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HomeMy WebLinkAboutOMNIPOINT (T-MOBILE) - 2009A-2009-030A LAND LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND OMNIPOINT COMMUNICATIONS INC. for CARL THORNTON PARK � Q This Agreement, made this day of , 2009, 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". 1. PREMISES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property commonly known as Carl Thornton Park (the entirety of LESSOR's property is referred to hereinafter as "the Property" and a legal description of the Property is attached hereto as Exhibit "A"), located at 1801 W. Segerstrom Ave., Santa Ana, CA 92704 and being described as a fifteen foot (15') by twenty foot (20') space on the ground containing three hundred (300) square feet, for LESSEE's radio equipment cabinets, 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 within the building to the demised premises, said demised premises and access and utilities paths (hereinafter collectively referred to as the "Premises") for access being substantially as described herein in Exhibit `B" attached hereto and made a part hereof. 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 commence on the first day of the month following the issuance of the building permit for LESSEE's Facilities (as defined below), or the first day of the month that is six (6) months after the full execution of this agreement or the first day of the month following the date LESSEE commences installation of LESSEE's Facilities on the Premises, 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 four percent (4%) per year, to be increased on each anniversary of the Commencement Date. 6. INITIAL PAYMENT. 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 LESSOR a one-time, non- recurring, non-refundable payment equal to one (1) month's rent, within thirty (30) days after the Commencement Date. Notwithstanding the above, Lessor shall refund Lessee the initial payment in the event Lessee is unable, due to the sole fault and unreasonable delay of Lessor, to obtain all Approvals necessary to construct Lessee's facilities, within 6 months after the full execution of this agreement. 7. EXTENSIONS. The Lease Agreement may be extended for up to three (3) additional five-year (5) terms (each a "Renewal Term"). Each Renewal Term shall be on the terms and conditions as set forth herein as follows: Site#: LA13160A 1 Site Name: Carl Thornton Park Date: 3/20/2009 (i) six months prior to the expiration of the initial term, if LESSOR, in its reasonable discretion determines that LESSEE's continued tenancy is not in conformity with LESSOR's intended use of the Property, LESSOR shall provide written notice to LESSEE that the Lease will not be extended. (ii) Thereafter, each subsequent renewal shall be subject to the following procedure: If LESSEE determines that it desires to extend the term LESSEE shall provide written notice six (6) months prior to the end of the then current term,; Within sixty (60) days of receipt of LESSEE's notice, LESSOR shall determine whether such extension is in LESSOR's best interest and, if not in LESSOR's interest, LESSOR shall deny such extension request. If Lessor does not respond within sixty (60) days, the lease is deemed renewed for an additional Renewal Term. If neither party provides notice as set forth above, the lease shall continue on a month -to -month basis. 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 "Governmental 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 affect 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 (defined below) 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 unreasonably withheld, conditioned, or delayed; such approval shall be issued by the City Manager or his/her 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/MAINTENANCE. 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 Site #: LA 13160A Site Name: Carl Thornton Park Date: 3/20/2009 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 the Property including but not limited to concrete and/or asphalt, buildings and/or appurtenances caused by LESSEE. 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 retained by LESSOR. LESSEE shall have the right to install 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 actually used must match up with the proposed materials and artistic renderings. LESSOR shall 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 repainting of LESSEE's Facilities, such maintenance must be completed by LESSEE within thirty (30) days. 11. 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 shall: (1) name LESSOR, its officers, agents, representatives, employees and volunteers as additional insureds (see sample Exhibit Q (2) be primary with respect to insurance or self-insurance programs maintained by LESSOR, except claims resulting from LESSOR's negligence or misconduct; (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 Site #: LA13160A 3 Site Name: Carl Thornton Park Date: 3/20/2009 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 Communications"), or public safety communication operations, as may be upgraded periodically, 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 and/or 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 City Manager shall determine whether consent is unreasonably withheld and may require LESSEE to consent subject to the above conditions. In the event of any interference with LESSOR's public safety communications operations, LESSEE shall have twenty-four (24) hours after receipt of notice to cure the interference, and if LESSEE fails to do so, LESSOR has the right to require that LESSEE cease operating LESSEE's Facilities (except for intermittent testing to determine the source of the interference) until LESSEE is able to recommence operations without causing such interference. If LESSEE's Facilities interfere with LESSOR's public safety communications operations during an emergency, LESSOR may require that LESSEE immediately cease operating LESSEE's Facilities and if LESSEE fails to do so, LESSOR has the right to shutdown the electricity supply to LESSEE's Facilities. LESSEE shall reimburse LESSOR for any actual, reasonable costs that LESSOR incurs to cure any interference with LESSOR's public safety communications operations caused by LESSEE's Facilities. 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, foundations and equipment/storage buildings 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 its as -is condition. 