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09-1130_NEW CINGULAR WIRELESS PCS, LLC_Memorandum of Lease RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto Recorded in Official Records, Orange Cotinty San Juan Capistrano, CA 92675 Torn Daly, Clerk-Recorder IIIIIIIIIIIIII'IIIIIIIII.Illllllllllllllllllllllllllllllllllilll NO FES- AND WHEN RECORDED, MAIL TO: 2009000640081 9:10 alp 11/30/09 Maria Morris, Acting City Clerk 20 229 M11 6 City of San Juan Capistrano 0.00 0.00 0,00 0.00 16.00 OM 0.00 0.04 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only Title of Document: Memorandum of Lease (Between City of Sart Juan Capistrano and New Cingular Wireless PCS, LLC) MEMORANDUM OF LEASE Prepared by: Nanci Hickerson Trillium Telecom Services 5912 Bolsa Avenue, Suite 202 Huntington Beach, CA. 92549 Return to: New Cingular Wireless PCS, LLC 12900 Dark Plaza Drive, 3r`'Floor Cerritos, CA 90703 Attn.: Christina Wager Re: Market:Los Angeles Cell Site Number: 000004-02 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 2009 , 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 day of november 2009 , 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. 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 parties have executed this Memorandum of Lease as of the day and year first above written. WT NS,' "LESSOR" _ ¢` City of Sar,Juan Capistrano, P nt a. e:` 147, ei2".", a California Munici l Corporation By: �. Print Name: Pri Na 7iXF -A`l its: .E Date: "LESSEE" New Cingular Wireless PCS, LLC, Print Name: a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: G Print Name: Print ame: Its: 'v-s, We"; wv"/ Date: ���' CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Califor is County On before me, 1)3a- t PAI,el Date Hera Insert Marne and'R*of the Officer personally appeared - Name{s}etstc��r(s) _ :N..:,a .............. _.------. ti- ._- — -_ - s��.. who proved to me on the basis of satisfactory evidence to be the persoaWwhose name( is�Rre subscribed to the within instrument and acknowledged to me that helskhcf)la�y executed the same in his/ber Y*rauthorized capacity, and that by his�Wltom signature on the AI 11'IAPINEC34 instrument the personal;or the entity upon behalf of .ffi Comrrtlssioft t6g2pg7 which the person(a� kted, executed the instrument. z �,xF. . Notary public-California Orange County I certify under PENALTY CSP PERJURY under the laws �y Comm.Ex fires 2Di3 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and officlal eal. Pace Notary seat Above Signature ''t, -- 8€gnaturs of Notary PuKc OPTIONAL Though the information below is not required by taw,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s)Other Than Flamed Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: Ca individual ❑ Individual * Corporate Officer—Title(s): ❑Corporate Off icerr—Title(s): * Partner—0 Limited ❑General ,.. ❑Partner—❑ Limited ❑General ❑ Attorney in Pact + - ❑Attorney in Fact rT,,p11 Trustee fop of thvrnt)here 0 Trustee ❑ Guardian or Conservator ❑Guardian or Conservator i ❑ Other: -- CI Other: Signer Is Representing: Signer Is Representing: X2007 1901onal Notary Association-9360 De Soto Ave.,P,O-Bort 2402•Chatsworth,CA 91 313-2402•www.NaUonerNorary-org Item#5907 Reorder.Calf7ot-Free 1.600•976.8627 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On. November 3, 2009, before ane, Maria Morris, Acting City Clerk, personally appeared Joe Tait,_Actin2 City Manager, who proved to me on the basis of satisfactory evidence to the be person(s) whose naane(s) is/are subscribed to the within instrument and acknowledged to me that be/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 PERJURY under the lavers of the State of California that the foregoing paragraph is true and correct. (SEAL) WI'T'NESS my hand and official seal. ' 1} 1V1 ara-Mdrris, Acting'City Clerk OPTIONAL Capacity Maimed by Signers Description of Attached Document Title or Type of Document City Manager Memorandum of Lease - Wireless Communications Facilities Site Lease — New Cingular Wireless PCS, LLC -- Cell Site 4 000004-02; Cell Site Name: Title Community Center Light Standard Signers are Representing Date of Document:November 3, 2009 City of San Juan Capistrano Number of Pages: S Signer(s)Other Than Named Above: Mark Rivera, Real Estate & Construction EXHIBIT I DESCRIPTION OF PREMISES Page of to the Memorandum of Lease dated 200_, by and between CITY OF SAN JUAN CAPISI RANIO, 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: -- ., ', 7 0 f s i tea' I CITY OF SAN JUAN CAPISTRANO WIRELESS COMMUNICATIONS FACILITIES SITE LEASE New Cingular Wireless PCS, LLC Cell Site#: 000004-02; Cell Site Name: Community Center Light Standard This Communications Site Facilities Lease (the "Lease") is