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Home My WebLink AboutOMNIPOINT COMMUNICATIONS, INC. 1 - 2005 Iw'U"\,,"\\II" ,~ nj"',J WORK M;\'j fL, i 1 CLERK jf 'il DATL ~)' I . ,fI (3J O~ 5e0"[ I L eC/LV"''^"61 " "jt \ i~1 :E) A-2005-291 ,;(, LAND LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND OMNIPOINT COMMUNICA nONS INC. for Jerome Park This Agreement, made this 5th day of December, 2005 between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California hereinafter designated "LESSOR" and Omnipoint Communications Inc" a subsidiary of T-Mobile USA, Inc" a Delaware corporation hereinafter designated "LESSEE". The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties". I, PREMISES, LESSOR hereby leases to LESSEE a portion of that certain parcel of property commonly known as Jerome Park (the entirety of LESSOR's property is referred to hereinafter as "the Property" and a legal description ofthe Property is attached hereto as Exhibit "A"), located at 888 W, Santa Ana Blvd, Santa Ana CA, and being described as a 12' by 24' parcel containing 384 square feet and space required for cable runs to connect LESSEE's equipment and antennas, together with the non-exclusive right for ingress and egress from and to the nearest public right-of-way, seven (7) days a week, twenty-four (24) hours a day, subject to any restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a twelve (12') foot wide right-of-way extending from the nearest public right-of-way, to the demised premises, said demised premises and right-of-way (hereinafter collectively referred to as the "Premises") for access being substantially as described herein in Exhibit "B" attached hereto and made a part hereof. In the event any public utility is unable to use the aforementioned right-of-way, the LESSOR hereby agrees to grant an alternative right-of-way either to LESSEE or to the public utility, subject to LESSOR's approval of location and size of said alternative right-of-way, at no cost to LESSEE. 2, SURVEY, LESSOR also hereby grants to LESSEE the right to survey the Property and the Premises, and said survey along with detailed site plans shall then become Exhibit "B" which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies between it and Exhibit "A". Costs incurred for such work shall be borne by LESSEE. 3. TERM. This Agreement shall be effective as of the date of execution by both parties, provided, however, the initial term shall be for ten (10) years and shall commence on the Commencement Date (defined below). 4. RENT. After the Commencement Date, rental payments will be due in an annual rental amount of twenty eight thousand eight hundred dollars ($28,800.00) to be paid in equal monthly installments of two thousand four hundred dollars ($2,400.00) per month on the first day of the month, in advance, to LESSOR or to such other person, firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. Rent shall be abated until thirty (30) days after the issuance of a building permit or until twelve (12) months after the date of execution of this Agreement, whichever occurs first ("Commencement Date"). If rent is not paid within fifteen (15) days after the due date and provided LESSOR has complied with all applicable notice and cure provisions herein, LESSEE agrees to pay a late charge equal to six percent (6%) of the then-current monthly rent. Rental amounts attributable to partial months shall be prorated on a daily basis. 5. ANNUAL RENTAL INCREASES. The rent payments shall be subject to an annual rental increase of three percent (3%) per year, to be increased on each anniversary of the Commencement Date. 6. DEPOSIT. In recognition that the Commencement Date may not occur concurrent with the execution of this Agreement by all parties, LESSEE hereby agrees to pay to the LESSOR upon execution of this Agreement, a one-time, non-recurring, non-refundable payment equal to one (1) month's rent. 7, EXTENSIONS. LESSEE is granted options to extend this Agreement for up to three (3) additional five-year (5) terms (each a "Renewal Term"), Each Renewal Term shall be on the same terms and conditions as set forth herein and subject to the approval of the City Manager and Executive Director of Parks Recreation and Community Services as follows: after the expiration of the original term, LESSOR reserves the right to deny any such extension, by providing no less than six (6) months prior written notice before the extended term Site #: LA03010A Site Name: TMOIO Jerome Park Market: Califomia ends, if the LESSOR determines, in its reasonable discretion that LESSEE's continued tenancy would not be in conformity with the LESSOR's intended use of its Property at such time. LESSEE may decline its option to renew at the end of the then-current term by giving LESSOR written notice of the intent to terminate at least thirty (30) days prior to the end of the then current term. 8. GOVERNMENTAL APPROVALS. It is understood and agreed that LESSEE's ability to use the Premises is contingent upon its obtaining all of the certificates, permits and other approvals (collectively the "Goverrunental Approvals") that may be required by any Federal, State or local authorities as well as satisfactory soil boring tests which will permit LESSEE's use of the Premises as set forth herein. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action, which would adversely atlect the status of the Property with respect to the proposed use by LESSEE. Prior to the Commencement Date, LESSEE shall have the right (but not the obligation) to enter the Premises for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (collectively "Tests") to determine the suitability of the Premises for LESSEE's Facilities (as defined below and in Exhibit D attached hereto) and for the purpose of preparing for the construction of LESSEE's Facilities. In the event that any of such applications for such Governmental Approvals should be finally rejected or any Governmental Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by the governmental authority or soil boring tests are found to be unsatisfactory so that LESSEE will be unable to use the Premises for its intended purposes or LESSEE determines that the Premises is no longer technically compatible for its intended use, LESSEE shall have the right to terminate this Agreement. Notice of LESSEE's exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by LESSEE. All rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and all the Parties shall have no further obligations including the payment of money, to each other. 