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09-1103_NEW CINGULAR WIRELESS PCS, LLC_F4a_Agenda Report
11/312009 AGENDA REPORT F4a TO: Joe Tait, Interim City Manage FROM: Karen Crocker, Community Services Director SUBJECT: Consideration of Facilities Site Lease Agreement, (New Cingular Wireless, PCS, LLC) Cell Site #000004-02; at Community Center/Sports Park Light Standard RECOMMENDATION: By motion, approve the Wireless Communication Facilities Site Lease Agreement at the San Juan Capistrano Sports Park. SITUATION A. Summary In 2005, the applicant (AT&T) approached the City with a proposal to develop a wireless telecommunications facility at the San Juan Sports Park. The applicant proposes to develop a wireless telecommunications facility at the San Juan Sports Park which includes the installation of 6 (six) panel antennas located inside the top of an 83 foot high light pole, which will also provide field lighting. The light pole-monopole will replace an existing light pole. Also proposed is the construction of 1 (one) 11'-6" x 20'-0" antenna equipment shelter on a concrete pad and 1 (one) storage shed that measures 11'-6" x 20'-0". The pole is located approximately 430 feet north of Camino Del Avion which is designed to match the height and color of the existing poles (Attachment 1). At the September 21, 2009, Parks, Recreation and Equestrian Commission meeting, the Commission recommended approval of the Conditional Use Permit (CUP) 08-007, of site and architectural plans to develop a wireless telecommunication facility at the San Juan Capistrano Sports Park. The Conditional Use Permit was approved at the September 22, 2009, Planning Commission meeting per Resolution No. 09-09-22-1 (Attachment 2). The item before the City Council is approval of the proposed site lease agreement. The agreement includes items such as permitted use, term, rent, approvals, termination, Insurance requirements, indemnification, obligations, access, interference and environmental conditions (Attachment 3). B. Cell Site Design The light pole-monopole is designed to compliment the Leight and appearance of the existing poles and to provide light standards similar to the existing pole lights. The proposed project is in conformance with the design standards of Municipal Code Agenda Report Page 2 November 3, 2009 Section 9-3.507, Antennas. The code requires that cellular antennas be designed to meet the City's design standards and to blend into the surrounding environment as required per Section 9-3.507 (b)(3) Design Standards. (A) Design Standards. All antennas, excluding amateur radio antennas, including guy wires, supporting structures, and accessory equipment, shall be located and designed to minimize their visual impact as viewed from surrounding properties and public streets. The following minimum design standards shall apply. (i) Material used. All antennas and supporting structures or components shall be of non reflective, glare-reducing materials. Colors and materials for antennas and their components shall be chosen .to minimize visibility and to match or blend with the primary background. (ii) Screening: All telecommunications antennas and facilities, including cellular, pcs, and other wireless communications antennas, shall be designed to blend with the surrounding environment and to be as unobtrusive as possible. Screening shall be provided in the form of fencing, landscaping, structures, or parapets integral to the building, as shown in Figure 3-2. Such screening and maintenance shall be provided to the satisfaction of the Planning Director. (iii) Multiple-use facilities. Antennas may be integrated into existing or newly developed facilities and structures that are functional for other purposes, such as ballfield li hts, flag poles, and clock towers. All multiple-use facilities shall be designed to camouflage the antennas, as shown in Figure 3-9. Although the Municipal Code allows for the panels to be installed on the outside of the pole (see Figure 3-1), the cellular panels will be on the inside of the new pole, therefore eliminating any visual awkward arrangement between the cellular panels and the light fixtures (Architectural Plans). Hall Field Lights Antennas iN E I' iE Figure 3-1 Agenda Report Page 3 November 3, 2009 C. Community Benefrt City staff has received some complaints from various residents in regards to the lack of cell phone coverage within the City limits. The proposed cell site will increase coverage to San Juan Capistrano residents. In addition to the increased cell phone coverage, there will be a monetary benefit of monthly revenue that will be allocated to the City. The City will also be receiving a new custom-built equipment shed and Little League will be receiving $20,000 towards the construction of a future proposed batting cage at the San Juan Capistrano Sports Park. The recommended base rental under the lease is proposed at $2,200 per month. The base rental shall automatically be adjusted annually in an amount equal to the increase in the Consumer Price Index published by the United State Department of Labor, Bureau of Labor Statistics (the "CPI"). The rent shall not increase by more than three percent (3%) of the rent paid during the previous year. Attached is a cell phone tower survey that indentifies some other local cities' revenue derived from cell sites on City and Capistrano Unified School District property. The survey shows that the average revenue per month is $2,305, with the city of Laguna Niguel being the highest at $3,446 per month, and the city of San Clemente being the lowest at $2,000 per month. Capistrano Unified School District sites range from $-0- revenue to $1,575 per month (Attachment 4). Staff has also included another cell phone tower survey that includes a variety of agencies throughout the State of California (Attachment 5). This cell tower survey is for information only and is not being used as a fee comparison due to the proximity of agencies surveyed to San Juan Capistrano. COMM ISSIONIBOARD REVIEW AND RECOMMENDATIONS: The License Agreement was approved by the Parks, Recreation and Equestrian Commission at their October 19, 2009 meeting. FINANCIAL CONSIDERATIONS: The recommended base rental is proposed at $2,200 per month, to be adjusted annually in an amount equal to the increase of CPI, but not to exceed 3% of the rent paid during the previous year. NOTIFICATION: A public meeting notice was mailed to all residents within a 1,000' radius of the vicinity of the project. Pedro Cabrera, San Juan Adult Soccer Tim Dickinson, AYSO Agenda Report Page 4 November 3, 2009 Tim Miller, Trillium Michael Morales, San Juan Little League Darrin Silveria, San Juan Little League RECOMMENDATION: By motion, approve the Wireless Communication Facilities Site Lease Agreement at the San Juan Capistrano Sports Park. Respectfully submitted, Karen Crocker, Director Community Services Department Attachments: 1. Photo Simulations 2. PC Resolution No. 09-09-22-1 3. Wireless Communications Facilities Site Lease 4. Local Cell Tower Survey 5. Statewide Cell Tower Survey 6. Location Map - 1148 0000 at&t "'77 2592:5 CAMINO D;) i.. AVFON SAN JUAN CAPISTRANO CA 926715 r � a " W �yry4 WE, l { '3 SR§aL. 3 . .. _ F - ( 1 F GH tri` zy'-�I 9 _ r 'hr`s:;. 1"m .- x qq _ LL,'_)K3NL "CAST FROM PARK ..J ]' 50 C 0004B NdFY CEN T 25925 CAMIN❑ DER_ Av€aN SAN JUAN GAP€E�"f RANO GA 92C575 00 i } # Y`�{ ✓ V k F =sem > sY<5x z �f h r s , r � x1Y LRtl{ k1r�' �> .- vi azf t„ r - };, q�; rY., k3: - '' <; � f ��??�� '�. � ! �`� _�'�. •.�„ r�!� �;'�' � "IES �- [, -K �`i•{ ..;' Ft l 4'^ g l"�;.C{5 {�SbY-J' .'.�. � a ,<' f - x� � �5,#��.;„•' ��3,4[3s.:.�, y c � ...: .. ! 5��� _�F� :,lj.��,b�{,�.r�.ki '3§r fi �` `s�' �' � ” ,. �.. 'p .. .,� tLoo KtNrl -Sou"" f"R0m VSA Po,7 l7l VA 0 . 04 . l-,ommnY CENTER t&t 25925 CAMINO DI-I- AvInN SAN JUAN CAPISTRANO CA 92675 £ ifsI i 8 g° b wjg - <. 11 T- ' - _ 'Yt 4.Y ,are;:':k�!f.••(346k 4. '1 r f ra l All 'l r '. -.-: -.h - m ,� r y "p'�t€';.`"?'t r.. 'tel r `� S ,SS � t ✓? r .i>??Sr1.�� .. _ -r�1 ,, r r' r Z sr/}-f c 4 i l _.3✓z`�.i�� -j I> I..-Zr:.,,j.� )t, r ... J F ..'. ....: L.01,KiNI !30TJTI-f I*/AS'r .-ROM Q,"SFJALI_ FIELD .. at&tCOMM T CENTER 2592S CA.MINO DEL- AVin" SAN JUAN r-API'a'"l{'AND CA 92675 f w F' 4 31Y - : - �F VJC 1 � 3 EJ I2`t�4?Yid f ..3�J AM.> -Ei>E'Y'D„36. _ � - ._ �. �; ,'� ��°�� 4tr � �'. ^a"� �� f y°'"fly`s zea �;> � �'� sit` �% •-�� �,E -� -bD �,. } •�"# PC RESOLUTION NO. 09-09-22-1 CONDITIONAL USE PERMIT (CUP) 08-007 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN .DUAN CAPISTRANO CONFIRMING ISSUANCE OF A CATEGORICAL EXEMPTION AND APPROVING AN UNMANNED WIRELESS TELECOMMUNICATION FACILITY TO BE LOCATED WITHIN THE CITY'S SPORTS PARK AND TO INCLUDE A STEALTH LIGHT STANDARD(POLE) WHICH STANDS EIGHTY THREE FEET THREE INCHES (83'-3"),, WHICH CONSISTS OF S .