made and entered into this 3 day of November, 2009, by and between the CITY OF SAN JUAN 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 ,Tuan Capistrano Sports Parr located at 25925 Camino del Avion in the City of San Juan Capistrano, California (the "Property") described more particularly in Exhibit A attached hereto, which description is fully incorporated herein by this reference; and WHEREAS, LESSEE desires to lease space on the Property from said LESSOR on the terms and conditions herein in order to install and operate a digital mobile radio telecommunications site as more fully described hereinbelow and Exhibit C (the "Facilities"). LEASE NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, conditions, and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties to this Lease do hereby agree as follows: 1. LEASED PREMISES: 1.1 DEMISE: LESSOR leases to LESSEE a portion of the Property containing 322 square feet as more particularly described in Exhibit B (the"Premises"). 1.2 LESSEE ACCESS: LESSOR shall provide LESSEE, LESSEE's employees, agents, and subcontractors' access to the Premises after LESSEE provides LESSOR with 24 hours notice. Provided, however, that in the event of an "emergency'or special circumstance", which would leave the Facilities inoperable during normal non-business hours, LESSEE may access the Property to make necessary repairs and shall provide notice to LESSOR as soon as reasonably practicable. For purposes of this Lease, the phrase "emergency or special circumstance" shall be interpreted to mean automobile accidents and natural disasters, including, but not limited to flooding, wind, and earthquakes. 2. USE OF LEASED PREMISES: To the extent provided in this Lease, LESSEE may use the Premises to facilitate provision of wireless communication services, including the transmission t Cell Site#OCW4-02;Cell Site Name:Comnmity Center Light Standard and the reception of communication signals of various frequencies. Subject to the terms and conditions of this Lease, 11ESSEE 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 taping such actions. To the extent reasonable, LESSOR shall cooperate with LESSEE in applying for and obtaining all licenses, permits, and any and all other necessary approvals that may be required for LESSEE's use of the Premises. LESSEE has the right to install and operate transmission cables from the equipment cabinet to the antennas, electric lines from the main feed to the equipment cabinet and communication lines from the main entry point to the equipment cabinet. There will be no more than 6 (six) panel antennas attached to the light pole. All other equipment and electrical lines will be concealed inside the equipment cabinet per Exhibit C or underground. No equipment will be visible from the Property. The equipment cabinet will include a 20' x I V 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 RENEWAL TERM: LESSOR grants LESSEE an option to renew this Lease for an additional ten (10) years, renewable in two (2) five (5) year increments (each, a "Renewal Term"). This Lease shall automatically renew for each Renewal Term unless LESSEE provides LESSOR notice of its intention not to renew not less than thirty (30) days prior to the expiration of the then current Tern.. 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 Terra 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 Pasco 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. 2 Cell Sitei.00064-02;Cell Site Name:Community Center Light Standard 4.1 BASE RENTAL PAYMENT: The Base Rental Payment under this Lease shall be TWO THOUSAND TWO HUNDRED DOLLARS ($2,200.00) per month ("Base Rental"). If the Commencement Date is a date other than the first day of the month, the Base Rental for the first calendar month shall be paid on the Commencement Date and prorated on the basis of the number of actual days in such partial month. 4.2 COST OF LIVING ADJUSTMENT: The Base Rental shall he automatically adjusted on each anniversary 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, 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. S. PROPERTY TAXES: LESSEE recognizes and understands that this Lease may create a possessory interest subject to property taxation pursuant to Revenue and Taxation Code section 107.7 and that LESSEE may be subject to the payment of property taxes levied on such interest. LESSEE shall timely pay all property taxes and assessments directly attributable to LESSEE's possessory interest. In no event shall LESSOR be liable for any taxes owed as a result of this Lease. 