9. APPROVAL OF PLANS. Prior to commencing construction of LESSEE's Facilities (defined below), LESSEE shall obtain LESSOR's approval of LESSEE's work plans, which approval shall not be umeasonably withheld, conditioned, or delayed; such approval shall be issued by the Executive Director of the Parks, Recreation and Community Services Agency or hislher designee. LESSOR shall give such approval or provide LESSEE with its requests for changes, which changes must comply with all applicable building codes, in writing within fifteen (15) working days of LESSOR's receipt of LESSEE's work plans. If LESSEE does not receive such approval or request for changes in writing within such fifteen (15) working day period, LESSOR shall be deemed to have approved the plans. LESSOR shall not be entitled to receive any additional consideration in exchange for giving its approval of LESSEE's plans. 10. USE. LESSEE may use the Premises for any lawful activity in connection with the provisions of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance, and operation of related communications facilities. Accordingly, LESSEE shall have the right to construct, maintain, install, repair, and operate on the Premises radio communications facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements ("LESSEE's Facilities"). All improvements shall be at LESSEE's sole expense and the installation of all improvements shall be at the discretion and option of LESSEE, with LESSOR approval, which approval shall not be unreasonably withheld, delayed or conditioned. Said approval shall be obtained from LESSOR prior to commencement of any construction, alterations, modifications or improvements pursuant to Section 9 above, and LESSEE agrees to submit architectural and engineering drawings ("Plans") of the equipment to be installed. LESSEE agrees that the installation and maintenance of LESSEE's Facilities shall be effected with all reasonable diligence and precaution to avoid damage to the land, property or personnel. Notwithstanding the foregoing, once the initial improvements are installed, LESSEE may replace, substitute, upgrade and expand its equipment, cables and antennas which comprise LESSEE's Facilities for the purpose of repairing or upgrading the communications capabilities of LESSEE's Facilities, with notice to LESSOR, so long as the equipment, cables or antennas remain within the original physical parameters of the Premises. LESSEE shall not make any substantive physical and/or aesthetic changes to the Premises without the prior approval of LESSOR which shall not be unreasonably withheld, conditioned or delayed. Any such changes are subject to the provisions of Section 13 contained herein below. LESSEE shall be responsible for the cost of any and all damage to park property including but not limited to turf, concrete and/or asphalt, buildings and/or apprentices caused by LESSEE regardless of negligence. LESSOR at its discretion may require LESSEE to repair and or replace said damages or contract for said services and bill LESSEE. The cost of said repairs can be subtracted from any deposits Site #: LA030lOA Site Name: TMOIO Jerome Park Market: California 2 retained by LESSOR. LESSEE shaH have the right to instaH any warning signs on or about the Premises required by federal, state or local law. LESSEE's Facilities shall be constructed and maintained in a manner and with materials that are consistent with the approved plans for the project. The materials actuaHy used must match up with the proposed materials and artistic renderings. LESSOR shaH provide LESSEE, LESSEE's employees, agents, contractors, subcontractors and assigns with access to the Premises twenty-four (24) hours a day, seven (7) days a week, at no charge to LESSEE. LESSOR represents and warrants that it has full rights of ingress to and egress from the Premises, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the Premises, and to remove them therefrom. LESSOR shall, at its sole expense, maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow reasonable access to the Premises by LESSOR. Except in cases of emergency, LESSEE agrees to provide twenty-four hours notice to LESSOR before any installation, maintenance, replacement or repair is to take place on the Premises. In the event that maintenance is required, such as the replacement of missing branches or the repainting of LESSEE's Facilities, such maintenance must be completed by LESSEE within thirty (30) days. II. INDEMNIFICATION. A. LESSEE's Indemnity. LESSEE shall indemnify, defend and hold LESSOR its officers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims") occurring on the Premises and arising out of or connected with the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors except for Claims arising out of (i) the negligence or willful misconduct of LESSOR, its officers, agents, employees, successors, assigns, or contractors; (ii) violation of law by LESSOR, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSOR under this Agreement; or (iv) any condition relating to the Premises which LESSEE has no obligation to repair or maintain. B. LESSOR's Indemnity. LESSOR shall indemnify, defend and hold LESSEE, its officers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims") occurring on the Premises and arising out of or connected with the negligence or willful misconduct of LESSOR, its officers, agents, employees, or contractors, including, but not limited to City Business as defined in Section 17 below, except for Claims arising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors; (ii) violation of law by LESSEE, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSEE under this Agreement; or (iv) any condition relating to the Premises which LESSOR has no obligation to repair or maintain. 12. INSURANCE. A. In accordance with the provisions of Section 3300 of the Labor Code, if LESSEE has any employees it is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing performance of this Agreement, LESSEE agrees to obtain and maintain employer's liability insurance with limits not less than $1,000,000 per accident. If LESSEE has no employees, nor workers' compensation coverage, it must execute a Declaration available from LESSOR, and update as is necessary. B. LESSEE shall obtain, at its sole cost, a policy or policies of commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance sliall: (I) name LESSOR, its officers, agents, representatives, employees and volunteers as additional insureds (see sample Exhibit C); (2) be primary with respect to insurance or self-insurance programs maintained by LESSOR; (3) contain standard separation of insured's provisions; and (4) give to LESSOR prompt and timely notice of claim made or suit instituted arising out of LESSEE's operations hereunder. LESSEE shall: (a) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and additional insured endorsement to LESSOR which shall clearly evidence all coverages required above; (b) provide that such insurance shall not have its required limits reduced or terminated except on thirty (30) days prior written notice to LESSOR; (c) maintain such insurance for the period covered by this Agreement; and (d) replace such certificates for policies expiring prior to the expiration of this Agreement. 