(SIX) PANEL ANTENNAS FULLY ENCLOSED WITHIN THE POLE, AN EQUIPMENT SHELTER AND A STORAGE SHED (APPLICANT: AT&T MOBILITY, TIM MILLER). WHEREAS, AT&T Mobility, Tim Miller proposes to install an unmanned wireless telecommunications facility that consists of installing 6 (six)panel antennas located inside the top of an 83'-3" tall light pole, which will also provide field fighting. The light pole- monopole will replace an existing light pole. Also proposed is the construction of 1 (one) 1 V-6"x 20'-0"antenna equipmentshelter on a concrete pad and 1 (one)storage shed that measuresl V-6" x 20'-0". WHEREAS, the proposed project has been processed pursuant to Section 9-2.301, Development Review of the Land Use Code and reviewed for compliance with the City's General Plan and the City's adopted Architectural Design Guidelines; and, WHEREAS, the Environmental Administrator has reviewed the project pursuant to Section 15303 of the California Environmental Quality Act (CEQA) and issued a Class 3 Categorical Exemption; WHEREAS, On September 22, 2009 the Planning Commission conducted a duly noticed public hearing pursuant to Section 9-2.313 of the Municipal Code to consider public testimony on the proposed project. WHEREAS, On September 21, 2009 the Parks, Recreation and Equestrian Commission conducted a duly noticed public meeting pursuant to Section.9-2.313 of the Municipal Code to consider public testimony on the proposed project. NOW, THEREFORE, BE IT RESOLVED, that the Planning Commission of the City of San Juan Capistrano does hereby make the following findings: 1. The proposed project is consistent with the General Plan maps .and policies, in particular the Community Design Element because that element implements the City's design objectives through the adopted Architectural Design Guidelines. The proposed location of the antennas will be consistent with the City's .Architectural Design Guidelines, and specifically: Section 2(a) which states that, "facilities should not be discernible from public right-of-ways or open space areas;" and, ATTACHMENT 2 PC Resolution 09=09-22-1 September 22, 2009 Section (c) which states that, "cellular and wireless facittffes should be screened by struchires and or landscaping;" and, The proposed wireless facility is to be located on the inside the top portion of a stealth light standard (pole) that will measure 83'-3" in height when measured from finish grade. The pole will contain 6 panels and electrical coax cables. The equipment will be located in an equipment shelter that will he painted to match the parks concession stand. The antenna panels have been designed inside the pole and will therefore be invisible from surrounding views, and because'the pole will contain sports field's lights it is found to be consistent with the General Plan; and, 2. The.proposed project is consistent with the band Use Code because it is located within the Community Parr(CP)Zone District, which lists wireless facilities uses as conditionally permitted uses. The CP district specifically allows cellular antennas subject to approval of a Conditional Use Permit. The .purpose of the CUP is to provide the City with the legal authority to impose conditions to mitigate the adverse aesthetic effects of cellular antennae (See Attachment 1, PC Resolution). To the extent the design of the project has eliminated the visual impacts of the proposed project,the proposed use is'consistent with the purpose and intent ofth+e'CP"zone district. In addition, all the supplemental district standards are either rnet or exceeded. Therefore the project is consistent with the "CP ?_:arae District; and, 3. The proposed project is located within the "CP"zone. To the north of the site there are green houses. To the west of the site is the City's Comm,unity Centel- and Kinoshita School. To the east is agricultural land and to the south are residential properties. The proposed site is more than three hundred feet(300'4) away from . residential properties. The proposed use will not be visible because the antennae will be located within stealth light standard (pole) and the equipment shelter will be designed to aesthetically snatch the existing concession stand and will include new landscape screening along the south edge that will snatch the perimeter hedge. Therefore, the project is situated in a parcel that has adequate setbacks and is in compliance with this finding; and, 4. The proposed project does not create any additional impacts that would be in conflict with the existing use. The proposed use does not generate,excessive noise, light, vibration or odors. Further the proposed use does not create significant increases in vehicle trips. Therefore the proposed use is found to he consistent and complimentary to the existing park lighting uses; and, 5. The proposed use does not create significant vehicular trips which would create significant demands for parking. Occasionally support personnel need to visit the site for repairs maintenance, otherwise the site is unmanned. Due to the limited visitation to the site the proposed project is consistent with this finding. PC Resolution 09-09-22-1 3 Se tember 22 2009 NOW, THEREFORE, BE IT FURTHER RESOLVED, that the Planning Commission of the City of San Juan Capistrano does .hereby confirm. issuance of a categorical exemption and approves the project subject to conditions of approval set forth in Exhibit A, attached hereto and incorporated herein. EFFECTIVE DATE & FINAL APPROVAL. This project approval shall become effective following expiration of the fifteen (15) day appeal period without filing of an appeal application. The appeal period shall expire at 5:00 PM, Wednesday, October 7, 2009. This project approval shall be valid for a period of one (1) year from the date of approval of this resolution; and shall expire on September 22, 2010 unless a time extension request or building permit application related to this discretionary approval is submitted to the City prior to that date. PASSED,APPROVED AND ADOPTED this 22nd day of September, 2009; by the following vote: AYES: Commissioners Kerr,Tatarian,Mocalis,Williams,Vice-Chair Ratcliffe and Chairman Cohen. NOES: None ABSTAIN: None ABSENT: Commissioner Neely Sheldon Cohen, Chairman Grant Taylor, �stant Community Development Director SADepartments\Community DevelopmentiDepartment\Projects\CUP PROJECTS 2000ACUP0807-AT&T Wireless Community Center\CUP 0807 PC resp Mept09.doc RESOLUTION #: 09-09-22_1 Ekhibit aA CONDITIONS OF APPROVAL Project CUP 08-007 007 Project Name: AT&T-Community Center Wireless-Project APPROVAL DATE: September 22, 2009 EFFECTIVE DATE: October T, 2009 EXPIRATION DATE: September 22, 2011 These conditions of approval apply to Conditional Use Permit # 08-007 to construct an unmanned wireless telecommunications facility that consists of installing 6 <six) panel antennas located inside the top of an 83'-3' tall light pole located at the City's Sports Park, which will also provide field lighting. The fight pale-monopble will replace an existing light pole. Also proposed is the construction of 1 (one) 1 V-6, x 20,4, antenna equipment shelter on a concrete pad and "I (one) storage stied that measures V-6" x 20'-0" General Conditions: 1. Cond fional Use Permit # 08=007 to construct an unmanned wireless telecommunications facility that consists of instatling 0 ;(silk paned antennas located inside to top of an 83'-3" tall light pole, which will also provide field lighting. The light pole-monopole will replace an existing light pope. Also proposed is the construction of 1 (one) 11' " x 2,0:'-0, " antenna equipment shelter on a concrete pad and 1 (one) storage. abed that measuresi 1'-0" x 20'-0�. This approval is granted based on the application materials submitted by Tim Miller on August 26, 2009, prepared by Primus Design Group including site plan, elevations, and floor plans. These plans and the proposed use of the site are approved as submitted and conditioned herein, and shall not be fur..her altered ,unless reviewed and approved by the affected city departments_ Minor modifications to this approval which .are determined by the Planning Director to be in substantial conformance with the approved site plan, and which do not intensify or change the use.or. require any deviations from adopted standards, may be approved by the Community Development Director upon submittal of an application and the required fee. If not appealed, this approval shall become effective on the first business day fallowing t-he fifteenth (15th) day after the date of the Planning Commission's approval and shall expire September 22, 2010 one (1) year after the approval date of the approval unless the use or occupancy which is the subject of this action has taken place and all conditions of approval have been inet, or a time extension has been granted by the City. Any application for an extension of time shall be submitted to the Planning Department, along with the required fee, at feast ninety (90) days prior to the expiration date of this approval, except as otherwise approved by the Planning Director. Planning Commission Resolution 09-09-22-1 Final Conditions of Approval CUP 08-007, AT&T Wireless September 22, 2009 Page 2 of 5 2. Approval of this application does not relieve the applicant from complying with other applicable Federal, State, County or City regulations or requirements. 