost and expense using a Sublicensor approved contractor, a structural analysis and wind load
analysis of the Tower which includes any then existing loads as well as the load of Sublicensee’s
antennas, cabling and appurtenances. Also if required by Sublicensor, Sublicensee shall conduct, at
Sublicensee’s sole cost and expense using a Sublicensor approved contractor, a radio frequency
interference analysis of the Equipment and all other equipment on the Tower as of the time of such
installation. If Sublicensor does not approve Sublicensee’s contractor, then Sublicensor shall conduct the
required analyses and Sublicensee shall, upon receipt of invoice, reimburse Sublicensor for costs
incurred by Sublicensor to conduct the structural analysis, wind load analysis, radio frequency
interference analysis and any other required reports, studies or analyses necessary to evaluate
Sublicensor’s request.
(iv) Within ninety (90) days following the completion of any installation,
modification or relocation, Sublicensee shall provide to Sublicensor updated as-built drawings, initialed
by Sublicensee, documenting that all installed Equipment on the Sublicensed Space conforms to the
plans and specifications previously approved by the Sublicensor. Following the completion of any
installation, construction, modification or relocation, but prior to the activation of any Equipment
affected thereby, Sublicensee, at Sublicensee’s expense, shall engage a Sublicensor approved,
independent inspector to perform an inspection of the Tower and to certify in writing to Sublicensor that
all work has been properly performed in compliance with all applicable plans, specifications, drawings
and/or other requirements. If Sublicensor does not approve Sublicensee’s contractor, then Sublicensor
shall conduct the required inspection and then Sublicensee shall, upon receipt of invoice, reimburse
Sublicensor for costs incurred by Sublicensor to conduct the required inspection. The terms of this
paragraph shall apply to Sublicensee’s initial installation and any subsequent installations made in
accordance with the terms of this Agreement.
(v) Sublicensee shall install all of the Equipment listed on Exhibit “A” within
three (3) months of the Commencement Date, or Notice to Proceed, whichever is later. If Sublicensee
does not initially install all of the Equipment listed on Exhibit “A” within three (3) months of the
Commencement Date, but later desires to install Equipment listed on Exhibit “A”, such installation shall
be subject to the cost of any Sublicensor- required Tower structural modifications or replacement.
(vi) Any approval or consent by Sublicensor under or related to this Agreement
is not a representation or warranty that the matter approved or consented to complies with any law, rule
or regulation or will be appropriate for the Sublicensee’s needs.
(b)
Equipment
Removal
or Abandonment. Sublicensee’s Equipment shall
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remain the property of Sublicensee with the exception of structural improvements to the Tower and
Tower replacements and except as otherwise provided by this Agreement. Sublicensee may remove any
or all Equipment at Sublicensee’s sole expense on or before the expiration or earlier termination of this
Agreement, provided Sublicensee repairs any damage caused by such removal. If Sublicensee does not
remove the Equipment on or prior to the expiration or earlier termination of this Agreement, Sublicensee
shall remove such Equipment by the earlier of (i) the date of expiration or earlier termination of this
Agreement or (ii) the date the Prime Lease expires or is earlier terminated (the “Equipment Removal
Date”). If the Equipment is not removed by the Equipment Removal Date, Sublicensor may, at its option,
deem the Equipment abandoned and remove the Equipment from the Sublicensed Space at Sublicensee’s
sole cost and expense. In such case all right and title in and to the abandoned Equipment shall be
assumed by Sublicensor and may be disposed of at Sublicensor's discretion.
9.
Mechanics’ Liens. Sublicensee shall not permit any mechanics’, materialmen’s,
contractors’ or subcontractors’ liens arising from any construction work, repair, restoration or removal or
any other claims or demands to be enforced against the Premises or Tower or any part thereof and holds
Sublicensor harmless from any claims for damages or for unpaid wages, or materials used by
subcontractors, vendors or employees arising from any of the foregoing. Sublicensor shall have the right
at any time to post and maintain upon the Premises such notices as may be necessary to protect
Sublicensor against liability for all such liens and encumbrances. Sublicensee shall give Sublicensor
written notice prior to the commencement of any work or the delivery of any materials connected with
such work or construction, repair, restoration, or removal of materials on the Premises or the Tower.
