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RESOLUTION NO. 5871
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHANDLER,
ARIZONA, APPROVING A WIRELESS LICENSE AGREEMENT TO NEW
CINGULAR WIRELESS PCS, LLC, DOING BUSINESS AS AT&T, FOR THE
BATTLEPLAN TRANCHE AT DENVER BASIN SITE.
WHEREAS, the City of Chandler believes that it is in the City’s best interest to issue a Wireless
License Agreement for such purpose.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chandler, Arizona,
as follows:
Section 1.
Approves the Wireless License Agreement between the City of Chandler and
Cingular Wireless PCS, LLC, doing business as AT&T, for the Battleplan Tranche
at Denver Basin site in the form attached hereto as Exhibit “A” and incorporated
herein by reference.
Section 2.
Authorizes the Mayor of the City of Chandler to execute the Agreement on behalf
of the City of Chandler.
PASSED AND ADOPTED by the City Council of the City of Chandler, Arizona, this _____ day
of _________________, 2025.
ATTEST:
_____________________________
_____________________________
CITY CLERK
MAYOR
CERTIFICATION
I HEREBY CERTIFY that the above and foregoing Resolution No. 5871 was duly passed and
adopted by the City Council of the City of Chandler, Arizona, at a regular meeting held on the
_____ day of _____________, 2025 and that a quorum was present thereat.
______________________________
CITY CLERK
APPROVED AS TO FORM:
______________________________
CITY ATTORNEY
EXHIBIT “A”
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WIRELESS AGREEMENT
BETWEEN NEW CINGULAR WIRELESS PCS, LLC, AND THE CITY OF CHANDLER
FOR THE BATTLEPLAN TRANCHE AT DENVER BASIN SITE
City of Chandler Document No.____________
City Council Meeting Date: _______________
THIS WIRELESS AGREEMENT ("Agreement") is entered into this ____ day of _________________, 2025 (the
“Effective Date”), by and between the City of Chandler, Arizona, an Arizona municipal corporation (“City”), and New
Cingular Wireless PCS, LLC, a Delaware limited liability company (“Company”). City and Company may be referred
to individually as “Party” and collectively as “Parties”.
RECITALS
A.
Company provides wireless communication services through the use of Wireless Facilities (hereinafter
defined); and
B.
City is authorized to grant use agreements to operate and maintain Wireless Facilities within the City
boundaries under the Charter and Chandler City Code, and by virtue of federal and state statutes, by the City’s
police powers, by its authority over its public rights-of-way and highways as defined in Chapter 46 of the Chandler
City Code, and by other City powers and authority; and
C.
Company has applied to the City for permission to operate and maintain the Wireless Facilities within the
City of Chandler and located within City-owned real property as described on the attached Exhibit “A” at a site
known as the “Battleplan Tranche at Denver Basin” (the "Site") as depicted in Exhibit “B”; and
D.
Company has agreed to provide information required by and comply with the terms and conditions set forth
in this Agreement and other requirements as City may establish from time to time.
AGREEMENT
NOW, THEREFORE, City hereby grants to Company this Wireless Agreement to operate and maintain Wireless
Facilities at the Site within City-owned real property under the following terms and conditions.
SECTION 1. DEFINITIONS
For the purposes of this Agreement, the following words, terms, phrases, and their derivations are given the
meaning stated in this Agreement. When not inconsistent with the context, words used in the present tense include
the future tense, words in the plural number include the singular number, and words in the singular number include
the plural number. The word "shall" is always mandatory and not merely directory.
“ACC” means the Arizona Corporation Commission.
“Agreement” means this non-exclusive revocable authorization granted by the City to Company to operate and
maintain Wireless Facilities on the Site.
“Agreement Activities” is ascribed the meaning in section 2.1.5.
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“Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals and
that is used in providing wireless services.
“A.R.S.” means Arizona Revised Statutes, as amended.
“Base Use Fee” means the amount Company must pay City each month of this Agreement for use of Public Property
and Right-of-Way.
“C.C.C.” means Chandler City Code, as amended.
“C.F.R.” means Code of Federal Regulations, as amended.
“City” means the City of Chandler, an Arizona municipal corporation.
“City Council” means the Council of the City of Chandler.
“City Manager” means the Chandler City Manager or the City Manager’s designee.
“Collocate”, “collocating”, or “collocation” refer to the use of Company’s Facilities by another company.
“Communications Equipment” means any and all electronic equipment at the Wireless Facility location that processes
and transports information from the antennas to the Company’s network.
“Company” means New Cingular Wireless PCS, LLC, a Delaware limited liability company, and related affiliates,
subsidiaries, persons, or entities to which this Agreement is granted.
“Company’s Improvements” means all improvements installed by the Company, including, but not limited to: all
elements of the Wireless Facility, all screening elements, any landscaping plants or materials, and any other elements
provided by the Company in the approved Agreement.
“Competing Users” means entities that own the water pipes, cables and wires, pavement, and other facilities that may
be located within the Right-of-way. Competing Users include without limitation, the City, the State of Arizona and its
political subdivisions, the public, and all manner of utility companies and other existing or future users of the Use Area.
"Critical Infrastructure Information" has the same meaning prescribed in A.R.S. § 41-1801, as amended.
"Day" means a calendar day, except a Saturday, Sunday, or a holiday prescribed in A.R.S. § 1-301.
“Encroachment Permit” means a permit issued pursuant to Chapter 46 of the Chandler City Code that allows the
Company to perform work in the Right-of-Way and to install and operate improvements in the Right-of-Way.
“Environmental Laws” means all federal, state, and local laws, ordinances, rules, regulations, statutes, and judicial
decisions, as amended from time to time, which in any way relate to or regulate human health, safety, industrial
hygiene, environmental conditions, protection of the environment, prevention or cleanup of pollution, or
contamination of the air, soil, surface water, or ground water.
“Facility” or “Facilities” means Company’s plant, equipment, and property, including but not limited to boxes, poles,
wires, pipe, conduits, pedestals, antenna, and other appurtenances, in order to provide the services described in
this Agreement.
“FCC” means the Federal Communications Commission.
“FCC OET Bulletin 65” means the FCC’s Office of Engineering & Technology Bulletin 65 that includes the FCC Radio
Frequency Exposure Guidelines.
“FCC Rules” means all applicable radio frequency emissions laws and regulations.
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“Fiscal Year” means a 12-month period that begins on July 1 and ends the following June 30.
“Franchise” has the same meaning prescribed in the Arizona Constitution, article 13, §§ 4 and 6.
“Hazardous Substances” means those substances defined as toxic or hazardous substances, pollutants, or wastes
by Environmental Law or the following substances: gasoline, kerosene, or other petroleum products, toxic
pesticides or herbicides, volatile solvents, materials containing asbestos or formaldehyde, or radioactive materials.
“In-lieu Company” means a single, third-party company, using the Site or Company’s Facility, or part thereof, to
provide services in lieu of such services being provided by Company.
“Ordinary Permit Use Fee” means the City’s encroachment permit application, review, and other fees related to the
issuance of the permit.
“Other Facilities” means facilities owned and operated by parties other than City or Company, which facilities occupy
Public Property under authority of a City encroachment permit, Agreement, or franchise.
“Pre-existing Environmental Condition” means the presence, emission, disposal, discharge, or release of any
Hazardous Substance at, in, on, under or about the Wireless Facilities and Site, however caused, existing on the
Effective Date, whether the nature and extent of the contamination is known or unknown.
“Proprietary Information means any document or material clearly identified by Company as confidential and includes, but
is not limited to, any customer lists, financial information, technical information, or other information plainly identified as
confidential by Company and pertains to Company’s services provided to its customers.
"Public Property" means the surface of and the space above and below of real property, which is owned, operated,
and maintained by the city. Public Property does not include Right-of-Way.
“RF” means radio frequency.
“RF Letter” means a letter attesting to the Company’s compliance with FCC RF exposure guidelines from the
Company’s senior internal engineer.
“Right-of-Way” means the area on, below or above a public roadway, highway, street, sidewalk, alley, or utility
easement. Right-of-Way does not include a Federal Interstate Highway, a state highway or state route under the
jurisdiction of the Department of Transportation, a private easement, property that is owned by a special taxing district,
or a utility easement that does not authorize the deployment sought by the Company.
"Section" means any section, subsection, or provision of this Agreement.
“Site” means the Use Area for the Wireless Equipment and the pole to which the antenna and other wireless facilities
are attached.
“Site Documents” means the depiction of the Agreement area, schematic plans and map showing location of the
installation of the Facility in the City-owned real property, including but not limited to the title report of the use area,
vicinity map, site plan, elevations, technical specifications and the cubic feet of the non-antenna wireless equipment.
“Supplemental Parcel Agreement” means an agreement authorizing the Company to use property outside of the Public
Property or Right-of-Way.
“SRP” means Salt River Project and its subsidiaries and affiliates.
"Telecommunications” has the same meaning prescribed in A.R.S. § 9-1401, as amended.
"Telecommunications Company” has the same meaning prescribed in A.R.S. § 9-1401, as amended.
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"Telecommunications Service" has the same meaning prescribed in A.R.S. § 9-1401, as amended.
“Third Party Areas” means the portions of the Public Property subject to Third Party Limitations.
“Third Party Limitations” means some or part of the Public Property that may contain limited dedications or regulatory
use restrictions imposed by a third party.
“U.S.C.” means United States Code, as amended.
“Use Area” means the real property used by Company where the Wireless Facilities are located.
“Violation Use Fee” means the types of fees that the City has available to remedy certain breaches of the Agreement
by Company.
“Wireless Facility” means equipment at a fixed location that enables wireless communications between user equipment
and a communications network, including both of the following: (i) Equipment associated with wireless communications;
and (ii) Radio transceivers, antennas, coaxial or fiber-optic cables, regular and backup power supplies and comparable
equipment, regardless of technological configuration. Wireless Facility includes Small Wireless Facilities, but does not
include the structure or improvements on, under or within which the equipment is collocated, wireline backhaul facilities,
coaxial or fiber-optic that is between wireless support structures or utility poles or coaxial or fiber-optic cable that is
otherwise not immediately adjacent to, or directly associated with, an antenna. In addition, Wireless Facility does not
include Wi-Fi radio equipment described in Section 9-506, Subsection I or microcell equipment described in Section 9-
584, Subsection E.
“Wireless Facilities Site Permit”, also referred to herein as “Site Permit”, means the permit authorizing the installation of
Wireless Facilities at a specific site in the City’s Right-of-Way.
“Wireless Infrastructure Company” as defined in A.R.S. §9-591(23) means any person that is authorized to provide
telecommunications service in this state and that builds or installs wireless communications transmission equipment,
wireless facilities, utility poles or monopoles but that is not a wireless service company. Wireless Infrastructure Company
does not include a special taxing district.
“Wireless Services” as defined in A.R.S. §9-591(25) means any services that are provided to the public and that use
licensed or unlicensed spectrum, whether at a fixed location or mobile, using wireless facilities.
“Wireless Services Company” as defined in A.R.S. §9-591(26) means a person that provides wireless services.
Wireless Services Company does not include a special taxing district.
“Wireless Support Structure” as defined in A.R.S. §9-591(27) means: (i) a freestanding structure, such as a monopole;
(ii) a tower, either guyed or self-supporting; (iii) a sign or billboard; or (iv) any other existing or proposed structure
designed to support or capable of supporting small wireless facilities. Wireless Support Structure does not include a
utility pole.
“Zoning Code” means Chapter 35 of City Code.
SECTION 2. PERMISSION GRANTED
2.1
Grant.
2.1.1
Subject to the provisions of this Agreement, and to the City Code, City grants Company the
nonexclusive revocable permission to operate and maintain its Wireless Facilities within the Use Area. This Agreement
does not grant Company the right and privilege to operate and maintain its Wireless Facilities in the Right of Way. Subject
to the terms and conditions of this Agreement and any additional applicable permits later issued for the Site, for use of
the Battleplan Tranche at Denver Basin Site as more fully set forth herein. The uses of any other Public Property and
installation or construction of any other antennae and other equipment locations at this Site are subject to approval by
the City through additional Encroachment Permit review by City staff. If Company desires to change the components of
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any of the Wireless Facilities in a manner that changes its primary purpose, written approval of such change must be obtained
by the City Manager who can refer the matter to the City Council if required by ordinance, provided that such consent by either
may not be unreasonably withheld or delayed. The installation and construction of a fiber optics or telecommunications
network, or cable wireless facilities for service to third parties is not authorized by this agreement.