3. All plans, specifications, studies, reports, calculations, maps, motes, legal documents, and designs shall be prepared, signed, and stamped (when required) only by those individuals legally authorized to do so. 4. The applicant shall defend, indemnify, and hold harmless the City of San Juan Capistrano and its officers, employees, and agents from and against any claim, action, or proceeding against the City of San Juan Capistrano, its officers, employees, or agents to attack, set aside, void, or annul any approval or condition of approval of the City of San Juan Capistrano concerning this project, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Planner. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. 6. The applicant shall be responsible for informing all subcontractors, consultants, engineers, or other business entities providing services related to the project of their responsibilities to comply with these conditions of approval and all pertinent requirements in the Sart Juan Capistrano Municipal Code, including the requirement that a business license be obtained by all entities doing business in the City. 6. In the event that exhibits and written conditions are inconsistent, the written conditions shall prevail, If there are any disparities between these conditions and the plans or final revised plans that are approved for any subsequent phase, the conditions and/or plans as stipulated in the later approval shall prevail. 7. The use shall meet the standards and shall be developed within the limits established by the Municipal Code as related to emissions of noise, odor, dust, vibration, wastes, fumes, or any public nuisances arising or occurring incidental to the establishment or operation. 8. The applicant shall pay all fees at the time fees are determined payable and comply with all requirements of the applicable federal, state, and local Planning Commission Resolution 09-09-22-1 Final Conditions of Approval CUP 08-007, AT&T Wireless September 22, 2009 Page 3 of 5 agencies. The duty of inquiry as to such requirements shall be upon the applicant. 9. All applicable approvals and clearance from other departments and agencies shall be on file with the Building and SafetyDepartment prior to issuance of any :permits, final inspections, utility releases and/or release of securities, as specified in these conditions. (B&S) The following conditions shall be completed prior to or in conjunction with the issuance of building permits: 10. _ Applicable Codes. Prior to issuance of building permits, plans for this project shall be submitted to the Building and Safety Department for review and approval, and shall comply with the latest City-ad-opted edition of the applicable building codes. (B&S) 11. Buildina Construction Plans. Prior to issuance of building permits, the applicant shall submit final construction plants, building elevations and floor plans to the Planning Department for final review and approval. Such plans shall be fully dimensioned and in substantial conformance with those plans approved by the Planning Commission, Design Review Committee, and/or Community Development Director (as applicable). (PLN) 12. OCFA review of hazardous Materials (Service^Code 2.50). Prior to the issuance of a building permit, the applicant shall subunit to the Fire Chief a plan for review and approval of the battery system. The plans shall be in accordance with the California Fire Article 64. Please contact the OCFA at (714) 573-6133 for a copy of the Guidelines and Informational Bulletins. (GCFA) The following conditions and requirements shall be met during construction, from the beginning of the first ground-disturbing activity until the use has been released for occupancy. 13. Waste Dis oral and Sanitation. At all times during construction, the applicant shall maintain adequate sanitary disposal faeilies and solid waste disposal containers on site. The accumulation of refuse and debris constituting a public nuisance is not permitted. (ENG) 14. Construction hours. Construction hours shall be limited to 7:00 a.m. to 6:00 p.m., Monday through Friday and between 3:30 a.m. and 4:30 p.m. Planning Commission Resolution 09-09-22-1 Final Conditions of Approval CUP 08-007, AT&T Wireless September 22, 2009 Page 4 of 5 on Saturday. Construction activity shall not be permitted on Sundays or any Federal holiday.(PLN) The following conditions shall be met prior to acceptance of improvements. and release of bonds and/or surety, final utility clearances, or granting permission to use or occupy the project site, as specified below: 16. Consistenc with Approved Plans and Elevations. The }project shall be constructed in accordance with all the approved plans and conditions of approval, including but not limited to site plans, grading playas, wall plans, landscape/irrigation plans, lighting plans, and elevations. If all improvements cannot be installed prior to occupancy, the City may approve a Deferred Improvement Agreement to defer the completion of the improvements provided that a bond, cash deposit, or other surety in a form and substance approved by the City Attorney,is submitted to the City in lieu of installation of the improvements, that application and required fees are submitted, and that the incomplete improvements will not create an unsafe condition on the site. The term of the deferral shall be as determined by the City Planner. (PLN) 16. Final Planning_Inspection. A minimum of one week prior to final inspection by the Building and Safety Department, the applicant shall schedule a final inspection by the Planning Division, and shall pay any outstanding balance in the Developer Deposit Account assigned to this application. (PLN) 17. Lessees or Other Users. AT&T Mobility shall ensure that the lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the future of any lessee or other user(s) under the control of AT&T Mobility. (PLN) 18. Future Technologies. In the event that future wireless technologies are made available and are feasible, the applicant shall modif=y or remove the facility at the applicant's expense. Said technologies may regdire the removal of the facility or a reduction in the quantity of panels. The Planning Commission reserves the right to review and modify the subject use in the future. (PLN) Responsible Agencies: B&S = Building and Safety ENG = Engineering Division PLN = Planning Division PW = Public Works Department Planning Commission Resolutlon 09.09-22-1 Final Condlf bnv of Approval { CUP 08.007,,AT&T Wireless $sptember 22,200g page 5of5 0CFA=Orange County Fire Authority Date of Approval. September 22,2009 Resolution No.: 09-0-22.1 Effective Date: October 7,2009 Applicant Acceptance of Conditions of Approval: By: 1 11 105 Signature Date Narneff-Itie CITY OF SAN JUAN CAPISTRANO WIRELESS COMMUNICATIONS FACILITIES SITE LEASE New Cingular Wireless PCS, LLC Cell Site#: 000004-02; Cell Site Name: Community Center Light,Standard This Communications Site Facilities Lease (the "Lease") is made and entered irjf© this day of , 2009, by and between the CITY OF SAN JUAN CAPISTR.ANO, a California Municipal Corporation (herein "LESSOR"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company (herein "LESSEE") (hereinafter collectively referred to as "Parties"). RECITALS WHEREAS, LESSOR is the fee title owner of property described as San Juan Capistrano Sports Park located at 25925 Camino del Avion in the City of San Juan Capistrano; California (the "Property") described more particularly in Exhibit A attached hereto, which description is fully incorporated herein by this reference; and WHEREAS, LESSEE desires to lease space on the Property from said LESSOR on the terms and conditions herein in order to install and operate a digital mobile radio telecommunications site as more fully described hereinbelow and Exhibit C (the "Facilities"). LEASE NOW, THEREFORE, in consideration of the foregoing recitals and the mutual .covenants, conditions, and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties to this Lease do hereby agree as follows: 1. LEASED PREMISES: 1.1 DEMISE: LESSOR leases to LESSEE a portion of the Property containing 322 square feet as more particularly described in Exhibit B (the"Premises"). 