19-0806_NEW CINGULAR WIRELESS PCS, LLC_E9_Agenda ReportTO:
FROM:
SUBMITTED BY:
DATE:
SUBJECT:
City of San Juan Capistrano
Agenda Report
Honorable Mayor and Members of the City Council
~n jamin Siegel, City Manager
Joel Rojas , Development Services Director
August6,2019
8/6/2019
E9
First Amendment to the Wireless Communications Facilities Site
Lease between the City of San Juan Capistrano and New Cingular
Wireless PCS, LLC Related to an Existing Antenna Facility at the
City's Sports Park (25925 Camino del Avian).
RECOMMENDATION :
Approve and authorize the City Manager to execute a First Amendment to an existing
Wireless Communications Facilities Site Lease between the City of San Juan Capistrano
and New Cingular Wireless PCS, LLC, related to the operation of an existing antenna
facility at the City's Sports Park.
EXECUTIVE SUMMARY:
On November 3, 2009, the City Council approved a Wireless Communications Facilities
Lease with New Cingular Wireless PCS , LLC ("Lessee"), allowing the Lessee to install
and operate a wireless telecommunications facility on the City 's Sports Park property
(Attachment 1 ). The lease term commenced on March 1, 2010 , and will terminate on
March 1, 2025. The Lessee is proposing to amend the current lease by extending the
lease term expiration from 2025 to 2035 , reducing the base rental payment from $2,957
per month to $2,500 per month, reducing the annual automatic rent increase from 3% to
2%, and providing an eight-year rent guarantee should the Lessee terminate the lease
before February 29, 2028.
Given the possibility of state or federal legislation that would limit the City's ability to
negotiate future market rate lease extensions, staff and the City Attorney's office believe
City Council Agenda Report
August 6, 2019
Page 2 of 5
that extending the current lease until 2035 , with a provision that prohibits the terms of the
lease to be preempted by any new state or federal legislation is advisable. As a result,
staff is recommending that the City Council approve and authorize the City Manager to
execute a First Amendment to the existing Wireless Communications Facilities Site Lease
between the City of San Juan Capistrano and New Cingular Wireless PCS, LLC.
DISCUSSION/ANALYSIS :
Current Lease
On September 22, 2009, the Planning Commission approved Conditional Use Permit
(CUP) 08-007, thereby approving AT&T Mobility's request to install a wireless
telecommunications facility within the City's Sports Park. The approval allowed the
installation of six panel antennas inside of an 83'-3" tall operational field light standard
(Attachment 2). The approval also allowed the construction of a 230 square foot antenna
equipment shelter and 230 square foot storage shed near the base of the light standard .
Shortly thereafter, on November 3, 2009, the City Council approved a Wireless
Communications Facilities Lease with New Cingular Wireless PCS, LLC, allowing the
Lessee to install and operate a mobile radio telecommunications site on the City-owned
property. The approved wireless telecommunications facility was installed pursuant to the
approved plan and has been operational since 2010.
The main terms of the current lease are as follows:
Lease Term
The lease contains an initial 5-year term and two 5-year renewal terms for a total term of
15 years. The lease commenced on March 1, 2010, when the Lessee obtained the
necessary permits to construct the antenna. The first 5-year term expired on March 1,
2015, at which time the lease automatically renewed for a second 5-year term. The
current 5-year term will expire on March 1, 2020, at which time the lease will automatically
renew for the third and final 5-year term. Absent further action, the lease will terminate in
2025.
Rent Payment
The base rental payment for operating the telecommunications facility began at $2,200
per month and automatically increases annually in March by 3%. The current rent is
$2,870.50 per month .
Use of Storage Shed
The current lease requires that the 230 square foot storage facility that was constructed
adjacent to the antenna equipment shelter be designated only for City use.
City Council Agenda Report
August 6, 2019
Page 3 of 5
Screening of Equipment
The lease requires that no antenna equipment be visible from the property .
Maintenance of Facility
The Lessee is responsible for all maintenance of the wireless facilities and premises . The
Lessee is required to notify City and obtain permission before any improvements or
maintenance is performed on the antenna facility .
Relocation
In the event the City wishes to construct public improvements in the location of the
antenna facility, the Lessee has one year to either relocate the antenna facility or
terminate the lease.
Proposed Le ase Amendment
In 2018, Black Dot Capital , representing New Cingular Wireless (AT&T), contacted staff
about possibly extending the current lease beyond 2025 but at a reduced rent. The
following lease amendments have been offered by the Lessee:
Lease Term Extension
A new 5-year lease term would go into effect when the current lease term expires on
February 28, 2020. Commencing on March 1, 2020, the new initial 5-year lease term
would be followed by two automatic 5-year renewal terms for a total of 15 years . The
amended lease would eventually terminate in 2035 . This amounts to a 10-year lease
extension from the current lease termination in 2025.
Rent Payment
A reduced rent payment would go into effect when the new lease term begins on March
1, 2020. The base rental payment would be reduced from $2,957 (the rent payment that
would be due on March 1, 2020, under the current lease) to $2,500 per month. This
equates to an approximate 15% reduction in rent. In addition, the annual automatic rent
increase would be reduced from 3% to 2%.
Eight-year Rent Guarantee
In exchange for the proposed reduction in rent , an eight-year rent guarantee would be
provided by the Lessee. This would mean that if the Lessee cancels the lease anytime
between March 1, 2020, and February 29, 2028 , the Lessee would be obligated to pay
the entirety of rent owed to the City during that period.
City Council Agenda Report
August 6, 2019
Page 4 of 5
Base Lease Remains Unchanged
Aside from the three proposed lease amendments described above, all other provisions
of the current lease would remain unchanged.
Staff's Recommendation
Staff conducted research of recent antenna leases in Southern California and determined
that the average rent for an antenna tower/facility on government property is
approximately $2,500 per month. As a result, staff believes that reducing the lease's
rental payment by approximately 15%, to $2,500 per month, and reducing the automatic
annual rent increase from 3% to 2% is a reasonable request. Further, staff believes that
Lessee's offer of an eight-year rent guarantee to offset the rent reduction is an added
benefit as the Lessee could terminate the current lease at any time with no additional
compensation owed to the City. Lastly, based on industry trends, staff believes that future
state or federal legislation could restrict the City's ability to negotiate future lease terms
and rent. As a result, staff is recommending that the City Council approve and authorize
the City Manager to execute a First Amendment to the existing Wireless Communications
Facilities Site Lease between the City of San Juan Capistrano and New Cingular Wireless
PCS, LLC.
Subsequent Lease Amendment
The current lease approved by the City Council in 2009 assigns the City Manager
signature authority to execute amendments to the lease, with the exception of
amendments that decrease the rental rate of the lease. The lease requires that the City
Council approve any reductions in rent. For this reason, the proposed First Amendment
is being presented to the City Council for approval. As a separate matter, staff has been
in discussions with a separate representative of the Lessee about the installation of a
backup emergency generator for the wireless facility. Said proposal would likely require
a second amendment to the lease, which could be executed by the City Manager pursuant
to the terms of the current lease.
FISCAL IMPACT:
If the current lease remains unchanged and in effect until its eventual termination on
March 1, 2025, the City would receive a total of $205,588 in revenue from the present
through the date of lease termination. Under the proposed First Amendment, the City
would receive $536,026 in revenue from the present through the date of lease
termination.
ENVIRONMENTAL IMPACT:
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061 (b)(3), the general rule that the CEQA
applies only to projects which have the potential for causing a significant effect on the
City Council Agenda Report
August6,2019
Page 5 of 5
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
PRIOR CITY COUNCIL REVIEW :
• On November 3, 2009, the City Council approved a Wireless Communications
Facilities Lease with New Cingular Wireless PCS, LLC (the "Lessee"), allowing the
Lessee to install and operate a mobile radio telecommunications site on the City
owned Sports Park property.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
Not applicable.