15. RECORDING AND QUITCLAIM 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. Site #: LA13160A 4 Site Name: Carl Thomton Park Date: 3/20/2009 17. QUIET 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. "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, shall immediately pay any adverse judgment rendered with all proper costs and charges and have the lien released at its 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 indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify LESSOR from and against all claims of personal injuries due to violation of MPE 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 (1) 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 City Manager. 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 Site #: LA13160A 5 Site Name: Carl Thomton Park Date: 3/20/2009 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. 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 AND CO -LOCATION. a. LESSEE will not assign or transfer this Agreement 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 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 acknowledges and agrees that the City policy is to provide for co -location on communication tower facilities and will reasonably facilitate any co -location subject to the conditions outlined in Paragraph 13 (INTERFERENCE). LESSEE further agrees that LESSOR shall retain ownership of any further lease rights with respect to space for additional communication facilities on the Property. 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 Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702 Courtesy City of Santa Ana — Office of the City Attorney Copies to 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 and ATS Communications 22651 Lambert Street, Suite IOTA Lake Forest, California 92630 Attn: Tony Ingegneri Site k LA 13160A 6 Site Name: Carl Thomton Park Date: 3/20/2009 LESSEE: T-Mobile USA, Inc. 12920 SE 38" Street Bellevue, WA 98006 Attn: PCS Lease Administrator Copy to: Omnipoint Communications Inc. (Site # LA13160A) 3 MacArthur Place 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. 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 within the initial term, LESSOR shall have the right to cause LESSEE to relocate LESSEE's Facilities to alternate space on the Property; provided however, that such relocation shall (1) be at LESSOR's cost and expense which shall be limited to reasonable expenses of moving and re -installing the tower structure and accompanying equipment, including the cost of City permits and fees which LESSOR may legally pay, (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 LESSOR, 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 disapprove of such proposed relocation site in writing within the sixty-day period, LESSEE shall be deemed to have approved 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 up to 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, based on a ten-year lease term. 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 Site k LA13160A 7 Site Name: Carl Thornton Park Date: 3/20/2009 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 Premises/Property, 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 Premises/Property by it in accordance with all federal, state and local laws and regulations. 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, if the 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. Sitek LA13160A Site Name: Carl Thomton Park Date: 3/20/2009 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. SURVIVAL. 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 termination 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. 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. 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 LESSEE) 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 LESSEE using the information in Exhibit E, as applicable. 39. TERMINATION. A. Compelled 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) 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 (iii) 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. Site #: LA13160A Site Name: Carl nomton Park Date: 3/20/2009 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney Bye LC 6 L A,—.�— Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager LESSEE: O 'point Communications Inc., a subsidiary of By: Printed Nan pher E rjd,;,e �pr Its: pof Regional Dev. Date: . 12. o91 Approved as to form ania B. Dao Corporate Counsel Site #: LA13160A 10 Site Name: Carl Thornton Park Date: 3/20/2009 US In are corporation EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY APN: 412-361-02; -03 & -04 All that certain real property located in the County of Orange, State of California, being more particularly described as follows: PARCEL 1: THOSE PORTIONS OF LOTS 8 AND 9 OF THE WILLIAMS TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 30 PAGE 14 OF DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF TRACT NO. 5856, AS SHOWN ON THAT CERTAIN MAP RECORDED IN BOOK 223 PAGES 34, 35 AND 36 OF MISCELLANEOUS MAPS OF ORANGE COUNTY, CALIFORNIA; THENCE WESTERLY 654.57 FEET ALONG THE SOUTH LINE OF SAID TRACT NO. 5856 TO THE MOST SOUTHERLY SOUTHWEST CORNER THEREOF; THENCE SOUTHERLY 238.57 FEET ALONG THE WEST LINE OF THAT CERTAIN PARCEL OF REAL PROPERTY GRANTED TO THE CITY OF SANTA ANA BY DEED RECORDED IN BOOK 6650 PAGE 219 OF OFFICIAL RECORDS OF SAID COUNTY; CONTINUING THENCE SOUTHERLY 515.89 FEET ALONG THE EAST LINE OF THAT CERTAIN PARCEL OF REAL PROPERTY GRANTED TO SANTA ANA UNIFIED SCHOOL DISTRICT BY DEED RECORDED IN BOOK 6650 PAGE 215 OF OFFICIAL RECORDS OF SAID COUNTY TO A POINT IN THE NORTH LINE OF THAT CERTAIN PARCEL OF REAL PROPERTY GRANTED TO THE CITY OF SANTA ANA BY DEED RECORDED IN BOOK 5887 PAGE 580 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE WESTERLY 638.01 FEET ALONG THE NORTH LINE OF LAST SAID PARCEL TO THE NORTHEAST CORNER OF TRACT NO. 9222, AS SHOWN ON THAT CERTAIN MAP RECORDED IN BOOK 598 PAGES 49 AND 50 OF MISCELLANEOUS MAPS OF SAID COUNTY; THENCE ALONG THE EAST LINE OF SAID TRACT NO. 9222 SOUTH 10 05' 30" EAST 580.40 FEET, NORTH 88' 54' 30" EAST 3.00 FEET, SOUTH 10 05, 30" EAST 140.00 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT NORTHERLY 52.00 FEET FROM THE CENTERLINE OF SEGERSTROM AVENUE; THENCE EASTERLY ALONG LAST SAID PARALLEL LINE 1,288.95 FEET TO THE EAST LINE OF SAID PARCEL GRANTED TO CITY OF SANTA ANA BY DEED RECORDED IN BOOK 5887 PAGE 580 OF OFFICIAL RECORDS OF ORANGE COUNTY; THENCE NORTHERLY 721.66 FEET ALONG THE EAST LINE OF LAST SAID PARCEL TO THE NORTHEAST CORNER THEREOF; CONTINUING THENCE NORTHERLY 755.37 FEET ALONG THE EAST LINE OF THAT CERTAIN PARCEL GRANTED