2.1.2
Company may not install, maintain, construct, or operate Wireless Facilities in the Right-of-Way or
provide services by means of such Wireless Facilities unless a Company first obtains and maintains in good standing at
all applicable times of the following: (i) A City license for video services as provided by Title 9, Chapter 5, Article 7,
Arizona Revised Statutes, or (ii) a City license for telecommunications services as provided by Title 9, Chapter 5, Article
1.1, Arizona Revised Statutes for facilities located in the Right-of-Way that connect the Company’s Wireless Facilities to
Company’s interstate network. Company must demonstrate compliance with this section when Company submits to the
City an application for a wireless agreement. As of the Effective Date, Company represents and warrants that Company
complies with this condition. Company must notify City as provided in this Agreement of any changes to Company’s
compliance with this condition.
2.1.3
Subject to obtaining the permission of the affected property owner, this Agreement also authorizes
Company to operate and maintain its Wireless Facilities on structures owned by third parties located on Public Property,
such as an electric utility company, provided, however, any installation on private property within or on the City’s right-of-
way, easements or other Public Property must comply with Chapters 46 and 47 and any other applicable sections of the
City Code. Upon request, Company must promptly furnish to the City documentation of such permission from such other
affected property owner. By executing this Agreement, the City does not waive any rights that it may have against any
public utility or other property owner to require prior approval from the City for such uses of their property or facilities, or
that revenues received by any public utility or other property owner from Company, by virtue of Company’s use of their
property or facilities, be included in the computation of franchise or Agreement fees owed by such parties to the City.
2.1.4
Except for those Facilities specifically permitted on the Battleplan Tranche at Denver Basin Site, no
component or part of Company’s Wireless Facilities may be installed, constructed, located on, or attached to any property
within the City by Company until Company has, for those Facilities to be located on Public Property or other Right-of-
Way; obtained encroachment permits pursuant to Chapter 46 of the City Code. Additionally, Company must comply with
all other provisions of the City Code, including Chapter 35 regarding zoning and other relevant City regulations.
2.1.5
The Site may be used by Company for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance and repair of related support Facilities (such
as tower and base, antennas, microwave dishes, equipment shelters and/or cabinets) but only for the provision of
what is commonly known as telecommunication service (whether or not technically referred to as Personal
Communications Service, or some other term) by the use of "personal wireless service facilities" (as such phrase
is defined in §704 of the Federal Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996),
partially codified at 47 U.S.C. § 332(c)(7)(C)(2), hereinafter "1996 Act Section 704") and not for any other purpose.
Company must, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules,
and regulations (including but not limited to laws and ordinances relating to health, safety, radio frequency
emissions, and radiation) in connection with the use of (and operations, maintenance, construction and/or
installations at) the Site.
2.1.6
Any privilege claimed under this Agreement and Encroachment Permit by Company in any public street
or other Public Property must be subordinate to any prior or subsequent lawful occupancy or use thereof by the City or
any other governmental entity, and must be subordinate to any prior lawful occupancy or use thereof by any other person,
and must be subordinate to any prior easements therein, provided, however, that nothing herein may extinguish or
otherwise interfere with property rights established independently of this Agreement.
2.2
Description of the Wireless Facilities. Company’s Wireless Facilities consists of improvements, personal
property and Facilities necessary to operate its communications Wireless Facilities, including, without limitation,
equipment that may be mounted on City owned poles or poles privately owned by other parties that may be on Public
Property, and may include equipment buildings with perimeter screen walls in accordance with the provisions of Chapter
35 of the Chandler City Code, and related cables and utility lines (collectively the “Wireless Facilities”) as described in
Exhibit A.
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SECTION 3. SCOPE
3.1
Agreement. Company agrees to comply with the provisions of Chapter 46 of the City Code.
3.2
Specific Authorization. This Agreement solely authorizes Company to operate and maintain Wireless Facilities to
provide Wireless Services in accordance with the terms of this Agreement.
3.3
Compliance with Laws.
3.3.1
Company must comply with all applicable laws, including, but not limited to, the City Code, in the
exercise and performance of its rights and obligations under this Agreement. There is hereby reserved to the City the
power to amend any section of the City Code so as to require additional or greater standards of construction, operation,
and maintenance or otherwise pursuant to City’s lawful police powers or as provided in this Agreement.
3.3.2
If it is necessary for Company to comply with any law or regulation of the FCC or the ACC to engage in
the business activities anticipated by this Agreement, Company must comply with such laws or regulations as a condition
precedent to exercising any rights granted by this Agreement. Provided, however, no such law or regulation of the FCC
or ACC may enlarge or modify any of the rights or duties granted by this Agreement without a written modification to this
Agreement.
3.3.3
Upon request Company must provide to the City copies of any communications and reports submitted
by Company to the FCC or any other federal or state regulatory commission or agency having jurisdiction in respect to
any matters directly affecting enforcement of this Agreement.
3.3.4
Upon request Company must provide the City with regular reports, as reasonably needed, to establish
Company’s compliance with the various requirements and other provisions of this Agreement.
3.4
Interference and Emergency.
3.4.1.
Company must receive approval by the City’s Police and Fire Departments that Company’s Wireless
Facilities will not interfere with the City’s public safety communications Wireless Facilities. Company agrees that all
Wireless Equipment it operates within the City must strictly comply with the FCC's radio frequency emission regulations.
In the event City incurs radio frequency interference with respect to its satellite, City communication Wireless Facilities,
television or telephone equipment that is presumably caused by Company’s operations, then City will give notice to
Company via telephone and in writing. Within ten (10) days following Company’s receipt of such notice, Company must
conduct engineering field tests to determine if such interference is being caused by Wireless Equipment operated by
Company. City may conduct engineering field tests using City’s own engineer to determine if such interference is caused
by Company’s Wireless Equipment. City’s engineer and Company’s engineer will use their commercially reasonable
efforts to determine the cause of said interference, but if the two cannot agree on the cause thereof, a neutral third-party
engineer will be appointed by City and Company to determine the cause of the interference. If it is determined that such
interference results from any of Company’s Wireless Equipment, Company must within five (5) business days remedy
such interference.
3.4.2.
Company must continuously and without interruption, operate so that its Facilities are not deemed
abandoned pursuant to 35-2209 of City Code.
3.4.3.
Subject to the applicable provisions of the Chandler City Charter, City Code and Arizona Revised
Statutes, City may, in the event of a public emergency, sever, disrupt, dig-up, or otherwise remove Company’s Facilities
if the action is deemed reasonably necessary by the City Manager, Fire Chief, Police Chief, Public Works Director, or
Development Services Director. Notice will be given to Company at nocnoc@att.com A public emergency must be any
condition which, in the opinion of any of the officials named, poses an immediate threat to the lives or property of City
residents, caused by any natural or man-made disaster, including, but not limited to, storms, floods, fire, accidents,
explosions, major water main breaks, or hazardous material spills.
3.5
Reservation to City. The City reserves every right and power, which is required to be herein reserved or provided
by any ordinance or the Charter of the City, and Company, by its execution of this Agreement, agrees to be bound thereby
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and to comply with any action or requirements of City in its reasonable exercise of such rights or power, heretofore or
hereafter enacted or established. Neither the granting of any Agreement nor any provision hereof may constitute a waiver
or bar to the exercise of any governmental right or power of the City.
SECTION 4. FEES AND CHARGES
4.1
Application Fee. Company must pay all fees and charges in connection with Company’s performance under
this Agreement. Company agrees to pay City, a fee in the amount indicated on the City fee schedule as of the date of
submittal prior to submittal for approval of this Agreement to the City Council. Company has paid City a one-time payment
for the Agreement Application Fee in the amount of $3,000.00.
4.2
Encroachment Permit Fees. Company must pay any and all fees as required for processing any Encroachment
Permits independently of this Agreement as indicated on the City fee schedule as adopted by the City Council and
applicable to such permits and construction prior to the issuance of such a permit.
4.3
Use Fee and Other Payments.
4.3.1
For the use of the Site, as of the Effective Date, Company must pay City the sum of $2,461.14
(calendar year 2025) per month as use fee for the Battleplan Tranche at Denver Basin Site (the “Base Fee”). Company
shall begin construction within six (6) months of the Effective Date and initial payments of the Base Fee must be made
on the first (1st) day of the month following commencement of construction or six (6) months from the Effective Date,
whichever comes first. Subsequent Base Fee payments must be made on the first (1st) day of each month
thereafter. The Base Fee for any fractional month at the beginning or at the end of the Term or Renewal Term will be
prorated.
4.3.2
Beginning on the first day of January following the Effective Date, and on each January 1st thereafter,
the Base Fee will increase by 3.5%.
4.3.3
In addition to the Base Fee, Company must pay to City any transaction privilege, sales, excise, rental,
and other taxes (except income taxes) imposed now or hereinafter imposed by any governmental authority upon rentals
and all other amounts to be paid by Company pursuant to this Agreement.
4.3.4
All fees and costs must be paid to City at the following address or to such other persons or at such other
places as City may designate in writing. All payments must be in lawful money of the United States of America.
City of Chandler, Development Services
Mail Stop 405, P.O. Box 4008
Chandler, AZ 85244-4008
Attention: Development Services Administrator
4.3.5
City will send invoices to Company at the following address:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: AZL01776; Site Name: El Lobo (AZ)
Fixed Asset #: 15474814
1025 Lenox Park Blvd. NE, 3rd Floor
Atlanta, GA 30319
SECTION 5. TERM OF AGREEMENT
5.1
Term. The term of this Agreement shall be as follows:
5.1.1
Original Term. The original term of this Agreement shall be for a period of ten (10) years commencing
on the Effective Date.
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5.1.2
Extension. The term of this Agreement may be extended for one (1) additional ten (10) year period
subject to consent by City and Company, which either may withhold in its sole and absolute discretion as provided in
Exhibit F. Both City and Company will be deemed to have elected to extend unless City or Company, respectively, gives
notice to the contrary to the other at least one hundred eighty (180) days prior to the end of the original term or the current
extension. The second term will begin on the tenth anniversary of the Effective Date. All the terms and conditions of this
Agreement must be in effect during the Term and extension of the Term.
5.2
Hold Over. In any circumstance whereby Company remains in possession or occupancy of the Site after the
expiration of this Agreement (as extended, if applicable), such holding over will not be deemed to operate as a renewal
or extension of this Agreement. Instead, the hold over may only create a use right from month to month that may be
terminated at any time by City upon thirty (30) days’ notice to Company or upon sixty (60) days’ notice to City. If Company
remains in possession of the Site at the termination or expiration of the initial term or any extension thereof without a
written agreement with City to do so, such holding over will be construed to be a tenancy at sufferance from month to
month at one and one-half (1 1/2) times the amount of the Use Fee (defined in Section 4.3) in effect at the time of the
hold over and Company will be subject to the same terms and conditions of this Agreement.
SECTION 6. ACCEPTANCE
6.1
Written Acceptance. Company’s execution of this Agreement constitutes its acceptance of this Agreement as
granted and its agreement to be bound by and to comply with this Agreement. Company’s signature must be
acknowledged by Company before a notary public.
6.2
Validity of Agreement. Company must acknowledge, as a condition of acceptance of this Agreement, that
Company was represented throughout the negotiations of this Agreement by its own attorneys and had opportunity to
consult with its own attorneys about its rights and obligations regarding same. Company has reviewed City’s authority
to execute and enforce this Agreement, and has reviewed all applicable law, both federal and state, and, after considering
same, Company acknowledges and accepts the right and authority of City to execute this Agreement, to issue this
Agreement and to enforce the terms herein. Both parties agree it shall not now or at any time hereafter contest or
challenge the other party’s authority under applicable federal, state and local law to enter into and enforce this Agreement
in any city, state or federal court.
SECTION 7. ENCROACHMENT PERMIT – BATTLEPLAN TRANCHE AT DENVER BASIN SITE
7.1
Site. City has jurisdictional authority over the real property where the Company Facilities and the Use Area are
located as depicted in attached Exhibit A.