NOTIFICATION :
Joseph Winkler, Black Dot
ATTACHMENT(S):
Attachment 1 -Site Location Map
Attachment 2 -Photos of existing Antenna Tower
Attachment 3 -First Amendment to existing Wireless Communications Facilities Site Lease
SITE LOCATION MAP
ATTACHMENT 1
Existing Antenna Tower (Light Standard) at the Sports Park
ATTACHMENT 2
FIRST AMENDMENT TO WIRELESS COMMUNICATIONS FACILITIES SITE LEASE
THIS FIRST AMENDMENT ("Amendment") TO WIRELESS COMMUNICATIONS
FACILITIES SITE LEASE), dated as of the latter of the signature dates below (the "Effective Date"), is
by and between City of San Juan Capistrano, a California Municipal Corporation, having a mailing address
at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 (hereinafter referred to as "Lessor"), and New
Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 1025
Lenox Park Boulevard NE, 3rd Floor, Atlanta, GA 30319 (hereinafter referred to as "Lessee") (collectively,
the "Parties"). ·
This Amendment seeks to amend the lease between the Parties entered into on November 3, 2009
("Lease") and attached hereto as Exhibit A, whereby Lessor leased to Lessee certain Premises, therein
described, that are a portion of the Property located at 25925 Camino del Av ion, San Juan Capistrano, CA
92675. Unless specifically addressed in this Amendment, the Lease shall be binding on all Parties for the
length of any extension of time granted by this Amendment.
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree as follows:
1. Effective Date of Amendment. Lessor and Lessee desire to extend the Term of the Lease,
provided that any changes to the Lease are effective as of the Effective Date of this Amendment.
2. Term. The Term of the Lease shall be amended to provide that the current term, which
commenced on March 1, 2015, shall expire on February 28, 2020, with an option for an additional five (5)
year Renewal Term (through March 3, 2025). Commencing on March I, 2020 ("New Term
Commencement Date"), this Amendment shall automatically extend the Term of the Lease for up to three
(3) additional terms of five (5) years each (each a "Renewal Term"), or potentially until March 3, 2035,
upon the same terms and conditions of the Lease, as amended herein. Provided Lessee is not in default and
has not notified Lessor in writing of Lessee's intention not to renew the Lease at least six (6) months prior
to the expiration of the then current Renewal Term, Renewal Terms shall be automatic requiring no further
action by Lessee. Lessor agrees and acknowledges Lessee's right to use and exercise its rights under the
Lease during the Lease and Amendment's Term.
3. Termination. In addition to the terms set forth in the Lease, Lessee may terminate the
Lease at any time with six (6) months prior written notice to Lessor for any or no reason.
4. New Base Rental. Beginning on March 1, 2020 ("New Rent Commencement Date"),
the Base Rental under the Lease shall be Two Thousand Five Hundred and Noll 00 Dollars ($2,500.00) per
month, and shall continue during the Term, subject to adjustment as provided herein.
5. Modification of Lessee's Obligation to Pay-Base Rental Guarantee. Notwithstanding
Lessee's obligations to pay Base Rental set forth under the Lease, for a ninety-six (96) month period
commencing March 1, 2021 and ending February 29, 2028 ("Base Rental Guarantee Period"), Lessee's
obligation to pay Base Rental is guaranteed and such obligation will not be subject to offset or cancellation
by Less.ee, except as due to loss from casualty or condemnation. Notwithstanding the foregoing, if Lessor
exercises any of Lessor's rights to terminate the Lease, if any, other than the Lessor's right to terminate the
Lease due to the default of Lessee under the terms of the Lease beyond any applicable grace period, Lessee
will be released from any and all of its obligations to pay Base Rental during the Base Rental Guarantee
Period as of the effective date of the termination. In addition, Lessee shall be released from any and all of
ATTACHMENT 3
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
its obligations to pay Base Rental during the Base Rental Guarantee Period if any of the following shall
occur: (a) Lessor is in breach of the Lease, including but not limited to any default under the terms of the
Lease beyond any applicable grace and cure period; (b) there is a foreclosure of the Property which results
in a termination of the Lease; (c) the Lessor shall require Lessee to relocate Lessee's equipment and
facilities to a location that is not acceptable to Lessee in its reasonable business judgment if allowed for in
the Lease; (d) any existing government permits and/or approvals cannot be obtained or maintained, at no
fault of the Lessee; or (e) Lessee terminates the Lease pursuant to the terms of the Use of the Leased
Premises section as set forth in the Lease. If the Lease is further modified in the future with an obligation
for Lessee to pay additional Base Rental, the payment of Base Rental guarantee established in this paragraph
will not be diminished or limited, but such Base Rental guarantee will not extend to that future additional
Base Rental obligation.
6. Annual Escalator I Extension Term Increase. The Lease is amended to provide that Base
Rental shall increase by two percent (2%) on the anniversary of the New Rent Commencement Date and
every year thereafter.
7. No Preemption. For the life of the Lease, the terms of this Amendment shall not be
preempted or impacted in any form or manner by any changes or enactments made by any state or federal
entity unless mutually agreed to in writing by the Parties.
8. Notices. Section 17.9 of the Lease is hereby deleted in its entirety and replaced with the
following:
NOTICES: All notices, requests, demands and communications hereunder will be given by first class
certified or registered mail, return receipt requested, or by a nationally recognized overnight courier,
postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices
will be addressed to the parties as follows:
If to Lessee:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site No. OC0004; Cell Site Name: COMMUNITY CENTER (CA)
Fixed Asset No. l 0082262
1025 Lenox Park Boulevard NE
3rd Floor
Atlanta, GA 30319
With a required copy of the notice sent to:
New Cingular Wireless PCS, LLC
AT&T Legal Department-Network
Attn: Network Counsel
Re: Cell Site No. OC0004; Cell Site Name: COMMUNITY CENTER (CA)
Fixed Asset No. 10082262
208 South Akard Street
Dallas, TX 75202-4206
2
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. I0082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
A copy sent to the Legal Department is an administrative step which alone does not
constitute legal notice.
As to Lessor:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
ATTN: City Manager
9. Acknowledgement. Both Parties acknowledge that: 1) this Amendment is entered into of
the Parties' free will and volition; 2) Both Parties have read and understand this Amendment and the
underlying Lease and, prior to execution of this Amendment, were free to consult with counsel of its
choosing regarding Lessor's decision to enter into this Amendment and to have counsel review the terms
and conditions of this Amendment; 3) Both Parties have been advised and are informed that should either
Party not enter into this Amendment, the underlying Lease between Lessor and Lessee, including any
termination or non-renewal provision therein, would remain in full force and effect.
10. Memorandum of Lease. Either party will, at any time upon fifteen (15) days prior written
notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease
substantially in the form of the Attachment 1. Either party may record this memorandum at any time, in its
absolute discretion.
11. Sale of Property. Lessor shall not be prohibited from the selling, leasing or use of any of
the Property or Landlord's property surrounding the Property (the "Surrounding Property").
12. Other Terms and Conditions Remain. In the event of any inconsistencies between the
Lease and this Amendment, the terms of the Lease shall control. Except as expressly set forth in this
Amendment, the Lease otherwise is unmodified and remains in full force and effect.
13. Capitalized Terms. All capitalized terms used but not defined herein shall have the
same meanings as defined in the Lease.
3
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to
execute and seal this Amendment on the date and year below.
LESSOR:
City of San Juan Capistrano,
a California Municipal Corporation
Title:---------------
Date : _______________ _
LESSEE:
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
Title:---------------
Date : _______________ ~
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
4
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. I0082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
LESSOR ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of _______________ _,
(insert name and title of the officer)
personally appeared ________________________________ ,
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 me 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.
Signature ----------------(Seal)
5
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. I 0082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
LESSEE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of _______________ ~
(insert name and title of the officer)
personally appeared --------------------------------'
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 me 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.
Signature _______________ _ (Seal)
6
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. I0082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
EXHIBIT A
NOVEMBER 3, 2009 AGREEMENT
7
RECORDING REQUESTED BY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
AND WHEN RECORDED, MAIL TO :
Maria Morris, Acting City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov Code 27383 & 6103
City of San Juan Capistrano
Recorded in Officia l Re c ords, Orange County
Tom Daly, Clerk-Recorder
111m1 11 ~11 11 1111111111111~111 1111 11 rn11 1 m1 1 1 1111 11J NO FEE
2009000640081 9: 10 am 11 /30/09
20 229 M11 6
0.00 0 .00 0 .00 0.00 15.00 0 .00 0.00 0 00
This Space for Recorder's Use Only
Title of Document: Memorandum of Lease (Between City of San Juan Capistrano and
New Cingular Wireless PCS, LLC)
EXHIBIT A
1
MEMORANDUM OF LEASE
Prepared by:
Nanci Hickerson
Trillium Telecom Services
5912 Bolsa Avenue, Suite 202
Huntington Beach, CA. 92649
Return to:
New Cingular Wireless PCS, LLC
12900 Park Plaza Drive, 3 r<l Floor
Cenitos, CA 90703
Attn.: Christina Wager
Re: Market: Los Angeles
Cell Site Number: OC0004-02
Cell Site Name: .Community Center
FA Number: 10082262
Address: 25925 Camino del Avion, San Juan Capistrano
County: Orange
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this ~3-day of November 200_2_, by
and between CITY OF SAN JUAN CAPISTRANO, a California Municipal Corporation, having
a mailing address of 32400 Paseo Adelanto, San Juan Capistrano, CA (hereinafter referred to as
"Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company,
having a mailing address of 12555 Cingular Way, Alpharetta, Georgia 30004 (hereinafter referred
to as "Tenant").