TO CITY OF SANTA AMA BY DEED RECORDED IN BOOK 5633 PAGE 523 OF OFFICIAL RECORDS OF SAID COUNTY TO THE POINT OF BEGINNING. PARCEL 2: THE EAST 520.00 OF THAT PORTION OF THE LAND ALLOTTED TO JAMES MC FADDEN IN DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA RECORDED IN BOOK "B" OF JUDGMENTS OF THE 17TH JUDICIAL DISTRICT LESSOR INITIALS: LESSEE INITIALS: Site #: LA13160A 11 Site Name: Carl Thomton Park Date: 3/20/2009 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY (continued) COURT OF CALIFORNIA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE CENTERLINE OF BRISTOL STREET AS DESCRIBED IN DEED RECORDED NOVEMBER 30, 1949 IN BOOK 1933 PAGE 88 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY SOUTH 00 20' 50" EAST 1,371.87 FEET ALONG SAID CENTERLINE FROM ITS INTERSECTION WITH THE CENTERLINE OF ALTON AVENUE (FORMERLY TALBERT AVENUE) THENCE NORTH 890 57' 31" EAST 333.44 FEET TO THE EAST LINE OF THE LAND CONVEYED TO I.D. PARKER BY DEED RECORDED APRIL 21, 1884, IN BOOK 119 PAGE 590 OF DEEDS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, AND BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 890 57' 31" EAST 1,725.87 FEET TO THE INTERSECTION OF THE WEST LINE OF TRACT NO. 4951 PER MAP RECORDED IN BOOK 192 PAGES 4 TO 7 INCLUSIVE OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY WITH THE CENTERLINE OF TALBERT AVENUE AS SAID INTERSECTION IS SHOWN ON SAID MAP; THENCE ALONG SAID WEST LINE SOUTH 0' 40' 30" WEST 974.94 FEET TO THE SOUTHWEST CORNER OF SAID TRACT; THENCE NORTH 890 40' 35" WEST 753.28 FEET ALONG THE NORTH LINE OF THE LAND CONVEYED TO H. H. WAKEHAM BY DEED RECORDED MAY 10, 1884 IN BOOK 124 PAGE 88 OF DEEDS RECORDS OF SAID LOS ANGELES COUNTY, THENCE SOUTH 89' 59' 00" WEST 781.33 FEET ALONG SAID NORTH LINE TO A POINT ON THE NORTHEAST LINE OF THE LAND DESCRIBED AS PARCEL F2-202 IN THE DEED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT RECORDED JULY 6, 1960 IN BOOK 5315 PAGE 472 OF SAID OFFICIAL RECORDS, SAID NORTHEAST LINE BEING ON THE ARC OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 2,027.00 FEET, A RADIAL TO SAID POINT BEARS NORTH 690 12' 32" EAST THENCE NORTHWESTERLY 396.69 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11' 12' 47" TO SAID EAST LINE OF THE LAND OF E. D. PARKER; THENCE ALONG SAID EAST LINE NORTH 00 20' 42" WEST 614.85 FEET TO THE TRUE POINT OF BEGINNING. LESSOR INITIALS: Ac LESSEE INITIALS: CLIC Site #: LA13160A 12 Site Name: Carl nomton Park Date: 3/20/2009 EXHIBIT 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 01/13/08, Sheets A-1, A-2, A-3, & A-4, identified with Site Information: Carl Thornton Park, LA13160A. In addition to the approximately 300 square feet depicted on the attached drawings for LESSEE's equipment, the Premises also includes space on the light standard for LESSEE's antennas, plus space for coax and cable runs to connect the radio equipment and antennas. LESSEE INITIALS: l-� LESSOR INITIALS: Site k LA13160A 13 Site Name: Carl Thomton Park Date: 3/20/2009 m , v UP - - - - v DOUGLAS ST. a I Ar n 1\ E� All I �\ � 5 6: N I y m z I e ® � v 8 e QQ��� RI y�y� 8 0 $ s s a > O ZAll>p Z Tp Lr :ToT A �� I ------------- -------------- ---------------- -------------- L of ifa alp soil mn r Dm 0 i z C (A r A z 0 x x m m a 0 z ::Ns s $� 8 8 i Cn m s try 3 8 Q s_� EXHIBIT C ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. 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 #: LA 13160A 14 Site Name: Carl Thornton Park Date: 3/20/2009 EXHIBIT D PROPERTY SPECIFIC ACCESS RULES/REGULATIONS 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. Site #: LA13160A 15 Site Name: Carl Thomton Park Date: 3/20/2009 EXHIBIT E CONTACT INFORMATION: LESSOR'S TECHNICAL CONTACTS: Name: 1. Ron Ono 2. Eddie Duque Address: 20 Civic Center Plaza, Santa Ana, CA. 92702 Daytime Phone No.: Ron: (714) 571-4220 Eddie: (714) 647-6964 Facsimile No.: 24-Hour Contact No.: Dispatch Center: N/A 3. ATS Communications Tony Ingegneri 22651 Lambert Street, Suite IOTA Lake Forest, CA.. 92630 Phone: (949)-525-4161 Facsimile: (949)-768-6984 LESSEE'S TECHNICAL CONTACTS: Name: 1. Robert Norton 2. Luis Gonzales Address: 3 MacArthur Place Suite 1100, Santa Ana, CA. 92707 Daytime Phone No.: (714) 850-2403 Facsimile No.: (714) 850-6620 24-Hour Contact No.: N.O.C. (888) 662-4662 Dispatch Center: N.O.C. (888) 662-4662 Site #: LA13160A 16 Site Name: Carl Thornton Park Date: 3/20/2009 EXHIBIT F MEMORANDUM OF LAND LEASE AGREEMENT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of , 2009, 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 1801 W. Segerstrom Ave., Santa Ana, CA 92704, 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 , 2009, 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 of 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. LESSEE: Omnipoi Communications Inc., a subsidiary of T-Mobile USA Inc., a Delaware corporation By: Title: Address: ' LESSOR: City of Santa,, a By: Title: Address: [FORM DOCUMENT, PLEASE INITIAL ONLY - NOT FOR EXECUTION] Lessor Initials Lessee Initials Site#: LA13160A 17 Site Name: Carl Thomton Park Date: 3/20/2009 lotopy TEMPORARY UTILITY AGREEMENT THIS TEMPORARY UTILITY AGREEMENT (this "Agreement") between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Landlord"), and Omnipoint Communications, Inc., a subsidiary of T-Mobile USA, Inc., a Delaware corporation ("Tenant"). Landlord is the owner of the property at 1801 W. Segerstrom Ave., City of Santa Ana, State of California. Tenant is leasing a portion of the property from Landlord. Tenant desires to temporarily use electricity from Landlord to operate Tenant's equipment. Landlord agrees to provide Tenant with electricity as indicated above. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree to the terms as follows: Term. The initial term of this Agreement shall be for ninety (90) days commencing on the date that the Agreement is fully executed (Commencement Date). 2. Renewal. The term of this Agreement will be automatically renewed for three (3) additional terms of ninety (90) days each, unless Tenant notifies Landlord, in writing, of Tenant's intention not to renew this Agreement, at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. If Tenant still requires temporary utility use at the expiration of this Agreement or any Renewal Term without a written agreement, such utility use shall be deemed month -to -month under the same terms and conditions of this Agreement. 