7.2
Ingress, Egress and Utility Access. Under this Agreement, Company, its employees, agents, subcontractors,
lenders, invitees, and guests shall have pedestrian and vehicular access to the Site without notice to City twenty-four
(24) hours a day, seven (7) days a week, at no charge. This Agreement grants access to perform work where no
excavation is involved and where previously permitted structures and facilities exist. If excavation is required for utilities,
plans must be submitted to City Staff for approval which will not be unreasonably withheld. Company must submit
engineered plans and drawings through the standard Encroachment Permit application process showing the exact
location of Company’s activities and the plans for installation to City Staff for approval prior to installation.
7.3
Use of Site. The Site must be used solely for the operation of wireless communication services utilizing
telecommunication Facilities (“Company Facilities”). Company must not use the Site for any other purpose without the
written consent of City. The Site shall be used only for lawful purposes, and only in accordance with all applicable
building, fire and zoning codes, and applicable local ordinances and regulations.
7.4
City Cooperation. City agrees to cooperate with Company, at Company’s expense, in making application for
and obtaining all agreements and any and all other necessary approvals that may be required for Company’s intended
use of the Site. However, nothing herein shall be deemed to constitute a contractual obligation of City, as a municipality,
to issue a required agreement where the officer, agent, or employee of City responsible for the issuance of such
agreement deems the issuance of such an agreement to be inappropriate. This Agreement is not intended to supersede,
modify, or waive City Code or Zoning Code requirements applicable to the construction of wireless communication
facilities except to the extent they relate to an encroachment permit for the Battleplan Tranche at Denver Basin Site.
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7.5
Tests and Construction. Company may enter the Use Area following the full execution of this Agreement to
enter upon the Site for the purpose of making appropriate engineering and boundary surveys, inspections, soil test
borings, and other reasonably necessary tests for construction of Company’s Facilities, except as otherwise limited by
Section 7.3. Company must indemnify and hold City harmless against liability, loss, cost, damage, or expense that may
arise out of any personal injury or property damage resulting from Company’s entry upon the Site, except to the extent
caused by City’s negligence or willful misconduct. Company must coordinate with the Development Services Department
to avoid interfering with any City operations while conducting any such tests or construction.
7.6
Company Construction/Improvements.
7.6.1
Company must submit plans and specifications for all the Facilities to be constructed or installed for
prior review and approval by the Development Services Department. Such approval is separate from, but may be
obtained concurrent with, development approvals (building permits, encroachment permits, special use permits, etc.)
required and issued by the Development Services Department. All of Company’s construction and installation work must
be performed at Company’s sole cost and expense and in a good and workmanlike manner.
7.6.2
The construction plans and specifications must include fully dimensioned site plans that are drawn to
scale and show, as applicable, antenna, equipment shelter, the proposed changes in the landscape, the proposed type
and height of fencing, if any, the proposed type of construction material for all structures, including fencing or screening,
and any other details requested by City or required to obtain development approvals.
7.6.3
Company Facilities must remain Company’s personal property and not fixtures, and title to the same
shall be held by Company. Company shall remove all Company Facilities at its sole expense on or before the expiration
or earlier termination of this Agreement and shall repair any damage to the Site caused by such removal and restore the
Site to the condition it was in at the time of removal reasonable wear and tear and casualty excepted. If this removal
includes the removal of a City owned structure such as a ball field light, a replacement structure approved by the
Development Services Department will be constructed.
7.6.4
Any portion of Company’s Facilities, or any of Company’s personal property, equipment, or
improvements on the Site that is not removed on or before ninety (90) days following the termination of this Agreement,
may be removed by City and all expenses of such removal and site restoration charged to Company.
7.6.5
Company must make no alterations or additional improvements to or upon the Site without first obtaining
written approval of the Development Services Department.
7.7
Utilities. Company must be liable for and must pay throughout the term of this Agreement, all charges for all
utility service furnished to the Site for all Company purposes related to the operation and maintenance of Company’s
Facilities.
7.8
Maintenance and Repair. Company must keep their building, fencing or screen walls, if any, and other Facilities
in good repair and in a neat and clean condition and must maintain and preserve any landscaping within and around any
fenced area in accordance with City zoning code.
7.9
Hazardous Substances. Company’s activities upon or about the Use Area are subject to the following regarding
any hazardous or toxic substances, waste or materials or any substance now or hereafter subject to regulation under the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq., the Arizona
Hazardous Waste Management Act, A.R.S. §§ 49-901, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
§§ 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601, et seq., or any other federal, state, county, or
local law pertaining to hazardous substances, waste or toxic substances and their reporting requirements (collectively
“Toxic Substances”):
7.9.1
No Warranties. Company understands the hazards presented to persons, property, and the
environment by dealing with Toxic Substances. City makes no warranties as to whether the Use Area contains actual or
presumed asbestos or other Toxic Substances.
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7.9.2
Discovery. Within twenty-four (24) hours after discovery by Company of any Toxic Substances at the Use
Area, Company must report such Toxic Substances to City in writing. Within fourteen (14) days thereafter, Company must
provide City with a written report of the nature and extent of such toxic substances found by Company.
7.9.3
Disturbance of Toxic Substances. Prior to undertaking any construction or other significant work,
Company must cause the Use Area to be inspected to prevent disturbance of potential asbestos or other Toxic
Substances. Prior to any work of any description that bears a material risk of disturbing potential asbestos or other Toxic
Substances, Company must cause Company’s contractor or other person performing such work to give to City notice by
the method described in this Agreement to the effect that the person will inspect for Toxic Substances, will not disturb
Toxic Substances, and will indemnify, defend and hold City harmless against any disturbance in Toxic Substances in the
course of the Company’s or other person’s work. Company must cause any on-site or off-site storage, inspection,
treatment, transportation, disposal, handling, or other work involving Toxic Substances by Company in connection with
the Use Area to be performed by persons, equipment, Facilities and other resources who are at all times properly and
lawfully trained, authorized, licensed, permitted and otherwise qualified to perform such services. Company must
promptly deliver to City copies of all reports or other information regarding Toxic Substances.
SECTION 8. LETTER OF CREDIT.
8.1
Amount; Purpose. Within thirty (30) Days after the Effective Date of this Agreement, Company must
deposit with the City an irrevocable letter of credit in the amount of fifty thousand dollars ($50,000) (replenishable
as specified in Section 8.3 below) issued by a federally insured commercial lending institution and in the form set
forth in Exhibit “D”. The subject letter of credit may be used in whole or in part to assure (a) the faithful performance
by Company of all provisions of this Agreement; (b) compliance with all orders, permits, and directions of any
Department of the City having jurisdiction over Company’s acts or defaults under this Agreement; and
(c) Company’s payment of any penalties, liquidated damages, claims, liens, and taxes due to the City that arise by
reason of the construction, operation, or maintenance of the Wireless Facilities, including cost of removal or
abandonment of any of Company’s property.
8.2
Drawing on Letter of Credit. The letter of credit may be drawn upon by the City by presentation of a draft
at sight on the lending institution, accompanied by a written certificate signed by the City Manager certifying that
Company has been found to have failed to comply with this Agreement, stating the nature of noncompliance, and
stating the amount being drawn. The rights reserved to the City with respect to the letter of credit are in addition to
all other rights of the City, whether reserved by this Agreement or authorized by law, and no action proceeding
against a letter of credit will affect any other right the City may have.
8.3
Replenishing. The letter of credit shall be structured in such a manner so that if the City at any time draws
upon the letter of credit, upon notice to Company by the issuing lending institution, Company must immediately
increase the amount of available credit by the amount necessary to replenish that portion of the available credit
exhausted by the honoring of the City's draft; provided, however the maximum amount available to be drawn on
this letter of credit for any one event may not exceed fifty thousand dollars ($50,000). The intent of this Section is
to make available to the City at all times a letter of credit in the amount of fifty thousand dollars ($50,000).
SECTION 9. INSTALLATION, CONSTRUCTION & OPERATION OF THE WIRELESS FACILITIES
9.1
Damage to Public Property. Whenever the installation, removal, or relocation of any of Company’s Wireless
Facilities is required under this Agreement, and such installation, removal or relocation cause damage to Public Property,
Company, at its sole cost and expense, must promptly repair and return Public Property in which the Wireless Facilities
components are located to a safe and satisfactory condition in accordance with applicable laws, reasonably satisfactory
to the Development Services Director or designee. If Company does not repair the Site as just described, City will have
the option, upon fifteen (15) days prior written notice to Company, to perform or cause to be performed such reasonable
and necessary work on behalf of Company and to charge Company for the proposed costs to be incurred or the actual
costs incurred by City at City’s standard rates, plus an administrative fee of fifteen percent (15%). Upon the receipt of a
demand for payment by City, Company must, within thirty (30) days, reimburse City for such costs. For any pavement
cuts by Company, Company agrees to restore the pavement and to reimburse City for all costs arising from the reduction
in the service life of any public road, in accordance with the provisions of Chapter 46 of the City Code and the fees
established by City pursuant thereto. Company agrees to pay within thirty (30) days from the date of issuance of an
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invoice from City. Provided, however, in the event Company failure creates a dangerous condition for which immediate
repair or corrective action is necessary for health or safety reasons, no prior notice need be provided to Company, but
City may at City’s option, immediately repair and restore the site to a safe condition and charge Company as provided
above.
9.2
Damage to Facilities of Others. Company must construct, install, locate, and relocate its Wireless Facilities in
such a manner that it causes no disruption of other services or damage to the other facilities. If Company damages any
City facility, Company must pay to City, the full costs of all repairs incurred by City to repair such damage, together with
an administrative fee of fifteen percent (15%). If Company damages any facility owned by an entity other than City,
Company must, at the option of the entity whose facility was damaged, either repair and restore such facility to its
condition before such damage or reimburse that entity the full cost incurred for repairs and restoration and also for other
damages as proved by such other entity.
SECTION 10. TERMINATION
10.1
Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice
as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured
within sixty (60) days of receipt of written notice of default, provided that the grace period for any monetary default is
thirty (30) days from receipt of written notice of default; or (ii) by Company if it does not obtain or maintain any agreement,
permit, or other approval necessary for the construction and operation of the Site; or (iii) by Company if Company
determines that the Site is not appropriate for its operations for economic or technological reason, including without
limitation, signal interference; or (iv) Company’s Insolvency as described in this section; or (v) by Company upon written
notice thereof to City for any or no reason, so long as Company pays City a termination fee equal to three (3) months’
rent.
10.2
Rights at Termination. The following provisions will apply at the expiration of the term of this Agreement:
10.2.1 Surviving Obligations. Any provisions of this Agreement relating to indemnification shall survive
the termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that
by their sense and context are intended to survive the termination or expiration of this Agreement shall so
survive.
10.2.2 Delivery of Possession. Company must cease using the Site. Company must without demand,
peaceably and quietly quit and deliver up the Use Area to the City thoroughly cleaned, in good repair with the
Use Area maintained and repaired and in as good order and condition, reasonable use and wear excepted, as
the Use Area is now or in such better condition as the Use Area may hereafter be placed.
10.2.3 Confirmation of Termination. Upon expiration or termination of this Agreement for any reason,
Company must provide to City upon demand recordable disclaimers covering the Use Area executed and
acknowledged by Company and by all persons claiming through this Agreement or Company any interest in or
right to use the Use Area.
10.2.4 Removal of Improvements. Company must remove all Facilities and restore the Use Area to its prior
condition, or to a condition matching City’s surrounding land and improvements, as directed by City, at
Company’s expense within 30 days of termination of this Agreement. Without limitation, such work shall include
revegetation and appropriate irrigation Wireless Facilities for revegetated areas.
10.2.5 Prior Improvements. This section also applies to any improvements that Company may have made
to the Site.
10.3
Company’s Insolvency. Company’s insolvency will be deemed an event of default. “Insolvency” means: (a)
the making by Company of any general assignment or general arrangement for the benefit of creditors; (b) the filing by
or against Company of a petition to have Company adjudged a bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed against Company, the same is dismissed
within sixty (60) days); or (c) the appointment of a trustee or receiver to take possession of substantially all of Company’s
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assets located at the Site or of Company’s interest in this Agreement, where possession is not restored to Company
within thirty (30) days.