6. LESSOR INSPECTION AND ENTRY; ACCESS FOR INSPECTIONS: 6.1 LESSOR and/or its authorized representatives shall have the right to enter the Premises with a Tenant escort, upon reasonable prior notice to LESSEE (which shall not be less than twenty-four (24) hours unless the LESSOR's Public Works Director determines that exigent circumstances warrant a shorter period of time, so long as such entrance does not unreasonably interfere with LESSEE's use of the Premises): 3 Cell site'€JC004-02;Cell Site Name:Commmmity Center Light Standard A. To determine whether the Premises are in good condition and whether LESSEE is complying with its obligations under this Lease. B. To do any necessary maintenance to the light pole and to snake any restoration to the Premises that LESSOR has the right or obligation to perform. C. To serve, post, or keep posted any notices required or allowed under the provisions of this Lease. D. To run electric or telephone conductors, pipes, conduits, or ductwork where necessary or desirable over, under, or through the Premises in a manner which will not unreasonably interfere with LESSEE's use of the Premises. 6.2 LESSOR shall not be liable in any manner for any inconvenience, disturbance, loss of business, or nuisance arising out of LESSOR's entry on the Premises as provided in this section, except for damage resulting from the acts or omissions of LESSOR or its authorized representatives. LESSEE shall not be entitled to an abatement or reduction of rent if LESSOR exercises any rights reserved in this section. 7, CONSTRUCTION AND MAINTENANCE OF FACILITIES AND PREMISES: 7.1 LESSEE'S CONSTRUCTION: LESSEE shall have the right to install, construct, maintain, repair, replace, and operate the Facilities on the Premises that are depicted in Exhibit C. The Parties intend that the antennas and appurtenances related thereto which are a part of the Facilities shall be constructed on a suitable support structure in such manner as to make the cabinetry blend into the surroundings, i.e., LESSEE shall screen the equipment. Therefore, construction by LESSEE of any improvement, structure or work on the Premises, shall be permitted only upon the express written consent of the LESSOR, which will not be unreasonably withheld or delayed. 7.2 CONSTRUCTION OF IMPROVEMENTS: All improvements to the Premises shall be trade 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 00004-02;Cell Site Nance:Coannunity Center Light Standard coordinate the scheduling and logistics of same with the Public Works Director to avoid any interference with the LESSOR's operations, educational programs or recreational programs. Once commenced, any and all improvements made by LESSEE with respect to the installation of the Facilities shall be diligently pursued to completion. 7.3 MECHANIC'S LIENS: LESSEE shall not allow or permit to be enforced against the Premises, or any part thereof, and shall defend, indemnify, and hold LESSOR harmless from any mechanic's, material suppliers', contractors', tax, or subcontractors' liens arising from any claim, for damage, or growing out of the work of any construction., repair, restoration, replacement, or improvement made by or alleged to have been made by or on behalf of LESSEE. LESSEE shall pay or cause to be paid all of such liens, claims, or demands before any action is brought to enforce the same against the Premises. If LESSEE shall in good faith contest the validity of any such claim, lien, or demand, then LESSEE shall, at its expense, defend itself and LESSOR against same and shall pay and satisfy any settlement or adverse judgement that may be entered thereupon prior to the execution thereof. In the event of any such contest, LESSEE shall provide LESSOR with a security bond in a form and amount LESSOR deems sufficient to allow the lien of record to be discharged as a matter of law. 7.4 CARE DURING CONSTRUCTION: LESSEE shall exercise great care during construction. All applicable City standards and specifications shall be followed. LESSOR's Public Works Director shall approve all work in writing prior to commencement. 7.5 LESSEE MAINTENANCE OF FACILITIES AND PREMISES. LESSEE's maintenance of the Facilities and Premises shall include,but is not limited to: A. Maintenance of all landscaping installed by LESSEE, if any; B. Repairs and/or replacements to LESSEE's Facilities caused by acts of third parties, including theft, graffiti, and intentional acts; C. Maintaining; in good, clean, safe, and sanitary condition and repair, all of LESSEE's personal property. All Facilities on the Property must be maintained in a first-class condition without rust, paint, or surface deterioration. All maintenance must conform to the standards utilized by LESSOR; and D. All work necessary to comply with Federal, State, County, municipal, and other governmental agencies and bodies having jurisdiction. 