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HomeMy WebLinkAbout20- Public Works ORIGINAL CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: Robert Eisenbeisz,City Engineer Subject: Resolution authorizing the City Manager to execute a lease agreement between Dept: Public Works the City of San Bernardino and T-Mobile West Corporation for the lease of six hundred twenty Date: June 17, 2010 (620) square feet of land at Tom Minor Park for a cellular tower disguised as three flag poles and File: 15.06-175 equipment shelter. (APN 0261-691-48) MCC Date: July 6, 2010 Synopsis of Previous Council Action: 5/07/2008 - Resolution No. 2007-145 was adopted approving an agreement with ATS Communications for development and implementation of a Wireless Master Plan. Recommended Motion: 1. Adopt Resolution. AND 2. Authorize the Director of Finance to amend the 2010/11 adopted budget by increasing revenue account number 001-400-4523-0000-0000 by$34,300 and General Government expenditure account number 001-090-5502-0000-0053 by$6,300 and Parks and Recreation expenditure account number 001-380-5706-0000-0072 by$7,000. l Robert ERs beisz Contact Person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report, Map, Letters, Reso Ward(s): 5 FUNDING REQUIREMENTS: Amount: None Source: (Acct.No.)N/A Acct. Description: N/A Finance: Council Notes: 4-41-go 4010 — 434 Agenda Item No. 7G /D CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT SUBJECT: Resolution authorizing the City Manager to execute a lease agreement between the City of San Bernardino and T-Mobile West Corporation for the lease of six hundred ninety (690) square feet of land at Tom Minor Park for a cellular tower disguised as a three flag poles and equipment shelter. (APN 0261-691-48) BACKGROUND: In May of 2007, the Mayor and Common Council approved an agreement with ATS Communications for the development and implementation of a Wireless Master Plan. The plan identifies current wireless facilities located within the City (on public and private land) available for location of cell towers, and future needs of wireless communication. ATS has the exclusive right to market all City owned sites to potential wireless providers and to facilitate the placement of wireless communication cell towers and facilities. ATS submitted a draft Wireless Master Plan Study in May of 2008 and requested input from City staff. Under the terms of the agreement, ATS receives 25%of the revenue from each new lease. New leases are described as those that are approved by the Mayor and Common Council during the term of the agreement for any portion of a City property between the City and a third party. The initial term of the agreement is five years and will terminate on May 31, 2012 if not renewed. ATS will continue to collect 25% of the revenue from the lease agreements until such time that they expire or revenue ceases. ATS submitted the third lease agreement under the terms of their agreement in February 2010. T- Mobile West Corporation, commonly known as T-Mobile, submitted a proposal to lease 620 total square feet of property at Tom Minor Park located on the northeast corner of Palm Avenue and Irvington Avenue (APN 0261-691-48), for the placement of three flagpoles that will accommodate cell tower antennas and appurtenant equipment shelter. T-Mobile will be responsible for any utilities consumed by their equipment. The Parks and Recreation Department has reviewed the proposed lease and agrees to the design of the flagpoles and equipment shelter. The lease provides a five (5) year term with the option of three (3) successive five (5) year renewal periods. The initial monthly rent is $2,100.00 per month with a 4% increase each annual anniversary of the commencement date. The term of the lease arrangement begins upon the date in which both parties have executed the lease agreement and lease payments will begin on that date. Within 60 days of the commencement date, T-Mobile will also have to pay a one time capital contribution in the amount of$7,000 for park improvements. Construction of the cell tower at Tom Minor Park is expected to start in the fatter part of 2010. T-Mobile has received land use approval and Planning Division has approved Development Permit I(DPI)No. 09-062. 2 Upon termination of the lease agreement, T-Mobile will be required to restore the premises to its previous grade and condition including removal of all appurtenances installed, to the satisfaction of the City of San Bernardino. The attached resolution authorizes the execution of a Lease with T-Mobile West Corporation(T- Mobile). FINANCIAL IMPACT: The lease payments will begin the date of the execution of the Lease by both parties. The projected gross revenue for 2010/11 is anticipated to be $25,200 (12 months x $2,100). ATS will receive 25% of the revenue as compensation, which is $6,300. Additionally, the agreement requires T-Mobile to pay to the City a document preparation fee of$2,100 and a one time capital contribution in the amount of$7,000 for park improvements, which are not shared with ATS. Therefore the total gross revenue for 2010/11 is anticipated to be $34,300 with net revenue of $28,000. The total net revenue of lease payments over the five (5) year period including the 4% increase each anniversary is $102,368. RECOMMENDATION: 1. Adopt Resolution; and 2. Authorize the Director of Finance to amend the 2010/11 adopted budget by increasing revenue account number 001-400-4523-0000-0000 by $34,300 and General Government expenditure account number 001-090-5502-0000-0053 by $6,300 and Parks and Recreation expenditure account number 001-380-5706-0000-0072 by$7,000. ATTACHMENTS: - Vicinity Map - Site Plan - Resolution 3 O� @III F 9 oil — — 0 tll3 W Ntl � '1W § ru �6 . R® i T a a I 40 I I 7 i I rcl L —I ------------------*-- ------------------------------- - - - - 3 A tl W l tl d +------�--- I --------------------- r-.