3. Utility service. a) Tenant has the right to use electricity to operate its equipment. As consideration, Tenant shall pay rent to Landlord on a monthly basis of Two Hundred and no/100 Dollars ($200.00) beginning on the Commencement Date and stopping on the date that Tenant no longer uses such electricity. b) Payments shall be sent to 20 Civic Center Plz. Santa Ana, CA 92701. 4. Notices. Notices to each party shall be in writing. Notices to Landlord shall be to Landlord's address. Notices to Tenant shall be to Omnipoint Communications Inc., 3 MacArthur Place, # 1100, Santa Ana, CA 92707, Attn: Property Management. Faxed Signature. The parties agree that a faxed copy of the Agreement with a proper signature is acceptable and shall have the same binding effect as an original Agreement with proper signature. Landlord: City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California Tenant: Omnipoint Communications Inc. B / B Name: David N. Ream Name: Title: City Manager I Title: Date: Date: *E Page 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: T-Mobile Omnipoint Communications, Inc. 3 MacArthur Place, #1100 Santa Ana, CA 92707 Attn: Property Management Site #: LA13160A MEMORANDUM OF LEASE THIS MORANDUM OF LAND LEASE AGREEMENT is made and entered into as of -D Rc%� 1, , 2009, 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 1801 W. Segerstrom Ave., Santa Ana, CA 92704, 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 byj--essor , 2009, 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 of way for rights of access to the Property and to electrical and telephone facilities serving the Property. [SIGNATURE PAGE FOLLOWS] Rev 1-2-08 Exhibit A Legal Description of the Premises 412-361-02-04 A portion of that certain real property located in the County of Orange, State of California, being more particularly described as follows: PARCEL 1: THOSE PORTIONS OF LOTS 8 AND 9 OF THE WILLIAMS TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 30 PAGE 14 OF DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF TRACT NO. 5856, AS SHOWN ON THAT CERTAIN MAP RECORDED IN BOOK 223 PAGES 34, 35 AND 36 OF MISCELLANEOUS MAPS OF ORANGE COUNTY, CALIFORNIA; THENCE WESTERLY 654.57 FEET ALONG THE SOUTH LINE OF SAID TRACT NO. 5856 TO THE MOST SOUTHERLY SOUTHWEST CORNER THEREOF; THENCE SOUTHERLY 238.57 FEET ALONG THE WEST LINE OF THAT CERTAIN PARCEL OF REAL PROPERTY GRANTED TO THE CITY OF SANTA ANA BY DEED RECORDED IN BOOK 6650 PAGE 219 OF OFFICIAL RECORDS OF SAID COUNTY; CONTINUING THENCE SOUTHERLY 515.89 FEET ALONG THE EAST LINE OF THAT CERTAIN PARCEL OF REAL PROPERTY GRANTED TO SANTA ANA UNIFIED SCHOOL DISTRICT BY DEED RECORDED IN BOOK 6650 PAGE 215 OF OFFICIAL RECORDS OF SAID COUNTY TO A POINT IN THE NORTH LINE OF THAT CERTAIN PARCEL OF REAL PROPERTY GRANTED TO THE CITY OF SANTA ANA BY DEED RECORDED IN BOOK 5887 PAGE 580 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE WESTERLY 638.01 FEET ALONG THE NORTH LINE OF LAST SAID PARCEL TO THE NORTHEAST CORNER OF TRACT NO. 9222, AS SHOWN ON THAT CERTAIN MAP RECORDED IN BOOK 598 PAGES 49 AND 50 OF MISCELLANEOUS MAPS OF SAID COUNTY; THENCE ALONG THE EAST LINE OF SAID TRACT NO. 9222 SOUTH 10 05' 30" EAST 580.40 FEET, NORTH 88' 54' 30" EAST 3.00 FEET, SOUTH 10 05' 30" EAST 140.00 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT NORTHERLY 52.00 FEET FROM THE CENTERLINE OF SEGERSTROM AVENUE; THENCE EASTERLY ALONG LAST SAID PARALLEL LINE 1,288.95 FEET TO THE EAST LINE OF SAID PARCEL GRANTED TO CITY OF SANTA ANA BY DEED RECORDED IN BOOK 5887 PAGE 580 OF OFFICIAL RECORDS OF ORANGE COUNTY; THENCE NORTHERLY 721.66 FEET ALONG THE EAST LINE OF LAST SAID PARCEL TO THE NORTHEAST CORNER THEREOF; CONTINUING THENCE NORTHERLY 755.37 FEET ALONG THE EAST LINE OF THAT CERTAIN PARCEL GRANTED TO CITY OF SANTA AMA BY DEED RECORDED IN BOOK 5633 PAGE 523 OF OFFICIAL RECORDS OF SAID COUNTY TO THE POINT OF BEGINNING. PARCEL 2: THE EAST 520.00 OF THAT PORTION OF THE LAND ALLOTTED TO JAMES MC FADDEN IN DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA RECORDED IN BOOK "B" OF JUDGMENTS OF THE 17TH JUDICIAL DISTRICT Exhibit A (Continued) OF CALIFORNIAI IN THE CITY '-jr SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE CENTERLINE OF BRISTOL STREET AS DESCRIBED IN DEED RECORDED NOVEMBER 30, 1949 IN BOOK 1933 PAGE 88 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY SOUTH 0° 20' 50" EAST 1,371.87 FEET ALONG SAID CENTERLINE FROM ITS INTERSECTION WITH THE CENTERLINE OF ALTON AVENUE (FORMERLY TALBERT AVENUE) THENCE NORTH 890 57' 311" EAST 333.44 FEET TO THE EAST LINE OF THE LAND CONVEYED TO I.D. PARKER BY DEED RECORDED APRIL 21, 1884, IN BOOK 119 PAGE 590 OF DEEDS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, AND BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 890 57' 31" EAST 1,725.87 FEET TO THE INTERSECTION OF THE WEST LINE OF TRACT NO. 4951 PER MAP RECORDED IN BOOK 192 PAGES 4 TO 7 INCLUSIVE OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY WITH THE CENTERLINE OF TALBERT AVENUE AS SAID INTERSECTION IS SHOWN ON SAID MAP; THENCE ALONG SAID WEST LINE SOUTH 0' 40' 301" WEST 974.94 FEET TO THE SOUTHWEST CORNER OF SAID TRACT; THENCE NORTH 890 40' 35" WEST 753.28 FEET ALONG THE NORTH LINE OF THE LAND CONVEYED TO H. H. WAKEHAM BY DEED RECORDED MAY 10, 1884 IN BOOK 124 PAGE 88 OF DEEDS RECORDS OF SAID LOS ANGELES COUNTY, THENCE SOUTH 89' 59' 00" WEST 781.33 FEET ALONG SAID NORTH LINE TO A POINT ON THE NORTHEAST LINE OF THE LAND DESCRIBED AS PARCEL F2-202 IN THE DEED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT RECORDED JULY 6, 1960 IN BOOK 5315 PAGE 472 OF SAID OFFICIAL RECORDS, SAID NORTHEAST LINE BEING ON THE ARC OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 2,027.00 FEET, A RADIAL TO SAID POINT BEARS NORTH 690 12' 321" EAST THENCE NORTHWESTERLY 396.69 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11' 12' 47" TO SAID EAST LINE OF THE LAND OF E. D. PARKER; THENCE ALONG SAID EAST LINE NORTH 00 20' 42" WEST 614.85 FEET TO THE TRUE POINT OF BEGINNING. �r11T/q! LIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange ISS. On June 23, 2009 before me Claudia M. Fernandez -Shaw, Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared David N. Ream Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose name,(-S`j a subscribed to the within instrument and acknowledged to me that NYshelthey, executed the same in ( u.eM-heir authorized capacity 'es), and that by CLAM M• SRN z-W Ir signature(A on the instrument the Cgnmiasion � 1633539 �� { Notary Putblla - calltoM10 person( or the enti y upon behalf of which orange county the persons-x acted, executed the instrument. 