1. Landlord and Tenant entered into a certain Lease Agreement ("Agreement") on the
-3-day of November , 2002._, for the purpose of installing, operating and
maintaining a communications facility and other improvements. All of the foregoing
is set forth in the Agreement.
2. The initial lease term will be five (5) years ("Initial Term") commencing on the
Effective Date of the Agreement, with two (2) successive five (5) year options to
renew.
3. The portion of the land being leased to Tenant (the "Premises") is described in
Exhibit 1 annexed hereto.
2
4. This Memorandum of Lease is not intended to amend or modify, and shall not be
deemed or construed as amending or modifying, any of the terms, conditions or
provisions of the Agreement, all of which are hereby ratified and affirmed. In the
event of a conflict between the provisions of this Memorandum of Lease and the
provisions of the Agreement, the provisions of the Agreement shall control. The
Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors, and assigns, subject to the provisions of the Agreement.
IN WITNESS WHEREOF, the paiiies have executed this Memorandum of Lease as of the
day and year first above written.
PrintName: -----------
Print Name: ----------
Print Name: -----------
3
"LESSOR"
City of San Juan Capistrano,
a California Mu~) Corporation
By: . d-<../ ,
Pri ~""""·~E:...L...,;'-'-'""-'-'~'-'-"__,_--
Its: _....._.C£..,,'-"+_,,:.'4-'-<ia;i.~"-"'--=:.__ __
"LESSEE"
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
CALIFORNIA ALL·PURPOSE ACKNOWLEDGMENT
~~~~"?&1m1WW'i"'P!<@l.\'J;!'511>&ffi''"'®~
State of Caliro;Jia. }
County of hs /.lnyeie )'
on 0f1Mk@f !3. ,Ja;,'/ before me, _,_/L,_.../m ........ '"""'a__.B.__, ''--""l]e-=d~~....,.---"'V."""','-") kt~tt1.__,,,,,,,,_({!!';,i')h=--'ft'-'--'c~"----'
Onto ~ Hora lns<ul Name aoo'i'M!ol lliii Olricer
personally appeared _~_,_,._,_.C..,..[ ..... (i_,.k~~fl~,_,,'V"""e~·--~n_c1~--:-:".""=-=~,------------=/-.L.-f Namo[s) ol Sig nor{•)
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the persol),(&),....whose name.(sf islj:tre subscribed to the
wlthin instrument and acknowledged to me that
he/§!:JEf!!l:ley executed the same in his/_twr/tl)sirauthorized
capacity(.!,es}, and that by his/j}@r/tbeff signature,(.sJon the
instrument the person,{sr, or the entity upon behalf of
which the person~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.
OPTIONAL~~~~~~~~~~~~
Though the information below is not required by law, ft may prove valuable to persons relying on the document
and could prevent fraudulent temova/ 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:-------------
0 Individual
D Corporate Officer -Title(s):
D Partner -0 Limited [J General
0 Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
Signer Is Representing: ___ _
...
•
'!Op of thumb here
Signer's Name: _____________ _
D Individual
D Corporate Officer -Titfe(s): ---------
0 Partner -O Limited D General
0 Attorney in Fact
DTrustee
0 Guardian or Conservator
D Other: _________ _
Signer Is Representing: ____ _
•
Top of lhumb here
~~~
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PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov'tCode40814&Civil Code 1181)
On November 3, 2009, before me, Maria Morris, Acting City Clerk, personally appeared
.Joe Tai~ Acting City Manager, who proved to me on the basis of satisfactory evidence to the be
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature
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 PER.TUR Y under the laws of the State of California that the foregoing
paragraph is true and correct.
(SEAL)
Capacity Claimed by Signers
City Manager
Title
Signers are Representing
City of San Juan Capistrano
Ma1~a -Mbrr\_s Acting t2Y Clerk
OPTIONAL
5
Description of Attached Document
Title or Type of Document
Memorandum of Lease -Wireless Communications
Facilities Site Lease -New Cingular Wireless PCS,
LLC -Cell Site # OC0004-02; Cell Site Name:
Community Center Light Standard
Date of Document: November 3, 2009
Number of Pages: 5
Signer(s) Other Than Named Above:
Mark Rivera, Real Estate & Construction
EXHIBIT 1
DESCRIPTION OF PREMISES
Page __ of __ _
to the Memorandum of Lease dated 200 _, by and between CITY OF
SAN JUAN CAPISTRANO, a California Municipal Corporation, as Lessor, and New Cingular
Wireless PCS, LLC, a Delaware limited liability company,
The Premises are described and/or depicted as follows:
I
' L
6
CITY OF SAN JUAN CAPISTRANO
WIRELESS COMMUNICATIONS FACILITIES SITE LEASE
New Cingular Wireless PCS, LLC
Cell Site#: OC0004-02; Cell Site Name: Community Center Light Standard
This Communications Site Facilities Lease (the "Lease") is made and entered into this _3 __ d ay
of November, 2009 , by and between the CITY OF SAN mAN CAPISTRANO, 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 A vion in the City of San Juan Capistrano , California (the
"Property") describ ed more particularly in Exhibit A attached hereto, which description is fully
incorporated herein by this reference; and
WHEREAS, LESS EE 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 LES SEE AC CESS: LESSOR shall provide LESSEE, LESSEE's eri1ployees,
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
speci al 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 wirel ess communication services , including the transmission
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and the reception of communication signals of various frequenci es . 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 i n 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 11' storage area that will be designated for City storage.
The LESSEE shall donate $20,000 to San Juan 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 TE RM: The initial term of this Lease shall commence on the first day of the
month following the date that LESSEE obtains all permits necessaiy allowing
LESSEE the right to construct the Facilities (the "Commencement Date") and shall
continue for five (5) years from that date (the "Initial Term") unless terminated
earlier pursuant to Section 8 hereinbelow .
3 .2 R ENEW AL 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 Juan Capistrano, California
92675 , Attn: Accounts Receivable, Finance Department. In addition, LESSEE agrees to do
and perform all other covenants and agreements contained in this Lease.
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4.1 BASE RE AL PA Y.MEN T: 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 pajd on the Commencement
Date and prorated on the basis of the number of actual days in such parbal month .
4.2 COST OF LIVING ADJUSTMENT: The Base Rental shall be automatically
adjusted on each atmiversary of the Commencement Date in an amount equal to
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, th e 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 fafr 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 LESS EE's
possessory interest. In no event shall LESSOR be liable for any taxes owed as a result of this
Lease.
6 . LESSOR INSPECTJO N AND ENTRY; AC CESS 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 detennines 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):
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A. To detennine 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 ent1y 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 s ection.
7 . CONSTRUCTION AND MAINTENANCE OF FACILITIE S A l\TD PREM! E :
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 th e express written consent of the LESSOR, which will not be
unreasonably withheld or delayed.
7.2 CONS R UCTION OF IlvlPRO EMENTS : 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
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coordinate the scheduling and logistics of same with the Public Works Director to
avoid any interference wjth 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, lien, 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 b e
maintained in a first-class condition without rnst , 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, Less ee
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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 later 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 sha11 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.
8. 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:
1. 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
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expiration of the second renewable term, to tenninate this Lease without
liability upon one (1) year's written notice oftennination to LESSEE.
8.2 LESSEE'S RIGHT TO TERt\11NATE : 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 tennination is a result of LESSOR's default hereunder. In the event LESSEE
tem1inates the Lease prior to commencement of construction of the Facilities, all
LESSEE 's obligations under this Lease shall terminate without further liability.