Sublicensor shall assume no liability for the payment of materials or labor that accrue for the installation
of Sublicensee’s improvements upon the Premises and no mechanics’ or materialmen’s liens for
Sublicensee’s improvements shall attach to the interest of Sublicensor in the Premises or the Tower.
Violation of this provision shall be considered a default of this Agreement and Sublicensor may, at its
option, (a) discharge or bond such lien, in which case Sublicensee shall immediately reimburse
Sublicensor for all costs and expenses, including attorney’s fees, that Sublicensor incurs as a result
thereof and/or (b) terminate this Agreement with thirty (30) days written notice to Sublicensee.
10.
Interference. Sublicensee agrees to install Equipment only of types and generating
frequencies that will not cause interference to transmissions or signals from Sublicensor and other users
of the Tower as may be already in place on the Tower as of the date of installation of such Equipment.
At Sublicensor’s request, Sublicensee shall provide a detailed interference analysis showing potential
conflicts between Sublicensee’s frequencies and those of the Sublicensor or other users already in place
on the Tower. In the event the Equipment causes such interference, Sublicensor shall provide notice to
Sublicensee along with Sublicensor’s interference analysis confirming Sublicensee’s Equipment is the
cause of the interference, and Sublicensee will take all steps necessary to correct and eliminate the
interference. If the interference is not eliminated within 48 hours after receipt of written notice from
Sublicensor to Sublicensee, Sublicensee shall temporarily disconnect the electric power and shut down
the Equipment (except for intermittent operation for the purpose of testing, after performing
maintenance, repair, modification, replacement, or other action taken for the purpose of correcting such
interference) and if such interference is not corrected within thirty (30) days after receipt of the written
notice, Sublicensor may terminate this Agreement.
11.
Termination. This Agreement may be terminated, without any penalty or further
liability, immediately upon written notice or as otherwise provided below, as follows:
(a) By Sublicensor upon any failure of Sublicensee to pay the Rent or Additional Payments
which failure is not cured within ten (10) days of receipt of written notice; or
(b) By either Party upon a default of any covenant or term of this Agreement (other than the
payment of the Rent or Additional Payments) by the other Party which default is not cured within thirty
(30) days of receipt of written notice of default (without, however, limiting any other rights available to
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the Parties pursuant to any other provisions of this Agreement); or
(c) By Sublicensor upon the imposition of any lien on the Equipment or an attempt by
Sublicensee or anyone claiming through Sublicensee to encumber Sublicensor’s interest in the Tower,
Premises or the Premises; or
(d) By Sublicensor if any governmental permit, approval or authorization required for
Sublicensor’s use of, operation of, or right to license space to Sublicensee is not obtained or is terminated
or withdrawn by any governmental authority or third party as part of any governmental, regulatory, or
legal proceeding; or
(e) By Sublicensor in the event that the Tower is damaged or destroyed by any cause, or by
Sublicensor in its sole discretion at any time upon six months written notice to Sublicensee; or
(f) Upon expiration or termination of the Prime Lease; or
(g) By Sublicensor or Sublicensee pursuant to any other provisions in this Agreement; or
(h) By Sublicensee pursuant to Arizona Revised Statutes § 38-511, the provisions of which are
incorporated herein by reference; or
(i) By Sublicensee at the end of any fiscal year due to non-appropriation of funds without any
penalty or liability to Sublicensor.
Any termination by either Party shall not be a waiver of any other remedies at law or in equity that may
be available to either Party. Sublicensee shall be liable for all expenses, including reasonable attorney’s
fees and costs, incurred by Sublicensor in connection with any Sublicensee default, including without
limitation, any action to enforce the terms hereof, or in connection with any action for the recovery of the
Sublicensed Space itself. Any repossession by Sublicensor shall not in any way have an effect on the
obligations of Sublicensee.