1.2 LESSEE ACCESS: LESSOR shall provide LESSEE, LESSEE's employees, agents, and subcontractors' access to the Premises after LESSEE provides LESSOR with 24 hours notice. Provided, however, that in the event of an "emergency or special circumstance", which would leave the Facilities inoperable during normal non-business hours, LESSEE may access the Property to make necessary repairs and shall provide notice to LESSOR as soon as reasonably practicable. For purposes of this Lease, the phrase "emergency or special circumstance" shall be interpreted to mean automobile accidents and natural disasters, including, but not limited to flooding, wind, and earthquakes. 2. USE OF LEASED PREMISES: To the extent provided in this Lease, LESSEE may use the Premises to facilitate provision of wireless communication services, including the transmission 1 Cell Sited 00004-02;Cell Site Name:Community Center Light Standard ATTACHMENT 3 and the reception of communication signals of various frequencies. Subject to the terms and conditions of this Lease, LESSEE may install, construct, maintain, repair, replace and operate on the Premises the communications and other facilities depicted and/or described in general in Exhibit C, as approved by LESSOR in writing prior to taking such actions. To the extent reasonable, LESSOR shall cooperate with LESSEE in applying for and obtaining all licenses, permits, and any and all other necessary approvals that may be required for LESSEE's use of the Premises. LESSEE has the right to install and operate transmission cables from the equipment cabinet to the antennas, electric lines from the main feed to the equipment cabinet and communication lines from the main entry point.to the equipment cabinet. There will be no more than 6 (six) panel antennas attached to the light pole. All other equipment and electrical lines will be concealed inside the equipment cabinet per Exhibit C or underground.. No equipment will be visible from the Property. The equipment cabinet will include a 20'x I I' storage area that will be designated for City storage. The LESSEE shall donate $20,000 to San ,Tuan Little League for the construction of a batting cage as identified in Exhibit C for community purposes. The batting cage will serve as a buffer to the equipment cabinet and a public benefit to the community. The batting cage will not be maintained or operated by the LESSEE. The LESSEE's Facilities shall comply with all applicable federal, state or local laws, rules or regulations. 3. LEASE TERM: 3.1 INITIAL TERM: The initial term of this Lease shall commence on the first day of the month following the date that LESSEE obtains all permits necessary allowing LESSEE the right to construct the Facilities (the "Commencement Date") and shall continue for five (5) years from that date (the "Initial Terre") unless terminated earlier pursuant to Section S hereinbelow. 3.2 RENEWAL TERM: LESSOR grants LESSEE an option to renew this Lease for an additional ten (10) years, renewable in two (2) five (5) year increments (each, a "Renewal Term"). This Lease shall automatically renew for each Renewal Term unless LESSEE provides LESSOR notice of its intention not to renew not less than thirty(30) days prior to the expiration of the then current Term. For the purpose of this Lease, the "then current Term" shall mean either the Initial Term or the Renewal Term, whichever is in effect at the relevant time. The Initial Term and the Renewal Terms shall be collectively referred to herein as the "Term." 4. PAYMENT OF RENT: At the Commencement Date, LESSEE agrees to pay to LESSOR, the amounts set forth in this section, each month in advance, on the first of each month, as rental for said Premises for the Initial Term of the Lease and all Renewal Terms, payable to the City of San Juan Capistrano, 32400 Paseo Adelanto, San Tuan Capistrano, California 42675, Attn: Accounts Receivable, Finance Department. In addition, LESSEE agrees to do and perform all other covenants and agreements contained in this Lease. 2 Coll Site#oC004-02;Cell Site Mame:Community Center bight Standard 4.1 BASE RENTAL PAYMENT: The Base Rental Payment under this Lease shall be TWO THOUSAND TWO HUNDRED DOLLARS ($2,200.00) per month ("Base Rental"). If the Commencement Date is a date other than the first day of the month, the Base Rental for the first calendar month shall be paid on the Commencement Date and prorated on the basis of the number of actual days in such partial month. 4.2 COST OF LIVING ADJUSTMENT: The Base Rental shall be automatically adjusted on each anniversary of the Commencement Date in an amount equal to the increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics (1982-1984 = 100) [the "CPI"] for "All Items - All Urban Consumers", for the Los Angeles-Anaheim-Riverside Metropolitan Statistical Area, during the preceding twelve (12) month period. The base month for increases under this section shall be the most recently measured twelve (12) month period prior to the commencement of each annual anniversary of the Commencement Date. Notwithstanding the foregoing, in no event shall rent be increased by more than three percent(3%) of the rent paid during the previous year. 4.3 LATE CHARGE: LESSEE acknowledges that late payment by LESSEE to LESSOR of Base Rental will cause LESSOR to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges. Therefore, if any installment of Base Rental due from LESSEE is not received by LESSOR within thirty(30) days after written notice is received from LESSOR that the same is due and payable, LESSEE shall pay to LESSOR an additional sum of three percent(3%)per month of the overdue Base Rental as a late charge. The Parties agree that this late charge represents a fair and reasonable estimate of the costs that LESSOR will incur by reason of such late payment by LESSEE. Acceptance of any late charge shall not prevent LESSOR from exercising any of the other rights and remedies available to LESSOR. 5. PROPERTY TAXES: LESSEE recognizes and understands that this Lease may create a possessory interest subject to property taxation pursuant to Revenue and Taxation Code section 107.7 and that LESSEE may be subject to the payment of property taxes levied on such interest. LESSEE shall timely pay all property taxes and assessments directly attributable to LESSEE's possessory interest. In no event shall LESSOR be liable for any taxes owed as a result of this Lease. 6. LESSOR INSPECTION AND ENTRY ACCESS FOR INSPECTIONS: 6.1 LESSOR and/or its authorized representatives shall have the right to enter the Premises with a Tenant escort, upon reasonable prior notice to LESSEE (which shall not be less than twenty-four (24) hours unless the LESSOR's Public Works Director determines that exigent circumstances warrant a shorter period of time, so long as such entrance does not unreasonably interfere with LESSEE's use of the Premises): 3 Cell Situ OCN4-02;Cell Site Name:Community Canter Light Standard A. To determine whether the Premises are in good condition and whether LESSEE is complying with its obligations under this Lease. B. To do any necessary maintenance to the light pole and to make any restoration to the Premises that LESSOR has the right or obligation to perform. C. To serve, post, or keep posted any notices required or allowed under the provisions of this Lease. D. To run electric or telephone conductors, pipes, conduits, or ductwork where necessary or desirable over, under, or through the Premises in a manner which will not unreasonably interfere with LESSEE's use of the Premises. 6.2 LESSOR shall not be liable in any manner for any inconvenience, disturbance, loss of business, or nuisance arising out of LESSOR's entry on the Premises as provided in this section, except for damage resulting from the acts or omissions of LESSOR or its authorized representatives. LESSEE shall not be entitled to an abatement or reduction of rent if LESSOR exercises any rights reserved in this section. 7. CONSTRUCTION AND MAINTENANCE OF FACILITIES AND PREMISES: 7.1 LESSEE'S CONSTRUCTION: LESSEE shall have the right to install, construct, maintain, repair, replace, and operate the Facilities on the Premises that are depicted in Exhibit C. The Parties intend that the antennas and appurtenances related thereto which are a part of the Facilities shall be constructed on a suitable support structure in such manner as to make the cabinetry blend into the surroundings, i.e., LESSEE shall screen the equipment. Therefore, construction by LESSEE of any improvement, structure or work on the Premises, shall be permitted only upon the express written consent of the LESSOR, which will not be unreasonably withheld or delayed. 