8.3 RE TURN OF PREMISE S UP ON TERMINATIO : 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 ante1U1as), 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.
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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 PROP ERTY LE AS ES: 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 pem1it or allow the installation of any future equipment which results in
technical interference problems with LESSEE's then existing equipment.
9.3 0 -1 TERB ERENCE: 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 DE STRUCTIO OF l)REMIS ES: If either the Premises or the Prope1ty 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. Terrninate this Lease , effective upon the date of the damage or destruction , by
delivering written notice within ninety (90) days of the date of the danrnge or
destruction and a request to tenninate; 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. U TILITIES AND PROVISION OF SER VIC E : 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
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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 Tenns, 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. IND EMNJF TCATIO AND INSURANCE :
12.1 lND EM NlFJCA TIO N: 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 perfomrnnce of any obligation by LESSEE to be perfom1ed under the tenns
of this Lease, (ii) LESSEE's use of the Premises, or (iii) the conduct ofLESSEE'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 ASSUMPT JO 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:
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A. Casualty Insurance: During the term 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 tenn 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 Joss 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 ammmts 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 duri ng 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 SUBLEASil\TG:
14.l 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 (51 %) 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
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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 SUB LE ASING: 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. RENEWAllHOLDJNG OV ER : 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. ENVIRONMENT AL : 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 envirorunental
contamination, arising from the presence or use on LESSEE ' s behalf of any hazardous materials or
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substances that LESSEE, its agents, employees, contractors , subcontractors or other
representatives bring onto the Premises.
17. MISCELLANEOUS:
17 .1 . 0 W AIYER : 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 perfom1ance 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
Paiiy 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 perfom1 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
Cell Si1e# OC004-02; Cell Site Name: Community Center Light Standard
12
18
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 A SS JG S : Each of the tem1s, 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 Patties, the
same as if in every case expressed.
17.8 CORPORATE AUTHORITY: Each paiiy 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 tenns.
17.9 NOT J ES: 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:
If to Lessee:
To LESSOR: City of San Juan Capistrano
32400 Paseo Adelanto
Copy to :
San Juan Capistrano, CA 92675
Attn: City Manager
Woodruff, Spradlin & Smart
555 Anton Blvd. Suite 1200
Costa Mesa, CA 92626
Attn: Omar Sandoval, City Attorney
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #:OC0004-02; Cell Site Name: Community Center(CA)
Fixed Asset No: 10082262 ·
12555 Cingular Way, Suite 1300
Alpharetta, GA 30004
Celi Siteli OC004-02; Cell Site Name: Conmm11ity Center Light Standard
13
19
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 mail :
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site #:OC0004-02; 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 #:OC0004-02; Cell Site Name: Community Center(CA)
Fixed Asset No: 10082262
16331NE72nd 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# OC004--02; Cell Site Name: Conununity C'"'nte r Light Standard
20
IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by their duly
authorized officers .
LESSOR
CITY OF SAN JUAN CAPISTRANO,
::alifo:~n
Date: 11/1$/zoo q
I I
TAX ID#:-----------
Approved as to forrn :
Cell Sile.1· OC004-02; Cell Sile Name: Community Center Light Standard
LESSEE
NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company
By AT&T Mobility Corporation
Its Manager
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
County of k.,) !b~._.....J,......a ____ _
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Dntc ' Ham !Neri Name ilnd Til!if'ot lll9 Offfc4r
personally appeared .v{()WL f..1-1/f,.rCi
Pla ce Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person_ls-Ywhose nam~ is/iue subscribed to the
within instrument and acknowledged to me that
he/~tbeY executed the same in his/bd/tl:ie'ft authorized
capacity_(jegf, and that by hi stb er/ti:ielr signature.(sron the
instrument the person{sr, or the entity upon behalf of
which the person1sfacted, 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 a hand and ol l seal.
Signature b vtC<..., ...-€-yµ de-.
Slgnaturo DI NO!lltY Publie
~~~~~~~~~~~-OPTIONAL~~~~~~~~~~~~~
Though the information below is not required by law. it may prove valuable to persons relying on the document
and could prevent fraudulenp.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:-------------
0 Individual
O Corporate Officer -Title(s):
D Partner -D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D other: ________ _
Signer Is Representing: ___ _
Signer's Na me : _____________ _
D Individual
D Corporate Officer -Title(s): ---------
0 Partner -D Limited D General
0 Attorney In Fact
OTrustee
D Guardian or Conservator
D Other:
Signer Is Representing : ____ _
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PAYMENT DIRECTION FORM
XNEW 0 CHANGE
SITE NAME:
Community Center
SITE ADDRESS:
25925 Camino del Avion, San Juan Capistrano, CA.
LESSOR NAME:*
Cjty of San Juan Capistrano, a Ca lifornia Municipal Corporation
PAYEE NAME:**
City of San Juan Capistrano
Attn; Acc ow1ts Receivable, Fi.na11ce Department
PAYMENT ADDRESS :
32400 Paseo Adelanto, San Juan Capistrano, CA. 92675
TAX PAYER ID:
956006666
LESSOR PHONE I FAX NUMBER:
(949) 493-1171 I (9 4 91 493-1053
LESSOR/PA YEE VENDOR ID NUMBER:
(if existing vendor)
PREVIOUS MANAGEMENT COMP ANY:
(if applicable)
LESSOR/PA YEE PAYMENT SHARE:*** %
Lessor Name should be exactly as Sta ted m LcM4!/L1ccnsc
For cases of different payee name and management company handling payments and taxes see acknowledgement below
**• Percentage of rent payment to be paid to Lessor/Payee named herein
I hereby authorize ATT Mobility LLC and/or its subsidiaries to make all rent payments and other
payments relating to the site named above to the Lessor/Payee and Payment Address listed above
(subject to the Lessor/Payee Payment Share listed above). I further acknowledge and agree that
the Lessor Payment Share listed above is com::ct
Payment remitted to Persons other than landlord. By checkjng this box and initialing I do
acknowledge J have contracted with a management company ihat will handle the payments and
tax in1plicatjons of this lease abTJ.'een1ent ~1
This authorization shall remain in effect until I have cancelled it in writing in as much time as to
afford ou a ~.able time to act upon it.
tt.?{" ~'_£, /l@t1Rt'L
LESSORA J .OR1ZEDSIGNATURE ~fl'LE ;--
-r 'OSFPH c. I th.:L_
(PRINT LEGIBLY)
LESSOR AUTHORIZED SIGNATURE
(PRINT LEGIBLY)
Return To:
AT&T MOBJLITY
5405 WINDWARD PKWY
PO BOX 1630
ALPHARETTA, GA 30009
TITLE
·27
DATE
32400 PASEO ADELANTO MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO, CA 92675
(949) 493·1171
(949) 493· 1053 FAX
1v11,.w.sanjuancapistra110 . org
TRANSMITTAL
TO:
Trillium
Attn: Nanci Hickerson
Site Acquisition Representative
5912 Balsa Ave, Suite 202
Huntington Beach, CA 92649
DATE: November 19, 2009
FROM: Christy Jakl, Administrative Specialist, City Clerk's Office (949) 443-6310
RE: Wireless Communications Facilities Site Lease
Enclosed:
SAM ALLEVATO
LAURA FREESE
THOMAS W. HRIBAR
MARK NIELSEN
DR. LONDRE$ USO
(3) Original, Wireless Communications Facilities Site Lease, New Cingular Wireless
PCS, LLC, Cell Site: OC004-02; Cell Site Name: Community Center Light Standard
(1) Original, Payment Direction Form
If you have questions concerning .the agreement, please contact Karen Crocker, Community
Services Director at (949) 443-6389.
Cc: Karen Crocker, Community Services Director; Omar Sandoval, City Attorney
San Juan Capistrano: Preserving '1.tAe Past to Enhance the Future
·n
'-' Printed on 100% recycled paper
111312009
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 #OC0004-02; 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 Avian
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 height 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
29
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.
(iij 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 lights,
flag poles, and clock towers. All multiple-use facilities shall be designed to camouflage
the antennas, as shown in Figure 3-1.
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}.
Doll FMd Ll'h" ~~
. ~'pogg
j'
Antennas [ ft.,
Figure 3-1
30
Agenda Report
Page 3
C. Community Benefit
November 3, 2009
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.