101MV Comm. Wres .Ian 25.2010 ypi I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. (::2�" Place Notary Seal Above v I / OPTIONAL ` Though the information below is not required by law, it may prove valuable to persons relying and could prevent fraudulent removal and reattachment of this form to another doa Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner -- ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Number of Pages: the document Top of thumb here State of California County of On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: State of California ) County of On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: • -NIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of -00►�72-6� On '20 O before me, L Date personally appeared U -V_ e Lis A;'S, 1y C= " Here Insert Name and Title the Officer S ��t)au D r.5-e Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(,&),Gvhose name4s)- /are -subscribed to the within instrument and acknowledged to me that he%slae/grey executed the same in his/b�r authorized capacity{aes), and that by his/berA4& signatures) on the LUKIE WUCAS 1;;�� #- 1a550ni instrument the persoisj, or the entity upon behalf of O"PuPublic L4P (li0lply Public - California � which the erson acted executed the instrument. P •�') , Contra Costa County NMearwn•Exptres.k,t2,2ott I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ' Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent 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(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHTTHUMBPRINT OF SIGNER of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER TMO Site #: LA13160A - Cad Thornton Park Address: 1801 W. Segerstrom Ave. Santa Ana, CA 92704 APN: 412-361-02-04 PROPERTY BACKGROUND INFORMATION QUESTIONNAIRE FOR PROPERTY OWNER, OCCUPANT, OR REPRESENTATIVE PLEASE ANSWER TO THE BEST OF YOUR KNOWLEDGE 1) Describe the current uses of the Property (e.g. retail store, gasoline station, agricultural fields and farmhouse, paint manufacturing facility, etc...). How long has the Property been used for these purposes, and how long have you or your company occupied the Property? rAfr-r- SiT . C 9>3 2) Describe the past uses, owners, and operators of the Property. OPP-9 HkIPSH l*+i-4v 3) What is the total acreage of the Property and the square footage of the existing on -site structures? o Ac e's . • 'ARK MCWH bf Pq' t, 5$ 4 s9fT. 4) Utilities, including electricity, natural gas, water, sewer, and trash removal, are provided to the Property by which utility agencies/companies? Water c lTI 9ANT-4 kNA Sewer G11-1 5%N M AAA Electricity SO • C J E C-b 1 SO N Natural Gas 50. (q%S Trash WASTE MAKAgfM044r LA13160A - Carl Thornton Park 5) Have the Property or adjoining properties been used for industrial activities including the following? Please note that an adjoining property is a property that is next to your Property, even if it is across the street. [ ] Yes []No )<Unknown [ ] Gasoline Station [ ] Motor Repair Facility [ ] Printing Facility [ ] Dry Cleaners [ ] Metal Plating mfg. [ ] Junkyard [ ] Landfill [ ] Waste Treatment, Storage, Disposal, or Recycling Facility Describe other industrial activities, if any. 6) Have hazardous substances, petroleum products, unidentified waste materials, tires, automotive or industrial batteries, or other waste materials been dumped above ground, buried, or burned on the Property? [ ] Yes []No Unknown 7) Have any of the following items been stored on the Property in containers greater than 5 gallons? Paint [ ] Yes D<No [ ] Unknown Chemicals [ ] Yes )qNo [ ] Unknown Pesticides [ ] Yes KNo [ ] Unknown 8) Have hazardous substances or petroleum products been stored on the Property or transferred across the Property in pipelines, either above or below ground? [ ] Yes KNo [ ] Unknown 9) Have 55 gallon drums or sacks of chemicals been stored on the Property? [ ] Yes )(No [ ] Unknown 10) Has fill dirt been brought onto the Property from an offsite source? Wes [ ] No [ ] Unknown 11) Is there evidence that the fill dirt in Question 10 may be contaminated? [ ] Does Not Apply [ ] Yes KNo [ ] Unknown 12) Are there currently any pits, ponds, or lagoons on the Property? )<Yes [ ] No [ ] Unknown 13) Have any pits, ponds, or lagoons previously existed at the Property? [ ] Does Not Apply `(Yes [ ] No [ ] Unknown 14) Are there currently areas on the Property with stained soil? [ ] Yes 'KNo [ ] Unknown 15) Have stained soils previously existed on the Property? [ ] Yes []No Unknown 16) Do underground or above -ground storage tanks exist, or have they existed previously, on the Property? [ ] Yes [ ] No Unknown 17) Do fill pipes, vent pipes, or access ways indicating the presence of underground storage tanks exist on the Property? XYes [ ] No [ ] Unknown LA13160A - Carl Thomton Park 18) Have fill pipes or vent pipes which may indicate the resence of an underground storage tank been removed from the Property? [ ] Yes presence [ ] Unknown 19) Are floor drains stained with anything other than water in any area on the Property? [ ] Does Not Apply []Yes [ ] No Unknown 20) Do floor drains on the Property emit any foul odors? [ ] Does Not Apply [ ] Yes *KNo [ ] Unknown 21) Is the Property served by a private well or non-public water supply system? [ ] Yes XNo [ ] Unknown 22) Are contaminants known to exist in any private well or non-public water supply system serving the Property? [ ] Does Not Apply [ ] Yes �lo [ ] Unknown 23) Are there any environmental liens against the Property that are filed or recorded under federal, tribal, state, or local law? [ ] Yes 'KNo [ ] Unknown 24) Have environmental violations or citations associated with activities conducted on the Property been issued? [ ] Yes XNo [ ] Unknown 25) Has the Property been included in other environmental assessments? []Yes []No Unknown 26) Have other environmental assessments identified hazardous substances or petroleum products that exist, or may have existed on the Property? [ ] Does Not Apply [ ] Yes [ ] No ,Unknown 27) Are there any pending law suits that involve the release or threatened release of hazardous substances associated with the Property? [ ] Yes KNo [ ] Unknown 28) Does the Property discharge wastewater, other than domestic wastewater or storm water, into the sewer? [ ] Yes ANo [ ] Unknown 29) Other than permission for domestic hookup, have any city, county, or local permits for wastewater discharge been issued for the Property? XYes [ ] No [ ] Unknown 30) Does a septic tank exist, or has one existed previously at the Property? [ ] Yes 'KNo [ ] Unknown 31) Do cesspools or cisterns currently exist on the Property? [ ] Yes )<No [ ] Unknown 32) Have cesspools or cisterns previously existed on the