13. INTERFERENCE. LESSEE's Facilities shall not disturb the communications configurations, equipment, and frequency, which exist on the Property on the date this Agreement is fully executed ("Pre-Existing Site If: LA030lOA Site Name: TMOIO Jerome Park Market: California 3 Communications") and LESSEE's Facilities shall comply with all non-interference rules of the Federal Communications Commission ("FCC"). LESSOR shall not use, or permit the use of, any portion of the Property in any way, which interferes with LESSEE's use of the Premises or encroaches upon the Premises. In addition to any other rights LESSEE may have hereunder, LESSEE shall have the right to bring legal action to enjoin such interference against the party causing any alleged interference andlor immediately terminate this Agreement. Notwithstanding the foregoing, Pre-Existing Communications operating in the same manner as on the date this Agreement is fully executed shall not be deemed interference. LESSOR shall require any future tenants, assignees, licensees, or occupants using any portion of the Property for the operation of mobile/wireless or radio communications facilities to comply with the provisions of this Section and shall obtain LESSEE's written consent prior to allowing such use of the Property, which such consent shall not be unreasonably withheld, conditioned, or delayed, provided that LESSEE's consent may be withheld if interference with LESSEE's transmissions, receptions, operations, or use of frequency will result due to such use, whether or not such interference is with LESSEE's frequencies or otherwise. The Executive Director of Parks shall determine whether consent is umeasonably withheld and may require LESSEE to consent subject to the above conditions. 14. REMOVAL UPON TERMINATION. LESSEE, upon expiration or earlier termination of the Agreement, shall, within ninety (90) days, remove all of LESSEE's fixtures and all personal property and otherwise restore the Premises substantially to its original condition, at LESSEE's sole expense, reasonable wear and tear, and casualty excepted. Underground conduits and foundations may remain at LESSOR's option. LESSOR agrees and acknowledges that all of the equipment, fixtures and personal property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to remove the same, whether or not said items are considered fixtures and attachments to real property under applicable law. If such time for removal causes LESSEE to remain on the Premises past the aforementioned ninety (90) day period after the expiration or earlier termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are completed. Antenna support structure and all utilities cabling and wiring shall remain at LESSOR's option in as-is condition. IS. RECORDING AND OUITCLAIM DEED. If requested by LESSEE, LESSOR agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land Lease Agreement in the form of Exhibit "F". LESSEE agrees to execute and record a quitclaim deed or other instrument evidencing the termination of LESSEE's interest in the Property upon the expiration or termination of this Agreement. 16. RIGHTS UPON SALE. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such sale shall be under and subject to this Agreement and LESSEE's rights hereunder, and any sale by the LESSOR of the portion of this Property underlying the right-of-way herein granted shall be under and subject to the right of LESSEE in and to such right-of-way. LESSOR shall obtain for the benefit of LESSEE a reasonable non-disturbance agreement from the present and any future mortgagee(s) or holder(s) of a deed of trust confirming that LESSEE's right to quiet possession of the Premises during this Agreement shall not be disturbed, so long as LESSEE is not in default under this Agreement. 17. OUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Premises, provided however, that LESSOR shall have the right and privilege to conduct City Business on the Property, as necessary and to lease Tower 2, as set forth in Paragraph 25, below. "City Business" shall include, but not be limited to the following: minor maintenance, minor landscaping, minor construction) concessionaires, and City sponsored events, located near the Premises, so long as the City Business does not interfere with or impair the operation of LESSEE's Facilities. 18. TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property or affecting LESSOR's title to the same and that there are no covenants, easements or restrictions which prevent the use of the Premises by LESSEE as set forth above. 19. NO LIENS. LESSEE will not permit any mechanics' or materialmen's liens on the Property for any labor or material furnished to LESSEE in connection with work performed. LESSEE shall have the right to contest the validity, nature, or amount of any such lien but, upon the final determination of such questions, shaH immediately pay any adverse judgment rendered with all proper costs and charges and have the lien released at its Site It: LA03010A Site Name: TMOIO Jerome Park Market: California 4 own expense. If LESSEE desires to contest any such lien, then prior to commencing such contest, it will post a bond, where necessary, to release the lien. 20. MISCELLANEOUS LESSEE RESPONSIBILITIES. A. Maximum Permissible Exposure - LESSEE shall comply with all present and future laws, orders and regulations relating to Maximum Permissible Exposure ("MPE") and other related health issues directly applicable to its operation of LESSEE's Facilities, as well as the American National Standards Institute (ANSI) standards. Without limiting the provisions of LESSEE's indenmity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indenmify LESSOR from and against all claims of personal injuries due to violation ofMPE to the extent such personal injuries are actually caused by LESSEE's Facilities on the Premises. B. LESSEE shall maintain LESSEE's Facilities and shall make all repairs to the Premises necessitated to keep the Premises safe. LESSOR may require LESSEE to make repairs to and/or replace damaged equipment of LESSEE's Facilities and/or any parts thereto regardless of fault (including but not limited to damage caused by vandalism or acts of god not later than one (I) week after said damage is reported to LESSEE, except for damage caused by LESSOR. This time period may be extended with written authorization from the Executive Director of Parks and Recreation. In the event such authorization is not given and repairs are not made in one week, LESSOR may cause such repairs to be made including making said repairs and/or hiring a consultant to make said repairs. LESSOR may charge LESSEE for the cost of said services. Damage caused by graffiti shall be removed within forty-eight (48) hours notification to LESSEE by