12.
Assignment. Sublicensor may assign, sublicense or sublease or otherwise transfer all or
any part of its interest in this Agreement. Sublicensee may not assign, sublicense or sublease or otherwise
transfer all or any part of the Sublicensed Space or Sublicensee’s interest in this Agreement or allow any
third party any benefit from Sublicensee’s Equipment or Sublicensed Space without prior written
approval of Sublicensor, which approval Sublicensor may withhold in its sole discretion. Any attempt by
Sublicensee to make such transfer or allow a third party any benefit shall be void and Sublicensor in its
sole discretion may terminate this Agreement, in addition to exercising any other remedies available at
law or in equity.
13.
Taxes and Other Costs. Sublicensee shall pay any personal property taxes assessed on,
or any portion of such taxes attributable to, the Equipment. Sublicensee shall reimburse Sublicensor for
any increase in real property taxes that are assessed as a result of the Equipment or other improvements
owned or used by Sublicensee. Sublicensee shall be responsible for payment of all sales tax, gross
receipts tax, ad valorem and any other taxes assessed or imposed against the rent or other amounts paid to
Sublicensor or Sublicensee's Equipment or materials located on the Sublicensed Space or use of the
Sublicensed Space by Sublicensee. Sublicensee shall pay or reimburse Sublicensor if the Owner, any
governmental entity, any public utility, telco or power provider, or any other third party requires any fees,
assessments, deposits, or other charges in the connection with or resulting from Sublicensee's use or
occupancy of the Sublicensed Space or the Premises.
14.
Insurance. In addition, Sublicensee shall maintain, at its expense, insurance covering
claims for public liability, personal injury, death and property damage under a policy of general liability
insurance, with limits of not less than $1,000,000.00 per person and $2,000,000.00 per occurrence, and
property damage insurance of not less than $500,000.00. Such insurance shall insure against liabilities
arising out of or in connection with Sublicensor and Sublicensee’s use or occupancy of the Premises and
the Tower. Sublicensee shall also maintain insurance policies of fire and other casualty, extended
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coverage and vandalism and malicious mischief insurance on its personal property, antenna(s), cables,
improvements, fixtures, and equipment of any nature whatsoever which are to be used in or incidental to
the its operations in amounts not less than their full replacement cost. Sublicensee shall immediately
advise Sublicensor of any claim or demand that may result in allegations of liability of Sublicensor.
Sublicensee is self-insured and upon execution of this Agreement, will provide Sublicensor with proof of
insurance that meets or exceeds the minimum limits listed above. Sublicensee shall immediately advise
Sublicensor of any claim or demand that may result in allegations of liability of Sublicensor.
15.
Condemnation. If a condemning authority takes, or acquires by deed in lieu of
condemnation, all of the Premises, or a portion sufficient to render the Sublicensed Space, in the
reasonable opinion of Sublicensee, unsuitable for Sublicensee’s Use, Sublicensee may terminate this
Agreement effective as of the date the title vests in the condemning authority.
16.
Environmental Matters.
(a) Sublicensor shall be responsible for, and hold Sublicensee harmless from, any
expense incident to the abatement or compliance with the requirements of any federal, state or local
statutory or regulatory requirements caused, directly or indirectly by the activities of Sublicensor and
Sublicensor’s agents, employees or contractors, or resulting from the presence of Hazardous Materials
brought onto the Premises by Sublicensor’s or Sublicensor’s agents, employees, subtenants, sublicensees,
invitees or contractors.
(b) Sublicensee shall comply with all laws, ordinances, rules, orders or regulations
applicable to Hazardous Materials. Sublicensee shall not use the Sublicensed Space, the Premises or the
Owner’s property for treatment, storage, transportation to or from, use or disposal of Hazardous
Materials (other than petroleum products necessary for the operation of an emergency electrical
generator to serve the Equipment). Sublicensee shall be responsible for and hold Sublicensor harmless
from, any expense incident to the abatement or compliance with the requirements of any federal, state or
local statutory or regulatory requirements caused, directly or indirectly, by the activities of Sublicensee
or Sublicensee's agents, employees or contractors, or resulting from the presence of any Hazardous
Materials brought onto the Premises by Sublicensee, Sublicensee’s agents, employees, subtenants,
sublicensees, invitees, or contractors.
