11-0517_TMOBILE_Wireless Communication Facilities Lease CITY OF SAN JUAN CAPISTRANO
WIFELESS COMMUNICATIONS FACILITIES SITE LEASE
This Communications Site Facilities Lease (the "Lease") is made and entered into this
of j 2011 ("Effective Date'), by and between the CITY OF S day
CAPTSTRA O, a California Municipal Corporation (herein "LESSOR"), and T-MOBILE WEST
CORPORA'T'ION, a Delaware corporation (herein "LESSEE") (hereinafter collectively referred to
as "Parties").
RECITALS
WHEREAS, LESSOR is the fee title owner of property located at 29932 Camino Capistrano 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 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, `rte_, 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 as more
particularly depicted and/or described,in Exhibit B (the "Premises").
1.2 LESSEEACCESS: LESSOR shall 'provide LESSEE, LESSEE's employees,
agents, and subcontractors access to the Premises after LESSEE provides .LESSOR
with twenty-four (24) hours advance telephonic notice. Provided, however, that in
the event of an "emergency or special circumstance", which would leave the
Facilities inoperable during 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 that the site is off-air whether
caused by automobile accidents, equipment failure, or natural disasters, including,
but not limited to flooding, wind, loss of power and earthquakes.
2. USE OF LEASED PREMISES: To the extent provided in this Lease, LESSEE may use
the Premises to facilitate the provision of wireless communication services, including the
transmission 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
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operate on the Premises the communications and other facilities depicted and/or described in
general in Exhibit C. 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.
3. LEASE TERM:
3.1 INITIAL TERM: The initial term of this Lease shall commence on the date
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 a
additional twenty (20) years, renewable in four (4) 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: Within twenty (20) days of the Commencement Date, LESSEE
agrees to pay to LESSOR, the first payment of Base Rental in the amovnt set forth in this
section. Thereafter, Base Rental will be payable each month in advance by the fifth each
month of the Initial Tenn of the Lease and all Renewal Terms, if any, payable to the City
of San Juan Capistrano, 32400 Paseo Adelanto, San Juane 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.
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 ANNUAL RENT INCREASES: The Base Rental shall be automatically adjusted
on each anniversary of the Commencement Date in an amount equal to three
percent(3%)per 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 fifteen (15) days after written notice is received
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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.
4.4 ADDITIONAL CONSIDERATION: As consideration to the LESSOR for entering
into this Lease, in addition to the rental payments specified above, within sixty(60)
days of the Commencement Date of this Lease, LESSEE shall pay to LESSOR the
one-time payment of two thousand five hundred dollars ($2,500.00), which shall be
deemed the cost to LESSOR of the legal fees and administration required to
consider, negotiate and enter into this Lease. Such payment shall not be refunded
or reimbursed to LESSEE for any reason, regardless of whether LESSEE terminates
the Lease pursuant to its provisions or proceeds with construction of the Facilities.
5. PROPERTY TAXES: LESSEE recognizes and understands that this Lease may create a
possessory interest subject to property taxation pursuant to Revenue and Taxation Code section
107.7 and that LESSEE may be subject to the payment of property taxes levied on such interest.
LESSEE shall timely pay all property taxes and assessments directly attributable to LESSEE's
possessory interest. LESSOR hereby grants to LESSEE the right to challenge, whether in a Court,
Administrative Proceeding, or other venue, on behalf of LESSOR and/or LESSEE, any personal
property or real property tax assessments that may affect LESSEE. If LESSOR receives notice of
any personal property or real property tax assessment against the LESSOR, which may afl-`ect
LESSEE and is directly attributable to LESSEE's installation, LESSOR shall provide timely notice
of the assessment to LESSEE sufficient to allow LESSEE to consent to or challenge such
assessment. LESSOR represents that it is tax exempt and therefore does not owe taxes on the
Property. In no event shall LESSOR be liable for any taxes owed as a result of this Lease, except
for any income taxes attributable to revenue received by LESSOR under 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 upon reasonable prior notice to LESSEE (which shall not be less than two
(2) business days unless the LESSOR's Public Works Director determines that
exigent circumstances warrant a shorter period of time, so long as such entrance
does not interfere with LESSEE's use of the Premises):
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 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.
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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,
and shall be approved by Lessee in writing. Such approval shall not be
unreasonably withheld or delayed.