------------_-------------- I I I I j I I I I I I I I I I i I I '3AV Vl _3waV0 '1W - f 1 At L v >i Ip aR $i v A qso BYy� 8: pg 8 y @ n� 2; a § § | \ / ) r0 L. co { ] . 0) 0S ( ( ! § �S ° \ �2 - � |� ( . Q ! | / � © � § #& It ( A-11 ! ( : ; it ] § ( © % 9. t d � ! < § s 4 ..2 . w■ . - � Location of Proposed Lease Area Q s 15 n o aom SL e a Marshall Blvd. — o 10 259 Highland Ave. Base Line St. rn LIM 9th St v 511 St. a E Rialto Ave. ' -- -- -- —-- s 5 a Mill S1. g 10 Orange hwv 0 — Ar VICINITY MAP p NOSG J CRY OF SAN BERNARDINO Proposed Lease Agreement with T-Mobile West DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION Corporation, for a portion of property located on yr the northeast corner of Palm Avenue and Irvington Avenue (Tom Minor Park). ® indicates un-incorporated areas vAthin City's Sphere of Influence Created by: Ryan Sandoval Date:06103/10 1 RESOLUTION NO. COPY 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER 4 TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN 5 BERNARDINO AND T-MOBILE WEST CORPORATION FOR THE LEASE OF SIX HUNDRED TWENTY (620) SQUARE FEET OF CITY OWNED PROPERTY AT TOM 6 MINOR PARK LOCATED ON THE NORTHEAST CORNER OF PALM AVENUE AND IRVINGTON AVENUE FOR A CELLULAR TOWER DISGUISED AS THREE FLAGPOLES AND APPURTENANT FACILITIES (APN 0261-691-48). 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 9 CITY OF SAN BERNARDINO AS FOLLOWS: 10 SECTION 1. The City Manager is hereby authorized and directed to execute on behalf 11 of the City a Lease Agreement between the City of San Bernardino and T-Mobile West 12 Corporation for the lease of 620 square feet of City owned property at Tom Minor Park located 13 on the northeast corner of Palm Avenue and Irvington Avenue (APN 0261-691-48), a copy of ® 14 which is attached hereto, marked as Exhibit"1", and incorporated herein by this reference. 15 SECTION 2. The authorization to execute the above-referenced agreement is rescinded 16 17 if the parties to the agreement fail to execute it within ninety (90) days of the passage of this 18 resolution. 19 20 21 22 23 24 25 26 27 28 06/30/10 t i I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LEASE 2 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND T-MOBILE WEST CORPORATION FOR THE LEASE OF SIX HUNDRED NINETY (690) SQUARE FEET OF CITY 3 OWNED PROPERTY AT TOM MINOR PARK LOCATED ON THE NORTHEAST CORNER OF PALM AVENUE AND IRVINGTON AVENUE FOR A CELLULAR TOWER DISGUISED AS THREE 4 FLAGPOLES AND APPURTENANT FACILITIES(APN 0261-691-48). 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting 7 thereof, held on the day of 20_, by the following vote, 8 to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 11 MARQUEZ 12 DESJARDINS 13 BRINKER ® 14 SHORETT 15 KELLEY 16 JOHNSON 17 18 MCCAMMACK 19 20 RACHEL G. CLARK, City Clerk 21 22 The foregoing resolution is hereby approved this day of 2010. 23 24 PATRICK J. MORRIS,Mayor City of San Bernardino 25 Approved as to Form: 26 © 27 ES F. PENMAN, City Attorney 28 06/30/10 2 EXHIBIT 461" LEASE THIS LEASE ("Lease"), is made and entered into this day of , 2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and T-MOBILE WEST CORPORATION, a Delaware corporation, hereinafter referred to as "Lessee". RECITALS This Lease is made and entered into with respect to the following facts: (a) Lessor is the owner of the Premises herein described. (b) Lessee has requested permission to construct mobile/wireless communications facilities to be located at Tom Minor Park ("Property") on the Northeast corner of Palm Avenue and Irvington Avenue in the City of San Bernardino (APN 0261-691-48), which Property is ® more particularly described in Exhibit "A" attached hereto, and Lessor is willing to lease a portion of the Property to Lessee upon the terms and conditions hereinafter set forth. (c) Lessee believes that the facilities will not interfere with the Department of Parks and Recreation's operations or the public's use of Tom Minor Park. (d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all governmental permits and approvals enabling Lessee, or its assigns to construct and operate mobile/wireless communications facilities on the Premises (as defined below). NOW THEREFORE,the parties hereto agree as follows: 1. Prope_t M Leased: (a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, ground space at the Property approximately forty-five feet by eleven feet (45' x 11') and containing approximately four hundred ninety five (495) square feet (the "Equipment Space"), plus a second parcel of ground space measuring approximately five feet by twenty-five feet (5' x - 1 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park ® 25') and containing approximately one hundred twenty five (125) square feet of (the "Tower Space") for a total area of approximately six hundred twenty (620) square feet, as more particularly described in Exhibit "B" attached hereto. Lessor also grants Lessee the right to install utility connections between the Equipment Space and Tower Space and to the nearest appropriate utilities providers. The Equipment Space and Tower Space are collectively defined as the "Premises", including any appurtenant facilities and applicable easements for access and utilities as described herein. (b) In connection with the Lessee's construction of the Tower Space, Lessee and Lessor acknowledge and agree that Lessee shall construct three communication antennas camouflaged as flag poles ("Flag Poles"). During the term of this Lease, Lessor shall have the right to use the Flag Poles solely for the purposes of hoisting and maintaining flags thereupon, © provided that Lessor does not interfere with the Lessee's operations or use of the Tower Space. Lessor shall be responsible for repairing any damage Lessor or its agents, employees and contractors cause to the Tower Space or the Flag Poles. 2. Term: (a) The term of this Lease shall be five (5) years ("Initial Term"), commencing with the date both Lessor and Lessee have executed this Lease ("Commencement Date"). (b) Lessee shall have the right to extend the tern of this Lease for three (3) additional terns of five(5)years each ("Renewal Term(s)"). Each Renewal Term shall be on the terms and conditions set forth herein. This Lease shall automatically be extended for each Renewal Term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior © to the expiration of the Initial Term or then current Renewal Term. - 2 - Sik No.: IE24786B 06/03/10 File No.:15.06-175 Tam Minor Pmk ® 3 Lease Payments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and no/100 Dollars ($2,100.00) in addition to rent for a document preparation fee upon the Commencement Date of said Lease. In the event the Lease is terminated as a result of testing as set forth in Paragraph 5(a), Lessor shall retain the document preparation fee of Two Thousand One Hundred and no/100 Dollars($2,100.00)for work performed. (b) Within sixty (60) days following the Commencement Date, Lessee shall pay Lessor a one time capital contribution in the sum of Seven Thousand and no/100 Dollars ($7,000.00) for park improvements, which shall be refundable to Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Lessee Facilities as defined below. ® (c) Lessee shall pay Lessor as rent, the annual sum of Twenty-Five Thousand, Two Hundred and 00/100 Dollars ($25,200.00) "Rent', payable in equal monthly installments commencing upon the Commencement Date ("Rent Start Date"). The monthly installments shall be in the amount of Two Thousand One Hundred and no/100 Dollars ($2,100.00) each month, due and payable on the Rent Start Date, and on the same date of each month thereafter. Should the first and last payment of rent be for a partial month, then only the pro-rata portion of the rent shall be paid to Lessor. Payments shall be mailed or delivered to: City of San Bernardino Development Services Department/Real Property Section 300 North"D" Street, 3"Floor San Bernardino, CA 92418 (d) Rent shall be increased on each yearly anniversary of the Rent Start Date ® by an amount equal to four percent(4%) of the rent then in effect for the previous year. - 3 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park i 4. Use Restrictions: The Premises may be used by Lessee for any lawful activity in connection with the provision of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies, and the testing, investigation, construction, maintenance and operation of related communications facilities. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses, permits, and any and all other necessary approvals that may be required for Lessee's intended use of the Premises. 5. Improvements: (a) Lessee shall have the right (but not the obligation) at any time prior to the Commencement Date, to enter the Premises for the purpose of making necessary engineering • surveys and inspections (and soil tests where applicable) and other reasonably necessary tests ("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined herein) for mobile/wireless communications operations. During any Tests, Lessee shall obtain and maintain insurance as set forth in Paragraph 10, and will notify Lessor at least forty-eight (48) hours prior to any proposed Tests, and will coordinate the scheduling of same with Lessor. If Lessee determines that the Premises are unsuitable for Lessee's contemplated use,then Lessee shall notify Lessor and this Lease shall terminate. Lessee shall repair any damage to the Premises caused by Lessee and shall restore the Premises to the condition existing prior to conducting the Tests. (b) Lessee shall have the right to construct, erect, maintain, operate and remove mobile/wireless communications