SECTION 11. INDEMNITY AND INSURANCE
11.1
Insurance Responsibility. During the entire term of this Agreement, Company must insure its property and
activities at and about the Site and must provide insurance and indemnification as follows. Company must carry and
maintain as provided in Section F below, until all their respective obligations have been discharged, insurance against
claims for injury to persons or damage to property which may arise from or in connection with Company’s obligations
under this Agreement and Company’s activities on the Site, including the installation, construction, relocation, removal,
repair, operation, and maintenance of the Wireless Facilities and Communications Equipment by Company, its agents,
representatives, employees, or contractors performing on Company’s behalf. The insurance requirements herein in no
way limit the indemnity covenants contained in this Agreement. The City in no way warrants that the limits contained
herein are sufficient to protect Company from liabilities that might arise out of this Agreement by Company, its agents,
representatives, employees, or contractors performing on Company’s behalf, and Company is free to purchase such
additional insurance as may be determined necessary.
11.2
Scope and Limits of Insurance. Company must provide coverage with limits of liability stated below.
11.2.1 Commercial General Liability – Occurrence Form. Policy must also include coverage for products
completed operations, independent contractors, personal injury, property damage, and advertising injury.
General Aggregate
$10,000,000
Products – Completed Operations Aggregate
$10,000,000
Each Occurrence
$10,000,000
If any excess insurance is utilized to fulfill the insurance requirements, the excess insurance must be “follow
form” equal or broader in coverage scope than the underlying insurance. The policy must be endorsed to
include the following: “The City of Chandler, its agents, representatives, officers, directors, officials, employees,
and volunteers shall be included as an additional insured with respect to liability caused, in whole or in part, by
of the activities performed by the Company.” The policy may not exclude the explosion/collapse/underground
(“xcu”) hazard.
11.2.2 Automobile Liability. Bodily Injury and Property Damage for any owned, hired, and non-owned
vehicles used in the performance of work under this Agreement.
Combined Single Limit (CSL)
$1,000,000 per incident
The policy must contain an “MCS-90” endorsement providing for clean-up of pollution conditions arising from
transported product, if the work performed under the Agreement requires the transportation of any Hazardous
Substances by motor vehicle. The policy must also be endorsed to include The City of Chandler its agents,
representatives, officers, directors, officials, employees, and volunteers shall be included as an additional
insured with respect to liability caused, in whole or in part, by the activities performed by Company, including
automobiles owned, leased, hired, or borrowed by Company”.
11.2.3 Worker's Compensation and Employers' Liability.
Workers' Compensation
Statutory
Employers' Liability
Each Accident
$1,000,000
Disease – Each Employee
$1,000,000
Disease – Policy Limit
$1,000,000
Policy must contain a waiver of subrogation against the City of Chandler.
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11.2.4 Pollution Liability.
Per Occurrence
$10,000,000
Annual Aggregate
$10,000,000
The policy must be endorsed to include the following: "The City of Chandler its agents, representatives,
officers, directors, officials, employees, and volunteers shall be included as an additional insured with
respect to liability arising out of the activities performed by Company." The policy must include coverage
for cleanup of sudden or accidental pollution conditions arising from the Wireless Facilities and
Communications Equipment, as defined in the Agreement; cleanup of new conditions arising from
Company's operations and use of the Site under this Agreement; and third-party claims for on and off-site
bodily injury and property damage. Company warrants that any retroactive date under the policy shall
precede the effective date of this Agreement; and that either continuous coverage will be maintained, or an
extended discovery period will be exercised for a period of two (2) years beginning at the time work under
this Agreement is completed. Company may self-insure this coverage.
11.2.5 Telecommunications, Media & Technology Errors & Omissions including Network Security &
Privacy Liability Insurance (Cyber).
Per Claim and Aggregate
$10,000,000
The policy must cover professional errors and omissions for those positions defined in the Scope of
Services of this Agreement. If the professional liability insurance required by this Agreement is written on a
claims-made basis, any retroactive date under the policy shall precede the effective date of this Agreement;
and that either continuous coverage will be maintained or an extended discovery period will be exercised
for a period of two (2) years beginning at the Effective Date of this Agreement. If such insurance is
maintained on an occurrence form basis, Company must maintain such insurance for an additional period
of one (1) year following termination or expiration of this Agreement. If such insurance is maintained on a
claims-made basis, Company must maintain such insurance for an additional period of three (3) years
following termination or expiration of this Agreement. If Company contends that any of the insurance it
maintains pursuant to other sections of this clause satisfies this requirement (or otherwise insures the risks
described in this section), Company must provide proof of same. The insurance must provide coverage for
the following risks: (i) Liability arising from theft, dissemination and / or use of confidential information (a
defined term including bank account, credit card account, personal information such as name, address,
social security numbers, etc. information) stored or transmitted in electronic form; (ii) Network security
liability arising from the unauthorized access to, use of or tampering with the System including hacker
attacks, inability of an authorized third party, to gain access to your services including denial of service,
unless caused by a mechanical or electrical failure; (iii) Liability arising from the introduction of a computer
virus into, or otherwise causing damage to, a customer’s or third person’s computer, the System, network
or similar computer related property and the data, software, and programs thereon.
11.3
Additional Insurance Requirements. The policies are to contain, or be endorsed to contain, the following
provisions: Company’s insurance coverage must be primary insurance and non-contributory with respect to the
obligations that Company has undertaken under this Agreement. The policies must contain a severability of interest
clause and waiver of subrogation against the City, its officers, officials, agents, volunteers, and employees, for
losses arising from work performed by the Company under this Agreement. Company self-insures its pollution
liability insurance and in satisfaction of the waiver of subrogation requirement Company shall include City as joint
loss payee to the extent of the City’s insurable interest which would have been covered had Company purchased
pollution liability insurance.
11.4
Notice of Cancellation. Upon receipt of notice from its insurer(s), Company must provide thirty (30) days
prior written notice of cancellation to the City of any required coverage that is not replaced. Such notice must be
sent directly to the addresses listed below and must be sent by first class mail.
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City of Chandler
Attention: Development Services Department
P.O. Box 4008, Mail Stop 405
Chandler, Arizona 85244-4008
Phone: (480) 782-3000
Email: tuf@chandleraz.gov
With a copy to:
Office of the City Attorney
Attention: Risk Management
175 South Arizona Avenue
P.O. Box 4008 Mail Stop 602
Chandler, Arizona 85244-4008
Phone: (480) 782-4640
Fax: (480) 782-4652
Email: legal.notices@chandleraz.gov
11.5
Acceptability of Insurers. Insurance is to be placed with insurers legally authorized in the State of Arizona
and with an "A.M. Best" rating of not less than A-VII. City in no way warrants that the above-required minimum
insurer rating is sufficient to protect Company from potential insurer insolvency.
11.6
Verification of Coverage. Company must furnish City with certificates of insurance (ACORD form or
Company’s form for self-insurance) as required by this Agreement. Certificates of insurance shall be completed
and signed by the insured's broker authorized by the insured to bind coverage on its behalf. All certificates and
copies of required endorsements are to be received and approved by City before work commences. Each insurance
policy required by this Agreement must be in effect at or prior to commencement of work under this Agreement and
such coverage must be maintained for the duration of the Agreement. Failure to maintain the insurance policies as
required by this Agreement or to provide evidence of renewal is a material breach of this Agreement. All certificates
required by this Agreement must be sent directly to the City of Chandler Development Services Department with a
copy to Risk Management as the addresses listed in Section 11.4. The Agreement number and description are to
be noted on the certificate of insurance.
11.7
Contractors. Company must require all contractors and subcontractors to obtain and maintain substantially
the same coverage with substantially the same limits as required of Company and must Include the City of Chandler
its agents, representatives, officers, directors, officials, employees, and volunteers as an additional insured.
Notwithstanding the above, contractor’s limits of liability must not be less than $1,000,000 per occurrence,
$2,000,000 aggregate.
11.8
Approval. Any modification or variation from the insurance requirements in this Agreement must have
prior approval from the Office of the City Attorney, whose decision will be final. Such action will not require a formal
contract amendment but may be made by administrative action.
11.9
Indemnity. In addition to all other indemnities and other obligations hereunder, to the fullest extent permitted
by law, throughout the term of this Agreement or any and all Permits and until all obligations and performances under
or related to this Agreement are satisfied and all matters described in this paragraph are completely resolved, Company
and all other persons using, acting, working or claiming through or for Company (if they or their subcontractor, employee
or other person or entity hired or directed by them participated in any way in causing the claim in question) shall jointly
and severally indemnify, defend and hold harmless City and all other parties required to be named as additional insureds
under this Section 11 (“Additional Insureds”) for, from and against any and all claims or harm related to Company’s use
of the Site or the rights granted to Company with respect to the Site or Company’s exercise of its rights under this
Agreement (the “Indemnity”). Without limitation, the Indemnity shall include and apply to any and all allegations,
demands, judgments, assessments, taxes, impositions, expenses, proceedings, liabilities, obligations, suits, actions,
claims (including without limitation claims of personal injury, bodily injury, sickness, disease, death, property damage,
destruction, loss of use, financial harm, or other impairment), damages, losses, expenses, penalties, fines or other
matters (together with all reasonable attorney fees, court costs, and the cost of appellate proceedings and all other
costs and expenses of litigation or resolving the claim) that may arise in any manner out of Company’s use of the Site
or other property pursuant to this Agreement or any and all Permits, or any actions, acts, errors, mistakes or omissions
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relating to work or services in the performance of or related to this Agreement by Company, including without limitation
any injury or damages or cause of action claimed or caused by any employees, contractors, subcontractors, tenants,
subtenants, agents or other persons upon or using the Site or surrounding areas related to Company’s exercise of its
rights under this Agreement, except to the extent caused by City or any other Additional Insured or anyone for whose
mistakes, errors, omissions or negligence City may be liable. Notwithstanding the foregoing, the Indemnity does not
apply to: (i) Claims arising from the sole or gross negligence or intentionally wrongful acts of City; or (ii) Claims that the
law prohibits from being imposed upon the indemnitor.
11.10
Risk of Loss. Company assumes the risk of all loss, damage or claims related to Company’s use of the Site
or other property of City, Company or third parties throughout the term of this Agreement and the term(s) of any and all
Permits unless caused by the sole or gross negligence or intentionally wrongful acts of City, its employees, agents or
contractors. Company must be responsible for all damage to its property and equipment related to this Agreement
unless caused by the gross negligence or willful misconduct of the City or its employees, agents or contractors.
11.11
Insurance to be Provided by Others. Company must cause its contractors or other persons occupying,
working on or about, or using the Site pursuant to this Agreement to be covered by their own or Company’s insurance
as required by this Agreement. The required policy limits for commercial general liability insurance provided by such
persons must be $1,000,000 for each occurrence, $1,000,000 for products and completed operations annual
aggregate, and $2,000,000 general aggregate limit per policy year. This paragraph does not apply to persons who do
not actually perform physical labor at the Site (such as Company’s consulting design engineers).
SECTION 12. ASSIGNABILITY AND TRANSFERABILITY
12.1
Assignability. This Agreements and all permits are not assignable by Company (and any assignment shall be
void and vest no rights in the purported assignee) unless the assignment is made in strict compliance with the following.
12.2
Assignments Affected. Every assignment of any of Company’s interest in the Use Area, any agreement, any
Permit, or any of Company’s rights or interests hereunder is prohibited unless Company first receives from City notice of
City’s consent to the assignment, City’s consent to such assignment not to be unreasonably withheld, conditioned, or
delayed. All references in this Agreement to assignments by Company or to assignees shall be deemed also to apply to
all of the following transactions, circumstances and conditions and to all persons claiming pursuant to such transactions,
circumstances and conditions: (i) Any voluntary or involuntary assignment, conveyance or transfer of Company’s right to
use the Use Area under this Agreement or any interest or rights of City under this Agreement, in whole or in part; (ii) Any
voluntary or involuntary pledge, lien, mortgage, security interest, judgment, claim or demand, whether arising from any
contract, any agreement, any work of construction, repair, restoration, maintenance or removal, or otherwise affecting
Company’s rights to use the Use Area (collectively “Liens”); (iii) Any assignment by Company of any interest in any
agreement or Permit for the benefit of creditors, voluntary or involuntary; (iv) A Company Insolvency; (v) The occurrence
of any of the foregoing by operation of law or otherwise; (vi) The occurrence of any of the foregoing with respect to any
assignee or other successor to Company.