6.2 LESSEE shall have the right to have an employee, contractor or representative
present during any inspection by LESSOR. LESSOR shall not be Iiable 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, remove 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 an artificial
eucalyptus tree and in such manner as to make the cabinetry blend into the
surroundings, i.e., LESSEE shall screen the equipment. Prior to the
commencement of its initial construction, LESSEE shall submit to LESSOR plans
and specifications (the "Plans") for the installation showing the size, height and
appearance of the component parts of the installation. LESSOR shall have the right
to approve the Plans in writing, 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 compliance with
the Conditional Use Permit process prescribed by the San Juan Capistrano
Municipal Code § 9-2.317, the County of Orange, and any municipal or other
governmental agency having jurisdiction over the Property and the Premises at the
time the improvements are constructed. ' LESSOR's objections, if any, shall be
clearly stated in writing and given in accordance with Section 17.9. Lessee shall
have the right either to (i) resubmit the Plans in accordance with the same approval
process as stated above, or (ii) terminate this Agreement, whereupon the parties
shall have no further obligations or liabilities to each other. LESSEE may resubmit
the Plans for approval by LESSOR as many additional times as LESSEE desires.
7.2 CONSTRUCTION OF IMPROVEMENTS: All improvements to the Premises
shall be made in a good and workmanlike manner, at LESSEE's expense, in
accordance with the requirements of all laws, ordinances, and regulations
applicable thereto, including zoning regpirements and building code requirements
of the City of San Juan Capistrano, yid 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
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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
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
bond around all 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=^..ny such contest, LESSEE shall provide LESSOR with a secu!ity-bo A
in a form and amount 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.
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 Premises must be
maintained in a first-class condition without rust, paint, or surface
deterioration. All maintenance must conform to the standards utilized and
provided by LESSOR; and
D. All work necessary to comply with Federal, State, County, municipal, and
other governmental agencies and bodies having jurisdiction.
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7.6 RELOCATION: In the event relocation is necessary due to public improvements,
LESSEE will pay for relocation, provided that LESSOR provides a suitable
alternate location for the Facilities at the Property. LESSEE shall relocate the
Facilities within six (6) months of LESSOR's notice thereof. Notwithstanding the
foregoing, LESSOR shall not request relocation of the Facilities until after
expiration of the first Renewal Term.
7.7 ABANDONMENT: if use of the Facilities is abandoned for at least six (6) months,
LESSEE or its designee shall be responsible for removing the Facilities and
returning the Premises to the condition as it existed immediately prior to the
Commencement Date.
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 fifteen (15) days following
LESSEE's continued nonpayment after delivery of written notice
from LESSOR;
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 pre-existing electrical or
radio frequency equipment installed on or around the Property as of
the Effective Date, which interference is not cured by LESSEE
within thirty (30) days following written notice thereof; or
4. Interfere with LESSOR's operations, or use of the Property by
LESSOR or third parties, operating on the Property as of the
Effective Date, 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 vote 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 Renewal Term, to terminate this Lease without
liability upon one (1)year's written notice of termination to LESSEE.
8.2 LESSEE'S RIGHT TO TERMINATE: LESSEE may terminate this Lease without
further liability for any reason whatsoever upon ninety (90) days written notice to
LESSOR. Upon termination, all prepaid rent will be retained by LESSOR unless
such termination is due to LESSOR's failure of proper ownership or authority, or
such termination is a result of LESSOR's default hereunder. In the event LESSEE
terminates the Lease prior to commencement of construction of the Facilities, all
LESSEE's obligations under this Lease shall terminate without further liability.
8.3 RETURN OF PREMISES UPON TERMINATION: Except as otherwise provided
herein, LESSEE shall at its sole expense remove all of LESSEE's Facilities, within
sixty (60) days following expiration or termination of this Lease. Upon the
expiration or termination of this Lease, LESSEE shall surrender the Premises to
LESSOR in a condition at least as good as existed on the date immediately
preceding the Commencement Date, less ordinary and reasonable wear and tear and
casualty beyond LESSEE's control. 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, radios, coax or similar
equipment (including antennas), LESSEE shall not remove the portion of th:;
LESSEE's Facilities that is the subject of LESSOR's written 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. Thereafter, LESSOR shall be responsible for the maintenance,
repair, removal and disposal of any such improvements retained by LESSOR.
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, and
effective radiated power 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. If LESSOR does not approve of the proposed plans,
LESSEE may terminate this Lease immediately on written notice to
LESSOR.
B. Install or cause to be installed, all equipment according to generally
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accepted standard engineering practices and in a good and workmanlike
manner.