COMMISSION/BOARD 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, A YSO
31
Agenda Report
Page 4
Tim Miller, Trillium
Michael Morales, San Juan Little League
Darrin Silveria, San Juan Little League
RECOMMENDATION:
November 3, 2009
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
32
at&t OC0004B
COMMUNiTY CENTER
25925 CAMINO DEL AvroN SAN JUAN CAP1STRAND CA 92575
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COMMUNITY CENTER
25925 C:AM!N[J DE:L A V IDN SAN .JUAN C:APos·rRAND CA 92575
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COMMUNJTY CENTER
25925 CAMINO DEL AVICN SAN .JUAN CAPlSTRANO CA 92675
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PC RESOLUTION NO. 09-09-22~1
CONDITIONAL USE PERMIT (CUP) 08-007
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JUAN
CAPISTRANO CONFIRMING ISSUANCE OF A CATEGORICAL EXEMPTION AND
APPROVING AN UNMANNED WIRELESS TELECOMMUNICATION f ACILITY TO BE
LOCATED WITHIN THE Cf TY'S SPORTS PARK ANO TO INCLUDE A STEAL TH LIGHT
STANDARD(POLE) WHICH STANDS EIGHTY.THREE FEET THREE INCHES (83'-3")~
WHICH CONSISTS OF 6 (SIX) PANEL ANTENNAS FULLY ENCLOSED WITHIN THE
POLE, AN EQUIPMENT SHELTER AND A STORAGE SHED (APPUCANT: AT&T
MOBILITY, TIM MILLER).
WH~REAS, 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 lighting. Tf:le fight pole-
monopole will replace an existing light pole. Also proposed is the construction of 1 (one)
11'-6"x20'-0" antenna equipment shelter on a concrete pad and 1 (one) storage shed that
measures11 '-6" x 20'-0". ·
WHEREAS, the proposed projecthas 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 Guide1ines. 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
37
PC Resolution 09-09 -22-1 2 Se pte mber 22, 2009
Section 2(c) which states that, "cellular and wireless facilities should be
'Screened by structures and or landscaping;" and,
The proposed wireless facmty is to be located on the inside the top portion of a
·stealth light standard (pole) that wm measure 83'-3 " in height when measured from
finish grade. The pole will contain 6 panels and electrical coax cab~es . The
equipment will be located in an equipment shelter that will be 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 th e pole
will contain sports fie.Jd's lights it is found to be cons·istent with the General Plan; and,
2 . The proposed project is consistent with the land Use Code because it is located
within the Community Park (CP) Zone District, which Hsts wireless facilities uses as
conditionaHy permitted uses. The CP district specifically allows ceUular 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 ceHular 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 int~nt of the "GP" zone
district. In addition1 all the supplemental district standards am either met or
exceeded. Therefore the project is cons·istent with the "CP" Zone 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 Community Center and
Kinoshita Schoof. To the ·east is agricultural land and to the south are residential
propertres . The proposed site is more than three hundred feet (300'-0") away fmm
res.identia1 properties. The proposed use wit! not be visible because the antennae
will be located within stealth light standard (pole) and the equipment shelter will be
designed to aesthetically match the ex-isting concession stand and will include new
fandscape screening along the south edge that will match 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 wouJd be in
.conflict with the exist1ng 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 be 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.
38
PC Resolution 09-09-22-1 3 September 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 effectiv~ following expiration of the fifteen (15) day appeal period without filing of
an appeal application . The appeal period shall expire at 5:00 PM , Wednesd~y, Octoqer 7,
2009. This project approval shall be valid for a period of one (1) year fr9m ·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, rstant Community
Development Director
S:\Departments\Community DevelopmenWepartmentlProjects\CUP PROJECTS 2000.\CUP0807-AT& T Wireless Community
Center\CUP 0807 PC reso 22Sept09 .doc · · ·
39
Project#:
Project Name:
APPROVAL DATE:
EPFECTIVE DATE:
EXPIRATION DATE:
RESOLUTION #: 09-09-22-1
Exhibit A
CONDITIONS OF APPROVAL
CUP 08-007
AT&T ~ Community Center Wireless ProJect
September 22, 2009
October 7, 2009
September 22, 2011
These conditions of approval apply to Conditional Use Permit # 08-007 to construct an
unmanned wiretess te1ecommunicafions facility that consists of instalfing 6 -{six) panel
antennas located ·inside the top of .an 83'-3" tall light pote located at the City's Sports
Park, which wi11 a!so provide field lighting. The light pole-monopole wm replace an
existing light po,le. 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 measures11' .. 6" x
20'-0".
Generat Conditions:
1. Conditional Use Permit # 08-007 to construct an unmanned wire'less
tetecommunications facility that consists of ir:tstaf!ing 6 .(six) panel
antennas tocated inside the top of an 83' -3" tall light po.te, which wm also ·
provide field lighting. The Jight pole-monopole will replace a.n existing 1ight
pole. Afso proposed is the construction of 1 (one) 11 '-0" x 2U' -0" antenna
equipment shelter on a concrete pad and 1 (one) stor~g.e shed that
measures11'-6" 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, elevatlor.i s, and floor
plans. These plans and the proposed use of the site are approved as
submitted and conditioned herein, and shall not be further aUere'OI .un1e.ss
reviewed and approved by the affected city departments. Minor
modifications to this approval which are determined by the Planning
Direct or to be in substantial conformance with the approved site plan, ana
·which do not intensify or change the use or require a'ny dev~at1ions ~mm
adopted standards, may be approved by the Community Oevejopment
Director upon submittal of an application and the re-OJU~red fee. ~f not
appealed, this approva~ shall become effective on the first bus·iness day
following the f.ifteenth (15th) day after the date -of the Planning
Commission's approvat and shall expire September 22, 2010· one (1) year
after the approval date of the approval unless the use or occupancy 'INhich
is the subject of this action has taken place and an conditions of approval
have been met, or a time extension has been granted by the City. Any
applicat~on for an extension of time shall be submitted to the Planning
Department, afong with the required fee, at least ninety (90} days prior to
the expkatio.n date of this approval, except as otherwise approved by the
Planning Director.
40
Planning Commission Resolution 09-09-22-1
CUP 08-007, AT&T Wireless
Final Conditions of Approval
September 22, 2009
Page 2of5
2. Approval of this application does not relieve the applicant from complying
with other applicable Federal, State, County or City regulat·ions or
requirements.
3 . All plans, specifications, studies, reports, calculations, maps, notes, 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 daim; 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.
5 . 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 ~an Juan
Capistrano Municipal Code, including the r~quirement 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
41
Planning Commission Resolution 09-09-22-1
CUP 08-007, AT&T Wkeless
Fina{ Conditions of Approval
September 22, 2009
Page 3 of 5
agencies. The duty of inquiry as to such requirements shal'I be upon the
applicant.
9. AH applicable approvals and clearance from other departments and
agencies shall be on fHe with the Building and Safety Department 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 approva!, and shall comply with the latest City-adopted edition
of the applicable building codes. (B&S)
11 . Building Construction Plans. Prior to issuance of building permits, the
applicant shall submit final construction plans, building elevations and floor
plans to the Planning Department for final review and approvat Such
pfans shall be fully dimensioned and in substantial conformance with
those ptans 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 submit to the Fire Chief a
plan for review and approval of the battery system. The pqans shall b.e in
accordance with the California Fire Article 64. Please contact the OCFA at
(714) 573-6133 for a copy of the Guidelines and 1nformationa1 Bulletins.
(OCFA}
The following co~difi.ons 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 Disposal and Sanitation .. At all times during construction, the
applicant shall maintain adequate sanitary disposal facilities 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 8:30 a.m. and 4:30 p.m.
42
Planning Commission Resolution 09-09-22-1
CUP 08-007, AT&T Wireless
Final Conditions of Approval
September 22, 2009
Page 4of5
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:
15. Consistency 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 plans, 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 wiU 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 shal,l pay any outstanding
balance in the Developer Oepos1t 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 modify or remove the
facility at the applicant's expense. Said technologies may require 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
ENG
PLN
PW
= Building and Safety
= Engineering Division
= Planning Division
= Public Works Department
43
Planning Commi$sion Resolution 09-09-22-1
CUP 08-007, AT&T Wireless
Final Conditions of Approval
S9ptember 22, 2009
Page 5 of5
OCFA = Orange County Fire A1.lthority
Date of Approval: September 22, 2009
Resolution No.: 09-09-22 .. 1
Effective Date: October 7, 2009
Applicant Acceptance of Conditions of Approval:
Date
Nametrrtle
..