Property? [ ] Yes �No [ ] Unknown LA13160A - Cad Thomton Park 33) Other than storm water, does the Property discharge waste water onto a neighboring Property? [ ] Yes P(,No [ ] Unknown 34) Is there a transformer or capacitor that may contain PCBs on the Property? [ ] Yes []No Unknown 35) Is there any hydraulic equipment such as automobile lifts or elevators on the Property? [ ] Yes XNo [ ] Unknown 36) Are PCBs contained in hydraulic oil associated with hydraulic equipment located on the Property? Does Not Apply [ ] Yes [ ] No [ ] Unknown 37) Has an asbestos and/or lead -based paint survey been conducted at the Property? [ ] Yes KNo [ ] Unknown 38) Have pesticides, herbicides, or insecticides been applied on the Property? Ayes [ ] No [ ] Unknown 39) Are you aware of any activity and land use limitations, such as engineering controls, land use restrictions, or institutional controls that are in place at the Property and/or have been filed or recorded in a registry under federal, tribal, state, or local law? [ ] Yes VNo 40) Do you have any specialized knowledge or experience related to any industrial use of the Property, including the knowledge of the chemicals and processes used by this type of business? [ ] Yes P<No [ ] Not Applicable 41) Based on your knowledge or experience related to the Property, are there any obvious indicators that point to the presence or likely presence of contamination at the Property? [ ] Yes )<No 42) If the purchase price of the Property was below fair market value, did this occur because contamination was/is known or believed to be present at the Property? [ ] Yes jKNo [ ] Not Applicable QUESTIONS 43 AND 44 ON THE NEXT PAGE ARE FOR REPRESENTATIVE OF ALREADY EXISTING WIRELESS CARRIER (FOR CO -LOCATION SITES ONLY) LA13160A - Carl Thornton Park 43) What year (or years) were the existing wireless communications sites (if any) constructed on the Property? V 1 zz, tN I REL�SS GO1Mm M x4ffi 11 W I�IP � � o e n Fort 2409 �r fi401n roA . Af-r- I 44) To the best of your knowledge, have there ever been any environmental issues, such as spills or releases of hazardous substances, associated with the existing wireless communications sites? [ ] Yes [ ]No Not Applicable r!� 9 C140 NAME (IN PRINT) ��v SIGN TU [ ] OWNER [ ] OCCUPANT 6 Ll6 DATE OWNER REPRESENTATIVE 1A13160A - Carl Thomton Park T ■ .Mobile ■r July 08, 2009 City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702 Attn: Clerk of the Council RE: Site Lease with Option T-Mobile Site Number: LA13160A T-Mobile Site Name: Carl Thornton Park Dear Landlord: Omnipoint Communications, Inc. a subsidiary of T-Mobile USA Inc. 2008 McGaw Ave. Irvine, CA 92612 Please accept this letter as notification that Omnipoint Communications, Inc. ("T-Mobile") has fully executed the Lease with Option for the above -mentioned cell site dated May 13, 2009. Enclosed is a fully executed original Site Lease with Option for your records. You should receive the option payment within the 20 business days. The required Insurance Certificate will be sent directly to you from Omnipoint's insurance carrier on an annual basis. Please do not hesitate to contact Kira Stotelmeyer at 949-395-2724, should you have any concerns or questions. Sincerely, q Chris Keahey Property Supervisor — Independent Contractor -T. • •Mobile-R, USA LE WIV h6-"i '��1 T■ -M bf.e ■- T-Mobile West Corporation 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 September 30, 2009 n i-sl --' City of Santa Ana Clerk of the Council w 20 Civic Center Plaza (M-30) �. P.O. Box 1988 Santa Ana, CA 92702 �- CO RE: T-Mobile Site Number: LA13160A T-Mobile Site Name: Carl Thornton Park Dear Landlord: Please accept this letter as notification that T-Mobile West Corporation, is commencing the Rooftop Lease with Option for the above -mentioned cell site with an effective date of October 01, 2009 You should receive a check within the next twenty (20) business days at. This amount represents payment for the period October 01, 2009 through October 31, 2009. Should you have any questions or concerns please contact Kira Stotelmeyer at (949) 395- 2724. Sincerely, Chris Keahey Property Coordinator — Independent Contractor Chris.Keahey ,T-Mobile.com T • •Mobile -- cc: Office of the City Attorney - goo R-e3 tJ � Mobilitie 6e0 Newport Center Drive, Suite 200 t Newport Beach, CA 92660 USA telecommunications infrastructure site management solutions Tel: + 1 949 Fax : + 1 949 27474 7553 7553 Melinda.ocana@mobilitie.com www.mobilitie.com Assignment Consent Letter March 2, 2010 v166 M414A '� F03) M-0 City of Santa Ana 11' �=d�- YD �W 20 Civic Center Piz. Room 338 O�L1Cj jI.1.1-L g �n r'�"a Santa Ana, CA 92701 Dear Mr. Ono: Enclosed are the letters we discussed from T-Mobile for the two proposed sites in the City of al00 Santa Ana and the executed copy that was signed by the City 12/10/2008. Let me know if you have any questions regarding any of the enclosed documents and I will be happy to assist you. I have also put in a pre=paid Fed -Ex slip for your convenience. Mobilitie prides itself on its`'Ipndlord/tenant relationship and we look forward to continuing to work with you in the future. `' _, I thank you for your time and consideration. Sincerely, v Melinda Ocana Financial Services Associate E 191 H -1 6 Iwo L'VT ..s . TH �y 6111"1 AGV,NO Eb,# MO gl LITIF, A QVINNCIL T-MOp�1LE �5 4 1 ti r-" H llf r o N C-L VALV�4Do K- yND 'TH0J44T0?! Pr-r- e'&tL 'S L E-S 1Z t4 LGT'T�rR.'S '� M>5 1-0 � ItWhl-D rta ct,�FK�� cJt'l J(. kNt7 T r�a�tc,�ll�toe�Ic�rJE . TIthAr- YOU 9 AM 10: 3 5 T,a -Mobile® V i T-Mobile USA, Inc. 12920 SE 38th Street, Bellevue, WA 98006 SENT BY CERTIFIED MAIL August 17, 2009 7009 1410 0002 4070 5062 City of Santa Ana Clerk of the Council and Office of the City Attorney 20 Civic Center Plaza (M-30), P.O. Box 1988 Santa Ana, CA 92702 (T11461144Tatl rA -r-) Re: Lease Site # LA13160A ("Lease") dated 4/6/2009 is 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 ("Landlord") and T-Mobile West Corporation, successor -in -interest to Omnipoint Communications Inc., a subsidiary of T-Mobile USA, Inc., a Delaware corporation ("T-Mobile") Dear Sir: T-Mobile and Mobilitie Investments II, LLC ("Mobilitie") have entered into a business relationship in which Mobilitie will acquire T-Mobile's ownership interest in certain cell sites. Specifically, we have agreed to the transfer of the T-Mobile cell site on your property to Mobilitie as part of that business relationship. To do so, the Lease will be assigned from T-Mobile to Mobilitie. Please be aware that T-Mobile will continue to remain on the cell site