C. Use reasonable efforts to investigate the cause of and mitigate any
interference caused by LESSEE on existing radio frequency equipment of
LESSOR following receipt of written notification of interference from
LESSOR.
9.2 SUBSE DENT PROPERTY LEASES: LESSOR agrees to include in all leases
between LESSOR and future lessee's of the Property a covenant that the lessee
shall not interfere with other electrical or radio frequency equipment previously
installed on the Property and that if the lessee is not able to mitigate the
interference, the lease shall provide for termination thereof Likewise, LESSOR
will not permit or allow the installation of any future equipment which (i) results in
technical interference problems with LESSEE's then existing equipment or (ii)
encroaches onto the Premises.
9.3 NON-INTERFERENCE: The communication equipment and the use thereof shall
not interfere with the use of any other communication or similar equipment of any
kind and nature owned or operated by LESSOR or other occupants of the Property
existing as of the Commencement Date; 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 o'f non-use. Any such repair or
reconstruction shall be completed in an expeditious manner.
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IL 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
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 any and all Renewal Terms, LESSEE agrees to pay directly to the servicing utility when
due all charges for electricity, telephone and all other utility services of every kind and nature
supplied to and used by LESSEE on the Premises. LESSOR shall be responsible for its electrical
and other utility service and for the regular payment of electrical and Other utility charges
attributable to the Property other than the Premises.
12. INDEMNIFICATION AND INSURANCE:
12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of
LESSOR shall be responsible for any damage or liability occurring by reason of any
acts or omissions on the part of LESSEE or its officers or employees under 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, p;.nalties, liabilities, costs and expenses (including,
without limitation, attorneys' fees and court costs) to the extent caused by (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', LESSORS', 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 willfni misconduct of the LESSOR,
LESSOR's Parties, or LESSOR's agents, contractors, tenants, guests, invitees, or
licensees.
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12.3 INSURANCE:
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 terra of this Lease, insured by responsible
insurance companies, licensed to do business in the State of California or
self insurer, 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), including property damage,
written by one or more responsible insurance companies licensed to do
business in the State of California or a self insurer. LESSEE shall ensure
that LESSOR is named as an additional insured and such additional insured
certificate shall be provided to LESSOR prior to the commencement of any
work. Such policies shall insure against liability for injury to persons and/or
property and death of any person or persons which may occur•as a result of
or in connection with LESSEE's negligence 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 notice of such casualty within thirty (30) days after the date of the
casualty. In such event, LESSEE shall have the right to terminate this Lease upon delivery of
written notice to LESSOR.
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. Notwithstanding the foregoing, 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 be deemed a permitted 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 a default for exercise of LESSOR's
remedies under applicable law, including termination of the Lease. No consent to
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any assignment shall constitute a further waiver of the provisions of this section. In
the event of an assignment by LESSEE, LESSEE shall 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 proof that the proposed assignee is financially capable of
Performing under this Lease. As a further condition precedent to any assignment,
the assignee must assume, in writing, all of LESSEE's obligations under this Lease.
14.4 Additionally, LESSEE may, upon notice to LESSOR, collaterally assign or grant a
security interest in this Lease and the Facilities, and may assign this Lease and the
Facilities to any mortgagees or holders of security interests, including their
successors or assigns (collectively "Secured Parties"). In such event, LESSOR shall
execute such consent to leasehold financing as may reasonably be required by such
Secured Parties.
14.3 SUBLEASING: LESSEE shall not sublease any portion of the Premises without
first obtaining LESSOR's prior written consent, such consent not to be
unreasonably withheld, conditioned or delayed. In the event of a sublease, Lessor
shall receive from Lessee twenty-five percent (25%) of the monthly rent actually
received by Lessee from the sublessee. However, LESSEE shall be permitted to
sublease portions of the Premises to a wholly-owned Subsidiary of LESSEE for no
additional rent, provided LESSEE provides LESSOR with express written notice of
such sublease.
14.4 COLLOCATION: LESSEE shall cooperate with future communications operators
that would request collocation as long as there is no adverse impact on LESSEE
from an operational, interference, maintenance, and repair standpoint.
