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11-0517_T-MOBILE WEST CORPORATION_Wrl Com Facilities Site LeaseCITY OF SAN JUAN CAPISTRANO WIRELESS COMMUNICATIONS FACILITIES SITE LEASE -\~ This Communications Site Facilities Lease (the "Lease") is made and entered into this Ft day of y ~, 2011 ("Effective Date"), by and between the CITY OF SAN JUAN CAPIS , a Califorrua Muructpal Corporation (herem "LESSOR"), and T-MOBILE WEST CORPORATION, a Delaware corporation (herein "LESSEE") (hereinafter colJectively 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 instalJ 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 hf!rei:l, .. ;\e receipt and sufficiency of which is nereby acknowledged, the Parties to this Lease do hereby agree as follows: l. LEASED PREMISES: l.l DEMISE: LESSOR leases to LESSEE a portion of the Property as more particularly depicted and/or 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 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" s hall 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 LAI3 168E Camino Tree· FLNAL 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 an 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 amopnt set forth in this section. Thereafter, Base Rental will be payable each month in advance by the fifth each month of the Initial Term of the Lease and all Renewal Terms, if any, payable to the City of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, California 92675, Attn: Accounts Receivable, Finance Department. In addition, LESSEE agrees to do and perform all other covenants and agreements contained in this Lease. 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 2 LAI3168E Camino Tree-tJNAL 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 af'"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. 3 LAI3168E Camino Tree-FINAl, 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 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, 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 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 4 LAI ~ l68E Camino Tree-FINAL 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 s:;ch contest, LESSEE shall provide LESSOR with a secu,-ity bo·,d 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. 5 LA\Jl68E Cammo Tree-FINAL 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: !fuse 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: I. 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 deflmlt 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 6 LAI3168E Camino Tree-FINAL expiration of the second Renewal Term, to terminate this Lease without liability upon one (I) 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 terminatio~ 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 ofthe 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 (1 0) 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 7 LA 13 168E Carrnoo Tree-FTNAL 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 SUBSEQUENT PROPERTY LEASES: LESSOR agrees to include in all leases between LESSOR and future lessee's of the Property a covenant that the lessee shall not interfere with other electrical or radio frequency equipment previously installed on the Property and that if the lessee is not able to mitigate the interference, the lease shall provide for termination thereof. Likewise, LESSOR will not permit or allow the installation of any future equipment which (i) results in technical interference problems with LESSEE's then existing equipment or (ii) encroaches onto the Premises. 9.3 NON-INTERFERENCE: The conununication equipment and the use thereof shall not interfere with the use of any other conununication 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 c2uses 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 Conunission. 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 conununication 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 Conununication 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. 8 LAJ3168E Camino Tree-FINAl- 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 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, rcnalties, 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 willful misconduct of the LESSOR, LESSOR's Parties, or LESSOR's agents, contractors, tenants, guests, invitees, or licensees. 9 LAI3 t68E Camino Tree-FINAl- 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 term 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 i~ury to persons and/or property and death of any person or persons which may occlli· 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. I 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 10 LA 13168£ Camino Tree-FINAL 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 fmancially 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. I 4.4 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 subsidiu.-y 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. 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: 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 II LAl3168E Camino Tree~ FfNAJ. 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 Prope:ty. 17. MISCELLANEOUS: 17 .I NO WAIVER: No covenant, term, or condition thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed. Any waiver or the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance by LESSOR of performance other than full performance by LESSEE after the time the performance shall have become due shall not constitute a waiver by LESSOR of the breach or default of any covenant, term, or condition unless otherwise expressly agreed to by LESSOR in writing. 