LESSOR. If said graffiti is not removed within the 48-hour period, City may remove said graffiti and bill LESSEE for the cost of services. C. LESSEE shall pay all personal property taxes assessed directly against its equipment and all increases in LESSOR's real property taxes or assessments directly attributable to installation of LESSEE's equipment or LESSEE's use of the Premises, within sixty (60) days after receipt of satisfactory documentation indicating calculation of LESSEE's share of such real estate taxes and proof of payment provided that such amounts are in fact due within the said sixty (60) day period. LESSEE has the right to challenge any unreasonable tax assessment D. LESSOR grants LESSEE the right to obtain utilities for the operation of LESSEE's Facilities. LESSEE shall be responsible directly to the serving entities for any and all utilities required by LESSEE for its use of the Premises. LESSOR shall cooperate with LESSEE in its efforts to obtain utilities from any location provided by LESSOR or the servicing utility, including signing any easement or other instrument reasonably required by the utility company. E. LESSEE shall have the right to replace or repair its equipment or any portion thereof during the term of this Agreement. LESSEE will maintain the Premises in a good condition, reasonable wear and tear excepted. 21. EMERGENCY USE OF SITE. LESSEE shall make available to the police, fire and emergency services of the City of Santa Ana space on its communications tower at no cost to LESSEE or said entities, subject to structural analysis. The City of Santa Ana is responsible for maintaining its own equipment. The space to be made available will not create interference with LESSEE's communications operations. As to any future subleases, their respective installations will be permitted only at such locations that will not cause interference with LESSEE or LESSOR and the City's operations. The City entities will be afforded 24-hour access to its equipment at the Property. In addition, the City will be provided "power backup" by LESSEE, if available at the Premises. 22. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the Parties. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, either in law or in equity. Site #: LA03010A Site Name: TMO I 0 Jerome Park Market: California 5 23. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of California, with venue in Orange County. 24. ATTORNEYS' FEES. The substantially prevailing party in any legal action or lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. 25. ASSIGNMENT. A. LESSEE will not assign or transfer this Agreement or sublet any portion of the Premises without the prior written consent of LESSOR, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that LESSEE shall have the right to sublease or assign its rights under this Agreement, to any of LESSEE's (i) partners, parents, subsidiaries, affiliates, or successor legal entities, (ii) in connection with the sale, exchange, or other transfer of LESSEE's FCC authorization for the geographic area in which the Premises are located or of majority of LESSEE's network assets in the geographic area where the Premises are located, or (iii) in connection with any financing, loan, security interest, pledge, or mortgage of LESSEE's property. B. LESSEE and LESSOR acknowledge and agree that LESSEE will install facilities that will consist of two separate communications towers and equipment rooms. LESSEE further agrees that LESSOR, and not LESSEE, shall retain ownership and is responsible for the maintenance and repair of the second Tower and the equipment room associated with that Tower ("Tower 2"). Further LESSOR shall retain the authority and absolute right to enter into a LEASE AGREEMENT with a second mobile/wireless communications provider ("LESSEE 2") to utilize Tower 2. The Lease Agreement for Tower 2, shall include a provision that prior to commencement of the Lease Agreement for Tower 2, LESSEE 2 will reimburse LESSEE for a pro rata share of the construction costs incurred by LESSEE in constructing the facilities Pro rata share is defined by the number of wireless carriers on the second Tower. 26. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: City of Santa Ana Executive Director Parks, Rec. & Connnunity Services (M-23) 888 W. Santa Ana Blvd. Santa Ana, CA 92702 Courtesy Copy to City of Santa Ana - Office of the City Attorney 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 LESSEE: T-Mobile USA, Inc. 12920 SE 381h Street Bellevue, W A 98006 Attn: PCS Lease Administrator With a copy to: Attn: Legal Dept. Copy to: OMNIPOlNT COMMUNICATIONS INC., a subsidiary ofT-Mobile USA, Inc. (Site #: LA0301OA) 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Manager Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above. Site #: LA030lOA Site Name: TMO 1 0 Jerome Park Market: California 6 27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representatives, successors, administrators and assigns of the Parties hereto. 28. RELOCATION RIGHT. A. Anytime after the expiration of the original term, LESSOR shall have the one-time right, upon redevelopment of the Property, to relocate LESSEE's Facilities to alternate space within the Property, if available; provided however, that such relocation shall (I) be at LESSOR's sole cost and expense, (2) be performed by LESSEE or its agents, (3) not result in any interruption of the communications service provided by LESSEE on the Property, (4) not impair, or in any manner alter, the quality of communications service provided by LESSEE on and from the Property, and (5) be done in accordance with subsections B and C below. Upon relocation of LESSEE's Facilities, the access and utility rights of way will be relocated as required, in the sole discretion of LESSEE, to operate and maintain LESSEE's Facilities. B. LESSOR shall exercise its relocation right under subsection A above by (and only by) delivering written notice (the "Notice") to LESSEE. In the Notice, LESSOR shall propose an alternate site within or on the Property to which LESSEE may relocate LESSEE's Facilities. LESSEE shall have sixty (60) days from the date it receives the Notice to evaluate LESSOR's proposed relocation site, during which period LESSEE shall have the right to conduct tests to determine the technological feasibility of the proposed relocation site. If LESSEE fails to approve of such proposed relocation site in writing within the sixty-day period, LESSEE shall be deemed to have disapproved such proposed relocation site. If LESSEE disapproves such relocation site, then LESSOR may thereafter propose another relocation site by Notice to LESSEE in the manner set forth above. Any relocation site which LESSOR and LESSEE agree upon in writing shall be referred to as the "Relocation Site." LESSEE shall have a period of not less than twelve (12) months