15. RENEWALIHOLDING 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: LESSOR represents that it has no knowledge of any substance,
chemical or waste on the Property that is identified as hazardous, toxic or dangerous in any
applicable federal, state or local law or regulation. LESSOR shall not introduce any hazardous
substances onto the Property in violation of any applicable law. LESSOR shall be responsible for,
and shall promptly conduct any investigation and remediation as required by any applicable
I1
LAI 3168F Cannino Trac-FINAL
environmental laws, all spills or other releases of any hazardous substance not caused by LESSEE,
that have occurred or which may occur on the Property. 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 to the extent caused by LESSEE's use.of any hazardous materials or
substances that LESSEE, its agents, employees, contractors, subcontractors or other
representatives bring onto the Premises. Each party agrees to defend, indemnify and hold harmless
the other from and against any and all administrative and judicial actions and rulings, claims,
causes of action, demands and liability (collectively, "Claims") including, but not limited to,
damages, costs, expenses, assessments, penalties, fines, losses,judgments and reasonable attorney
fees that the indemnitee may suffer or incur due to the existence or discovery of any hazardous
substances on the Property or the migration of any hazardous substance to other properties or the
release of any hazardous substance into the environment (collectively, "Actions"), that relate to or
arise from the indemnitor's activities on the Property.
17. MISCELLANEOUS:
17.1 NO WAIVER. No covenant, term, or condition thereof shall be deemed waived,
except by written consent of the Party against whom the waiver is claimed. Any
waiver or the breach of any covenant, term or condition shall not be deemed to be a
waiver of any preceding or succeeding breach of the same or any other covenant,
terra, 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 IOINT VENTURE: Neither LESSOR nor any of its employees shall.have any
control over the manner, mode or means by which LESSEE, its agents or
12
LA]3 T 68E Camino Tree-FINAL
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 venture 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
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 and that this Lease is binding upon
said corporation in accordance with its terms.
179 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
13
LAI 3168E Camino Tree-FINAL
Attn. City Manager
Copy to: Woodruff, Spradlin& Smart
555 Anton Blvd. Suite 1200
Costa Mesa, CA 92626
Attn- Omar Sandoval, City Attorney
To LESSEE: T-Mobile USA, .Inc.
12920 SE 38' Street
Bellevue, WA 98006
Attn: PCS Lease Administrator/LAI 3168
Attn: Legal Department/LA13168
Copy to: T-Mobile West Corporation
2008 McGaw Avenue
Irvine, CA 92614
Attn: Lease Administrator Manager/LA13168E
Attn: Legal Department/LA13168E
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 Dave tl-e authority to approve a decrease in the Base Rental rate
without the prior approval of the City Council.
[SIGNATURE PAGE FOLLOWS]
I4
LAI 3168E Camino Tree-FINAT,
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, a T-MOBILE WEST CORPORATION, a
Califomia municipal corporation Delaware corporation
By:
Aayy By:
Date: Nance:
TAX ID#: Title: Ctvistopher Eldridge
0irWor of Regional D@V,
kA ETDate:Approved as to form:
Clerk
Approved as to form:
Attorney
ity Attorne
15
LAI 3I68E Camino'tree-FINAL
EXHIBIT A
DESCRIPTION OF THE PROPERTY
iC
LAI 3168E Camino'Iree-FINAL
EXHIBIT A
DESCRIPTION OF THE PROPERTY
PARCEL 1:
THOSE PORTIONS OF SECTIONS 25 AND 36,TOWNSHIP 7 SOUTH RANGE 8 WEST, SAN
BERNARDINO BASE AND MERIDIAN,AND THAT PORTION OF LOT 6 OF TRACT NO. 112, AS
SHOWN ON A MAP RECORDED IN BOOK 11,PAGE 12 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY,CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF SAID LOT 6 WITH A
LINE PARALLEL WITH AND DISTANT 40.00 FEET NORTHEASTERLY,MEASURED AT RIGHT
ANGLES,FROM THE CENTER.LINE OF THE CALIFORNIA STATE HIGHWAY,AS DESCRIBED IN
THE DEED RECORDED MARCH 22, 1916 IN BOOK 281,PAGE 245 OF DEEDS, RECORDS OF SAID
COUNTY;THENCE SOUTH 51 DEGREES 11'04" EAST, 131.98 FEET ALONG SAID PARALLEL LINE.