and will be responsible for maintaining the ground space it uses. Upon and from the date of assignment, Mobilitie will assume all obligations and responsibilities of the Lease. Although T-Mobile will be released from all Lease liabilities and obligations subsequent to such assignment of the Lease, T- Mobile will remain responsible for any liabilities prior to the date of the assignment. T-Mobile and Mobilitie seek your consent to the assignment of the Lease from T-Mobile to Mobilitie, and to release T-Mobile from all Lease liabilities and obligations subsequent to such assignment of the Lease. Please sign below to indicate your consent and release and return to: Jennifer Parrish - T-Mobile 12920 SE 381h Street Bellevue, WA 98006. We will send you notice of the actual date of assignment when it occurs. Upon the assignment, Mobilitie will contact you directly to ensure all of your lease information is still current. If you have any questions about this request, please contact Brent Kimball at Mobilitie directly at Brent@mobilitie.com or (303) 359-1505. Sincerely, Scott McNees National Construction Manager T-Mobile USA Acicnowledged, Consented and Agreed to: L/z-wry y i` Print name: VAV IP 14- Dated: CC: ATS Communications Attn: Tony Ingegneri 22651 Lambert Street, Suite IOTA Lake Forest, CA 92630 V ent Kimball Director, Network Strategy Mobilitie APPROVED AS TO FORM -4Laura Stitt Sheedy Assistant City Attor ey SBACOMM-01 NMONEII r ACORO' CERTIFICATE OF LIABILITY INSURANCE D03/15/2019Y) 03115/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Henderson Brothers Inc Ext): (412) 261-1842 ! FAX No):(412) 261-4149 IaCC,,NN 920 Ft. Duquesne Blvd. , Pittsburgh, PA 15222 ADDARESS, infohendersonbrothers.com INS_URER(S)AFFORDING COVERAGE NAICN INSURER A: Travelers Property 8 Casua_lty 25674 INSURED INSURER B:St. Paul Fire & Marine A-.W9A 24767_ 25615 _ SBA Communications Corporation 1130 I INSURERC:The Charter Oak Fire Ins. Co. 19682 8051 Congress Ave. 4 ,;LW9-0,366INSURER D: Hartford Fire Insurance Company Payable Boca Raton, FL 33487 1 1 INSURER E INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR rypE OF INSURANCE ADDLSUBR' LTR IN D WVD POLICY NUMBER POLICVEFF MMIDOIYVVY POLICY EXP LIMITS NIWDD/YYYY A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 900,000 CLAIMS -MADE X OCCUR X EXGL-474M8138 03/1512019 03/1512020 DAMAGE TO RENTED ggp,ppp PREMISES fEa occurrence $ X $100'000 SIR MED EXP An one erson I$- PERSONALBADVINJURY � 900,000 GEN'LAGGREGATE UMITAPPUESPER: GENERAL AGGREGATE $ 2,000,000 POLICY X _ PEBT LOC li PRODUCTS-COMP/OPAGG $ 2,D00;600 OTHER: $ A AUTOMOBILE- LIABILITY _ COMBINEDSINGLE LIMIT _��QQQ,QQQ Ee accident $ X ANY AUTO CAP-474M814A 03/15/2019 03/15/2020 BODILY INJURY Perperson) $ OPMED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY Per accident $ _ HIRTEOS ONLY AUTOS ONEDV Parr acclRoen�AMAGE -$ B X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 25,000,000 EXCESS LIAB CLAIMS -MADE ZUP-15N37405 03/15/2019 03/15/2020 AGGREGATE $ 26,000,000 DED X I RETENTION$ 10,000 $ C WORKERS COMPENSATION X STATUTE OTRH- ANDEMPLOYERS'LIABRm IUB-4L099102 YIN _ 03/1512019 03/15/2020 1,000,000 CUTIVE NIA EL EACH ACCIDENT $ gAgN�YPERIMEETOR(PARTNDED? (manEa%/MEn NHR EXCLUDED? rY ) E.L. DISEASE -EA EMPLOYEE $ 1,000,000 If yes antler r 1 1QQg QQQ Endscnbe DRIPTION OF OPERATIONS below E. L. DISEASE -POLICY LIMIT $ A Worker's Comp UB-31-884966 03/1512019 03/15/2020 Each Acc/Policy Lmt 1,000,000 D Prof/Poll (100k SIR) 40 CPI HA6405 03/1512019 03/15/2020 Claim/Agg 6,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES /ACORD I01, Additional Remarks Schedule, my be attached if more space is required) `1 Re: CA40805-T-0, Site Name: Carl Thornton Park V 1801 W. Segerstrom Ave., Santa Ana, CA 92704 City of Santa Ana, its officers, employees, agents and representatives are included as additional insureds for the G'enoncontributory basis when requiretl by written contract. CS�� Wr!m SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Cityof Santa Ana THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Clerk of the Council 20 Civic Center, Plaza (M-30), P.O. Box 1988 Santa Ana, CA 92702 AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) ©1988-2016 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: SBACOMM-01 NMONEIL LOC #: 0 A� ADDITIONAL REMARKS SCHEDULE Page 1 of 2 AGENCY NAMED INSURED Henderson Brothers Inc SBA Communications Corporation 8051 Congress Ave. POLICY NUMBER Boca Raton, FL 33487 EE PAGE 1 CARRIER NAIC CODE EE PAGE 1 SEE P 1 EFFECTIVE DATE: SEE PAGE 1 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Named Insureds Cont'd: SBA Communications Corporation SBA Network Services, LLC Asset Development, LLC Guatemala Shareholder II, LLC Brazil Shareholder I, LLC MCM Acquisition 2017, LLC Brazil Shareholder It, LLC Memphis Towers, LLC Central America Equityholder, LLC Mercury Towers Acquisition 2013, LLC Chile Shareholder, LLC Municipal Acquisition 2015, LLC Collier Enterprises II LLC Nicaragua Shareholder 1, LLC Colombia Shareholder, LLC OFO LLC Costa Rica Quotaholder, LLC Panama Shareholder, LLC Datapath Development Towers, LLC Patriot Towers Acquisition 2017, LLC D.W. Holdings Acquisition 2014, LLC Quality Tower Developers, LLC Ecuador Shareholder, LLC Peru Shareholder I, LLC Ecuador Shareholder II, LLC Peru Shareholder 11, LLC El Salvador Shareholder I, LLC SBA 2012 TC Assets, LLC El Salvador Shareholder II, LLC SBA 2012 TC Assets Land, LLC Guatemala Shareholder I, LLC SBA 2012 TC Assets PR, LLC LOC Sites Infraestrutura Telefonica Ltda SBA 2012 TC Holdings, LLC SBA 2012 TC Land 11, LLC SBA Monarch Steel, LLC SBA 2014 PR, Inc. f/k/a Soluwise, Inc. SBA Land, LLC fka TCO Land LLC SBA BTS, LLC SBA Monarch Steel, LLC SBA DAS & Small Cells, LLC SBA Monarch Towers I, LLC SBA Depositor LLC SBA Monarch Towers III, LLC SBA GC Holdings, LLC SBA Network Management, Inc. SBA GC Parent I, LLC SBA New Builds, LLC SBA GC Parent II, LLC SBA Properties, LLC SBA GC Towers, LLC SBA RSA Holdings, LLC SBA Guarantor LLC SBA Puerto Rico, LLC SBA Holdings LLC SBA Senior Finance II LLC SBA Holdings a Participag6es Ltds. SBA Senior Finance, LLC. SBA HQ, LLC SBA Site Management, LLC SBA Infrastructure, LLC SBA Sites, LLC SBA Land, LLC fka TCO Land LLC SBA Steel LLC SBA Torres Argentina S.R.L. SBA Steel II, LLC SBA Structures, LLC SBA Towers III LLC SBA Telecommunications, LLC. SBA Towers IV, LLC SBA Towers II LLC SBA Towers IX, LLC SBA Torres Brasil, Limitada SBA Towers V, LLC SBA Torres Chile, Spa SBA Towers VI, LLC SBA Torres Colombia S.A.S SBA Towers VII, LLC SBA Torres Costa Rica, Limitada