after execution of a written agreement between the parties concerning the location and dimensions of the Relocation Site to relocate LESSEE's Facilities to the Relocation Site. Upon relocation of LESSEE's Facilities to the Relocation Site, all references to the Premises herein shall be deemed to be references to the Relocation Site. LESSOR and LESSEE agree that the Relocation Site (including the access and utility right of way) may be surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey will then replace Exhibit "B" and become a part hereof and will control or describe the Premises. Except as expressly provided, LESSOR and LESSEE hereby agree that in no event will the relocation of LESSEE's Facilities, or any part thereof, under subsection A above, affect, alter, modify or otherwise change any of the terms and conditions of this Agreement. C. Should the parties fail to agree on a suitable Relocation Site, LESSOR may pay LESSEE the depreciated value for LESSEE's Facilities and equipment should the Premises be needed for a governmental purpose. 29. DEFAULT. In the event there is a default by either party with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, the non-defaulting party shall give the defaulting party written notice of such default. After receipt of such written notice, the defaulting party shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non-monetary default, provided the defaulting party shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and the defaulting party commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. The non-defaulting party may not maintain any action or affect any remedies for default against the defaulting party unless and until the defaulting party has failed to cure the same within the time periods provided in this Section. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of suit. 30. ENVIRONMENTAL. A. LESSEE shall not bring any Hazardous Materials onto the PremisesiProperty, except for those contained in its back-up power batteries and common materials used in telecommunications operations. "Hazardous Materials" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation, including petroleum and asbestos. LESSEE will treat and dispose of any Hazardous Materials brought onto the PremiseslProperty by it in accordance with all federal, state and local laws and regulations. Site #: LA030lOA Site Name: TMO] 0 Jerome Park Market: California 7 B. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions or concerns are caused by the activities of LESSEE. C. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties, responsibilities, and liability (including but not limited to payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in any way related to: (i) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such compliance results from conditions caused by LESSEE; and (ii) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions are caused by LESSEE. 31. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within sixty (60) days following same or, ifthe Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE's operations at the Premises for more than sixty (60) days, then LESSEE may at any time following such fire or other casualty, provided LESSOR has not commenced the restoration required to permit LESSEE to resume its operation at the Premises, terminate this Agreement upon twenty (20) days written notice to LESSOR. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Agreement. If LESSEE decides not to terminate this Agreement, Rent shall be abated proportionally to the reduction of use. 32. CONDEMNATION. In the event of any condemnation of the Premises, LESSEE may terminate this Agreement upon fifteen (15) days written notice to LESSOR. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses, and any other amount recoverable by LESSEE under condemnation law (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement. 33. SUBMISSION OF LEASE. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. 34. APPLICABLE LAWS. LESSEE shall use the Premises for the use described herein in accordance with applicable laws, rules and regulations. LESSOR agrees to keep the Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate with LESSEE regarding any compliance required by LESSEE in respect to its use of the Premises. 35. SURVIV AL. The provisions of the Agreement relating to indemnification from one Party to the other Party shall survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement, which require performance subsequent to the termination, or expiration of this Agreement shall also survive such tennination or expiration. 36. CAPTIONS. The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. Site #: LA03010A Site Name: TMOIO Jerome Park Market: California 8 37. PROPERTY SPECIFIC ACCESS RULES/REGULATIONS. To the extent that such rules are not inconsistent with or do not interfere with LESSEE's rights herein, LESSEE agrees to abide by all rules and regulations of the Property and Premises imposed by LESSOR as set forth in Exhibit D, attached hereto, as the same may be changed from time to time upon reasonable notice to LESSEE. These rules and regulations are specific to the Facilities site and are imposed to insure the proper maintenance, good order and reasonable use of the Premises and Property and as may be necessary for the enjoyment of the Premises and Property by both parties hereto. 38. POWERING DOWN DURING MAINTENANCE / REPAIR (Not applicable to free-standing/independent Communications Facilities). LESSEE agrees that during all maintenance on the Communications Facility by the LESSOR or other lessees or users of the Facility, while following the procedures and guidelines set forth by the Occupational Safety and Health Administration (OSHA) and the FCC implementing the National Environmental Policy Act of 1969, when continuing transmission is deemed unsafe for maintenance personnel (based upon standards promulgated by a governmental authority having jurisdiction over LESEE) due to radiation, the effected transmitters of LESSEE will be turned off until the unsafe condition no longer exists. The earliest practicable notice will be given to LESEE using the information in Exhibit E, as applicable. 