TO THE NORTHWESTERLY LINE OF THAT CERTAIN 20,00 FOOT-NIDE STRIP OF LAND
DESCRIBED IN A DEED TO THE STATE OF CALIFORNIA, RECORDED MARCH 30, 1934, IN BOOK
664 PAGE 483 OF OFFICIAL RECORDS;THENCE NORTH 38 DEGREES 49' 00"EAST, 10.00 FEET
TO THE MOST NORTHERLY CORNER OF SAID 20.00 FOOT WIDE STRIP OF LAND;THENCE
SOUTH 51 DEGREES I I' 00" EAST 911.91 FEET TO THE MOST EASTERLY CORNER OF SAID 20.00
FOOT WIDE STRIP OF LAND;THENCE NORTH 38 DEGREES 49' 00"EAST 14.76 FEET ALONG
T14E NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF SAID STRIP OF
LAND; THENCE NORTH 38 DEGREES 49' 01" WEST,29339 FEET; THENCE NORTH 46 DEGREES
20' 54" WEST 368.64 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 2870.00 FEET,A RADIAL LINE TO THE CENTER
OF SAID CURVE BEARS SOUTH 40 DEGREES 32'45"" WEST;THENCE NORTHEWI STERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF I DEGREE 43'45". A DISTANCE OF
86.62 FEET; 'THENCE TANGENT TO SAID CURVE NORTH 51 DEGREES I I' 00"'WEST,680.35
FEET;THENCE SOUTH 38 DEGREES 49' 00"WEST, 108.21 .FEET TO THE BEGINNING OF A NON-
TANGEENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 2560.00 FEET, A
RADIAL LINE TO THE CENTER OF SAID CURVE BEARS NORTH 44 DEGREES 18' 37"EAST:
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5
DEGREES 29' 37".A DISTANCE OF 245.46 FEET TO THE POINT OF TANGENCY WITH THE FIRST
HERE MENTIONED PARALLEL.LINE;THENCE SOUTH 51 DEGREES 1 P00"EAST, 13 I.89 FEET
TO THE POINT OF BEGINNING.
EXCEPTING THAT PORTION DEEDED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT,
DESCRIBED AS FOLLOWS:
A STRIP OF LAND, 170 FEET WIDE, IN THOSE PORTIONS OF SECTIONS 25 AND 36,TOWNS141P 7
SOUTH, RANGE 8 WEST, SAN BERNARDINO MERIDIAN,ACCORDING TO THE OFFICIAL PLAT
OF SAID LAND FILED IN THE DISTRICT LAND OFFICE,AS DESCRIBED IN THE DEED TO
CHARLES R. WILLIAMS,RECORDED JULY 12, 1961 IN BOOK 5782, PAGE 373 OF OFFICIAL,
RECORDS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,SAID STRIP LYING
85.00 FEET ON EACH SIDE OF A LINE HAVING A BEARING OF NORTH 5 DEGREES 17' 04"EAST
AND PASSING THROUGH A POINT OF THE CENTER LIME OF THAT CERTAIN STRIP OF LAND,
60 FEET WIDE; DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED MARCH 22,
1916, IN BOOK.281,PAGE 245 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER, SAID
Fite Number: 183299 Paee 3 of 7
BEING DISTANT ALONG SAID CENTER LINE NORTH 51 DEGREES l I' 00' WEST,267.98 FEET
FROM A LEAD AND TACK MARKING THE NORTHERLY TERMINUS OF THA CER'T'AIN CURVE
CITED AS HAVING A RADIUS OF 800 FEET,A CENTRAL ANGLE OF 40 DEGREES 54'AND AN
ARC LENGTH OF 571.07 FEET IN THE CENTER LINE OF THAT CERTAIN STRIP OF LAND,60
FEET WIDE,DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24,
1925 IN BOOK 557, PAGE 305 OF SAID DEEDS.
EXCEPT THAT PORTION THEREOF INCLUDED WITHIN THAT CERTAIN STRIP OF KABDM 100
FEET WIDE, DESCRIBED IN DEED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT.
RECORDED AUGUST 27, 19-57 IN BOOK 898 PAGE 576 OF SAID OFFICIAL RECORDS.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT FOR PUBLIC UTILITY AND PIPE LINE PURPOSES INCLUDING
THE RIGHT TO REPLACE, REMOVE, REPAIR AND MAINTAIN SAID PIPE LINE OR LINES OVER,
THROUGH, UNDER AND ALONG THAT PORTION OF LOT 6 OF TRACT NO.1 I2,AS SHOWN ON A
MAP RECORDED IN BOOK 11, PAGE 12 OF MISCELLANEOUS MAT'S, RECORDS OF ORANGE
COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF SAID LOT 6 WITH
AND DISTANT 40.00 FEET NORTHEASTERLY,MEASURED AT RIGHT ANGLES FROM THE
CENTER LINE OF THE CALIFORNIA STATE HIGHWAY, AS DESCRIBED IN A.DEED RECORDED
MARCH 22, 1916 IN BOOK,281, PAGE 245 OF DEEDS;THENCE NORTH 51 DEGREES I P 00" WEST
131.89 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING
A RADIUS OF 2560.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 5 DEGREES 29' 37"A DISTANCE OF 245.46 FEET,SAID POINT BEING THE
TRUE POINT OF BEGINNING;THENCE NORTH 38 DEGREES 49' 00" EAST 108.21 FEET;THENCE
NORTH 51 DEGREES I P 00" WEST 5.00 FEET;THENCE SOUTH 38 DEGREES 49' 00"WEST 107.73
FEET TO THE BFIGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVI1i G A RADIUS OF
2560 FELT,A RADIAL.LINE THROUGH SAID POINT BEARS SOUTH 44 DEGREES 2522"WEST:
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF O
DEGREES 06' 45"A DISTANCE OF 5.43 FEET TO THE TRUE POINT OF BEGINNING.