17.
Hold Harmless. To the extent permitted by state law, Sublicensee agrees to defend,
indemnify and hold Sublicensor and its related entities, their officers, agents and employees harmless
from any and all costs, damages, expenses, losses, claims, actions, suits, causes of action, judgments, and
charges of every kind and nature whatsoever, including reasonable attorney’s fees, which may in any
manner arise out of or relate to Sublicensee’s use of the Equipment or the Sublicensed Space or the
performance or non-performance of this Agreement by Sublicensee, Sublicensee’s subcontractors,
employees, agents, or assigns, including without limitation those that may arise out of the use or
furnishing of materials, and as to such claims, actions or causes of action arising from or resulting from
any negligence or intentional misconduct by Sublicensee, its subcontractors, agents, servants, employees,
or any or all of them. The provisions of this section shall survive the termination of this Agreement.
18.
Notices. All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed given if personally delivered, or when received if mailed, by certified mail,
return receipt requested, or when deposited if sent via a nationally recognized courier for next business
day delivery to the address(es) indicated below:
If to Sublicensor, to:
with a copy to:
Commnet Four Corners, LLC
Commnet Four Corners, LLC
Attn: Real Estate Notices
Attn: Property Management
400 Northridge Road, Suite 1100
1562 Park Street
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Atlanta, GA 30350
Castle Rock, CO 80109
If to Sublicensee, to:
Address for Billings Only:
Maricopa County
Maricopa County
Real Estate Department
Office of Enterprise Technology
2801 W. Durango Street
3324 West Gibson Lane
Phoenix, AZ 85009
Phoenix, AZ 85009
Sublicensor or Sublicensee may from time to time designate any other address for this
purpose upon thirty (30) day prior written notice to the other Party.
19.
Disclaimer of Warranties, Incidental and Consequential Damages. SUBLICENSEE
ACCEPTS THE SUBLICENSED SPACE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, SUBLICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING THE
PREMISES, THE TOWER OR ANY OTHER FIXTURES, IMPROVEMENTS, REAL PROPERTY OR
PERSONAL PROPERTY. UNDER NO CIRCUMSTANCES SHALL SUBLICENSOR BE LIABLE
FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY
NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF BUSINESS.
20.
Compliance with Governmental Rules and Regulations.
(a) Sublicensee’s Obligations. All construction, installations, maintenance and
operations in connection with this Agreement by Sublicensee shall comply with all applicable rules and
regulations of the FAA, the FCC (including, but not limited to, applicable sections of Part 17 of the rules
of the FCC pertaining to lighting, marking, inspection, and maintenance and FCC OET Bulletin 65
(Edition 97-01)), the Occupational Safety and Health Act of 1970, as amended, as well as any state plans
approved thereunder, Executive Orders 11246 and 11375 – Equal Employment Opportunity, as amended,
the National Environmental Policy Act, as it now exists or may be amended, and all applicable
requirements, rules, regulations and laws of any applicable governmental entity. In cases where FCC
regulations require the painting of Sublicensee’s feedlines, Sublicensee hereby consents to such painting
and shall pay for its applicable share of such painting costs or shall paint its own feedlines upon
installation. Sublicensee shall install and maintain the Equipment in good operating condition and
accordance with all applicable laws, rules and regulations. If Sublicensor, from time to time, requires a
study to be performed to evaluate compliance of the equipment on the Tower with FCC regulations, all
reasonable costs of such study shall be shared equally among Sublicensor, Sublicensee, and any
Subsequent User. If any study shows that the Equipment on the Tower does not comply with FCC
regulations, Sublicensee shall immediately take any steps necessary to ensure that it is individually in
compliance with such limits or shall, upon demand of Sublicensor, cease operations until a maintenance
program or other mitigating measures can be implemented to comply with FCC regulations.