39. TERMINATION. A. CompeIled Termination: If, during the lease term, there is a determination made pursuant to an unappealable order of a county, state, or national governmental health agency having proper jurisdiction over LESSEE's operations that LESSEE's use of the Premises poses a human health hazard which cannot be remedied and that LESSEE must cease all operations on the Premises, then LESSEE shall immediately cease all operations on the Premises and this Agreement shall terminate as of the date of such order. In the event the Federal Communications Commission, or any successor agency, makes a determination which is final and non- appealable or which is affirmed and becomes final after the exhaustion of all available appeals concluding that LESSEE's use as set forth in this Agreement presents a material risk to the public health or safety and that LESSEE must cease all operations on the Premises, LESSOR may terminate this Agreement upon fourteen (14) days notice to LESSEE. B. Termination by LESSEE: LESSEE may terminate this Agreement by notice to LESSOR if (i) LESSEE does not obtain all permits, consents, easements, non-disturbance agreements or other approvals (collectively "approval") reasonably desired by LESSEE or required from any governmental authority or any third party related to or reasonably necessary to operate, install, maintain, replace, or remove LESSEE's Facilities, or if any such approval is canceled, expires or is withdrawn or terminated without any fault of LESSEE, or (ii) LESSOR fails to have proper ownership of the Premises or the authority to enter into this Agreement, or (iii) for any reason or no reason after the first ten (10) years, only with twelve (12) months' written notice to LESSOR, or (iv) the Property or LESSEE's Facilities are, or become, unacceptable under LESSEE's design or engineering specifications for LESSEE's Facilities or the communications system to which LESSEE's Facilities belong, or (v) LESSOR fails to cure a default pursuant to Section 29. Upon termination, all prepaid rent shall be retained by LESSOR, unless termination is pursuant to (ii) above or (v) above as the result of LESSOR's default. C. Termination by LESSOR: LESSOR may terminate this Agreement if LESSEE fails to perform any of its obligations pursuant to this Agreement (including all attached Exhibits/Attachments) after giving written notice to LESSEE and reasonable time to cure as set forth in Section 29. 40. MISCELLANEOUS PROVISIONS. A. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and each party shall indemnify the other fully, including reasonable costs and attorney's fees, for any injuries or damages incurred in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. C. LESSOR shall not have unsupervised access to LESSEE's equipment and LESSEE's Facilities, except in cases of exigent circumstances or emergency situations. Site #: LA030lOA Site Name: TMOIO Jerome Park Market: California 9 D. LESSEE shall be permitted to trim the trees on the Property to the extent necessary for the operation of LESSEE's Facilities, provided that (i) any tree trimming work shall be performed only under the supervision of a licensed arborist, (ii) LESSEE notifies LESSOR in writing at least ten (10) days in advance of its intent to trim trees, and the Executive Director of Parks and Recreation or his designee approves in writing any proposed trimming, (iii) LESSEE agrees to trim any additional trees reasonably requested by LESSOR, and (iv) the tree trimming is at LESSEE's sole cost. LESSOR reserves the right to reasonably deny any request to trim trees, Sitc#: LA03010A Site Name: TM010Jcromc Park Market: California 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first ahove written. ATTEST: / CITY OF SANTA ANA (2~a DAVID N. REAM City Manager ( .. -<.__.L" TRlCIA E. tIEAL Y Clerk of the Council -' <-S APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney .F ~;- ;' ,J-<- By: -:-" l k' LAURA SHEEDY Assistant City Attorney By: Printed Name: Its: Date: LESSEE: Site #: LA03010A Site Name: TM010 Jerome Park Market: California II EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY APN: 109-050-30 All that certain real property located in the County of Orange, State of California, being more particularly described as follows: LOTS 31 AND 32 OF RE-PLAT OF SANTA ANA ACRES, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 5, AT PAGE 8 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY. EXCEPTING THAT PORTION AS GRANTED TO ORANGE COUNTY FLOOD CONTROL DISTRICT IN DEED RECORDED IN BOOK 11167, PAGE 340, OFFICIAL RECORDS. End of Legal Description LESSOR INITIALS: LESSEE INITIALS: (2~ Site #: LA03010A Site Nllmc: TMO I 0 Jerome Park Market: California 12 EXIDBIT B LEGAL DESCRIPTION OF THE PREMISES & SITE PLANS/ DESCRIPTIVE RENDERINGS However, it is expressly agreed and understood by and between the LESSOR and LESSEE that the exact and precise location of the LESSEE's Facilities are subject to review and approval by the planning and/or zoning Boards having jurisdiction over the "Premises". Therefore, it is expressly agreed and understood by and between LESSOR and LESSEE that the precise location of the Premises as shown on Exhibit "B" may be modified by the LESSEE in order to comply with and obtain necessary planning and/or zoning approvals, and any and all other approvals necessary for LESSEE's intended use of the property. The Premises as described herein may therefore be modified by the LESSEE to reflect the final engineering design. An amended Exhibit "B" (if necessary) will be provided by the LESSEE and attached to the lease in place of the existing Exhibit "B", a copy of which will be provided to the LESSOR for review prior to being incorporated into the Agreement. See the attached drawings dated 2/6/06, identified as Site Name Jerome Park, Site Number LA03010-A, Sheets T-I, LS-l, LS-2, C-I, C-2, A-I, and A-2. LESSOR INITIALS: !9L- f1- LESSEE INITIALS: Site #: LA03010A Site Name: TMOIO Jerome Park Market: California lJ EXHIBIT C ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement # modifies such insurance as relating to the following: IS afforded by the provisions of Policy I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702; its officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative Site #: LA03010A SilcNamc: TM010Jcromc Park Market: California 14 EXHIBIT D PROPERTY SPECIFIC ACCESS RULESIREGULATIONS 1. LESSOR shall have the unilateral right and privilege to undertake all normal items and operations associated with the current use of the Property, including, but not limited to public events and City business, which may include high powered electric lights and food services, arrange for the televising of any public event to be held at the Property, and ability to contract with other interested parties. 2. City business may also include minor landscaping, minor maintenance and minor construction proximately located near the Premises, so long as the City business does not interfere with or impair the operation of LESSEE's Facilities. 