(End of Legal Description)
File Number: 183299 Pa-we 4 of
I `. . , SECTOR 'A'
SECTOR C cE)40'-0'TREE -
310-
300NEW RF TRMS.
PROPOSED ORSE CL ANTENNAS FAX WATER TANK FOR
(4 PER SECTOR,3 SECTORS TOTAL) PAREL ANTENNAS) �'
&2 TMA'S PER SECTOR .P
7
PROPOSED METAL SAFETY
_ RAILING AROUND AV
WATER TANK PLATFORM
(E)55'-0-TREE NEW WATER TANK LEGS TO BE
PANTED WIN rAUX WOOD
.J`�'APPEAftAHCE.
COLOR TO BE (E)NURSERY^-
vAhOUS SPADES OF BROWN TO
NEW ACCESS wtFOR �. ! A ' REPRESENT FAUX WOOD GRAIN
AND FLOOR FOR J _o• ��_..�.`!
ANTENNA ACCESS .' } r
! I_
y
L fie)24�D'TREE \ Y Y
,i-i(E)41'-0"TREE.
v
h O \ n
(C)50•-0"TREE '.
l L
PROPOSED2s7 FAUX ,. ..,..
WATER PIPE FOR
COAX GABLE 10
' ANTENNAS
o PROPOSE'ACCESS ApEN
Oj 5 b WITk!SCARE ANO
SHRO Jr
METAL SHROl10 WITH LOCK
A7 BASE
,...,` ✓. � / ,.. ;mo-:
1'ROPOSCD T-MODLE
.-.OPS fHTENNA MOUNTED ��• _ A+
r 10(N)-WATER TANKRUS-
rN
;(E;AS'-0'TREE
' SECTOR B
\ C PROPOSE'i-M08ILE \
-r1 _ p �x CLOD.METER PCDESTAi�':.
llo
ANTENNA LAYOUT SCALE! }�
�-^-� 2 (E)UTA.ITY POLE -
J4 --- (PROPOSED T-mMX.E
POWER P.D.C.) �
-'.
PRDPUSED.24'0 FAUX"'
„R SPFE FOR
COAX CABLE
TO % PROPOSE' 4'-0'
W1DC ACC#ICSS GAT£"\
PROPOS pE W-O'TALL T-MODLE SLUMP `\
570.4E BLOCK ENCLOSURE \ .
/ (lnS51CN SLUMPP By BY ORC4 8LOC1(,
VATH IMI��AT'CHNG GROG COLOR( \
PROP05E'p 7-MOBILE
FCVWI*ENT CA@KETS
o, {6 iS1TAL} \
NEW WATER TANK LOGS TO BE
/ \ PANTED WASH FAUX WOOD
APPEARAMCE.CDLpR r0 8E
> VARIOUS SHAMS OT BROWN TO
I�REPRESENT FAUX WOW GRAK 9/
PROPOSED UNDERGROUND
POWER CONOUtT
PROPOSED T-MMLE
WUTY H-FRAME
\ \ti
PROPOSED COAX CABLE
\\ to <
rM WITH T,/4'DIAMOND
PLATE COVER -� \ PROPOSED ACCESS PATCH
NEW LANDSCAPE VMES-
PROPOSED ACCESS LA M
INCH SAFETY CAp,LE ANDD METAL
SHROJD WITH Lou AT
BASE
I I
� J PRp?OSEO UNOERCROUNO
TELCO CONLUI
SCA c: ��
EQUIPMENT LAYOUT ( /4 -j' () 0 2' 4' 3 ENLARGED SITE PLAN