SBA Towers Vlll, LLC SBA Torres Ecuador SBAEC, S.A. SBA Towers USVI, Inc. SBA Torres El Salvador, S.A. De C.V. SBA Towers, LLC SBA Torres Guatemala, Limitada SBA TRS Holdco, LLC SBA Torres Nicaragua, S.A. SIQUE SUIT LOCAL, ES LTDA SBA Torres Nicaragua 11, LLC Southern Towers SRL SBA Torres Panama, S.A. SBA Nicaragua IV y Cis Ltda. SBA Torres Peru, S.A. Tower Funding II, LLC SlteExcell Ventures, LLC Torres Ecuatorians Torresec, S.A. e'�e6vi - < P� ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: SBACOMM-01 LOC #: 0 AC40R O® ADDITIONAL REMARKS SCHEDULE AGENCY NAMED INSURED Henderson Brothers Inc SBA Communications Corporation '8051 Congress Ave. POLICY NUMBER Boca Raton, FL 33487 EEPAGEI CARRIER NAIC CODEi EE PAGE 1 SEE P 1 EFFECTIVE DATE: SEE PAGE 1 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 26 FORM TITLE: Certificate of Liability Insurance STC Towers Acquistion 2016, LLC Torres Tocales, S.A. Tower Funding, LLC Torres Andinas S.A. Torresec Peru, S.A.C. SBA Nicaragua III Y Cis Ltda. TV6 Holdings LLC BTC Participacces E Portfolio de Torres I LTDA Torres Andinas S.A. SBA Torres Guatemala 11, S.A. f/k/a Vialux, S.A. SBA Torres Guatemala 11, S.A. f/k/a Vialux, S.A. SBA 2016 TC USVI, LLC f/k/a TowerCo 2013 USVI LLC MAA Desarrollo E Inversiones Immobiliarias, S.A.C. Highline Do Brasil Infraestrutura De Telecom unicacoes S.A Higline Negocios Imobiliarios Ltda. ea . PEGS NMONEIL Page 2 of 2 ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BLANKET ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. WHO IS AN INSURED - (Section II) is amended to include any person or organization that you agree in a "written -contract requiring insurance" to include as an additional insured on this Cover- age Part, but: a) Only with respect to liability for "bodily injury", "property damage" or "personal injury"; and b) If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract -requiring-insurance"-applies. The person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization. 2. The insurance provided to the additional insured by this endorsement is limited as follows: a) In the event that the Limits of Insurance of this Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the in- surance provided to the additional insured shall be limited to the limits of liability re- quired by that "written contract requiring in- surance". This endorsement shall not in- crease the limits of insurance described in Section III - Limits Of Insurance. b) The insurance provided to the additional in- sured does not apply to "bodily injury", "prop- erty damage" or "personal injury" arising out of the rendering of, or failure to render, any professional architectural, engineering or sur- veying services, including: i. The preparing, approving, or failing to prepare or approve, maps, shop draw- ings, opinions, reports, surveys, field or- ders or change orders, or the preparing, approving, or failing to prepare or ap- prove, drawings and specifications; and ii. Supervisory, inspection, architectural or engineering activities. c) The insurance provided to the additional in- sured does not apply to "bodily injury" or „property -damage" -caused by_"your work" — and included in the "products -completed op- erations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that oc- curs before the end of the period of time for which the "written contract requiring insur- ance'�equires you fo provide such coverage or the end of the policy period, whichever is earlier. 3. The insurance provided to the additional insured by this endorsement is excess over any valid and collectible "other insurance", whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover under this endorsement. However, if the "written contract requiring insurance" specifically requires that this insurance apply on a primary basis or a primary and non-contributory basis, this insurance is primary to "other insurance" available to the additional insured which covers that person or organization as a named insured for such loss, and we will not share with that "other insurance". But the insurance provided to the additional insured by this endorsement still is excess over any valid and collectible "other in- surance", whether primary, excess, contingent or on any other basis, that is available to the addi- tional insured when that person or organization is an additional insured under such "other insur- ance". A'61- , / 4. As a condit-iio,n,``' additional inid� a) The additional notice as soot rence" or auo the a us written flan "occur - result in a such notice CG D2 46 08 05 0 2005 The St. Paul Travelers Companies, Inc. Page 1 of 2 COMMERCIAL GENERAL LIABILITY I. How, when and where the "occurrence" or offense took place; ii. The names and addresses of any injured persons and witnesses; and III. The nature and location of any injury or damage arising out of the "occurrence" or offense. b) If a claim is made or "suit" is brought against the additional insured, the additional insured must: i. Immediately record the specifics of the claim or "suit" and the date received: and ii. Notify us as soon as practicable. The additional insured must see to it that we receive written notice of the claim or "suit" as soon as practicable. c) The additional insured must immediately send us copies of all legal papers received in connection with the claim or "suit", cooperate with us in the investigation or settlement of the claim -or defense -against the_"suit% and otherwise comply with all policy conditions. d) The additional insured must tender the de- fense and indemnity of any claim or "suit" to any provider of "other insurance" which would cover the additional insured for a loss we cover under this endorsement. However, this condition does not affect whether the insur- ance provided to the additional insured by this endorsement is primary to "other insur- ance" available to the additional insured which covers that person or organization as a named insured as described in paragraph 3. above. 5. The following definition is added to SECTION V. — DEFINITIONS: "written contract requiring insurance" means that part of any written contract or agreement under which you are required to include a person or organization as an additional in- sured on this Coverage Part, provided that the "bodily injury" and "property damage" oc- curs and the "personal injury" is caused by an offense committed: a. After the signing and execution of the contract or agreement by you; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. Page 2 of 2 0 2005 The St. Paul Travelers Companies, Inc. CG D2 46 08 O5