12.3
Pre-approved Assignments. City hereby consents to certain assignments (the “Pre-approved Assignments”).
Only the following assignments are Pre-approved Assignments:
12.3.1 Complete Assignment of Agreement and Permits. Company’s complete assignment of all of
Company’s rights and Interests in the Use Area and approved Agreements, and issued Permits to a single assignee who
meets all of the following requirements, as determined by City in City’s reasonable discretion (a “Qualified Operator”): (i)
The assignee has experience, management, credit standing and financial capacity and other resources equal to or
greater than Company’s and adequate to successfully perform the obligations set forth herein; (ii) The assignee is
experienced in the management and operation of similar projects; (iii) The assignee assumes all of Company’s
obligations herein; (iv) The assignee has a net worth of not less than Fifty Million and No/100 Dollars ($50,000,000.00).
12.3.2 Stock Transfers. The transfer of publicly traded stock, regardless of quantity.
12.3.3 Merger. The merger or consolidation of Company with another entity that is a Qualified Operator.
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12.3.4 Common Ownership Transfer. Company’s complete assignment of all of Company’s rights and
interests in the Use Area and approved agreements to a single assignee who is and remains a majority owned subsidiary
of Company’s owner as of the date of the Agreement (or a majority owned subsidiary of a majority owned subsidiary of
Company’s owner as of the date of the Agreement), or a majority owned subsidiary of Company.
12.3.5 Others. (a) Company’s Affiliates; (b) any entity with a net worth of at least Twenty Million Dollars
($20,000,000); (c) any entity that acquires all or substantially all the Company’s assets in the market as defined by
the FCC in which the Site is located; or (d) an entity whose primary business is managing and maintaining wireless
communications towers. As used herein, an “Affiliate” means any person or entity that (directly or indirectly)
controls, is controlled by, or under common control with, that party. “Control” of a person or entity means the power
(directly or indirectly) to direct the management or policies of that person or entity, whether through the ownership
of voting securities, by contract, by agency, or otherwise.
12.4
Limitations on Assignments. City’s consent to any assignment, including without limitation, Pre-approved
Assignments, is not effective until the following conditions are satisfied: (i) Except for the sale of stock, Company must
provide to City notice of the transaction assigning its interests; and (ii) Each assignee must assume all rights and
obligations of the assignor arising under this Agreement from and after the effective date of the assignment.
12.5
Assignment Remedies. Any assignment without City’s consent shall be void and shall not result in the
assignee obtaining any rights or interests. City may, in its sole discretion and in addition to all other remedies available
to City under this Agreement or otherwise, and in any combination, terminate all Agreements and Permits; collect Base
Fee from the assignee and/or declare the assignment to be void, all without prejudicing any other right or remedy of City
this Agreement. No cure or grace periods may apply to assignments prohibited under this Agreement or to enforcement
of any provision under this Agreement against an assignee who did not receive City's consent.
12.6
Effect of Assignment. Prior to any assignment other than a Pre-approved Assignment, each assignee must
execute an assumption of each Agreement and Permit in the form attached hereto as Exhibit E. No action or inaction by
City shall be deemed a waiver of the prohibition on assignments or any other provision herein, or the acceptance of the
assignee, Company or occupant as Company, or a release of Company from the further performance by Company of
the provisions of this Agreement, any agreement, or any permit. Consent by City to an assignment shall not relieve
Company from obtaining City’s consent to any further assignment. No assignment may release Company from any
liability hereunder.
12.7
Enforceability after Assignment. No consent by City may be deemed to be a novation. City’s consent to any
assignment does not in any way expand or modify the terms set forth this Agreement or waive, diminish, or modify any
of City’s rights or remedies under any agreement or any permit. The terms set forth in this Agreement will be enforceable
against Company and each successor, partial or total, and regardless of the method of succession, to Company’s interest
hereunder. Each successor having actual or constructive notice of this Agreement, any agreement or permit will be
deemed to have agreed to the preceding sentence.
12.8
Grounds for Refusal. Except for the Pre-approved Assignments, no assignment of any agreement or permit
by Company is contemplated or bargained for. Without limitation, City has the right to impose upon any consent to
assignment such conditions and requirements as City may deem appropriate.
12.9
Consent to Assignments Company must attach to each Pre-approved Assignment a copy of Company’s
notice to City of the Pre-approved Assignment and other required documents, Company must attach to each other
assignment, a copy of City's notice to Company of City's consent to the assignment. This Agreement will continue to be
enforceable according to its terms in spite of any provisions of any documents relating to an assignment.
12.10
Assignment Fee. Company must pay to City in advance the sum of Five Hundred Dollars ($500) as a
nonrefundable fee for legal, administrative, and other expenses related to every Pre-approved Assignment of an
Agreement (including any related Site Permits (other than the sale of publicly traded stock) or to any request for a consent
to assignment, whether City grants such request.
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SECTION 13. USE AREA
13.1
Authority to Use Public Property. Upon approval of this Agreement, City grants to Company permission
to install Wireless Facilities in the Public Property upon issuance of all required Permits as set forth below.
13.2
Limitations. Notwithstanding anything herein to the contrary, the Use Area includes and is limited to only
certain area that Company is permitted to use and occupy as depicted in Exhibits A and B. The Use Area will be
clearly defined by the Boundary Plan in the Preliminary Drawings or Construction Drawings.
13.3
Use Area Boundary. The Use Area excludes other parts of the Public Property and all other land.
Company must not occupy or use any other portion of the Public Property or adjoining lands, except as specifically
permitted for access to a public right-of-way and utilities from the point of connection, as provided in this Agreement.
An approved agreement or an issued Permit does not allow any use of land outside the Use Area, except as
otherwise provided in this Agreement. If any portion of Company’s work, improvement, or equipment is to be located
on other land, such work, improvements, and equipment are prohibited unless Company first obtains from the owner
of said land (including City, if applicable) an agreement allowing such work, improvements, or equipment (a
“Supplemental Parcel Agreement”).
13.4
Power and Telephone Service. Nothing herein grants permission for any portion of the power, telephone,
or other service routes, if any. Use of the Public Property or utility easements for these purposes, if any, is governed
by other City laws, rules, and policies, and by the Agreement or franchise between City and electrical, telephone,
and other service Companies. Any proposed service entrance section, electrical meter pedestal, vault or other
equipment and any associated conduits required by power, telephone, or other service Companies to be
constructed by the Company to provide such services to the Site must be clearly indicated on the Site Construction
Drawings to coordinate with and avoid conflicts with other users. Tenant will be responsible for paying on a monthly
or quarterly basis all utilities charges for electricity, telephone service or any other utility used or consumed by
Tenant on the Use Area.
13.5
Rights in Adjacent Land. Company's interests granted by this Agreement are expressly limited to the real
property defined as the “Site” and/or “Use Area”. Without limitation, in the event any public right-of-way or other
public or private property at or adjacent to the Site or Use Area is owned, dedicated, abandoned, or otherwise
acquired, used, improved, or disposed of by City, such property will not accrue to Company but will be City’s only.
13.6
Variation in Area. In the event the Use Area consists of more or less than any stated area, Company's
obligations hereunder will not be increased or decreased.
13.7
Condition of Title. Company must not amend, modify, terminate, or otherwise change the Site Documents
or create new Site Documents without the City’s written approval.
13.7.1 Title. City does not warrant title or rights to use the Use Area or any other property.
13.7.2 Intentionally Omitted.
13.8
Condition of Use Area. The Use Area is made available in an “as is” condition without any express or
implied warranties of any kind, including without limitation any warranties or representations as to their condition or
fitness for any use or particular purpose.
13.9
No Real Property Interest. Notwithstanding any provision hereof to the contrary, and notwithstanding any
negotiation, correspondence, course of performance or dealing, or other statements or acts by or between the
parties, Company's rights herein are limited to use and occupation of the Use Area for the Permitted Uses.
Company's rights in the Use Area are limited to the specific rights created herein as an approved Agreement.
13.10
Reserved Right and Competing Users and Activities. Notwithstanding anything herein to the contrary,
City specifically reserves to itself and excludes from any issued Permit a non-exclusive delegable right (the
“Reserved Right”) over the entire Use Area for all manner of real and personal improvements and for streets,
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sidewalks, trails, landscaping, utilities, and every other land use of every description, provided the foregoing does
not unreasonably interfere with Company’s use of the Use Area. Without limitation:
13.10.1 Competing Users. Company accepts the risk that City and others (the “Competing Users”) may
now or in the future install their facilities in the Use Area in locations that make unoccupied parts of the Public
Property unavailable for Company’s use.
13.10.2 Competing Activities. Company accepts the risk that there may now or in the future exist upon
the Use Area all manner of work and improvements upon the Use Area (the “Competing Activities”). The Competing
Activities include without limitation any and all laying construction, erection, installation, use, operation, repair,
replacement, removal, relocation, raising, lowering, widening, realigning or other dealing with any or all of the
following, whether above, upon or below the surface of the Use Area and whether occasioned by existing or
proposed uses of the Public Property or existing or proposed uses of adjoining or nearby land: (i) All manner of
streets, alleys, sidewalks, trails, ways, traffic control devices, subways, tunnels, trains and gates of every
description, and all manner of other transportation facilities and their appurtenances; (ii) All manner of pipes, wires,
cables, conduits, sewers, pumps, valves, switches, conductors, connectors, poles, supports, access points and guy
wires of every description, and all manner of other utility facilities and their appurtenances; (iii) All manner of canals,
drains, bridges, viaducts, overpasses, underpasses, culverts, markings, balconies, porches, overhangs and other
encroachments of every description and all manner of other facilities and their appurtenances: (iv) All other uses of
the Public Property that City may permit from time to time.
13.11
City’s Rights Cumulative. All of City’s Reserved Rights under various provisions of this Agreement and
any and all issued Permits will be cumulative to each other.
13.12
Use Priorities. This Agreement does not grant to Company or establish for Company any exclusive rights
or priority in favor of Company to use the Use Area. Company must not obstruct or interfere with or prevent any
Competing User from using the Use Area. City agrees that Competing Users may not obstruct or interfere with or
prevent Company from using the Use Area.
13.13
Regulation. City reserves the full authority to regulate use of the Use Area and to resolve competing
demands and preferences regarding use of the Use Area and to require Company to cooperate and participate in
implementing such resolutions. Without limitation, City may take any or all of the following into account in regulating
use of the Use Area: (i) all timing, public, operational, financial and other factors affecting existing and future
proposals, needs and plans for Competing Activities; and (ii) all other factors City may consider relevant, whether
or not mentioned in this Agreement and any and all issued Permits; (iii) differing regulatory regimes or laws
applicable to claimed rights, public benefits, community needs and all other factors relating to Competing Users
and Competing Activities.
13.14
Communications Equipment Relocation. Upon ninety (90) days’ notice from City, Company may
temporarily or permanently relocate or otherwise modify the Communications Equipment (the “Relocation Work”)
as follows: (i) Company must perform the Relocation Work at its own expense when required by the City Manager;
and (ii) The Relocation Work includes all work determined by City to be necessary to accommodate Competing
Activities, including without limitation temporarily or permanently removing, protecting, supporting, disconnecting,
or relocating any portion of the Communications Equipment; and (iii) City may perform any part of the Relocation
Work that has not been performed within the allotted time. Company must reimburse City for its actual costs in
performing any Relocation Work. City has no obligation to move Company’s, City’s or others’ facilities, but may
assist Company to find a new location and to expedite the approval process; and (iv) City reserves the right to use
any of Company’s Facilities that are abandoned in place or that are not relocated on City’s request; and (v) all
Relocation Work is subject to and must comply with this Agreement; and (vi) if City and Company cannot mutually
agree on an alternate location, this Agreement will terminate as set forth in section 15.1; and (vii) Communication
Equipment relocated to an acceptable location must be reflected by an amendment to this Agreement and subject to
City Council approval.
13.15
Interference/Disruption by Competing Users. Neither City, nor any agent, contractor, or employee of
City will be liable to Company, its customers nor third parties for any service disruption or for any harm caused them
or the Communications Equipment due to Competing Users or Competing Activities.