facilities on the Premises, including but not limited to an antenna tower or pole and foundation, utility lines, transmission lines, air conditioned " equipment shelter(s), electronic equipment, transmitting and receiving antennas, a standby power -4- Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park generator and generator pad, and supporting equipment, structures and improvements ("Lessee Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare, maintain and alter the Premises for Lessee's business operations and to install transmission lines connecting the antenna to transmitters and receivers. All of Lessee's construction and installation work shall be performed at Lessee's sole cost and expense and in a good workmanlike manner. Lessee shall hold title to the Lessee Facilities and all of the Lessee Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove the Lessee Facilities at its sole expense on or before the expiration or earlier termination of this Lease as provided in this paragraph 5(b). Once the Lessee Facilities are installed, Lessee shall not make any material alterations to the Premises, or any part thereof, other than as set forth in Paragraph S herein, without the prior written consent of Lessor, which consent shall not be ® unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, maintenance, repairs, like-kind or similar replacements of the Lessee Facilities and modifications made within the interior of any shelters or base station equipment shall not be considered "Material Alterations". Any and all alterations and/or improvements made to the Premises pursuant to this Lease, including but not limited to Lessee Facilities, shall, within ninety (90) days of expiration or early termination of this Lease , be removed from the Premises, and the Premises shall be returned to its previous state as of the Commencement Date, excepting normal wear and tear, casualty, or damage caused by Lessor or Lessor's agents, employees, tenants, lessees, licensees or invitees. (c) Lessor shall provide to Lessee, Lessee's employees, agents and contractors, access to the Premises without notice to Lessor 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 said Premises over the Property, and shall allow Lessee, and Lessee's - 5 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park ® agents, employees, and contractors access from the nearest public roadway to the Premises at all times, and hereby grants such non—exclusive ingress and egress rights to Lessee along a six foot (6')wide right-of-way extending from the nearest public right-of-way to the Premises, as further described in Exhibit`B", to the extent required to construct, erect, maintain, install, remove and operate the Lessee Facilities on the Premises. Lessee shall repair any damages Lessee, its agents, employees, officers, or contractors cause to the Property in accessing the Premises over the above-described ingress and egress area. 6. Maintenance and Inspections: Lessee shall, at Lessee's own cost and expense, keep and maintain all improvements hereinafter constructed on the Premises in good condition and repair, and shall use all reasonable precaution to prevent waste, damage or injury to the Premises. Lessor shall, at any ® reasonable time, have the right to go upon the Premises upon seventy-two (72) hour prior notice to Lessee, and inspect and examine the same relative to such maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an employee or authorized representative of Lessee. 7. Utilities: Lessee shall have the right to install utilities at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency power generators), subject to Lessor's approval of the location, which approval shall not be unreasonably withheld. Lessee shall pay for all electricity, gas, water, telephone service, and all other services and utilities, including service installation fees and charges for such utilities, used by © Lessee related to the Premises during the term of this Lease. - 6 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park 8. Liens and/or Encumbrances: e� - Lessee shall pay or cause to be paid, all costs of construction and/or installation of all improvements. Lessee shall keep the Premises free and clear of any and all claims arising out of performance of work on Lessee's behalf, furnishing of materials on Lessee's behalf, and upon use of utilities by Lessee. This Lease shall be subordinate to any lien, mortgage or deed of trust currently on record against said Property. 