7.2 CONSTRUCTION OF IMPROVEMENTS: All improvements to the Premises shall be made in a good and workmanlike manner, at LESSEE's expense, in accordance with the requirements of all laws, ordinances, and regulations applicable thereto, including zoning requirements and building code requirements of the City of San Juan Capistrano, and any municipal or other governmental agency having jurisdiction over the Premises and Facilities at the time the improvements are constructed. LESSOR agrees to cooperate with LESSEE in connection with applying for any municipal permits for the construction of the aforementioned improvements. It is understood and agreed that such cooperation shall not be implied to include any expenditures of funds on the part of LESSOR or any implied promise or warranty that such permits, discretionary, or otherwise, will be issued to LESSEE. LESSEE shall provide reasonable notice to the LESSOR prior to entering the Premises for purposes of constructing the Facilities, and shall 4 Cell Site#G 604-02;Cell Site Naruc:Cormiunity Center Light Standard coordinate the scheduling and logistics of same with the Public Works Director to avoid any interference with the LESSOR's operations, educational programs or recreational programs. Once commenced, any and all improvements made by LESSEE with respect to the installation of the Facilities shall be diligently pursued to completion. 7.3 MECHANIC'S LIENS: LESSEE shall not allow or permit to be enforced against the Premises, or any part thereof, and shall defend, indemnify, and hold LESSOR harmless from any mechanic's, material suppliers', contractors', tax, or subcontractors' liens arising from any claim, for damage, or growing out of the work of any construction, repair, restoration, replacement, or improvement made by or alleged to have been made by or on behalf of LESSEE. LESSEE shall pay or cause to be paid all of such liens, claims, or demands before any action is brought to enforce the same against the Premises. If LESSEE shall in good faith contest the validity of any such claim, Iien, or demand, then LESSEE shall, at its expense, defend itself and LESSOR against same and shall pay and satisfy any settlement or adverse judgment that may be entered thereupon prior to the execution thereof. In the event of any such contest, LESSEE shall provide LESSOR with a security bond in a form and amount LESSOR deems sufficient to allow the lien of record to be discharged as a matter of law. 7.4 CARE DURING CONSTRUCTION: LESSEE shall exercise great care during construction. All applicable City standards and specifications shall be followed. LESSOR's Public Works Director shall approve all work in writing prior to commencement. 7.5 LESSEE MAINTENANCE OF FACILITIES AND PREMISES: LESSEE's maintenance of the Facilities and Premises shall include, but is not limited to: A. Maintenance of all landscaping installed by LESSEE, if any; B. Repairs and/or replacements to LESSEE's Facilities caused by acts of third parties, including theft, graffiti, and intentional acts; C. Maintaining, in good, clean, safe, and sanitary condition and repair, all of LESSEE's personal property. All Facilities on the Property must be maintained in a first-class condition without rust, paint, or surface deterioration.. All maintenance must conform to the standards utilized by LESSOR; and D. All work necessary to comply with Federal, State, County, municipal, and other governmental agencies and bodies having jurisdiction. 7.6 RELOCATION: In the event relocation is necessary due to public improvements, LESSEE shall within twelve (12) months of LESSOR's notice thereof either relocate the Facilities or terminate the Lease. Upon receipt of the notice, Lessee 5 Celt Site#00004-02;Cell Site Name:Conmiunity Center Light Standard shall have the right to terminate the Lease and shall notify the Lessor of its intent to terminate the Lease within 60 days from its receipt of Lessor's notice, which termination shall be effective no Iater than the date corresponding to the last day of the twelve-month notice period provided by the Lessor. Lessee shall have no further liability to Lessor after the termination date except as expressly provided herein. If Lessee agrees to such relocation, Lessee agrees to pay direct cost of relocating the Facilities to the relocated Premises and installing same thereon, and Lessor shall pay all other costs, if any, 7.7 ABANDONMENT: If use of the Facilities is abandoned for at least two (2) months, LESSEE or its designee shall be responsible for removing the Facilities and returning the Premises to their original condition as approved by the Public Works Director. S. TERMINATION: 8.1 LESSOR'S RIGHT TO 'TERMINATE: A. LESSOR may pursue any remedies available to it under applicable law, including, but not limited to, the right to terminate this Lease, upon the earliest of any of the following events: I. LESSEE's failure to pay rent within thirty (30) days following nonpayment; 2. LESSEE's failure to comply with any term, covenant, or condition of this Lease after LESSEE has been given written notice of the violation and has had thirty(30) days to cure same or, if such default is not curable within such thirty (30) day period, has not proceeded to commence such cure within such thirty (30) day period and diligently proceeds to completion; 3. Interference by the Facilities with other electrical or radio frequency equipment installed on or around the Property, which interference is not cured by LESSEE within ten (10) days following written notice thereof; or 4. Interfere with LESSOR's operations, or use of the Property by LESSOR or third parties after LESSEE has been given written notice of the violation and has had thirty(30) days to cure same or, if such default is not curable within such thirty(30) day period, has not proceeded to commence such cure within such thirty(30) day period. and diligently proceeds to completion. B. Additionally, upon a finding by LESSOR's City Council that the Premises are needed for other public purposes, LESSOR shall have the right, after the 6 Cell Site#00004-62;Cell Site Name:Conm1unity Center l„ight Standard expiration of the second renewable term, to terminate this Lease without liability upon one (1) year's written notice of termination to LESSEE. 8.2 LESSEE'S RIGHT TO TERMINATE: LESSEE may terminate this Lease without further liability for any reason whatsoever upon ninety (90) days written notice to LESSOR. Upon termination, all prepaid rent will be retained by LESSOR unless such termination is due to LESSOR's failure of proper ownership or authority, or such termination is a result of LESSOR's default hereunder. In the event LESSEE terminates the Lease prior to commencement of construction of the Facilities, all LESSEE's obligations under this Lease shall terminate without further liability. 8.3 RETURN OF PREMISES UPON TERMINATION: Except as otherwise provided herein, LESSEE. shall at its sole expense remove all of LESSEE's Facilities, within sixty (60) days following expiration or termination of this Lease. Upon the expiration or termination of this Lease, LESSEE shall surrender the Premises to LESSOR in a condition at least as good as existed on the date LESSEE executes this Lease, less ordinary and reasonable wear and tear. The Parties intend that LESSEE shall not remove or destroy any improvements to the Premises that, subsequent to surrender of the Premises by .LESSEE, will benefit or be of use to LESSOR. Therefore, upon expiration or termination of this Lease, LESSOR may request that LESSEE not remove or destroy all or any portion of the LESSEE's Facilities, and, except for any electrical (other than lighting), mechanical, computer, or similar equipment(including antennas), LESSEE shall not remove the portion of the LESSEE's Facilities that is the subject of LESSOR's request. LESSEE shall thereafter execute any and all documents as are reasonably required to evidence that title to such improvements have been transferred to LESSOR, in their "as-is" condition. 9. INTERFERENCE: 9.1 LESSEE'S OBLIGATIONS: Prior to occupancy of the Premises and operation of the Facilities by LESSEE or its agents, assigns or LESSEE's employees, LESSEE agrees to: A. Submit to LESSOR, within forty-five (45) days prior to operation, proposed plans for antenna type and size, along with operating frequencies, effective radiated power, and other necessary on-air technical data at LESSOR's discretion for LESSOR's review and approval. If LESSOR does not respond in writing to LESSEE within ten (10) days following LESSEE'S request for approval, such request will be deemed to have been approved by LESSOR. B. Install or cause to be installed, all equipment according to generally accepted standard engineering practices and in a good and workmanlike manner. 7 Coll Site#00004-02;Cell Site Name:Conimmity Center Light Standard C. Use reasonable efforts to investigate the cause of and mitigate any interference caused by LESSEE on existing radio frequency equipment of LESSOR following written notification of interference from LESSOR. 