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13.16
Emergency Disruption by City. City may remove, alter, tear out, relocate, or damage portions of the
Communications Equipment in the case of fire, disaster, or other emergencies as the City Manager deems such
action to be reasonably necessary under the circumstances. City will make reasonable efforts to contact the
Company’s Network Operations Center at nocnoc@att.com. In such event, neither City, nor any agent, contractor
or employee of City may be liable to Company or its customers or third parties for any harm so caused to them or
the Communications Equipment. When practical, City may consult with Company in advance to assess the
necessity of such actions and to minimize damage or disruption of operation of the Communications Equipment to
the extent reasonably practical under the circumstances. City will inform Company after such action is taken. The
terms and condition for Relocation Work apply for Company’s repair for the emergency disruption of Company’s
Wireless Facilities.
13.17
Public Safety. If the Communications Equipment or any other Company equipment, improvements, or
activities present any immediate hazard or impediment to the public, to City, to City’s equipment or facilities, to other
improvements or activities within or outside of the Use Area, or to City’s ability to safely and conveniently operate
the Public Property or perform City’s utility, public safety, or other public health, safety, and welfare functions,
Company must immediately remedy the hazard, comply with City requests to secure the Public Property, and
otherwise cooperate with City at no expense to City to remove any such hazard or impediment. Company’s work
crews must report to the Use Area within four (4) hours of any request by City under this section.
13.18
Third Party Permission. Company’s Wireless Facilities must not be located on Third Party Areas without
the third party’s written permission. This Agreement may be suspended for Company’s failure to obtain the third
party’s written permission to use Third Party Areas.
SECTION 14. PROPRIETARY INFORMATION
14.1
Notice to Company. If City receives a request to disclose information identified by Company as
Proprietary Information, City will notify Company of such request as provided in section 19.15 to permit Company
at Company’s cost a reasonable opportunity to prevent the disclosure of the requested information. If the City does
not receive a court order to prevent disclosure within five business days from the date of the notice, the City will
disclose the requested information.
14.2
Public Records Law. Notwithstanding any provision in this Agreement, Company acknowledges and
understands that City is a political subdivision of the State of Arizona and is subject to the disclosure requirements of
Arizona’s Public Records Laws (A.R.S. § 39-121 et. seq.).
SECTION 15. ABANDONMENT
15.1
Abandonment; Removal of Facilities. In the event that the use of a substantial part of any of the Wireless
Facilities is discontinued for any reason for a continuous period of two (2) years for reasons other than Force
Majeure, or in the event such Wireless Facilities or property has been installed in any Public Property without
complying with the requirements of this Agreement, or this Agreement has terminated or been revoked, Company
must promptly, upon being given 60 days’ notice from the City, begin removal of such Wireless Facilities and related
appurtenances from the Public Property other than such underground facilities which the City may permit to be
abandoned in place. In the event of such removal, Company must promptly restore the Public Property or other
area from which such property has been removed to a condition satisfactory to the City subject to the City’s
customary practice to review upon request of Company. As a minimum, Company must restore the Public Property
to a condition as existed prior to the removal of the structure or property.
15.2
Permanent Abandonment. The Wireless Facilities and any other property of Company remaining on the
Public Property without the consent of the City 180 days after the revocation of this Agreement will be at the option
of the City considered permanently abandoned.
SECTION 16. AGREEMENT REVOCATION
16.1
Revocation for Nonuse. Not later than 24 months after the date that the City issues a wireless agreement
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under C.C.C. chapter 46, or an amended video service agreement under C.C.C. chapter 46, Company must offer and
provide wireless services unless the Company cannot meet the requirement for reasons beyond the Company’s control
as provided in Section 19.22. If Company fails to comply with this section, the City may revoke this Agreement.
16.2
Revocation for Cause. In addition to C.C.C. chapter 46 and subject to Section 16.4 below, this Agreement
may, after public hearing and notice and an opportunity to cure pursuant to Section 16.3 below, be revoked, altered,
or suspended by the City as it deems necessary on any of the following grounds: (i) failure to file and maintain any
faithful letters of credit, insurance coverage or pay Agreement fees as required under this Agreement; (ii) failure
to comply with applicable law regarding the operation of the Wireless Facilities, this Agreement, or the appropriate
regulatory authority; (iii) violation of material terms of this Agreement; (iv) fraud by Company, in its conduct or
relations under the Agreement; (v) willful or grossly negligent repeated violations of this Agreement; (vi) failure to
comply with any federal, state, local or administrative order, law, permit regulation or consent decree as such may
apply to Company’s activities, as contemplated in this Agreement; and (vii) permanent or temporary suspension for
a period greater than 180 calendar days by the United States or the State of Arizona for any authorizations for
Company to own, operate, maintain, or construct a Wireless Facilities.
16.3
Cure Period. If any of the foregoing events occur, Company will be given a period of 60 days after receipt
of a written notice of default from the City to cure the default before the hearing described in Section 16.4. The
provisions of Section 16.4 apply: (i) if Company fails to cure the event of default within the 60 day period; or (ii)
when an event of a default cannot be cured within the 60 day period and Company fails to begin and diligently
pursue the cure.
16.4
City Determination; Public Hearing. If Company fails to remedy its default as provided for in Section
16.2, City will notify Company of that determination and will state the major causes and reasons supporting the
determination. Company will be granted ten (10) days to respond to the determination. The City will consider the
response of Company, if any, and may then terminate, postpone for a period, or proceed with the revocation,
alteration, or suspension process. If the City proceeds with the revocation, alteration, or suspension process, or
reactivates a postponed proceeding, a written statement of revocation, alteration, or suspension will be served upon
Company stating the principal reasons for such action and a copy of the statement must be sent by certified U.S.
mail, return receipt requested, to Company as provided in Section 19.15. The City Council may take final action on
the revocation, alteration, or suspension of this Agreement after the public hearing.
16.5
Removal of Facilities. Upon revocation of this Agreement, the City may declare a forfeiture, whereupon
all rights and privileges of Company under this Agreement will immediately be divested without a further act upon
the part of Company, and Company must remove its structures or property from the Public Property and restore the
Public Property to the condition as existed prior to the removal of the structure or property. Upon Company’s failure
to do so within six (6) months of revocation, the City may perform the work and collect the City’s cost from Company.
At the City’s option, Company may abandon structures or property in place as provided in this Agreement. At a
minimum, the Public Property must be restored to a condition as existed before the removal of the structures or
property.
SECTION 17. RADIO FREQUENCY REQUIREMENTS; CITY EMPLOYEE SAFETY
17.1
RF Compliance Requirements. Company must document, report, and confirm its compliance with FCC
Radio Frequency Exposure Guidelines (FCC OET Bulletin 65) and all other applicable radio frequency emissions
laws and regulations in effect within six (6) months after commencement of operations (collectively, the “FCC
Rules”). Company must cause its senior internal engineer responsible for compliance with the FCC Rules to deliver
to City a written letter (the “RF Letter”), as follows: (i) The RF Letter must attest that Company’s operation of the
Communications Equipment complies with the FCC Rules. A statement from Company declaring exemption from
reporting to FCC is not acceptable to comply with the requirements of this paragraph; and (ii) Company must
maintain records of radio frequency measurements and Communications Equipment performance in accordance
with the FCC Rules; and (iii) Company must show its compliance with the FCC Rules.
17.2
Prior Notice for Work Near Wireless Facilities. Prior to performing any work on the Site, the City’s
employee will contact the Network Operations Center (the NOC”) whose information must be located on the ground
level Communications Equipment or on the pole. The City’s employee will identify himself or herself as an employee
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of City and will request deactivate the RF signals at the Site for a specified period. Upon completion of the work,
the City’s employee will contact the NOC to inform Company that the Site may activate the RF signals.
SECTION 18. VIOLATION USE FEES AND PUBLIC SAFETY VIOLATIONS.
18.1
Violation Use Fee. Company agrees to pay Violation Use Fees as provided in C.C.C. chapter 46 when
Company breaches the terms of this Agreement and fails to cure the breach after the applicable notice and cure
period. The City may elect to draw upon the letter of credit required in Section 8 to collect the Violation Use Fees.
For continuing violations within a 24-hour period, each calendar day is considered a separate period for purposes
of recovery of Violation Use Fees. Company’s payment of Violation Use Fees does not excuse Company’s breach
of this Agreement or limit the City’s legal or equitable remedies.
18.2
Enforcement of Violation Use Fees. The City Manager may issue a warning for Company’s first violation
under this section. The City Manager will issue notice to the Company as listed in Section 19.15. If City determines
that Company is liable for Violation Use Fee, the City assesses the Violation Use Fee by setting forth the nature of
the violation and the amount of the assessment. Within ten days of the notice of violation date, Company may
appeal the violation as provided in C.C.C. chapter 46 or must pay the Violation Use Fee.
18.3
Public Safety Violations; Civil Sanctions. In addition to imposing a Violation Use Fee, as provided in
C.C.C. chapter 46 the City Manager may issue notices of violation of this Agreement and may take those measures
necessary to promote, preserve, and protect public health, safety, and welfare within the public right-of-way. The
City Manager may issue a warning for Company’s first violation under this section. The City Manager will issue
notice to the Company as listed in Section 19.15, and Company’s violation may result in a civil sanction as provided
in C.C.C. chapter 46. For continuing violations within a 24-hour period, each calendar day is considered a separate
period for civil sanctions.
18.4
Civil Action for Violations. These remedies are cumulative, and the City may proceed under one or more
remedies. Any party who causes, permits, facilitates, or aids or abets any violation of any provision of this section
or who fails to perform any act or duty required by this section is subject to a civil sanction as provided in C.C.C.
chapter 46.
SECTION 19. GENERAL CONDITIONS.
19.1
Agreement Administrator and Enforcement. In all matters of agreement administration, the City
Manager has authority to determine Company’s compliance with the terms and provisions of this Agreement, and
in the event of non-compliance, to exercise any or all of the remedies provided in this Agreement and to the full
extent provided by law.
19.2
Right of Inspection of Construction. The City may inspect all construction or installation work performed
subject to the provisions of this Agreement and to make such tests as it deems necessary to ensure compliance
with the terms of this Agreement and other pertinent provisions of law.
19.3
Right of Intervention. The City may intervene in any suit or proceeding related to or arising out of this
Agreement to which Company is party, and Company may not oppose such intervention by the City.
19.4
Intentionally Omitted.
19.5
Intentionally Omitted.
19.6
Compliance With Laws. Company must comply with all federal, state, and City ordinances, resolutions,
rules, and regulations related to the rights and duties granted Company under this Agreement.
19.7
Intentionally Omitted.
19.8
Non-Enforcement by the City. Company will not be relieved of its obligation to comply with any of the
provisions of this Agreement by reason of the City’s failure to insist upon or to seek compliance with any term and
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condition.
19.9
Agreement Documents. Company must submit to the City the letter of credit and insurance certificates
as required by the Agreement within 30 days of the Effective Date. This Agreement granted is not legally operative
until all of Company’s requirements in this Section are completed. In the event Company does not timely satisfy
these, this Agreement will be deemed null and void unless Company’s time to comply is extended by the Council.
19.10
Survival of Warranties. Company’s representations and warranties made as part of the grant of this
Agreement, or any permit issued under this Agreement survive termination or revocation of this Agreement.
19.11
Right of Cancellation. Company acknowledges that this Agreement is subject to cancellation by the City
under A.R.S. § 38-511.
19.12
Covenant Against Contingent Fees. Company warrants that no person has been employed or retained
to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage,
or contingent fee; and that no member of the City Council or any employee of the City has any interest, financially
or otherwise, in this Agreement. For breach or violation of this warranty, the City has the right to annul this
Agreement without liability, or at its discretion to deduct from the Agreement price or consideration, the full amount
of such commission, percentage, brokerage, or contingent fee.
19.13
Independent Contractor. Any provision in this Agreement that may appear to give the City the right to
direct Company or Company the right to direct the City as to the details of accomplishing the work or to exercise a
measure of control over the work means that the party will follow the wishes of the other party as to the results of
the work only.
19.14
Governing Law; Jurisdiction. Arizona law governs this Agreement, both as to interpretation and
performance. Any action at law, suit in equity, or judicial proceeding to enforce this Agreement must be instituted
in Maricopa County, Arizona courts.