44
CITY OF SAN JUAN CAPISTRANO
WIRELESS COMMUNICATIONS FACILITIES SITE LEASE
New Cingular Wireless PCS, LLC
Cell Site#: OC0004-02; Cell Site Name: Community Center Light .Stmdar~
This Communications Site Facilities Lease (the "Lease") is made and entered .into this_. _· _.day
of , 2009, by and between the CITY OF SAN JUAN CAPiST~ANO, a California
Municipal Corporation (herein "LESSOR"), and NEW CINGULAR WIRELESS PCS, LLC, a
Delaware limited liability company (herein "LESSEE") (hereinafter collectively refen-ed to as
"Parties").
RECITALS
WHEREAS, LESSOR is the fee title owner of property described as San Jqall' Gapistrano Sports
Park located at 25925 Camino del A vion in the City of San Juan Capistran9,: California (the
"Property") described more particularly in Exhibit A attached hereto, which description is fully
inco1porated 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 . mutµal 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 pa1ticularly described in Exhibit B (the "Prei:nises").
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
Cell Sile/I· OC004-02: Cell Sile Name: Community Center Light Standard 45 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 t_he
equipment cabinet per Exhibit C or underground. No equipment will be visible from the Property.
The equipment cabinet will include a 20' x 11' storage area that will be designated for City storage.
The LESSEE shall donate $20,000 to San Juan 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 Term") unless terminated
earlier pursuant to Section 8 hereinbelow.
3 .2 .RENEW AL 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 Juan Capistrano, California
92675, Attn: Accounts Receivable, Finance Department. In addition, LESSEE agr~es to do
and perform all other covenants and agreements contained in this Lease.
2
Coll Sitcll· OC004-02; Cell Site Name: ConunWJily Center Lighl Standard 46
4.1 BASE RENTAL PAYMEN T : 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 LlVING 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, Buseau 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 L ATE CHARG E : 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
pos!lessory 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. LE S.SOR ThlSP ECTION AND ENTRY; AC CESS 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 detemiines that exigent circumstances wanant a shorter period of time, so
long as such entrance does not unreasonably interfere with LESSEE's use of the
Premises):
3
Cell Sitell OC004-02; Cell Site N•me: Conununity Center Light Standard 4 7
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
perfo1m .
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 umeasonably interfere with LESSEE's use of the Premises.
6.2 LESSOR shall not be liable in any marmer 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. CONS TRUCTION AN D MAINTE NA NCE OF F A CILITIES AND PREMISES:
7.1 LESS EE'S CON STRU CTION : LESSEE shall have the right to instalJ, 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 pe1mitted
only upon the express written consent of the LESSOR, which will not be
unreasonably withheld or delayed.
7.2 C ONST RUCTION 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# OC004-02; Cell Site Name: Community C enter Light Standard 48
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 LIE 18: 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, lien, or demand, then LESSEE sh a ll, 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 fom1 and amount LESSOR deems sufficient to allow the lien of record to be
discharged as a matter of law.
7.4 CARE DURJNG CONS TR UCTlON: 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 LESS EE MAI NTENANCE OF FACILITIE S AND PREMIS E S: LESSEE's
maintenance of the Facilities and Premises shall include, but is not limited to :
A. Maintenance of all landscaping installed by LESSEE, if 911y;
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
Cell Site# OC004-02; Cell Site Name: Community Center Light Standard 4 g
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 later 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 insta lling 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.
8 . TERMINATION:
8.1 LE SSOR 'S RIG HT TO TE RMINATE:
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:
1. 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 thi11y (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 nee ded for other public purposes, LESSOR shall have the right, after the
6
Cell Site# OC004-02; Cell Site Name: Conununity Center Light Standard SQ
expiration of the second renewable term, to te1minate this Lease w ithout
liability upon one (1) year's written notice of tem1ination to LESSEE .
8.2 LESSEE'S RIGH T T O TERMINATE: LESSEE may te1minate 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 tennination is a result ofLESSOR's default hereunder. In the event LESSEE
terminates th e Lease p1ior to commencement of construction of the Facilities, all
LESSEE's obligations under this Lease shall terminate w ithout further liability.
8.3 R ETURN OF P REMIS E S 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 tennination 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), mechanic~!, computer,
or similar equipment (including antennas), LESSEE shall not remove the po11ion 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 LES S EE'S OBLI G AT IO N S: 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 b een 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
Cell Site# OC004--0 2; Cell Site Name: Commw1ity Center Ligbt Standard 51
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 LES'SOR 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 prevailing1 interference rules and regulations
promulgated by the Federal Communications Cormnission.
10.0 DESTRUCTION OF PREMISES: If either the Premises or the Property is destroyed or
damaged as a result of a cat11strophic 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 SER VICE: 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 mete1ing
8
Cell Site" OC004-02; Cell Site Name: Comrmuiity Center Light Standard 52
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 Prem~ses. 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. INDEMNlFICATION AND INSURANCE:
12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of
LESSOR shall be responsible for any damage or liability occun1ng 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 Site# OC004-02; Cell Site Name: Commw1ity Center Light Standard 53
A. Casualty Insurance: During the tem1 of thls 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 tenn 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 c01mection 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 u nreasonably 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 (51 %) 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
Cell Site# OC004-02; Cell Site Name: Community Center Lighl Siim<lard
10
54
exercise of LESSOR's remedies under applicable law, including tennination 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 re leased from liability hereunder by virtue of any assignment.
As a condition precedent to any such assignment which requires LESSOR's
consent, LESSEE agre es 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 an y
assignment, the assignee must assume, in writing, all of LESSEE's obligations
under this Lease.
14.2 SUBLEASlNG: 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. RENEWAUHOLDING OV ER : 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 tennination 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 Tenn without the express
consent of LESSOR.
16. E NVIRONMENTAL 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, ariy 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
.1 I
Cell Sile# OC004:02; Cell Sile Name: Connnunity Center Light Standard 55
substances that LESSEE, its agents, employees, contractors , subcontractors or other.
representatives bring onto the Premises.
17. MISCELLANEOUS:
l 7.1 NO W AIY ER: 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, tenn 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
Cell Site# OC004-02; Cell Site Name: Commw1ily Center Light SLandard 56
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 t6 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 AU T HORJ T Y: Each paiiy 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 tenns .
17. 9 NOTICES: Any written notices required pursu.ant to this Lease shall be made by
certified or registered mail, return receipt requested, or reliable overnight courier
and delivered to the following address:
If to Lessee:
To LESSOR: City of San Juan Capistrano
32400 Paseo Adelanto
Copy to:
San Juan Capistrano, CA 92675
Attn: City Manager
Woodruff, Spradlin & Smart
555 Anton Blvd. Suite 1200
Costa Mesa, CA 92626
Attn: Omar Sandoval, City Attorney
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #:OC0004-02; Cell Site Name: Community Center(CA)
Fixed Asset No:_l0082262
12555 Cingular Way, Suite 1300
Alpharetta, GA 30004
13
Cell Sit•# OC004-02; Cell Site Name: Commuuity Center Light Standard 5 7
With a required copy of the notice sent to either of the addresses above to ~T&T Legal at:
If sent via certified or registered mail:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site #:OC0004-02; 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 #:OC0004-02; Cell Site Name: Community Center( CA)
Fixed Asset No:_10082262
16331 NE 72nd Way
Redmond, WA 98052-7827
17. l 0 AM ENDMENTS: 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# OC004-02; CeU Site Name: Community Center Light Standard 58
IN WITNESS WHEREOF, the Patties hereto have caused this Lease to be executed by their duly
authorized officers.