(b) Sublicensor’s Obligations. Sublicensor assumes no responsibility for the licensing,
operation and maintenance of the Equipment. Sublicensor shall be responsible for the maintenance of
the Tower with the exception of maintenance of the Equipment, and except for any damages to the Tower
caused by Sublicensee, or Sublicensee’s agents, employees, contractors or subcontractors. Sublicensee
has the responsibility of complying with the terms of Sublicensee’s FCC license with respect to tower
light observation and notification to the FAA if those requirements as imposed on Sublicensee are in
excess of those required of Sublicensor.
(c) Cooperation with Other Tower Users.
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(i) Sublicensee’s Use, Installation or Modification of Equipment at the Tower. If
Sublicensee’s use, installation or modification of Equipment at the Tower would place any user of the
Tower existing as of the Commencement Date of this Agreement in non-compliance with any FCC
requirement regarding exposure to radio frequency radiation, then in the event such non-compliance can
be eliminated by modifying the equipment of existing users of the Tower, and each user consents to such
modifications, Sublicensee shall pay all costs and expenses associated with making such modifications.
The required modifications and associated expenditures must be memorialized via an amendment to this
Agreement prior to Notice to Proceed with the modifications.
(ii) Future Cooperation. In the event that installations or modifications by
Sublicensee after installation of the Equipment would place any existing or future user of the Tower in
non-compliance with any FCC requirement regarding exposure to radio frequency radiation, which
cannot be eliminated by limiting access to the Tower, Sublicensee shall, when requested by Sublicensor,
modify its Equipment. Sublicensee further agrees that in the event that there is any change to applicable
rules, regulations and procedures governing exposure to radio frequency radiation which place the Tower
in non-compliance, Sublicensee will cooperate with Sublicensor and other users of the Tower to bring the
Tower into compliance, which cooperation shall include, but not be limited to, sharing pro rata the costs
associated with bringing the Tower into compliance. The required modifications and associated
expenditures must be memorialized via an amendment to this Agreement prior to Notice to Proceed with
the modifications.
(iii) Protection of Workers. Upon reasonable notice by the Sublicensor that any
work is being performed on the Tower, Sublicensee agrees to reduce power or suspend operation of its
Equipment if necessary to reduce the potential for exposure to radio frequency radiation.
(iv) Mutual Certifications. Sublicensor and Sublicensee certify to each other
that: (A) it has, or is in the process of, adopting a safety plan for its employees and contractors working
in the vicinity of the Tower to ensure that no such person is exposed to radio frequency emissions in
excess of any applicable limits specified by the FCC; (B) it has distributed, or will distribute, the safety
plan to its employees and contractors who may work in the vicinity of the Tower; (C) its employees and
contractors will comply with the safety plan; and (D) its employees and contractors working in the
vicinity of the Tower will have all appropriate training and certification.
(d) Proof of Compliance. Sublicensor may, from time to time, in Sublicensor’s
reasonable discretion, require Sublicensee to provide proof to Sublicensor that the Equipment is in
compliance with governmental rules and regulations.
21.
Utilities. Sublicensee acknowledges and agrees that Sublicensor shall not provide
electrical power or any other utilities or services to Sublicensee. Any electrical power and other utility
services installed on the Sublicensed Space for the use or benefit of Sublicensee shall be made at the sole
cost and expense of Sublicensee, subject to the prior written approval of Sublicensor which approval may
be withheld in Sublicensor’s sole discretion, and shall be separately metered from Sublicensor’s utilities.
Sublicensee acknowledges and agrees that Sublicensee assumes all risks associated with the access and
use of electrical power and other utility services.
22.