19.15
Delivery, Procedure of Notices and Communications. All notices, consent, or other communication
under this Agreement must be in writing and: (i) delivered in person; or (ii) deposited in the United States mail,
postage prepaid, registered or certified mail, return receipt requested; or (iii) deposited with any commercial courier
or express service and addressed as follows:
To City:
City of Chandler
P.O. Box 4008, Mail Stop 405
Chandler, Arizona 85244-4008
Attention: Development Services
Phone: (480) 782-3000
e-mail: tuf@chandleraz.gov
With a copy to:
City of Chandler
Office of the City Attorney
P.O. Box 4008, Mail Stop 602
Chandler, Arizona 85224-4008
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To Company:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: AZL01776; Cell Site Name: El Lobo (AZ)
Fixed Asset #: 15474814
1025 Lenox Park Blvd NE, 3rd Floor
Atlanta, GA 30319
With a copy to:
New Cingular Wireless PCS, LLC
Attn: Legal Department
Re: Cell Site #: AZL01776; Cell Site Name: El Lobo (AZ)
Fixed Asset #: 15474814
208 S Akard St.
Dallas, TX 75202-4206
Notice will be deemed received at the time it is received, refused, or returned undeliverable. Any party may change
its mailing address, phone number, email address or the person to receive notice by notifying the other party as
provided in this Section. Notices sent by electronic mail must also be sent by regular mail to the recipient at the
above address. This requirement for duplicate notice is not intended to change the effective date of the notice sent
by electronic mail.
19.16
Organization/Employment Disclaimer. This Agreement is not intended to constitute, create, give rise to,
or otherwise recognize a joint venture, or relationship, partnership, or formal business organization of any kind, and
the rights and obligations of the Parties will be only those expressly set forth in this Agreement.
19.17
Entire Agreement; Amendment; Waivers. This Agreement, and the below listed exhibits which are
incorporated herein by this reference and are attached and/or on file at the City and available for inspection,
constitute the entire agreement between the City and Company with respect to the transactions contemplated
therein and supersede all prior negotiations, communications, discussions, and correspondence, whether written
or oral, concerning the subject matter hereof. No supplement, modification, or amendment of any term of this
Agreement will be deemed binding or effective unless executed in writing by the Parties. No waiver of any of the
provisions of this Agreement will be deemed, or will constitute, a waiver of any other provisions, whether or not
similar, nor will any waiver constitute a continuing waiver. No waiver is binding unless expressly executed in writing
by the Party making the waiver.
Exhibit “A” – Site Drawings
Exhibit “B” – Use Area or Legal Description
Exhibit “C” – Chandler Department Approval Form
Exhibit “D” – Form Letter of Credit
Exhibit “E” – Assumption Wireless Use Agreement
Exhibit “F” – Extension of Wireless Use Agreement
19.18
Right of Parties. Nothing in this Agreement, whether express or implied, is intended to confer any right or
remedies under or by reason of this Agreement on any persons other than the Parties to this Agreement and their
respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge
any obligation or liability of any person who is not a party to this Agreement, nor will any provisions in this Agreement
give any persons not a party to this Agreement any right of subrogation or action over or against any Party to this
Agreement.
19.19
Construction. This Agreement is the result of negotiations between the Parties, none of whom has acted
under any duress or compulsion, whether legal, economic, or otherwise. Accordingly, the terms and provisions of
this Agreement will be construed in accordance with their usual and customary meanings. The Parties hereby
waive the application of any rule of law that otherwise would be applicable in connection with the construction of
this Agreement that ambiguous or conflicting terms or provisions should be construed against the party who (or
whose attorney) prepared the executed Agreement or any earlier draft of the same. Unless the context of this
Agreement otherwise clearly requires, references to the plural include the singular and the singular the plural. The
words "hereof,” "herein," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and
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not to any particular provision of this Agreement. All references to "Sections" herein refer to the sections and
paragraphs of this Agreement unless specifically stated otherwise. The section and other headings contained in
this Agreement are inserted for convenience of reference only, and they neither form a part of this Agreement nor
are they to be used in the construction or interpretation of this Agreement.
19.20
Severability. If any covenant, condition, term, or provision of this Agreement is held to be illegal, or if the
application of this Agreement to any person or in any circumstances to any extent be judicially determined to be
invalid or unenforceable, the remainder of this Agreement or the application of such covenant, condition, term, or
provision to persons or in circumstances other than those to which it is held invalid or unenforceable, must not be
affected, and each covenant, term, and condition of this Agreement is valid and enforceable to the fullest extent
permitted by law.
19.21
Cooperation and Further Documentation. Each of the Parties agree to provide the other with such
additional and other duly executed documents as are reasonably requested to fulfill the intent of this Agreement.
19.22
Force Majeure. For the purpose of any of the provisions of this Agreement, neither Company nor the City,
as the case may be, will be considered in breach of or in default of their obligations under this Agreement as a result
of the enforced delay in performance of such obligations due to unforeseeable causes beyond its control and without
its fault or negligence, including, but not limited to: acts of God, acts of the public enemy, acts of the Federal
Government, acts of the Salt River Project, acts of Maricopa County, acts of the State of Arizona or any of its
departments, acts of any railroad, fire, floods, epidemics, strikes, lock outs, freight embargoes, and unusually severe
weather; it being the purpose and intent of this provision that in the occurrence of any such enforced delay, the time
for performance of Company’s and the City’s obligations, as the case may be, will be extended for the period of the
enforced delay, provided that the party seeking the benefit of this provision will have notified the other party in
writing of the cause or causes, and requested an extension for the period of the enforced delay. If notice by the
party claiming such extension is sent to the other party more than 30 days after commencement of the cause, the
period of delay will be deemed to commence 30 days prior to the giving of such notice.
19.23
On-Call Assistance. Company must be available to staff employees of any City department having
jurisdiction over Company’s activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or
complaints resulting from the installation, operation, maintenance, or removal of its Wireless Facilities. City may
contact by email the Company’s network operations center at nocnoc@att.com regarding such problems or
complaints. In the event of a public emergency, pursuant to Sections 13.16 and 13.17, the emergency contact can be
reached at nonnoc@att.com.
19.24
Legal Worker Requirements. A.R.S. § 41-4401 prohibits the City from awarding a contract to any party who
fails, or whose contractors fail, to comply with A.R.S. § 23-214(A) in connection with this Agreement. Therefore, Company
and each contractor it uses warrant their compliance with all federal immigration laws and regulations that relate to their
employees and their compliance with§ 23-214, subsection A in connection with this Agreement. A breach of this warranty
will be deemed a material breach of this Agreement and may be subject to penalties up to and including revocation of
the Agreement. City retains the legal right to inspect the papers of Company’s or contractor’s employees who provide
services under this Agreement to ensure that Company and its contractors comply with this warranty.
19.25
Lawful Presence Requirement. A.R.S. §§ 1-501 and 1-502 prohibit the City from awarding a contract to any
natural person who cannot establish that such person is lawfully present in the United States. To establish lawful
presence, a person must produce qualifying identification and sign a City-provided affidavit affirming that the identification
provided is genuine. This requirement will be imposed at the time of contract award. This requirement does not apply to
business organizations such as corporations, partnerships, or limited liability companies.
19.26
Written Acceptance. Company’s execution of this Agreement constitutes Company’s acceptance of this
Agreement as granted and its agreement to be bound by and to comply with the terms and conditions of this Agreement.
Company’s signature must be acknowledged by Company before a notary public.
19.27 Data Confidentiality and Data Security. As used in this Agreement, data means all information, whether
written or verbal, including plans, photographs, studies, investigations, audits, analyses, samples, reports, calculations,
internal memos, meeting minutes, data field notes, work product, proposals, correspondence and any other similar
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documents or information prepared by, obtained by, or transmitted to Company as part of the terms and conditions of
this Agreement. Except as specifically provided in this Agreement, Company must not divulge confidential data provided
by City to Company and clearly marked confidential to any third party without the City’s prior written consent. These
prohibitions do not apply to the following data: (i) data which was known to the Company prior to the Effective Date or is
publicly available; or (ii) data which was acquired by the Company in its performance under this Agreement and which
was disclosed to the Company by a third party, who to the best of the Company’s knowledge and belief, had the legal
right to make such disclosure and the Company is not otherwise required to hold such data in confidence; or (iii) data
which is required to be disclosed by virtue of law, regulation, or court order, to which the Company is subject. Company
assumes all liability to maintain the confidentiality of City’s confidential data in Company’s possession. Solely for the
purposes of seeking injunctive relief, it is agreed that a breach of this Section must be deemed to cause irreparable harm
that justifies injunctive relief in court.
19.28
Authority. Each party represents to the other that the person signing on its behalf has the legal right and
authority to execute, enter, and bind such party to the commitments and obligations set forth herein.
IN WITNESS WHEREOF, the Parties duly execute and agree to be bound by this License as of the Effective Date.
City of Chandler, an Arizona municipal
corporation
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
By:
MAYOR/AUTHORIZED STAFF
Signature
Print Name:
Len Dalton
Title
Director – Access, Construction and
Engineering
APPROVE AS TO FORM:
City Attorney by: _____
ATTEST:
City Clerk
SEAL
[COMPANY ACKNOWLEDGMENT IS ON FOLLOWING PAGE]
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COMPANY’S ACKNOWLEDGEMENT
(REQUIRED BY SECTIONS 6.1 & 19.26 OF THE AGREEMENT)
STATE OF
)
) ss:
COUNTY OF
)
On
the
_____
day
of
___________________,
20___,
before
me
personally
appeared
___________________, who acknowledged under oath that he/she is the _____________________ of AT&T
Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC, the tenant named in the attached
instrument, and as such was authorized to execute this instrument on behalf of the tenant.
Notary Public:
My Commission Expires:
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EXHIBIT “A”
SITE DRAWINGS
(PAGE 1 OF 3)
The Public Property is legally described as follows:
APN: 303-07-009
The Site and Wireless Facility are described and/or depicted as follows:
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EXHIBIT “A”
SITE DRAWINGS
(PAGE 2 OF 3)
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EXHIBIT “A”
SITE DRAWINGS
(PAGE 3 OF 3)
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EXHIBIT “B”
USE AREA OR LEGAL DESCRIPTION
(If not already included as part of Exhibit
A)
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EXHIBIT “C”
CHANDLER DEPARTMENT APPROVAL FORM FOR WIRELESS COMMUNICATION FACITLITES
ON PUBLIC PROPERTY
Wireless Company _____________ New Cingular Wireless PCS, LLC ____________________________
Company Contact ____________________________________________________
Location of Site new mono-eucalyptus and associated ground equipment in a compound on the eastern portion
of Desert Basin Park _______________________________________________________________
Attach specifications of facilities and their location to this form.
I. Department Where Site is to be Located
I hereby agree that to the best of our Department’s knowledge with the information provided by the Company, that
the wireless infrastructure proposed by the above Company at the noted location is acceptable to be located at our
Department’s facility/location.
I deny our Department’s approval for location at this site. Reason:
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
___________________________________________________________________________________
_______________________________________________
________________
Department Authorized Representative Signature and Title Date
II. Development Services Department
I hereby agree that to the best of our Department’s knowledge with the information provided, the wireless
infrastructure proposed by the above Company at the noted location meets the City Code zoning requirements for
wireless facilities. I have also informed the Company of the procedures to obtain zoning permit approval.
I deny our Department’s approval for location at this site. Reason:
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________
_______________________________________________
_______________
Planning/Zoning Authorized Representative Signature and Title Date
____________________________________________________
_______________
Real Estate Coordinator Authorized Representative Signature and Title Date
CHANDLER DEPARTMENT CLEARANCE FOR WIRELESS COMMUNICATION FACILITIES –page 2
III. Public Safety Departments
Information provided by the Company indicates that all wireless communications equipment it will operate within the City
is in compliance with the FCC's radio frequency emission regulations and will not interfere with the City’s emergency
communication Wireless Facilities. If an interference or frequency study was deemed to be necessary in the City’s
opinion, then it has been performed. If at some time it is determined that there is interference resulting from any such
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equipment, then the Company knows its use agreement will require it to remedy such interference, and that such
interference could be deemed a material breach by the party causing the interference.
Police Department:
I hereby agree that to the best of our Department’s knowledge with the information provided, the wireless
infrastructure proposed by the above Company at the noted location will not pose an interference issue for the
Department’s emergency communication Wireless Facilities.