7.6 RELOCATION: In the event relocation is necessary due to public improvements, LESSEE shall within twelve (12) months of LESSOR's notice thereof either relocate the Facilities or terminate the Lease. Upon receipt of the notice, Lessee 5 Cell Site#00004-02;Cell Site Name:Conmrmity Center Light Standard shall have the right to terminate the Lease and shall notify the Lessor of its intent to terminate the Lease within 60 days from its receipt of Lessor's notice, which termination shall be effective no 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 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 LESSOR'S RIGHT TO TERMINATE: A. LESSOR may pursue any remedies available to it under applicable law, including, but not limited to, the right to terminate this Lease, upon the earliest of any of the following events: I: LESSEE's failure to pay rent within thirty (30) days following nonpayment; 2. LESSEE's failure to comply with any terra, 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 (I0) days following written notice thereof; or 4. Interfere with LESSOR's operations, or use of the Property by LESSOR or third parties after LESSEE has been given written notice of the violation and has had thirty(30) days to cure same or, if such default is not curable within such thirty(30) day period, has not proceeded to commence such cure within such thirty(30) day period and diligently proceeds to completion. B. Additionally, upon a finding by LESSOR's City Council that the Premises are needed for other public purposes, LESSOR shall have the right, after the 6 Cell Site#00004-02;Cell Site Name:Community Center Light Standard expiration of the second renewable term, to terminate this Lease without liability upon one (1) year's written notice of termination to LESSEE. 8.2 LESSEE'S RIGHT TO TERMINATE: LESSEE may terminate this Lease without further liability for any reason whatsoever upon ninety (90) days written notice to LESSOR. Upon termination, all prepaid rent will be retained by LESSOR unless such termination is due to LESSOR's failure of proper ownership or authority, or such termination is a result of LESSOR's default hereunder. In the event LESSEE terminates the Lease prior to commencement of construction of the Facilities, all LESSEE's obligations under this Lease shall terminate without further liability. 8.3 RETURN OF PREMISES UPON TERI\!CINATION: Except as otherwise provided herein, LESSEE shall at its sole expense remove all of LESSEE's Facilities, within sixty (60) days following expiration or termination of this Lease. Upon the expiration or termination of this Lease, LESSEE shall surrender the Premises to LESSOR in a condition at least as good as existed on the date LESSEE executes this Lease, less ordinary and reasonable wear and tear. The Parties intend that LESSEE shall not remove or destroy any improvements to the Premises that, subsequent to surrender of the Premises by LESSEE, will benefit or be of use to LESSOR. Therefore, upon expiration or termination of this Lease, LESSOR may request that LESSEE not remove or destroy all or any portion of the LESSEE's Facilities, and, except for any electrical (other than lighting), mechanical, computer, or similar equipment (including antennas), LESSEE shall not remove the portion of the LESSEE's Facilities that is the subject of LESSOR's request. LESSEE shall thereafter execute any and all documents as are reasonably required to evidence that title to such improvements have been transferred to LESSOR, in their "as-is" condition. 9. INTERFERENCE: 9.1 LESSEE'S OBLIGATIONS: Prior to occupancy of the Premises and operation of the Facilities by LESSEE or its agents, assigns or LESSEE's employees, LESSEE agrees to: A. Submit to LESSOR, within forty-five (45) days prior to operation, proposed plans for antenna type and size, along with operating frequencies, effective radiated power, and other necessary on-air technical data at LESSOR's discretion for LESSOR's review and approval. If LESSOR does not respond in writing to LESSEE within ten (10) days following LESSEE'S request for approval, such request will be deemed to have been approved by LESSOR. B. Install or cause to be installed, all equipment according to generally accepted standard engineering practices and in a good and workmanlike manner. 7 Cell Site#00004-02;Ce11 Site Name:Coraamunity Center Light Stamlard C. Use reasonable efforts to investigate the cause of and mitigate any interference caused by LESSEE on existing radio frequency equipment of LESSOR following written notification of interference from LESSOR. 