9.2 SUBSEQUENT PROPERTY LEASES: LESSOR agrees to include in .all leases between LESSOR and future lessee's of the Property a covenant that the lessee shall not interfere with other electrical or radio frequency equipment previously installed on the Property and that if the lessee is not able to mitigate the interference, the lease shall provide for termination thereof. Likewise, LESSOR will not permit or allow the installation of any future equipment which (i) results in technical interference problems with LESSEE's then existing equipment or (ii) encroaches onto the Premises. 9.3 NON-INTERFERENCE: The communication equipment and the use thereof shall not interfere with the use of any other communication or similar equipment of any kind and nature owned or operated by LESSOR or other occupants of the Property existing as of the Commencement Date, except as may be permitted by applicable laws; provided, however that subsequent to the installation by LESSEE of the Facilities, LESSOR agrees not to install and to exercise commercially reasonable effort to not allow installation of new equipment on the Premises if such equipment causes interference with LESSEE's operations. All interference claims shall be settled in accordance with the then prevailing` interference rules and regulations promulgated by the Federal Communications Commission. 10.0 DESTRUCTION OF PREMISES: If either the Premises or the Property is destroyed or damaged as a result of a catastrophic event to the extent that, in LESSEE's reasonable discretion, LESSEE may no longer use the Premises for the intended purposes, LESSEE may elect to either: A. Terminate this Lease, effective upon the date of the damage or destruction, by delivering written notice within ninety (90) days of the date of the damage or destruction and a request to terminate; or B. Upon consent of LESSOR, which shall not be unreasonably withheld, conditioned or delayed, use a portion of the Premises specified by LESSOR for provision of Communication Services on a temporary basis until such time as the LESSEE's Facilities on the Premises are repaired or reconstructed so that LESSEE can resume the provision of Communication. Services from the Premises. If LESSEE elects to continue this Lease and in the event that LESSOR unreasonably delayed its consent for LESSEE to install the temporary facility in order for LESSEE to continue its operation, Rent shall abate for the period of non-use. Any such repair or reconstruction shall be completed in an expeditious manner. 11. UTILITIES AND PROVISION OF SERVICE: LESSEE shall determine the availability of and shall, at its sole cost and expense, cause to be installed in, on, and about the Premises all facilities necessary to supply thereto all electricity, telephone, and other similar services required to service the Premises. LESSOR shall allow LESSEE to have its own electrical metering 8 Cell Siter 00004-02;Cell Site dame-Calumtutity Center Light Standard equipment installed. LESSEE shall obtain all necessary approvals for the installation of the meter. An electrical plan shall be submitted to LESSOR for approval, which approval shall not be unreasonably withheld, conditioned or delayed prior to commencement of such work. LESSOR agrees to cooperate with LESSEE in its efforts to obtain such utility service. During the Initial Term and all Renewal Terms, LESSEE agrees to pay directly to the servicing utility when due all charges for electricity, telephone and all other utility services of every kind and nature supplied to and used by LESSEE on the Premises. LESSOR shall be responsible for its electrical and other utility service and for the regular payment of electrical and other utility charges attributable to the Property other than the Premises. 12. INDEMNIFICATION AND INSURANCE: 12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of LESSOR shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of LESSEE or its officers or employees under or in connection with any activities under this Lease. It is also understood and agreed that to the fullest extent permitted by law, LESSEE shall indemnify, defend (with counsel reasonably acceptable to LESSOR), protect and hold harmless LESSOR and its officers, agents and employees ("LESSOR's Parties") from and against any and all claims, demands,judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising at any time directly or indirectly from or in connection with (i) any default in the performance of any obligation by LESSEE to be performed under the terms of this Lease, (ii.) LESSEE's use of the Premises, or (iii) the conduct of LESSEE's business or any activity, work or things done, permitted or allowed by LESSEE in or about the Premises, except to the extent caused by LESSOR's, LESSOR's Parties' or LESSOR's contractors', LESSEEs', guests', invitees', or licensees' negligence or willful misconduct. The obligations of LESSEE under this section shall survive the expiration or earlier termination of this Lease. 12.2 ASSUMPTION OF RISK: LESSEE, as a material part of the consideration to LESSOR, hereby assumes all risk of damage to the Premises, including, without limitation, injury to persons in, upon or about the Premises during LESSEE'S use of the Premises, arising from any use of the LESSEE's Facilities or other activities of LESSEE or LESSEE's agents, employees, guests, or invitees (collectively "LESSEE's Parties") on the Premises. LESSEE hereby waives all claims with respect thereof against LESSOR, except as otherwise stated in this Lease. LESSOR shall not be liable for any injury to LESSEE's Facilities, Premises, or injury to or death of any of LESSEE's Parties, or injury to LESSEE's Facilities, or injury to or death of any other person in or about the Premises from any cause except to the extent such is caused by the negligence or willful misconduct of the LESSOR, LESSOR's Parties, or LESSOR's agents, contractors, tenants, guests, invitees, or licensees. 12.3 INSURANCE: 9 Cell Siteli 00004-€52;Cell Site Mame:Commuutity Center Light Standard A. Casualty Insurance: During the tern,of this Lease, LESSEE shall, at its sole cost and expense,keep LESSEE's interest in the Premises and the Facilities, including any improvements thereon both in the course of construction and through the remainder of any term of this Lease, insured by insurance companies rated A- VII or higher by A.M. Best and authorized, and authorized to do business in the State of California or LESSEE shall self insure, against loss or damage by fire and other such casualties as are included in extended coverage. Such coverage shall include stipulated value, vandalism and malicious mischief endorsements, in such amounts so as to provide for the then actual replacement cost of all improvements on the Premises. B. LESSEE agrees, at its sole expense, and at all times during the term of this Lease, to maintain in full force, or cause to be maintained in full force, a policy or policies of commercial general liability insurance in an amount of ONE MILLION DOLLARS ($1,000,000.00),, per occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the aggregate including property damage, written by one or more insurance companies licensed to do business in the State of California or LESSEE shall self insure the required coverage. LESSEE shall ensure that LESSOR is included as an additional insured and shall evidence such additional insured status on a certificate of insurance to be provided to LESSOR prior to the commencement of any work. Such required commercial general liability policies shall insure against liability for injury and death resulting therefrom and/or property damage which may occur as a result of or in connection with the existence of the Facilities and improvements in, on or about the Premises. 13. DAMAGE OR DESTRUCTION OF .IMPROVEMENTS TO PREMISES: LESSOR shall have no duty or obligation to rebuild the Facilities or the improvements thereon if such Facilities or improvements are substantially damaged during the Term., in whole or in part by any casualty. LESSOR will give LESSEE (a) notice of such casualty within thirty(30) days after the date of the casualty and (b) the right to terminate in sixty (60) days from said casualty date. In the event LESSOR chooses not to rebuild the Facilities or improvements thereon, LESSEE shall be entitled to terminate the Lease. 