I deny our Department’s approval for location at this site. Reason:
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
_________________________________________________________________________________
______________________________________________________
_______________
Police Department Authorized Representative Signature and Title Date
Fire Department:
I hereby agree that to the best of our Department’s knowledge with the information provided, the wireless
infrastructure proposed by the above Company at the noted location will not pose an interference issue for the
Department’s emergency communication Wireless Facilities.
I deny our Department’s approval for location at this site. Reason:
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________
______________________________________________________
_______________
Fire Department Authorized Representative Signature and Title Date
Current as of June 2022
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INSTRUCTIONS: DEPARTMENT APPROVAL FORM FOR WIRELESS COMMUNICATION FACILITIES
LOCATED ON CITY-OWNED REAL PROPERTY OR IN RIGHT-OF-WAY
Section I. Department Where Site is to be Located: Requires signature of director or director’s designee of the
Department whose manages the facility or public land/right-of-way where the wireless facility/structure will be
located. If the wireless facilities will be in the following areas, the corresponding signature is required.
City Property
Department Contact
Community Services/Parks
Mickey Ohland, Park Development and Operation Manager
480-782-2743, mickey.ohland@chandleraz.gov
175 S. Arizona Ave., 4th Floor
Fire Station
Keith Hargis, Assistant Fire Chief
480-782-2161, keith.hargis@chandleraz.gov
151 E. Boston St.
Water/Wastewater Treatment Facility
John Knudson, Public Works Director
480-782-3590, john.knudson@chandleraz.gov
1475 E Pecos Rd.
Public Right-of-Way
Dennis Aust, Telecommunications & Public Utility Service Manager
480-782-3315, dennis.aust@chandleraz.gov
215 E. Buffalo St.
Police Department
Zachary Cummard, Police Commander
480-782-4153, zachary.cummard@chandleraz.gov
250 E Chicago St.
The Company and the Department must agree to the location on the property where the facilities will not disrupt
City operations. This may require an on-site tour to determine an acceptable location. Some general discussions
of aesthetics/screening should also take place, as well as if there are any benefits the Department might receive
such as collocation opportunities. Once a site has been agreed upon, then proceed to get signature for Section II.
Fees for use for that site will be determined through the Use Agreement process once all signatures for the
“Chandler Department Approvals for Wireless Communication Facilities” form have been received and submitted
to the City at Development Services Dept., 215 E. Buffalo St., Chandler, AZ 85225, (480) 782-3315.
Section II. Development Services: Company should be familiar with Chandler City Code Chapter 35, XXII,
Section 35-2209 regarding requirements for Wireless Communications Facilities and show that their plans are in
accordance with City Code.
Planning/Zoning Contact: Development Services Department, 215 E. Buffalo St., One-Stop Shop Front Counter, 480-782-
3000 or Susan Fiala, City Planner, Planning Division, (480) 782-3067, Susan.Fiala@chandleraz.gov
Real Estate Contact: Erich Kuntze, Real Estate Coordinator, (480) 782-3397, erich.kuntze@chandleraz.gov
Section III. Police/Fire Departments: Company’s technical staff should confer with the City’s public safety
communication staff to assure that all wireless communications equipment it will operate within the City is in compliance
with the FCC's radio frequency emission regulations and that the frequencies used will not interfere with the City’s
emergency communication Wireless Facilities for either the Police or Fire Departments. There will be more detail
language for the Company to agree regarding interference issues when applying for the Public Property Use Agreement.
Contact (both Fire & Police Clearance is Required):
Fire Department
Police Department, Communications Division
Fire Department Assistant Chief
Police Commander
Keith Hargis, keith.hargis@chandleraz.gov
Zachary Cummard, zachary.cummard@chandleraz.gov
151 E. Boston St., 480-782-2161
250 E. Boston St., 480-782-4153
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EXHIBIT “D”
STANDARDS FOR LETTERS OF CREDIT
In addition to any other requirements imposed upon a letter of credit (the “Letter of Credit”) issued pursuant to this
Agreement, the Letter of Credit shall meet and be governed by the following additional standards and requirements:
1.
Letter of Credit Requirements. The Letter of Credit shall be printed on Bank Safety Paper. The following
terms and no others shall be stated on the face of the Letter of Credit:
1.1 The Letter of Credit is clean, unconditional, irrevocable, independent, and standby.
1.2 The Letter of Credit is payable to City upon presentation of City’s draft.
1.3 City may make partial draws upon the Letter of Credit.
1.4 The Letter of Credit is for payment solely upon presentation of a sight draft and a copy of the Letter of
Credit.
1.5 Within ten (10) days after City’s draft on the Letter of Credit is honored, City must make the original of
the Letter of Credit available to the issuer in Maricopa County, Arizona upon which the issuer may
endorse its payments.
1.6 The issuer specifies a telefax number, email address, and street address at which City may present
drafts on the Letter of Credit.
1.7 The Letter of Credit is valid until a specified date.
1.8 The Letter of Credit will be automatically renewed for successive one (1) year periods, unless at least
30 days prior to expiration the issuer notifies City in writing, by either registered or certified mail, that
issuer elects not to renew the
Letter of Credit for the additional period. In the event of such
notification, any
then unused portion of the Letter of Credit shall be available by draft on or before
the then current expiration date.
1.9 The Letter of Credit is otherwise subject to the most recent edition of the Uniform Customs and
Practices for Documentary Credits, published by the International Chamber of Commerce including,
but not limited to, International Standby Practices 1998 (ISP98) (International Chamber of Commerce
Publication No. 590; ISP98 Model Government Standby (U.S.) Form 11.1 and annexes (2017)).
1.10
The Letter of Credit need not be transferable.
2.
Approved Forms. The form of the Letter of Credit and of drafts upon the Letter of Credit shall be as
follows:
2.1 Except as approved in writing by City’s Development Services Department, the form of the Letter of
Credit shall be in the form set out below.
2.2 Except as approved in writing by City’s Development Services Department, the form of drafts upon the
Letter of Credit shall be in the form set out below.
3.
Issuer Requirements. The issuer of the Letter of Credit shall meet all of the following
requirements:
3.1 The issuer shall be a federally insured financial institution with offices in Maricopa County, Arizona, at
which drafts upon the Letter of Credit may be presented.
3.2 The issuer shall be a member of the New York Clearing House Association or a commercial bank or
trust Company satisfactory to City.
3.3 The issuer shall have a net worth of not less than $1 billion.
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FORM OF LETTER OF CREDIT
(ISP98 Model Government Standby (U.S.) Form 11.1)
Date ____________________, 20__
Letter of Credit No.:______________
Development Services Department
City of Chandler
P.O. Box 4008
Mail Stop 405
Chandler, AZ 85244-4008
Dear Sir or Madam:
Issuance. At the request and for the account of [name and address of applicant] (“Applicant”), we [name and address
of issuer at place of issuance] (“Issuer”) issue the irrevocable independent standby letter of credit number [reference
number] (“Standby”) in favor of [name and address of beneficiary] (“Beneficiary”) in the maximum aggregate amount
of USD [amount].
Undertaking. Issuer undertakes to Beneficiary to pay Beneficiary’s demand for payment for an amount available
under the Standby and in the form of Annex A (Payment Demand) [or Annex B (Payment Demand after Notice of
Non-Extension)] completed as indicated and presented to Issuer at the following place for presentation: in Maricopa
County, Arizona at or before the close of business on the expiration date.
Overdrawing. If a demand exceeds the amount available, but the presentation otherwise complies, Issuer
undertakes to pay the amount available.
Expiration. The expiration date of this Standby is valid until ____________ 20__.
Automatic Extension. The expiration date of this Standby shall be automatically extended for successive one-year
periods, unless [30] or more calendar days before the then current expiration date Issuer gives written notice to
Beneficiary that Issuer elects not to extend the expiration date. Issuer’s written notice must be sent by registered,
certified, or priority express mail or nationally recognized overnight courier to Beneficiary’s above-stated address
[and to the attention of [office, officer, or other attention party] or, alternatively, be received by Beneficiary’s attention
party] [30] or more calendar days before the then current expiration date.
Payment. Payment against a complying presentation shall be made within three business days after presentation
at the place for presentation or by wire transfer to a duly requested account of Beneficiary.
ISP98. This Standby is issued subject to the International Standby Practices 1998 (ISP98) (International Chamber
of Commerce Publication No. 590). This Letter of Credit is not assignable.
Issuer’s Charges and Fees. Issuer’s charges and fees for issuing, amending, or honoring this Standby are for
Applicant’s account and shall not be deducted from any payment Issuer makes under this Standby. [Issuer
undertakes to Beneficiary to pay the charges and fees of any bank nominated in this Standby to advise [and confirm]
this Standby for acting on such nomination.]
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[Communications. Communications other than demands may be made to Issuer in the manner and at the place for
presentation and also as follows: [address for mailed, couriered, telephone, telefax, or electronic
communications]. Communications other than for notices of non-extension may be made to Beneficiary at
Beneficiary’s above-stated address and also as follows: addresses for mailed, couriered, telephone, telefax, or
electronic communications].]
[Issuer’s name]
[signature]
______________________________
Authorized Signature
_____________ [bank name] _____, a __________________
By ___________ [bank officer’s signature] ______________
___________ [bank officer’s name printed] _____________
Its __________ [bank officer’s title] ___________________
Phone: ___ [bank officer’s phone number] ______________
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ANNEX A: PAYMENT DEMAND
(ISP98 Model Government Standby (U.S.) Form 11.1
To:
[Issuer name and address]
From:
Development Services Department
City of Chandler
P.O. Box 4008
Mail Stop 405
Chandler, AZ 85244-4008
Date: ___________________, 20_____
Re: Standby Letter of Credit No. [reference number], dated [date], issued by [issuers name] (“Standby”).
Ladies and Gentlemen:
The undersigned beneficiary demands payment of USD [insert amount] under the Standby. Beneficiary states that
Applicant is obligated to pay to Beneficiary the amount demanded as provided in [the contract, regulation, or other
document that identifies the underlying obligations to the government beneficiary]. Beneficiary requests that
payment be made by wire transfer to an account of Beneficiary as follows: [Insert name, address, and routing
number of beneficiary’s bank, and name and number of beneficiary’s account].
[Beneficiary’s name and address]
By its authorized officer:
[Insert original signature]
[Insert typed/printed name and title]
If such deposit cannot be accomplished immediately for any reason, please make your payment in the form of a
cashier’s check issued by your institution and delivered to me at the address listed above.
I certify that I am the Development Services Director of the City of Chandler.
If there is any imperfection or defect in this draft or its presentation, please inform me immediately at (480) 782-
3410 so that I can correct it. Also, please immediately notify the City Attorney at (480) 782-4656.
Thank you.
_____________________________________________
City of Chandler, Development Services Director
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EXHIBIT “E”
ASSUMPTION OF WIRELESS USE AGREEMENT
Regarding ______________________________
This assumption is made pursuant to paragraph 12.1.5 of that certain Wireless Use Agreement (the “Agreement”)
between City of Chandler, an Arizona municipal corporation (“CITY”) and __________________________, a
_________________________ (“Company”) dated ________________, 20____.
__________________________, a __________________________ (“Assignee”), having acquired the rights of the
Company under the Agreement, hereby assumes the Agreement, agrees to be bound thereby, and obligates itself
to perform the terms and conditions of the Agreement, all in favor of CITY. The person signing this document on
behalf of Assignee warrants to CITY his authority to do so.
Dated: ______________________, 20_______
ASSIGNEE: _________________________________,
a _______________________________
By:
Its:
STATE OF _________________
)
) ss.
COUNTY OF _______________
)
The foregoing instrument was acknowledged before me this ____ day of ______________, 20__, by
___________, _____________ of _____________, a _______________.
Notary Public
My Commission Expires:
_____________________________
Date
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EXHIBIT “F”
EXTENSION OF WIRELESS USE AGREEMENT
Regarding:
This extension is made pursuant to paragraph 5.1 of that certain Wireless Use Agreement (the “Agreement”)
between City of Chandler, an Arizona municipal corporation (“CITY”) and __________________________, a
_________________________ (“Company”) dated ________________, 20____.
COMPANY: _________________________________,
a _______________________________
By: _____________________________
Its: _____________________________
CITY OF CHANDLER
a municipal corporation
By: ____________________________________
Its: Development Services Director or Designee
APRROVE AS TO FORM:
___________________________
City Attorney
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