9.2 SUBSEQUENT PROPERTY LEASES: LESSOR agrees to include in all leases between LESSOR and future lessee's of the Property a covenant that the lessee shall not interfere with other electrical. or radio frequency equipment previously installed on the Property and that if the lessee is not able to mitigate the interference, the lease shall provide for termination thereof. Likewise, LESSOR will not permit or allow the installation of any future equipment which results in technical interference problems with LESSEE's then existing equipment. 9.3 NON-INTERFERENCE: The communication equipment and the use thereof shall not interfere with the use of any other communication. or similar equipment of any kind and nature owned or operated by LESSOR or other occupants of the Property existing as of the Commencement Date, except as may be permitted by applicable laws; provided, However that subsequent to the installation by LESSEE of the Facilities, LESSOR agrees not to install and to exercise commercially reasonable effort to not allow installation of new equipment on the Premises if such equipment causes interference with LESSEE's operations. All interference claims shall be settled in accordance with the then prevailing interference rules and regulations promulgated by the Federal Communications Commission. 10.0 DESTRUCTION OF PREMISES: If either the Premises or the Property is destroyed or damaged as a result of a catastrophic event to the extent that, in LESSEE's reasonable discretion, LESSEE may no longer use the Premises for the intended purposes, LESSEE may elect to either: A. Terminate this Lease, effective upon the date of the damage or destruction, by delivering written notice within ninety (90) days of the date of the damage or destruction and a request to terminate; or B. Upon consent of LESSOR, which shall not be unreasonably withheld, conditioned or delayed, use a portion of the Premises specified by LESSOR for provision of Communication Services on a temporary basis until such time as the LESSEE's Facilities on the Premises are repaired or reconstructed so that LESSEE can resume the provision of Communication Services from the Premises. If LESSEE elects to continue this Lease and in the event that LESSOR unreasonably delayed its consent for LESSEE to install the temporary facility in order for LESSEE to continue its operation:, Rent shall abate for the period of non-use. Any such repair or reconstruction shall be completed in an expeditious manner. 11. UTILITIES AND PROVISION OF SERVICE: LESSEE shall determine the availability of and shall, at its sole cost and expense, cause to be installed in, on, and about the Premises all facilities necessary to supply thereto all electricity, telephone, and other similar services required to service the Premises. LESSOR shall allow LESSEE to have its own electrical metering 8 Cell Site#00004-02;Cell Site Name:COMMUDity CC37ter Light Standard equipment installed. LESSEE shall obtain all necessary approvals for the installation of the meter. An electrical plan shall be submitted to LESSOR for approval., which approval shall not be unreasonably withheld, conditioned or delayed prior to commencement of such work. LESSOR agrees to cooperate with LESSEE in its efforts to obtain such utility service. During the Initial Tenn 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 bind and nature supplied to and used by LESSEE on the Premises. LESSOR shall be responsible for its electrical and other utility service and for the regular payment of electrical and other utility charges attributable to the Property other than the Premises. 12. INDEMNIFICATION AND INSURANCE: 12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of LESSOR shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of LESSEE or its officers or employees under or in connection with any activities under this Lease. It is also understood and agreed that to the fullest extent permitted by law, LESSEE shall indemnify, defend (with counsel reasonably acceptable to LESSOR), protect and hold harmless LESSOR and its officers, agents and employees ("LESSOR's Parties") from and against any and all claims, demands,judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising at any time directly or indirectly from or in connection with (i) any default in the performance of any obligation by LESSEE to be performed under the terms of this Lease, (ii) LESSEE's use of the Premises, or (iii) the conduct of LESSEE's business or any activity, work or things done, permitted or allowed by LESSEE in or about the Premises, except to the extent caused by LESSOR's, LESSOR's Parties' or LESSOR's contractors', LESSEEs', guests', invitees', or licensees' negligence or willful misconduct. The obligations of LESSEE under this section shall survive the expiration or earlier termination of this Lease. 