17.2 ATTORNEY'S FEES AND COSTS: If either Party hereto shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by LESSOR for the recovery of rent or possession of the Premises, the prevailing Party shall be entitled to have and recover from the other Party the prevailing Party's reasonable fees and costs (including attorneys' fees), which shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to a judgment. 17.3 NO JOINT VENTURE: Neither LESSOR nor any of its employees shall have any control over the manner, mode or means by which LESSEE, its agents or 12 IAI3168E 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 ofthe 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. 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 13 LA1316&E Camino Tree-FINAL Copy to: Attn: City Manager 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 38th Street Bellevue, W A 98006 Copy to: Attn: PCS Lease Administrator I LA 13168 Attn: Legal Department I LA 13168 T-Mobile West Corporation 2008 McGaw Avenue Irvine, CA 92614 Attn: Lease Administrator Manager I LA 13168E Attn: Legal Department I LA 13168E 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 bav"! tre authority to approve a decrease in L'le Base Reutal rat.; without the prior approval of the City Council. [SIGNATURE PAGE FOLLOWS] 14 LA13168E Cammo Tree-FINAL IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by their duly authorized officers. LESSOR CITY OF SAN JUAN CAPISTRANO, a California municipal corporation By:~.~~ Date: 6 -~ -(( TAX ID#: __________ _ Approved as to form: QL 1 lfJ 1lcwL~0Cl f 1ty Attorney LA 13 168E Cammo Tree-FINAL LESSEE T-MOBILE WEST CORPORATION, a Delaware corporation Name: Title: ----- Christoph er E:ld ndge ~)~rector of Reg1o nal DeY. Date: .S ·2.. 4 \\ Approved as to form: 15 LA13168E Camino Tree-FINAL EXHIBIT A DESCRIPTION OF THE PROPERTY 16 EXIDBIT A DESCRIPTION OF THE PROPERTY PARCEL 1: THOSE PORTIONS OF SECTIONS 25 AND 36, TOWNSHIP 7 SOUTH RANGE 8 WEST, SAN BERNARDINO BASE AND MERJDIAN, AND THAT PORTION OF LOT 6 OF TRACT NO. 112 , AS SHOWN ON A MAP RECORDED IN BOOK I I, 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 WJTH AND DISTANT 40.00 FEETNORTHEASTERLY,MEASURED AT RIGHT ANGLES, FROM THE CENTER LINE OF THE CALIFORNIA STATE HIGHWAY, AS DESCRIBED IN THE DEED RECORDED MARCH 22, 19161N BOOK 281 , PAGE 245 OF DEEDS, RECORDS OF SAID COUNTY; THENCE SOUTH 51 DEGREES II '00" EAST, 131.98 FEET ALONG SAID PARALLEL LINE TO THE NORTHWESTERLY LINE OF THAT CERTAIN 20.00 FOOT-WIDE STRJP OF LAND DESCRIBED IN A DEED TO THE STATE OF CALIFORNIA, RECORDED MARCH 30, 1934, IN BOOK 660 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 II' 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 THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE Of SAID STRIP OF LAND; THENCE NORTH 38 DEGREES 49' 01 " WEST, 293.39 FEET; THENCE NORTH 46 DEGREES 2 0 ' 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 NORTHEWESTERLY ALONG SAlD CURVE THROUGH A CENTRAL ANGLE OF I DEGREE 43 '45", A DISTANCE OF 86 .62 FEET; THENCE TANGENT TO SAlD CURVE NORTH 51 DEGREES II' 00" WEST, 680 .35 FEET; THENCE SOUTH 38 DEGREES 49 ' 00" WEST, I 08 .21 FEET TO THE BEGlNNING OF A NON- TANGEENT CURVE CONCAVE NORTHEASTERLY HAYING 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 SAlD CURVE THROUGH A CENTRAL ANGLE OF 5 DEGREES 29' 37", A D ISTANCE OF 245.46 FEET TO THE POINT OF TANGENCY WITH THE FIRST HEREIN MENTIONED PARALLEL LINE; THENCE SOUTH 51 DEGREES II ' 00" EAST, 131.89 FEET TO THE POINT OF BEGINNING. EXCEPTING THAT PORTION DEEDED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT, DESC RIBED AS FOLLOWS: A STRIP OF LAND, 170 FEET WIDE, IN THOSE PORTIONS OF SECTIONS 25 AND 36 , TOWNSHJP 7 SOUTH, RANGE 8 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE DISTRICT LAND OFFICE, AS DESCRJBED 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 LINE 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 SA ID COUNTY RECORDER, SAID File Nwnber: 183299 Page 3 of7 BEING DISTANT ALONG SAID CENTER LINE NORTH 51 DEGREES II' 00' WEST, 267.98 FEET FROM A LEAD AND TACK MARKING THE NORTHERLY TERMINUS OF THA CERTAIN 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 I 00 FEET WIDE, DESCRIBED IN DEED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT, RECORDED AUGUST 27, 1937 IN BOOK 898 PAGE 576 OF SAID OFFICIAL RECORDS. PARCEL2: 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.II2, AS SHOWN ON A MAP RECORDED IN BOOK II, PAGE 12 OF MISCELLANEOUS MAPS, 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 HJGHWA Y, AS DESCRIBED IN A DEED RECORDED MARCH 22, 1916 IN BOOK 281, PAGE 245 OF DEEDS; THENCE NORTH 51 DEGREES II' 00" WEST 131.89 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RAD!US 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 I 08.21 FEET; THENCE NORTH 51 DEGREES I I' 00" WEST 5.00 FEET; THENCE SOUTH 38 DEGREES 49' 00" WEST I 07.73 FF.ET TO THE BF.G!Nl\IING OF A CURVE CONCAVE NORTHEASTERLY HAViJ';G A RI.O!US OF 2560 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 44 DEGREES 25' 22" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0 DEGREES 06' 45" A DISTANCE OF 5.03 FEET TO THE TRUE POINT OF BEGINNING. (End of Legal Description) File Number: 1 83'299 P<~gc ..f. of7 EXHIBITB DESCRIPTION OF THE LEASED PREMISES 17 LAIJJ68E Camino Tree-FINAL