Relocation of Equipment. Sublicensor reserves the right, from time to time and in
Sublicensor’s sole discretion, to require Sublicensee to relocate the Equipment, to a different location on the
Tower or on the Premises at Sublicensee’s sole cost and expense. Sublicensor shall notify Sublicensee of its
intent to require relocation of the Equipment and the location to which Sublicensor requires relocation at
least ninety (90) days prior to the date such relocation must be completed. In the event Sublicensee
reasonably believes its use of the Equipment would be substantially affected by the relocation, Sublicensee
may terminate this Agreement upon notice to Sublicensor no later than 30 days after its receipt from the
Sublicensor of Sublicensor’s notice to relocate the Equipment. Should Sublicensee elect not to so terminate
Sublicensor Site: Pebenito, AZ (v4)
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Sublicensee Site: Tortilla Flats
P-50389
10
this Agreement, Sublicensee shall cooperate in good faith with Sublicensor in order to relocate the
Equipment within ninety (90) days and should Sublicensor notify Sublicensee that exigent circumstances
exist, Sublicensee shall use all commercially reasonable efforts in order to expedite the relocation of the
Equipment to such earlier date as Sublicensor may request. At the request of either Party, Sublicensor and
Sublicensee shall enter into an amendment to this Agreement to confirm the new location of Sublicensee’s
Equipment.
23.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties, their respective heirs, successors, personal representatives and assigns.
24.
Boycott of Israel. Sublicensor certifies it is not currently engaged in, and agrees for the
duration of this Agreement to not engage in, a boycott of goods or services from Israel. This certification
does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. §
4842.
25.
Miscellaneous.
(a) Sublicensee agrees to furnish to Sublicensor, within ninety (90) days after receipt of
written request, such estoppel or other written information as Sublicensor may reasonably request.
(b) This Agreement constitutes the entire agreement and understanding of Sublicensor
and Sublicensee, and supersedes all offers, negotiations and other agreements. Any amendments to this
Agreement must be in writing and executed by Sublicensor and Sublicensee.
(c) This Agreement shall be construed in accordance with the laws of the state in which
the Premises are located.
(d) If any term of this Agreement is found to be void or invalid, such invalidity shall not
affect the remaining terms of this Agreement, which shall continue in full force and effect unless the
invalidity, in Sublicensor’s discretion, defeats the overall intent of the Agreement.
(e) The Chairman of the Maricopa County Board of Supervisors is the individual
authorized to execute this document on behalf of Sublicensee. No later than the date of full execution of
this Agreement, any individual executing this Agreement on behalf of Sublicensor shall provide
documentation that he/she is duly authorized to execute and deliver this Agreement on behalf of said
Sublicensor and that this Agreement is binding on said entity in accordance with its terms.
(f) Notwithstanding any provision of this Agreement to the contrary, this Agreement is
not effective until fully executed by both Parties.
(g) This Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same instrument.
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Sublicensor Site: Pebenito, AZ (v4)
C-78-20-___-___-00
Sublicensee Site: Tortilla Flats
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In WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed on the dates
written below:
SUBLICENSOR:
SUBLICENSEE:
Commnet Four Corners, LLC
Maricopa County
By:
By:
Print Name:
Print Name: Clint Hickman
Title:
Title:
Chairman, Board of Supervisors
Date:
Date:
ATTEST:
By:______________________________
Clerk of the Board
Date
The foregoing Agreement has been reviewed by
the undersigned counsel who have determined
that it is in proper form and within the power
and authority granted under the laws of the State
of Arizona.
________________________________
Deputy County Attorney
Date
Sublicensor Site: Pebenito, AZ (v4)
C-78-20-___-___-00
Sublicensee Site: Tortilla Flats
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EXHIBIT A
Page 1 of 2
ATTACHED TO TOWER ATTACHMENT COMMUNICATIONS SITE SUBLICENSE AGREEMENT
EQUIPMENT & RADIO FREQUENCIES
Sublicensor Site: Pebenito, AZ (v4)
C-78-20-___-___-00
Sublicensee Site: Tortilla Flats
P-50389
13
EXHIBIT A
Page 2 of 2
ATTACHED TO TOWER ATTACHMENT COMMUNICATIONS SITE SUBLICENSE AGREEMENT