12.2 ASSUMPTION OF RISK: LESSEE, as a material part of the consideration to LESSOR, hereby assumes all risk of damage to the :premises, including, without limitation, injury to persons in, upon or about the Premises during LESSEE's use of the Premises, arising from any use of the LESSEE's Facilities or other activities of LESSEE or LESSEE's agents, employees, guests, or invitees (collectively "LESSEE'S Parties") on the Premises. LESSEE hereby waives all claims with respect thereof against LESSOR, except as otherwise stated in this Lease. LESSOR shall not be Iiable 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{}00004-62;Cell Site Name:Commmity Center LiAt Standard 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 term of this Lease, insured by insurance companies rated A- VII or higher by A.M. Best and authorized, and authorized to do business in the State of California or LESSEE shall self insure, against loss or damage by fire and other such casualties as are included in extended coverage. Such coverage shall include stipulated value, vandalism and malicious mischief endorsements, in such amounts so as to provide for the then actual replacement cost of all improvements on the Premises. B. LESSEE agrees, at its sole expense, and at all times during the term of this Lease, to maintain in full force, or cause to be maintained in full force, a policy or policies of commercial general liability insurance in an amount of ONE MILLION DOLLARS ($1,000,000.00), per occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the aggregate including property damage, written by one or more insurance companies licensed to do business in the State of California or LESSEE shall self insure the required coverage. LESSEE shall ensure that LESSOR is included as an additional insured and shall evidence such additional insured status on a certificate of insurance to be provided to LESSOR prior to the commencement of any work. Such required commercial general liability policies shall insure against liability for 'injury and death resulting therefrom and/or property damage which may occur as a result of or in connection with the existence of the Facilities and improvements in, on or about the Premises. 13. DAMAGE OR DESTRUCTION OF IMPROVEMENTS TO PREMISES: LESSOR shall have no duty or obligation to rebuild the Facilities or the improvements thereon if such Facilities or improvements are substantially damaged during the Term, in whole or in part by any casualty. LESSOR will give LESSEE (a) notice of such casualty within thirty(30) days after the date of the casualty and (b) the right to terminate in sixty (60) days from said casualty date. In the event LESSOR chooses not to rebuild the Facilities or improvements thereon, LESSEE shall be entitled to terminate the Lease. 14. ASSIGNMENT AND SUBLEASING: 14.1 ASSIGNMENT: LESSEE shall not voluntarily assign or transfer its interest under this Lease or in the Premises without first obtaining the prior written consent of LESSOR, which consent shall be not unreasonably withheld, delayed or conditioned. The transfer of the rights and obligations of LESSEE to a parent, subsidiary, or other affiliate of LESSEE, or to any successor in interest or entity acquiring fifty-one (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 10 Cell Situ#00004-02;Cell Site Name:L ommuuity Center Dight Standard exercise of LESSOR's remedies under applicable law, including termination of the Lease. No consent to any assignment shall constitute a further waiver of the provisions of this section. Notwithstanding the foregoing, it is understood that LESSEE shall not be released from liability hereunder by virtue of any assignment. As a condition precedent to any such assignment which requires LESSOR's consent, LESSEE agrees to provide written notice to LESSOR of its intention to assign at least thirty (30) days before the proposed effective date of any such proposed assignment which notice shall include the identity of the proposed assignee, copies of the proposed assignment documentation and current financial statements of the proposed assignee. As a further condition precedent to any assignment, the assignee must assume, in writing, all of LESSEE's obligations under this Lease. 14.2 SUBLEASING: LESSEE shall not sublease any portion of the Premises except as expressly provided herein. LESSEE shall be permitted to sublease portions of the Premises to a wholly-owned subsidiary of LESSEE, provided LESSEE provides LESSOR with express written notice of such sublease. 14.3 COLLOCATION: LESSEE shall cooperate with future communications operators that would request collocation as long as there is no adverse impact on LESSOR from an operational, maintenance, and repair standpoint. 