14. ASSIGNMENT AND SUBLEASING: 14.1 ASSIGNMENT: LESSEE shall not voluntarily assign or transfer its interest under this Lease or in the Premises without first obtaining the prior written consent of LESSOR, which consent shall be not unreasonably withheld, delayed or conditioned. The transfer of the rights and obligations of LESSEE to a parent, subsidiary, or other affiliate of LESSEE, or to any successor in interest or entity acquiring fifty-one (S1%o) or more of LESSEE's membership interests or assets, shall not be deemed an assignment and. LESSOR's consent shall not be required for such transfer. Any assignment without LESSOR's consent (when such consent is required) shall be voidable and, at LESSOR's election, shall constitute cause for to Cell Slee#00004-02;Cell Site Name:Community Centex Light Standard exercise of LESSOR's remedies under applicable law, including termination of the Lease. No consent to any assignment shall constitute a further waiver of the provisions of this section. Notwithstanding the foregoing, it is understood that LESSEE shall not be released from liability hereunder by virtue of any assignment. As a condition precedent to any such assignment which requires LESSOR's consent, LESSEE agrees to provide written notice to LESSOR of its intention to assign at least thirty (30) days before the proposed effective date of any such proposed assignment which notice shall 'include the 'identity of the proposed assignee, copies of the proposed assignment documentation_and current financial statements of the proposed assignee. As a further condition precedent to any assignment, the assignee must assume, in writing, all of LESSEE's obligations under this Lease. 14.2 SUBLEASING: LESSEE shall not sublease any portion of the Premises except as expressly provided herein. LESSEE shall be permitted to sublease portions of the Premises to a wholly-owned subsidiary of LESSEE, provided LESSEE provides LESSOR with express written notice of such sublease. 14.3 COLLOCATION LESSEE shall cooperate with future communications operators that would request collocation as long as there is no adverse impact on LESSOR from an operational, maintenance, and repair standpoint. 15. RENEWALMOLDING OVER: Upon the expiration or termination of this Lease, LESSEE shall surrender the Premises to LESSOR. If LESSEE shall remain in possession of the Premises after the expiration or termination of the Lease, with the consent of LESSOR, either express or implied, such holding over shall be construed to create a month to month tenancy subject to all the covenants, conditions, and obligations hereof, and LESSEE hereby agrees to pay LESSOR, as monthly rental, an amount equal to one hundred twenty-five percent (125%) of the most recent monthly rental price. Nothing above shall be construed to give LESSEE any rights to so hold over and to continue in possession of the Premises after the expiration of the Term without the express consent of LESSOR. 16. ENVIRONMENTAL: LESSEE and its agents, employees, or contractors subcontractors or other representatives shall not bring upon the Premises, or permit or authorize any other person or entity to bring upon the Property, including the Premises, any hazardous materials, hazardous substances, hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil or any fraction or derivative thereof). Notwithstanding the foregoing, LESSEE may bring such fuels and lubricants onto the Premises as may be'required for operation of construction vehicles during construction and backup power for generators during, maintenance or repair of the LESSEE's Facilities. In addition, LESSEE may also bring onto the Premises, any lead-acid batteries, cleaning solvents, and other chemicals necessary for proper utilization and maintenance of the LESSEE's Facilities. In bringing any materials or substance onto, or using any materials and substances on, the Premises, LESSEE shall comply with all federal, State, and local government laws, regulations, and rules. LESSEE shall be solely responsible for any damages or costs incurred by LESSOR due to any environmental contamination, arising from the presence or use on LESSEE's behalf of any hazardous materials or II Cell Site#00004-02;Cell Site Name:Conn nunity Center Light Standard substances that LESSEE, its agents, employees, contractors, subcontractors or other representatives bring onto the Premises. 17, MISCELLANEOUS: 17.1 NO WAIVER: No covenant, term, or condition thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed. Any waiver or the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance by LESSOR of performance other than full performance by LESSEE after the time the performance shall have become due shall not constitute a waiver by LESSOR of the breach or default of any covenant, term, or condition unless otherwise expressly agreed to by LESSOR in writing. 17.2 ATTORNEY'S FEES AND COSTS: If either Party hereto shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by LESSOR for the recovery of rent or possession of the Premises, the prevailing Party shall be entitled to have and recover from the other Party the prevailing Party's reasonable fees and costs (including attorneys' fees), which shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to a judgment. 17.3 NO JOINT VENTURE: Neither LESSOR nor any of its employees shall have any control over the manner, mode or means by which LESSEE, its agents or employees, use the Premises or Facilities described herein, except as otherwise set forth herein. LESSOR shall have no voice in the selection, discharge, supervision or control of LESSEE's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. LESSEE shall perform all covenants herein as a tenant of LESSOR and shall remain at all times as to LESSOR a tenant with only such obligations as are consistent with that role. LESSEE shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of LESSOR. LESSOR shall not in any way or for any purpose become or be deemed to be a partner of LESSEE in its business or otherwise or a joint venturer or a member of any joint enterprise with LESSEE. 17.4 INTERPRETATION: The Parties hereto agree that all provisions hereof are to be construed as both covenants and conditions as though the words imparting such covenants and conditions were used in each separate section hereof. The captions of the sections and subsections of this Lease are for convenience only and shall not be deemed to be relevant in resolving any. questions of 'interpretation or construction. 17.5 INTEGRATION AND GOVERNING LAW: This Lease represents the entire understanding of LESSOR and LESSEE as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Lease. This Lease shall be governed by the laws of 12 CO Site!#00004-02;Cell Site Name:Cormiu city Center Light Standard the State of California and construed as if drafted by both LESSOR and LESSEE. Any action, arbitration:, mediation, hearing or other proceeding related to this Lease shall be conducted only in the County of Orange. 17.7 LEASE BINDING ON HEIRS AND ASSIGNS: Each of the terms, covenants, and conditions of this Lease shall extend to, be binding upon, and inure to the benefit of not only LESSOR and LESSEE, but each of their respective heirs, representatives, administrators and assigns. Whenever in this Lease reference is made to either LESSOR or LESSEE, the reference shall be deemed to include, whenever applicable, the heirs, legal representatives, and assigns of each of the Parties, the same as if in every case expressed. 17.8 CORPORATE AUTHORITY: Each party executing this Lease on behalf of a corporation represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said corporation, in accordance with a duly adopted resolution of the Board of Directors of said corporation and that this Lease is binding upon said corporation in accordance with its terms. 17.9 NOTICES: Any written notices required pursuant to this Lease shall be made by certified or registered mail, return receipt requested, or reliable overnight courier and delivered to the following address: To LESSOR: City of San Juan Capistrano 32400 Paseo Adelanto San Tuan Capistrano, CA 92675 Attn: City Manager Copy to: Woodruff, Spradlin & Smart 555 Anton Blvd. Suite 1200 Costa Mesa, CA 92626 Attn: Omar Sandoval, City Attorney If to Lessee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site #:000004-02; Cell Site Name: Community Center(CA) Fixed Asset No: 10082262 12555 Cingular Way, Suite 1300 Alpharetta, GA 30004 13 Cell Site#00004-02;Cell Site Nacre:Community Center Light Standard With a required copy of the notice sent to either of the addresses above to AT&T Legal at: If sent via certified or registered:trail: New Cingular Wireless PCS, LLC Attn. AT&T Legal Department Re: Cell Site #:000004-02; Cell Site Name: Community Center(CA) Fixed Asset No: 10082262 PO Box 97061 Redmond, WA 98073-9761 Or If sent via nationally recognized overnight courier: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department Re: Cell Site#:000004-02; Cell Site Name: Community Center(CA) Fixed Asset No:_10082262 16331 NE 72nd Way Redmond, WA 98052-7827 17.10 AMENDMENTS: This Lease may not be modified, altered, or amended except in writing signed by both LESSOR and, LESSEE. The City Council assigns to the City Manager signature