3. LESSEE's access to the Premises shall be limited when the Premises is being used for a public event, and the four (4) hours before and after any such event. LESSEE will obey any procedures set by LESSOR regarding notification before visiting the Premises, checking in on-site, parking, gates, etc. 4. For pnrposes of describing the Premises and LESSEE Facilities only, LESSEE is constructing two wireless/mobile communications towers and the equipment rooms necessary for each of the two towers. LESSEE is leasing a portion of the Property to construct Tower 1 and its equipment room for its own purposes (as depicted in Exhibit Band referred to in the Agreement as the Premises). LESSOR reserves that portion of the Property upon which Tower 2 and its equipment room are located which shall not be part of the Premises or LESSEE'S Facilities. LESSOR retains the right to lease the reserved tower and equipment room to a second communications provider as set forth in Paragraph 25 in said LEASE. Site #: LA030JOA Site Name: TMO] 0 Jerome Park Market: California 15 EXHIBIT E CONTACT INFORMATION: LESSOR'S TECHNICAL CONTACTS: Name: Address: Daytime Phone No.: Facsimile No.: 24-Hour Contact No.: Dispatch Center: 1. 2. Ron Ono Mike Lopez 20 Civic Center Plaza M-23, Santa Ana, CA 92702 Ron: (714) 571-4220 Mike: (714) 571-4212 (714) 571-4209 Ron: Cell (714) 231-6116 Mike: Cell (714) 231-6112 N/A LESSEE'S TECHNICAL CONTACTS: Name: Address: Daytime Phone No.: Facsimile No.: 24-Hour Contact No.: Dispatch Center: Site it: LA030I0A Site Name: TMOIO Jerome Park Market: California I. Mehmet Oznar 2. Danny Bazerman 3 Imperial Promenade, Ste. 1100, Santa Ana, CA 92707 (714) 850-2403 (714) 850-6620 N.O.C. (888) 662-4662 N.O.C. (888) 662-4662 16 EXHIBIT F MEMORANDUM OF LAND LEASE AGREEMENT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of , 2005 by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Lessor") and Omnipoint Communications Inc., a subsidiary ofT-Mobile USA, Inc., a Delaware corporation ("Lessee"). WITNESSETH: That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that certain real property (the "Property") in the State of California, County of Orange, City of Santa Ana commonly known as Jerome Park, 888 West Santa Ana Blvd., Santa Ana, CA, 92702, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor , 2005, and incorporated herein by reference (the "Agreement") for an initial term of ten (10) years, commencing on the Commencement Date, as defined in the Agreement, and three (3) subsequent optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The Agreement provides for grant of non-exclusive right or way for rights of access to the Property and to electrical and telephone facilities serving the Property. 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A-2005-291 s COpy RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Omnipoint Communications Inc., a subsidiary ofT-Mobile USA Inc. 3 Imperial Promenade, # 1100 Santa Ana, CA 92707 Attn: Lease Administration Manager MEMORANDUM OF LAND LEASE AGREEMENT TillS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of December 5, 2005, by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Lessor") and Omnipoint Communications Inc., a subsidiary of T-Mobile USA, Inc., a Delaware corporation ("Lessee"). WITNESSETH: That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that certain real property (the "Property") in the State of California, County of Orange, City of Santa Ana commonly known as Jerome Park, 888 West Santa Ana Blvd., Santa Ana, CA, 92702, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor December 5, 2005, and incorporated herein by reference (the "Agreement") for an initial term of ten (10) years, commencing on the Commencement Date, as defined in the Agreement, and three (3) subsequent optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The Agreement provides for grant of non-exclusive right or way for rights of access to the Property and to electrical and telephone facilities serving the Property. IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written. LESSOR: LESSEE: CH, OfS""~ By: ~ (~ (Vl~eA_/ ~By: Title: u cations Inc., a subsidiary Title: Site #: LA03010A Site Name: TMOlO Jerome Park Market: California , EXHmIT A LEGAL DESCRIPTION OF THE PROPERTY APN: 109-050-30 All that certain real property located in the County of Orange, State of California, being more particularly described as follows: LOTS 31 AND 32 OF RE-PLAT OF SANTA ANA ACRES, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 5, AT PAGE 8 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY. EXCEPTING THAT PORTION AS GRANTED TO ORANGE COUNTY FLOOD CONTROL DISTRICT IN DEED RECORDED IN BOOK 11167, PAGE 340, OFFICIAL RECORDS. ~ ~ Site #: LA030lQA Site Name: TMOIOJerorne Park Market: California 2 State of California ) '"'lJ ..tI-A Ie;. ~ ) ss. County of O/'-'T'fl~ t:::: ) On 3/ Y,.D/ /)1,7 beforerne, eJz....\C- 0-u /EL1.r->t1 ,personally appeared ~A--:( 'l' ~\C-- personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Signature: State of California County of On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature: State of California County of ) ) ss. ) On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange } SS. On March 31 st, 2006, before me, Claudia M. Fernandez-Shaw, Notary Public, Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared David N. Ream Name(s)ofSigner(s) Ci1'Personally known to me D proved to me on the basis of satisfactory evidence to be the person(,sf whose name~&jlare subscribed to the within instrument and acknowledged to me tha1Jl;ii?sks,i.th~~xecuted the same in .P"er,'thcir authorized capacity(tts-), and that by ~1""'111,,i\ signature~ on the instrument the person~ or the entity upon behalf of which the person~ acted, executed the instrument. ~~~:~~,.u Place Notary Seal Above OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document And could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: D Individual D Corporate Officer - Title(s): D Partner -- D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGH r I HUMBPRIN I " 01 SIGNLR ~ " ., Top of thumb here \\cda-ch\users\CShaw\Desktop\General NotaryForm.doc This Consultant: Eric Cheung ()ncVcnture Suite 200 Irvine, CA 92618 P 949.874.0386 1'949.753,7204 cric .cheung(q::sequoia-ds. com picked up all of the Originals that would normally go to The Parks & Recreation Agency as per Parks & Recreation. ~U~~30-2006 16:01 P.02/03 hin' .:tisk Silrvices,Inc 1420 Fi fth _venue Sui te 1200 SOattl. ~ 98101-4030 USA " '''''.' ''''''i DATE MM 00 yYyy ~., t:',* , 1i! _ .08/30/2006 HIS CERTlFlCA n IS ISSUE/) AS A MAnER OF INFORM.. TlON ONLY AND CONFERS NO RIGHTS UPON THE CEIITIJi'lCATE HOLDER, THIS CERTlJi'lCA TE DOES NOT AMEND. EXTI!ND OR AL nil THE COVERAGE AJi'FOIU)EIl BY THE POI.ICIIOS BELOW, ;J ACORD~~:~ """""" l'""il4Obile: USA, Inc. its Subsidiaries and Affiliates ],2920 SE 38th Street Bell evue WA 9i006 USA tNSlIll.UA: rNSUlt.C::k II: INSIJItER8 AfFORDING COVERAGE Greenwich Insur~nce C~~any Iravelers proper~y Ca$ Co of ~r;ca National Union Fire Ins Co 01" Pittsburgh ~ '" '" :5 _, 206 749-4800 ,All. 206 749-4860 IWSUIU!R("! NAIC. 22322 25674.- '19445 ~ " oil ~ 1I ! INSUMR 0: INSUltER Ii: TJ-lli roI..iClESCF'lNSUlANCE USTED BELO'I{ HAVE86SN WUW TO lHEINSUREO NAMED ABOVE FOR THE POLlCY P6U:)DJN01CA1ED. NO'I'WI'ntSfANblN(; ANY K.BQUfR.EMENJ'. 