15. RENEWAL/HOLDING OVER: Upon the expiration or termination of this Lease, LESSEE shall surrender the Premises to LESSOR. If LESSEE shall remain in possession of the Premises after the expiration or termination of the Lease, with the consent of LESSOR, either express or implied, such holding over shall be construed to create a month to month tenancy subject to all the covenants, conditions, and obligations hereof, and LESSEE hereby agrees to pay LESSOR, as monthly rental, an amount equal to one hundred twenty-five percent (125%) of the most recent monthly rental price. Nothing above shall be construed to give LESSEE any rights to so hold over and to continue in possession of the Premises after the expiration of the Term without the express consent of LESSOR. 16. ENVIRONMENTAL: LESSEE and its agents, employees, or contractors subcontractors or other representatives shall not bring upon the Premises, or permit or authorize any other person or entity to bring upon the Property, including the Premises, any hazardous materials, hazardous substances, hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (Including crude oil or any fraction or derivative thereof). Notwithstanding the foregoing, LESSEE may bring such fuels and lubricants onto the Premises as may be required for operation of construction vehicles during construction and backup power for generators during, maintenance or repair of the LESSEE's Facilities. In addition, LESSEE may also bring onto the Premises, any lead-acid batteries, cleaning solvents, and other chemicals necessary for proper utilization and maintenance of the LESSEE's Facilities. In bringing any materials or substance onto, or using any materials and substances on, the Premises, LESSEE shall comply with all federal, State, and local government laws, regulations, and rules. LESSEE shall be solely responsible for any damages or costs incurred by LESSOR due to any environmental contamination, arising from the presence or use on LESSEE's behalf of any hazardous materials or tt Cell Site i 00004-02:Cell Site Name:Commmity Ctnter Light SUndard substances that LESSEE, its agents, employees, contractors, subcontractors or other representatives bring onto the Premises. 17. MISCELLANEOUS: 17.1 NO WAIVER: No covenant, term, or condition thereof shall be deemed waived, except by written consent of the Party against whore 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 swine 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 mariner, 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. LESSON 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#00004-02;Cell Site Nares:Conummity Center Light Standard the State of California and construed as if drafted by both LESSOR and LESSEE. Any action, arbitration, mediation, hearing or other proceeding related to this Lease shall be conducted only in the County of Orange. 17.7 LEASE BINDING ON HEIRS AND ASSIGNS: Each of the terms, covenants, and conditions of this Lease shall extend to, be binding upon, and inure to the benefit of not only LESSOR and LESSEE, but each of their respective heirs, representatives, administrators and assigns. Whenever in this Lease reference is made to either LESSOR or LESSEE, the reference shall be deemed to include, whenever applicable, the heirs, legal representatives, and assigns of each of the Parties, the same as if in every case expressed. 17.8 CORPORATE AUTHORITY: Each party executing this Lease on behalf of a corporation represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said corporation, in accordance with a duly adopted resolution of the Board of Directors of said corporation and that this Lease is binding upon said corporation in accordance with its terns. 17.9 NOTICES: Any written notices required pursuant to this Lease shall be made by certified or registered mail, return receipt requested, or reliable overnight courier and delivered to the following address: To LESSOR: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Copy to: Woodruff, Spradlin & Smart 555 Anton Blvd. Suite 1200 Costa Mesa, CA 92626 Attn: Omar Sandoval, City Attorney If to Lessee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site-4:000004-02; Cell Site Name: Community Center(CA) Fixed Asset No.