authority to execute future Lease Amendments and extensions for periods not more than two (2) years each and provided that the City Manager shall not have the authority to approve a decrease in the rental rate without the prior approval of the City Council. [SIGNATURE PAGE FOLLOWS] 14 Cell Site#OM04-02,Cell Site Name:Community Center Light Standard IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by their duly authorized officers. LESSOR LESSEE CITY OF SAN JUAN CAPISTRANO, NEW CINGULAR WIRELESS PCS, LLC, a California Municipal Corporation a Delaware limited liability company By AT&T Mobility Corporation Its Manager By. Mayor By: c Y Date: Name: Title: TAX ID#: Date: 1 �. ATTEST By: Name: City Clerk Title: Date: Approved as to :form: "d City Attorney 15 Cell Site#00004-02;Cell Site Name:Conmunity Center Light Standard CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On Z�i before me, �C Date _ Here Insert Name and Tily of the Officer personally appeared � {� f - Hama{s)of Signers) who proved to me on the basis of satisfactory evidence to be the person(s)whose named is/ re-subscribed to the within instrument and acknowledged to me that he/sbeVthey executed the same in his/Wowrauthorized capacity,(ies);and that by his/tt itj-�eii:signature,(s)'on the ALMA PINEpA instrument the persori(sy or the entity upon behalf of Commission 1842097 which the personWacted, executed the instrument. Notary Public California z Orange county i certify under PENALTY OF PERJURY under the laws My Comm.Expires Mar 2B,2013 of the State of California that the foregoing paragraph is true and correct. FITNESS my hand and offic'al seal. Signature. LLTILA_L�__. f_ r,(� ; Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information Below is not required by Jaw,it may prove valuable to persons relying on the document and could prevent fraudulent.removal and reattachment of this form to another document, Description of Attached Document Title or Type of Document: Document Sate: � Number of Pages: Signer(s)Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Narne: Signer's Name: El Individual Ll Individual 0 Corporate Officer—Title(s): 0 Corporate Officer—Title(s): ❑ Partner—0 Limited ❑General G Partner—El Limited LJ General _ ❑ Attorney in Fact i ❑Attorney in Fact 1-1.Trustee Top of thumb here 0 Trustee Top of thumb here D Guardian or Conservator ❑Guardian or Conservator Ci Other: ®Other: Signer Is Representing: Signer Is Representing: *2007 Nadana€Notary Assodadon-9350 De Sato Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402-wrw NaVonaINotaryorg Item#5907 Reorder CallTo5-Free 1-600-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On before me, .._. , Date Here insert Name and Title of the Officer personally appeared Namo(s)of Si�ner(F} who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to rye that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct, WITNESS my hand and official seal. Place NatSealAbove Signature ary Signature of Notary Public OPTIONAL Though the informatlon below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent.removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document:.- Document Date: — _____ Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual El Individual C Corporate Officer—Title(s): 0 Corporate Officer—Title(s): EJ Partner—❑ Limited ❑General ❑Partner—❑ Limited ❑General ❑ Attorney in Fact • LJ Attorney in Fact ❑ Trustee Too of thumb here ❑Trustee Top of thumb hero D Guardian or Conservator ❑Guardian or Conservator ❑ Other: ©Other: Signer Is Representing: Signer Is Representing: 02007Na8onalNotary Association-9350DoSolo Ave..P.O.Box 2402•Chatsworth,CA 91313-2402•www.NfanamwNotaryorg Item#5907 Reorder.Call Toll-Free 1.800-876-6827 EXHIBIT A DESCRIPTION OF THE PROPERTY 'Fhe easterly 60 acres of Parcel"L"per map recorded in Book 2,Page 38 of surveys in the County Recorders office of Orange County, California, in the City of San Juan Capistrano, County of Orange,State of California, except the following described parcel: Beginningat a 1"iron pipe at die most northwesterly cot-tier of said easterly 60acres; thence S 69' 14' 53"E 629.88' along the northerly line of said Parcel."Utoa T iron pipe at:an angle point in said northerly line', thence S 00 19' 49" E 194.11' aalong said northerly line,thence leaving&aid line S 90 40' 11"W 9.25' to the Lpeginning. - zn of a tion tangent curve conce to the southeast having a radius of 264.75',to which point a radial line bears N 01 40' 11"F_; thence soufliwewrly along.said curve through a central ang0 je of 71 0(13' :',.0,' ti are is I e a d ta ic f 3 32 .8.'34'; thence ora a tan gent.line S 19'36' 4 l"W 104.91' to dw beginning of a tangpnt curve,concave to the northwest having,as radius of'2335.2.5'; thence southwesterly along said.curve,through a,central an.gle of 70' 2W 17"an arv.dist ace of 288.190' to the beginning of reverse curve concave to the, southeast having a ra,dius of 264.75'; thence southwesterly along said.reNerse curve through a central angle of 90'00'00"an arc distance of 415.87' to a radial fine of said curve which bears S 89" 56' 58"W;thence on the prolongation of said radial 8.58' to the westerly line of the eante rly 60 acre-,of said Parcel."C",thence NOO 03' f.)2"W 930.69' along the wesit-erly line of said easterly 60 acres to the point of beginnin& Carat aiming 7.225 acres more or less. Also excepthig th at portion as conveyed.to the City of S.-m Juan Capistrano as per deed recorded in Book.11648, Mi-ges 1.825 to 1829,of Official Records,COMY of Orange,Califomia. 16 Cell Site: 00004-02;Cull Site Name.Comiunity Center Light standard EXHIBIT B DESCRIPTION OF THE LEASED PREMISES . ... .... � m 17 k A. 1 J 171, 17 Cell Site#00004-02;Cell Site Nante:Conm1u city Center Light Standard EXHIBIT C DESCRIPTION OF THE FACILITIES PROJECT DRAWINGS (See Attached) is Cell Sited 0 MA-02;Cell Site Name:Community Center Light Standard ..... ........ .. g�:p (R icy J LA 90w :full& i 19 Celt Site#OCO04-02;Celi Site Name:Corrununity Center Light Standard px�prizlS I$!"1.ra�va7 cununzca>>:a�ur.,V 211S 1130 1 0-b ]C3#a1!S ItaO oz r r yy: NOR k I i 1-901 fill ............ x Pt 1�MAW ¢.. E sg 3 FN .- �� ' rul nt "#t All X a r E 1 A f Y s 21 Cell Site#00004-02;Cell Site Name:Community Center Light Standard TIT oil z Y � V- ♦ �..,rc •moi—k R—e—�---{---..«�' �y .irw«««.."K:we .. ya�z< "s � w 22 Cell Site#02304-02;Cell Site Nance:Conununity Cemer Light Standard .......... . . ..... En �3y y � Y _. r g rFr . R WTI s � E a � y 23 Cell Site#00004-02;Cell Site name:Community Center Light Standard CELL PHONE TOWER CJt1RATlON;OF Annual Lease Bask of Built in CITY. CELL.PH®NE TOWER t_i=as= ..,,. Rovenue charge Escalator:, ._ Dana Point Located in the City, but on private Evan Langan property. Only City revenue received is (949)24-3591 through cell tower permits OTO). NIA NIA NIA N/A Lake Forest Located in the City, but on private Jennifer Manser property. Only City revenue received is 949-461-3400 through cell tower permits(OTO). N/A N/A N/A N/A Mission le7$1,500/mo.; w y x• yrs. 60 on private propery.Alder sites revenue equates to wlpossible Elaine Wester Newer sites$2,200/mo.and co-location site Before annually 949-470-3029 $1,5nnrmo.. Renewal increases Per Tower CPI Index San Clemente 5-10 yrs 2,000 Laura Ferguson Fourteen Cell Towers located on City property;inclusive before Wpossible CPN Index with co-location atntenas.Cell site revenue$2,000/mo. annually 949-361-8254 and co-location equates to$900/mo. renewals increases Per Tower (3%-6%) Laguna Niguel5 rs. 3 Cell To Tower and 2 right of way Towers. y $3=446 Jonathan Orduna park Revenue$3,448 mo and ROW Towers-$1,700 with Before w/annual 5% S%w/n0 962-4300 3%annual increase Renewal increase Per Tower CPI Index CUSD 2 Cell towers--1 CVHS and 1 DHHS w/co- 5yrs.Before CPI Index Cary Brockman location sites Renewal $041,575 base Per Towel" (4%) Average Revenue per Month2,3U5 ATTACHMENT 4 CSMF® 2009 Cell Tomer Lease Survey city Contact Monthly Lease Rate Calaveras County Water District Lynn Gentry 700 Fresno Metropolitan Flood Control District Paul L. Merrill 750 Highlands Chuck Dantuono 1,500 Huntington Beach . Tina Krause 2,500 La Habra Heights Shauna Clark 2,100 Oro Loma Sanitary District Anna Turon 1,094 Rancho Cucamonga Kathy James 1,791 Romana Water District. 2,500 Sacramento Public Library Authority Rick Teichert 2,000 San Luis Obispo Bill Statler 2,083 San Leandro C Galvin 1,639 Santa Maria Theresa Hall 1,791 Shafter Jo Barrick 1,850 Union Sanitary District Maria Scott 1,219 Total 23,517 Number of responses 14 Average rent 1,680 Highest 2,500 r-a �Jt THE CITY OF J SAN JUAN CAPISTRANO _ z San Juan Capistrano Center/Sports Park . " .- Light Standard 25925 Camino del Avion G. San Juan Capistrano, CA 92675 Al ✓ F "•"" < R� ,. a Ll fir" S � r F / �� YF ittl Zr w O 0 3009 6009 9000 Feet Attachment 6