LESSOR
ClTY OF SAN JUAN CAPISTRANO,
a California Municipal Corporation
By:
Mayor
Date:
TAX ID#:-----------
ATTEST
City Clerk
Approved as to form:
LESSEE
NEW CINGULAR WIRELESS PCS, LLC ,
a Delaware limited liability company
By AT&T Mobility Corporation
Its Manager
~ By: , , . '
Name: /2JA£K~
Title: /~£ 6-r-FJ -a=. ~ ~·ffZ'..J trltlfv
Date:
By:
Name: ~-----------
Title:
Date:
15
Cell Site# OC004-02; Cell Site Name: Community Center Light Standard 59
State of California }
County of ~.$ Ai1J,../( 5
On cr1Jkr t i Zoo 1 before me, .i/itn ............ v_,,_1 _._P't-'-',,.-'-'M'--"'v'-Tll"-'-· -,----+JLl~· -=-fd·-ta_.1e,,'.,..i/~~~()/.,~,(,~/.._C'--· __ _
Dato '} Hl!IO IO$Crl Name a1td Tiii/Qi tho OH ICGt
personally appeared i...-ll }(tt l /(., .{/.f_.[C\
@ ALMA PINEDA
-Commission # 1842097 < ~ Notary Publlc • Calilornfa ~
Orange County ?!
My Comm . Expires Ma r 26 . 20lJ
Pla ce Notary Seat Above
who proved to me on the basis of satisfactory evidence to
be the personJs]whose name~1 s/~re--subscribed to the
within instrument and acknowledged to me that
he/¢:1e1lPey executed the same in hls.1Jer7!Jlelrauthorized
capacil.Y,(les}. and that by hisltw/tl;leif sfg na1u re_(sYbn the
instrument the persoo(·sf or the entity upon behalf of
which the persof\(sYacted, 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 7J.hand and_ off~c:_I seal.
Signature dmv... f ,,, w<. r;/s..
Slooaturo or Nowy blio
-----------OPTIONAL-------------
Though the Information below Is not required by law. It may prove valuable to persons relying on the document
and could prevent frauduten! 19mova.I 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:
Capaclty(les) Claimed by Signer(s)
Signer's Name :-------------
0 Individual
0 Corporate Officer -Title(s):
0 Partner -D Limited I] General
0 Attorney in Fact
0 Trustee
0 Guardian or Conserve.tor
0 Other: _________ _
Signer Is Representing: ___ _
::.•·
Top of thumb Mre
Signer's Name : _____________ _
0 Individual
0 Corporate Officer -Tille(s): ________ _
0 Partner -D Limited 0 General
0 Attorney In Fact
OTrustee ·
0 Guardian or Conservator
D Other: ___ _
Signer Is Representing: ____ _
~~
:>2007 Nationnl Notary Association~ 9350 De Solo A,,.,., P.O.B"" 2402•Chatsworth,CA 91313·2402•www.NaUornJNolllry.org Item #5907. Reorder:Ca!Toll-Free 1-8~76-68Z7
60
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
~~~
State of California
County of ----------------
}
On ---------before me,
Date Here fnsert Name and lit!e of the Officer
personally appeared ---------------..,,~~,.,_,..--,-~----------Name(•l of Signer(•)
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 me 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 Notary sea1 Above
Signature _____ --=--.,.,..,...........,~-------'-;..:,
Siona.Me 01 Notary Pu blic
--------------OPTIONAL~----------------
Though the information below Is not required by /aw, ff may prove valuable to persons relying on the document
and could prevent fraudulenJ .removal and reattachmeni of this form to another document.
Description of Attached Document
Title or Type of Document:--------------------
Document Date:--------------
Signer(s) Other Than Named Above:
Capacity(les) Clalmed by Signer(s)
Signer's Name :-------------
0 Individual
D Corporate Officer -Title(s):
D Partner -0 Limited 0 General
0 Attorney in Fact
D Trustee
O Guardian or Conservator
D Other : _________ _
Signer ls Representing: ___ _
Top ol lhvmb here
____ Number of Pages:---------
Signer's Name : ______________ _
D Individual
O Corporate Officer -ntle(s): ---------
0 Partner -0 Limited 0 General
O Attorney in Fact
D Trustee
D Guardian or Conservator
0 Other : _________ _
Signer Is Representing: ____ _
l:H«' : '· •
Top of thumb here
~~~~
~2007 National Notary Assaclalion • 9S50 De SolO Ave .. ~o. BOJc 2402 •Chatsworth, CA 91313-2402 • www.Natlonaf No1ary.Qrg Item ~5907' Reorder. catl Tol~Free 1-800-876-61!27
61
......
EXHIBIT A
DESCRIPTION OF THE PROPERTY
11,e easterly 60 acres of PnrceJ "I;' per map recorded in Boo-k 2, Page 38 of surveys in the County Recorders
office of Orange County, California, in the City of Sa~1 Juan Capistrano, County of Orange, St.ate of 01lifornia,
exceptthc foJlowing descrihed parcel:
Beginning at a 1 '' iron pipe at the most northwesterly comer of said easterly 60 acres; the.nee S 69"' 14' 53" E
629.88' along the northerly line of said Parcel '"L" to a I' iron pipe at Mangle point in said northerly Hne; thence
S 89° 19' 49" E 194.11' along said northerly line; thence leaving said line S 9° 40' 11" W 9.25' to Lhe beginning
of a non tangeut curve concave to the southeast ha:ving a radius of 264.75 ', to which point a radial line bears N o~
40' I l'' E; the.nee southwesterly along sa{d curve through a central angle of71" 03' 30'' an arc distance of
328. 34'; thence on a tangent Lille. S 19° 36' 41" \V I 04.91' to the begitming of a tangent curve concave to rhe
northwest having a radius of 235.25'; then~ southwesterly itkmg said eurve through a central angle of700 20'
17" an arc distance of 288.80' to th beginning of a reverse eurve concave to the southeast having a radius of
264.75'; the.nee somhwest.erly along said reverse cw·ve through a central angle of90" 00' 00'' an ru:c dis1;iuce of
415. 87' to a rn.<lial lin.e of said curve wl1ich bears S _g9.i 56' 5 8'' Vil; thence on the prolongation of said radial 8.58'
tn the westerly line of the easterly 60 acres of said Parcel "(";thence NO" 03' 02''' W 930.68' along lheweste.rly
line of r<aid easterly 60 acres to the point of be.ginning. Contafoing 7.25 acres more or less.
Also cxceptillg that portion as conveyed to the City of San Juan Capistrano as per deed recorded in Book 1l648,
Pages l 825 to 1829, of Official Records, County of Orange, CaJifomia.
16
Cell Site~ OC004-02; Cell Site Name: Community Center Lighl Stan<lard 62
EXHIBIT B
DESCRIPTION OF THE LEASED PREMISES
17
Cell Sile# OC004-02; Cell Site Name: Community Center Light Standard 63
EXHIBITC
DESCRIPTION OF THE FACILITIES
PROJECT DRAWINGS
(See Attached)
18
Cell Site/I OCOIJ4-02; Cell Site Naone: Community Center Light Standard 64
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Cdl Site# OC004-02; Cell Sile Name: Community Center Light Standard
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23
C:ell Site# OC:004-02; C:ell Site Name: C:ommunily Center Light Stoudard
CELL PHON.E TOWER SURVEY
.. • .
, OVR~TIONOF A.nnual Lease Basis of Bullll_n
CITY . CELL PHONE TOWER· · ,, LEASE Revenue Charge E.scalafor
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 N/A N/A NIA
Lake Forest Located in the City, but on private
Jennifer Manser property. Only City revenue received Is
949-461-3400 throug_h cell tower permits (OTO). NIA N/A NIA NIA
MISSIOn Viejo lvv.,my \Jell lvm"~ '"""'""' Ofl \JHy l"I"""' Y vv1u1 "l"IJIU~. 5yrs. "''''""
Elaine Wester 60 on private propery. Older sites revenue equates to Before w/posstble
$1,500/mo.; Newer sites $2,200/mo. and co-location site annually
949-470-3029 $1,500/mo .. Renewal increases Per Tower CPI Index
San Clemente 5-10 yrs :P~.000
Laura Ferguson Fourteen Cell Towers located on City prnperty; Inclusive before w/posslble CPI Index with co-locatlon 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 Niguel
3 Cell Towers-1park Tower and 2 right of way Towers. 5yrs. $3,446 Jonathan Orduna Park Revenue $3,446 mo and ROW Towers-$1,100 with Before wlannual 5% 5%w/no
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 $0-$1,575 base Per Tower 1(4%)
Average Revenue
p~r M.o.nth $2,305
ATTACHMENT 4
70
CSMFO
2009
·Cell Tower Lease Survey
City
Calaveras County Water District
Fresno Metropolitan Flood Control District
Highlands
Huntington Beach
La Habra Heights
Oro Loma Sanitary District
Rancho Cucamonga
Romana Water District
Sacramento Public Library Authority
San Luis Obispo
San Leandro
Santa Maria
Shafter
Union Sanitary District
Contact
Lynn Gentry
Paul L. Merrill
Chuck Dantuono
Tina Krause
Shauna Clark
Anna Turon
Kathy James
Rick Teichert
Bill Statler
C Galvin
Theresa Hall
Jo Barrick
Maria Scott
Total
Number of responses
Average rent
Highest
Monthly Lease Rate
700
750
1,500
2,500
2,100
1,094
1,791
2,500
2,000
2,083
1,639
1,791
1,850
1,219
23,517
14
1,680
2,500
THE CITY OF
SAN JUAN CAPISTRANO
N
A
San Juan Capistrano Center/Sports Park
Light Standard
72
25925 Camino del Avion
San Juan Capistrano, CA 92675
LOCATION
0 9000 Feet
l!!!!!!!!!!!!!!!!!!!~iiiiiiiiiiiiiil!!!!!!!!!!!!!!!!!!!!!!!