—10082262 12555 Cingular Way, Suite 1300 Alpharetta, GA 30004 13 Cell Site#00004-02;Cell Site Name:Con unity Center Light Standard With a required copy of the notice sent to either of the addresses above to AT&T Legal at: If sent via certified or registered mail: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department Re: Cell Site#:000004-02; Cell Site Name: Community Center(CA) Fixed Asset No: 10082262 PO Box 97061 Redmond, WA 98073-9761 Or If sent via nationally recognized overnight courier: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department Re: Cell Site#:000004-02; Cell Site Name: Comm-unity Center(CA) Fixed Asset No: 10082262 16331 NE 72nd Way Redmond, WA 98052-7827 17.10 AMENDMENTS: This Lease may not be modified, altered, or amended except in writing signed by both LESSOR and LESSEE. The City Council assigns to the City Manager signature authority to execute future Lease Amendments and extensions for periods not more than two (2) years each and provided that the City Manager shall not have the authority to approve a decrease in the rental rate without the prior approval of the City Council. [SIGNATURE PAGE FOLLOWS] 14 C01 Site#00004-02_Cell Site Name:Community Center Ught Standard IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by their duly authorized officers. LESSOR LESSEE CITY OF SAN JUAN CAPISTRANO, NEW CINGULAR WIRELESS PCS, LLC, a California Municipal Corporation a Delaware limited liability company r By AT&T Mobility Corporation . Its Manager By. Ma or By: Date: /f La L21009 Name: Title: Xs a� TAX TD#: Date: -vim AT E By: Name: City le Title: Date: Approved as to form: 610 Oil City Attorn 15 Cell Site#00004-02;Cell Site Name:Community Center Light Standard CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ��r ' On�1�19 fj ,, &61 before me, l a f dei -) 'Ev'tj t Y r(_`. pate Her6 Insert Name andTflfof the OtfiCer personally appeared Names)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose name,A islre subscribed to the within instrument and acknowledged to me that he/she/tbey executed the same in his1he ltheP°r authorized capacit&g, and that by hist w/their signature�s�on the ALI�i�4lt�EgA instrument the personal; or the entity upon behalf of Commission 1842097 which the personWacted, executed the instrument. Notary public Callinrrtla Orange Cnunty I certify under PENALTY OF PERJURY under the laws My Camra. xpjres Rear�� 2�t3 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Place Notary Seal Above Sigmtore of Notary Public OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent,removai 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(fes) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual Cj Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑J General _ _ ❑ Partner—❑ Limited ❑General ❑ Attorney in Fact • ❑Attorney in Fact # Ll Trustee Top of thumb her e ❑Trustee `ap of thumb here © Guardian or Conservator ❑Guardian or Conservator El Other: 0 Other: Signer Is Representing, Signer Is Representing: 02007NadDnalNotary Association•9350E)eSoto Ave.,P.O.Box 2402Chatsworth,CA91313-2402-wrrw.Wlona�Noraryarg Item45907 Reorder.CaliTofi-Free1-900-876-5827 p of ( $ R Ll I En pill moll o 75 il Alt lk ;Y o-lt 20 Cell Site#00004-02;Cell Site Name:Conzintmity Cexster Light Standard g4� f' I ,<F s�esr:r�au 6t f1<� � f 3 ( 6 M1LIF �..��IwM n9TP.mt.KP+ s M � a raRwawa€uxw� � � L; . .. ... 47 IMM 4 sPAW, � :araxxax�a ❑mr. P �f L "4TANOAM i S'�ti we3a a M xF >X sera Fane ere t ara .ra )�s`i."x—kT n-�rr,�k+3i1➢-Y-`,i :7 Vi tJ TFF ofuaa g « re a rrr air rte_ a i =Tfl ' "'A -quo) i MIN i Sia k� ;M Th� i. T 7N ---------------------- 1 22 Cel)Site#C)C004-02;Cell Site Name:Community Center Light Standard ..... rIT r p I � j: 3 V moi" fail Ep q�q �. J t . is W W 23 Cell Site#00004-02;Cell Site:dame:Commmiity Center Light Standud PAYMENT DIRECTION FORM X NEW CHANGE SITE NAME: Community Center SITE ADDRESS: 25925 Camino del Avian, San.Ian Capistrano,CA, LESSOR NAME:* City of San.Tuan Capistrano, a California Municipal Corporation PAYEE NAME:** City of San.Tuan Capistrano Attn: Accounts Receivable,Finance Department PAYMENT ADDRESS: 32400 Paseo Adelanto,San Juan Capistrano,CA. 92675 TAX PAYER ID: 956006666 LESSOR PHONE/FAX NUMBER: 949 493- 1.171 949 493-1053 LESSOR/PAYEE VENDOR.ID NUMBER: (if existing vendor) PREVIOUS MANAGEMENT COMPANY: (if applicable) LESSOR/PAYEE PAYMENT SIIARE:*** % * Lessor Name should be exactly as stated in Lease/License ** For cases of different payee name and management company handling payments and taxes see acknowledgement below * Percentage of rent payment to be paid to L.cssor/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 correct. Paym..ent remitted to .Persons rather than landlord, By chee�king this box and initialing Ido acknowledge I have conli-aQtcd with a management company t'fiat will handle the payments and tax implications of this lease age°een-,,eijt This authorization shall remain in effect until I have cancelled it in writing in as much time as to a:ffo€-d Alou areasopable time to act upon it. LESSOR A ' ORIZED SIGNATURE ITLI � IOE/ hl (PRINT LEGIBLY) LESSOR AUTHORIZED SIGNATURE TI'T'LE � DATE (PRINT LEGIBLY) Return To: AT&T MOBILITY 5405 WINDWARD PKWY PO BOX 1630 ALPIIARETTA,GA 30009