11iI.M: OIl CONorrJON OF ANY CONtllAcr OR. OlliBR DOa1MBNl' WITH RESPOCT TO WInCH nus CEkl'JFlCA TE MAYBE ISSUED 0It NA'V PBR.TAflof, THe IN5UJtANCRAFf'OItDED BY me POlJCtES DESC1tl86D HERaN '5 SUBJECT TO AU.. nte TERMS. EXCLUSIONS AND CUNDmONS OF SUCH POUClES. AGGt8:'iATB LINITS SHOWN MAY ffAYEJiECN REOUCBD BY PAJOCLA.IMS. - 'I'YPI; or INfAIIU.NCE 1'OUt'Y NlIMKR POl.ICY EXP'OtAT L.... DATE(MNI.DP.yy) ....~~YY) UNITS A RGDS000064 05/01/06 05/01/07 E..u:WOC'...1.IJ1.RENa; n,OOo,OOO IMNAGIl TO RENTal) 11,000.000 ......,.....- -- I'IiItSONAl..t.Jl.lJV.lNIUR.Y ,S1,OOO.~ '" ... Ge/6MLACGIUlGATB Sl..OOO,OOO ~ N alN'LN3GUCA1'); UMIT APPLDIS PER: N $1.000,000 ... D::orOLOc I"fl.ODUCrS-COMPJOIl'~ S [!I1<lUCY Ii: ~ A ~""0fUTY RAIl SOO00i6 05/01/06 05/01107 COM81l<eD Slt-'GLI? L""tt "'" AlITO """ (I.~~ Sl.OOO, ~ A ...., SOOOO67 05/01106 05/01107 A.U..owtfBDAUTO! .... 8OO1l"'~y i I ~OAUTOS ( r. ....-) ! _AUTOS BODILYINJUltV __AVTOS (I'a'~ ~cry,TY DAMAGE L (I"w.....MSIal.) ....- UAlWrr /' ~ AUTOONLY.BA~ _AlITO OlHEl< l1Wl !!AN;<; ....t1TOotlLy; AGO C 11<1485)52 06 IlAaI <lCCtJUI!NCa AOORllGAt1l 15.000, 525,000 . JUS J '~~:no..^PQ) .ne DOI.OYIIIlIi' UA.IU.rn' -..~ AH't'~/PAA'INBlJ2.X1!t;t/TIVS TIUU8419J695606 QrIlfIIC:ef.tGil_~ A2, HA. OR. WI 1fJt*...... ..... 81'2CL\L l'I.OVISJONS ..... x we STATU- 01ll- 1 05/01106 05/01/07 1lL.lA.CIJA<<::lDElrr 1iL. ~EA BNPI.OYD B..L. WSAdt..POJ.l<;ymaJ' $1,000. Sl.OOO, 11, -=- - ;I '.; I II cnua ~M~~1JoJ.rBIVBH1C11lS12XCl.l.I5roNSAOOBDBY~"PIl0VlSIONS site. \A030lOA. Sit, ".....: ~~O Je"?",,, P.r~ site Addrus: ~l~S \II. ~Fadden Ave.. santa AnajAPIj 109-050-30. The certff1ca:tf!! Holder 15 an addltlonal 1nsured l'or GeAer..l Liab,l,ty 501e1y as re$pect to operations of the Hamed :Insured ~ the abo\te loc8t:;on if requir@d by contract:. A~G-30-2006 19:45 P.02 00207 (7199) ENDORSEMENT 1# 006 This endorsement, effective 12:01 a.m.,05lO112006, fonns a part of Policy No. RG05OO0064 issued to T -MOBILE USA. INC. by Greenwich Insurance Company ADDITIONAL INSURED - WHERE REQUIRED UNDER CONTRACT OR AGREEMENT This endolsement modifies Insurance provided under aN coverage parts. COMMERCIAL GENERAl UABIUTY COVERAGE Section If - WHO IS AN INSURED is amended to include as an Insured any person or organization for whom you have agreed under written contract or agreement to provide insurance. However, the insurance provided shall not exceed the scope of coverage and/or limits of this policy. Notwtthstanding the foregoing sentence, in no event shall the insurance pr~ exceed the scope of coverage and/or limiIs required by said contract or agreement All other terms and conditions of this policy remain unchanged. 't-~A... ~. Authorized Re ntative- a ,/~? I:; y,(')/'/ I ~UG-30-2006 19:45 P.03 T-Kobile USA, Inc. Policy IReD 5??oo64 Effective May I, 2006 b. To sue us on this Coverage Part unless an of Its lem1s '-e been fully complied with. A peraon or organization may sue us to recover on an agreed sellIement or on a final judgment against en 1nsun!lcI; but _ will not be liable for damages that are not payable under the lenns of this Coverage Part or that are In excess of the ap- plicable limit of Insurance. An agreed seIIlement means a setllement and release of liability slgned by us. the InSUAld and the Claimant or the Claim- anl'$ legal represe..bo6ve. 4. Other Insurance If olher valid and c:olIecWe insurance is available to Ihe inSUIed for a loss we cover under Cover- ages A or B of 1hls Coverage Part, our OOf'9alions are IimiIed as foIows: a. Prlmary Insurance This Insurance is primary except when b. below applies. If this insurance Is primary, our obIiga- llons are not afl'ec:Ied unless any of the other Insurance Is also primaty. Then. we will share with an that other insurance by the melhod de- scribed in c. below. b. Excess Insurance This insurance is excess over: (1) Any of the other insurance, wfleIher. pri- mary, excess, contingent or on any other basis: r (a) That is Are, Extellded Coverage. Builder's Risk, InslaIlalion Risk or similar coVelage for "your WOl1<"; (b) That is FIn! insurance for premises rented to you or temporarily occupied by you with permission of !he owner; (cl That Is insurance purchased by you to cover your liability as a tenant for "pr0p- erty damage" to premises rented to you or ~Iy occupied by you with permission of the owner; or (d) If the loss arises out of the maintenance or use of airaaft, "autos" or waterorallto the extent not subject to Exdusion g. of Section I - Coverage A - Bodily Injury And Property Damage Liabili1y. (2) Any Other primary insurance avaBabte to you covering Uability for damages arising out of lIle premises or operations. or the products and completed operations, for which you have been added as an addi- tional insured by attachment of an en- dorsement ~i1 CGOO011204 When this insurance Is excess, we wi. have no duly under Coverages A or B to defend the in- sured against any "suit" it any olher inswer has a duly to defend the insured against that .suit". If no other Insurer defends. _ wII undertake to do so, but we will be entitled to the insUIed's rights against al those other insurers. Wlen this insuIance is excess over other in- surance, we win pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that aU such other insur- ance woufd pay for the loss in the absence of this insurance; and (2) The lotaI of a8 deductible and self-insured arnoc.mIs under all that other insurance. We will share the remaining loss. it any, with any other Insurance that Is not descrlbed In lhia El<<:ess Insurance provision and was not bought specifically In apply in excess of the Umils of Insurance shown in the OeclaraIIons of this Coverage Part c. Method Of Sharing If all of the other Insurance permits contlilulion 'by equal shares, we wiI foIow lhis method also. Under this approach each insurer conbib- utes equal amounts unliI it has paid ils appflCa- bIe limit of Insurance or none of the loss re- mains, wIllehever comes first. If any of the other insurance does not pemit contribution by equal shares, we wil contribute by linlits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the lotaI applicable limits of in- surance of all insurers. 5. Premium Audit a. We WIll compute an premiums for this Cover- age Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as ad- vance pemlurn is a deposit premium only. N. the close of each audit period we wiY compute the earned premium for that period and send notice to the first Named Insured. The due llate for audit and retrospective premiums is the dale shown as the due date on the biD. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the first Named Insured. c. The first Named Insured must keep records of the infonnalion we need for premium computa- lion, and send us copies at such times as we may request. e ISO Properties, Inc., 2003 Page 11 of 15 D TOTRL P.03