3000 6000
Attachment 6
32400 PA$ ro A0f[U',;N'f'0
SAN JUAN C APUll'l''l'UtN.O, CA ~267S
<949) 49:HJ71
Ma.+:;s.~s cw rm; i~ff¥ Cmtli!Cl~
SAMA,UJ:\li',ll ~
lAUAAffiEl:SC::
{94£)J 49~H()A ''H''AX
www.im !iui~n capt ·r; w,org
NOTIFICATION OF MEETING OF POTENTIAL INTEREST
OF THE SAN JUAN CAPISTRANO CITY COUNCIL
IliOMAS W. HRlBAA
r.Ml(Nla:l!'il4
tm . LOhlOf~ IJOO
The City Council of San Juan Capistrano will meet at 6:30 p.m. on Tuesday, November 3,
2009 in the City Council Chamber in City Hall, to consider: "Consideration of Facilities
Site Lease Agreement, (New Cingular Wireless, PCS, LLC) Cell Site #OC0004-02; at
Community Center/Sports Park Light Standards" -Item No. F4a.
If you have specific thoughts or concerns regarding this item, you are encouraged to
participate in this decision making process. You can communicate with the City Council
through correspondence addressed to the Council and/or by attending the meeting and
speaking to the Council during the public meeting.
Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m .
on Monday, November 2, 2009 to allow time for the Council to consider its content.
If you would like to speak at the meeting, please complete a yellow "Request to Speak"
form found inside the entrance to the Council Chamber. This form is turned in at the staff
table, just in front of the Council dais. You will be called to speak by the Mayor when the
item is considered. ,
You have received this notice at the request of the City staff member Karen Crocker,
Community Services Director. You may contact that staff member at (949) 443-6389 with
any questions.
The agenda, including agenda reports, is available to you on our web site:
www.sanjuancapistrano.org . If you would like to subscribe to receive a notice when
agendas are posted to the web site, please make that request by sending an e-mail to :
cityclerk@sanjuancapistrano.org.
Maria Morris
Acting City Clerk
cc: Pedro Cabrera, San Juan Adult Soccer; Tim Dickinson, AYSO; Tim Miller, Trillium;
Michael Morales, San Juan Little League; Darrin Silveria, San Juan Little League
SJ.in Jittm CapfatN.mo;-P;·i:!se.tving Jh . Pa, ·t n:i /JI. httm:~t tJu/ P"J.1 · tltr
73
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
Recording Reque ted By
& When Recorded Return To:
New Cingular Wireless PCS , LLC
Attn: Network Real Estate Administration
1025 Lenox Park Blvd. N E
3rd Floor
Atlanta, GA 303 19
APN: 121-190-57
Re: Cell Site No. OC0004
Cell Site Name : COMMUNITY CENTE R
Fixed Asset No. I 0082262
State: California
County: Orange
MEMORANDUM
OF
LEASE
(Space Above This Line For Recorder's Use Only)
This Memorandum of Lease is entered into on this __ day of 2019, by and between
City of San Juan Capistrano, a California Municipal Corporation, having a mailing address at 32400 Paseo
Ad e lanto, San Juan Capistrano, CA 92675 (hereinafter referred to as "Lessor") and New Cingular Wireless
PCS , LLC, a Delaware limited liability company, having a mailing address of I 025 Lenox Park Boulevard
NE, 3rd Floor, Atlanta, GA 30319 (hereinafter referred to as "Lessee").
I. Lessor and Lessee entered into a certain Wire less Communications Facilities Site Lease on the 3rd
day of November 2009, as amended by that certain First Amendment to Wireless Communications
Facilities Lase Agreement dated _, 2019 (hereinafter, the "Lease") for the
purpose of installing, operating and maintaining a communications facility and other improvements
at Lessor's real property located in the City of San Juan Capistrano, County of Orange, commonly
known as 25925 Camino de) Av ion. All of the foregoing are set forth in the Lease.
2. The New T e rm will be five (5) years commencing on March 1, 2020 with two (2) successive
five (5) year option s to renew .
3. The portion of the land being leased to Le ssee (the "Premises") is described in Exhibit 1 annexed
hereto.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the Lease, all of
which are hereby ratified and affirmed . In the event of a conflict between the provisions of this
Memorandum of Lease and the provisions of the Lease , the provisions of the Lease shall control.
The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs ,
successors, and assigns, subject to the provisions of the Lease.
[SIGNATURES APPEAR ON THE NEXT PAGE]
8
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day
and year first above written.
LESSOR:
City of San Juan Capistrano,
a California Municipal Corporation
Title :---------------
Date : ______________ _
LESSEE:
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
Date : ______________ _
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
9
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
LESSOR ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of _______________ ~
(insert name and title of the officer)
personally appeared --------------------------------'
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 me 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.
Signature ----------------(Seal)
10
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
LESSEE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of
~--------------~
(insert name and title of the officer)
personally appeared _______________________________ _
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 me 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 PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ----------------(Seal)
1 1
Cell Site No. OC0004
Cell Site Name: COMMUNITY CENTER
Fixed Asset No. 10082262
Market: L.A.
Address: 25925 Camino del Avion, San Juan Capistrano, CA 92675
EXHIBIT 1
DESCRIPTION OF PREMISES
Page 1 of 1
to the Memorandum of Lease dated _, 2019, by and between City of San Juan
Capistrano, a California Municipal Corporation, as Lessor, and New Cingular Wireless PCS, LLC, a
Delaware limited liability company, as Lessee.
The Premises are a portion of the Property located at 25925 Camino del Avian, San Juan Capistrano, CA
92675 and legally described and/or depicted as follows:
The easterly 60 acres of Parcel "L'. i::er map recorded in Book 2, Page 38 of surveys in the County Recorders
office of Orange County. CaJiforaia, iu the City of San Juan Capistrano, County of Orange, State of California,
except the following described parcel:
Beginning at a I" iron pipe at the most northwesterly comer of said easterly 60 acres; thence S 69° 14' 53" E
629. 88' along the northerly line of said Parcel ''L" to a 2" iron pipe at an angle point in said northerly line-, thence
S 89° 19' 49" E l 94.11 ' along said northerly line; thence leaving said line S 9° 40' 11" W 9.25' to lhe beginning
of a non tangent curve concave to the southeast having a radius of 264.75', to which point a radial line bears N 0°
40' l l" E; then~e southwesterly along said curve through a central angle of 71 ° 03' 30" an arc distance of
328.34'; thence on a tangent line S 19° 36" 4 l"" W I 04.91' to the beginning of a tangent curve concave ro the
northwest having a radius of 235.25': thence southwesterly along said curve rhrnugh a central angle of 70° 20'
17" an arc distance of 288. 80' to the beginning of a reverse cmve cm1cave to the southeast having a radius of
264.75': thence southwesterly along said reverse curve through a central angle of 90" 00' 00" an arc distance of
415.87' to a radial line 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 easterly 60 acres of said Parcel ·~L"; thence N 0° 03' 02" W 930.68' along the westerly
line of said easterly 60 acres to the point of beginning. Containing 7.25 acres more or less.
Also excepting that po1tion as conveyed to the City of San Juan Capistrano as per· deed recorded in Book 11648,
Pages 1825 to 1829, of Official Records, County of Orange, California.
12