9. Permits and Fees: (a) Lessee shall pay all license fees, assessments, penalties or fines which may be levied against Lessee by virtue of the installation of Lessee's leasehold improvements at the Property. (b) Lessor shall pay when due all real property taxes for the Property, including ® the Premises. In the event that Lessor fails to pay any such real property taxes or other fees and assessments, Lessee shall have the right, but not the obligation, to pay such owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing, Lessee shall pay any personal property tax, real property tax or any other tax and/or fee which are directly attributable to the presence or installation of the Lessee's Antenna Facilities, only for so long as this Lease has not expired of its own terms or is not terminated by either party. Lessor hereby grants to Lessee the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of Lessor and/or Lessee, any personal property or real property tax assessments that may affect Lessee. If Lessor receives notice of any personal property or real property tax assessment against the Lessor, which may affect Lessee and is directly attributable to Lessee's installation, Lessor shall provide timely notice of the assessment to Lessee sufficient to allow Lessee to consent to or challenge such assessment. Further, Lessor shall provide to - 7- Site No.: EE24786B 06/03/10 File No.:15.06-175 Tom Minor Park Lessee any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 9. 10. Liability Insurance: Lessee agrees to procure and maintain in force during the term of this Lease and any extension, at Lessee's sole cost and expense, the following insurance from companies with an A.M. Best Rating of at least A-VII, and with such minimum limits as set forth below, which shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and contractors, arising out of or in connection with Lessee's use of the Premises as provided for herein; (1) Commercial General Liability with limits of five million dollars ($5,000,000.00) per occurrence, provided such limit may be satisfied by a combination of primary and umbrella policies, Lessee may satisfy this requirement by obtaining the appropriate endorsement to any © master policy of liability insurance Lessee may maintain. (2)Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Workers' Compensation Insurance as required by law and Employers' Liability with limits of one million dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor a certificate of insurance and name Lessor as an additional insured for the general liability policy, which certificate provides: (a) Additional Insured: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insured with respect to this contract with the City." (b) The certificates shall include the insurance company name,policy number, period of coverage, and the amount of insurance. - $ - Sire No.: IE24786B nFm3n n File No.:15.06-175 Tom Minor Perk (c) That the Real Property Section of the Development Services Department of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation or reduction of required limits of the policy. (d) That Lessee's insurance shall be primary to any coverage the City of San Bernardino may have in connection with Lessee's negligence. 11. Indemnification: (a) Lessor and Lessee shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from or related to the indemnifying party's breach of any term or condition of this Lease or the negligence or willful misconduct of the indemnifying party, or its agents, employees or © contractors in or about the Premises. Except as provided in the first sentence, Lessee shall defend (if requested by Lessor), indemnify, and hold harmless Lessor, its agents, boards, officers, employees, representatives or contractors against any and all claims, suits, damages for bodily injury, including death, property damage, demands, loss or liability of any kind or nature ("Claims") arising from or related to Lessee's operations under this Lease except for claims arising out of the negligence or misconduct of Lessor, its agents, officers, employees, representatives or contractors.. The duties described in this Paragraph 11 shall apply as of the Effective Date of this Lease and survive the termination of this Lease. (b) Neither Party shall be liable to the other, or to any of their respective agents, representatives, officers or employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract,tort(including negligence), strict liability or otherwise. - 9 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park 12. Taxes/Possessory Interest: o.r Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of property taxes levied on such interest. Lessee agrees to, and shall indemnify and hold harmless, Lessor from any and all liability for any such taxes during the Lease term due pursuant to Paragraph 9, Permits and Fees above. 13. Waiver of Lessor's Lien. (a) Lessor waives any lien rights it may have concerning the Lessee Facilities, all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. (b) Lessor acknowledges that Lessee has entered into a financing arrangement Qincluding promissory notes and financial and security Leases for the financing of the Lessee Facilities ("Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Lessor (i)consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii)agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 14. Assigmnent and Sublettina: Lessee may not assign all or any part of its interest in this Lease or in the Premises without the prior written consent of Lessor; provided, however, that Lessee may assign without notice to Lessor its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one percent (51 010) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease as set _ 10 - Sim No.: 1E24786B 06/03/10 File No.: 15.06-175 Tom Minor Park forth in Paragraph 13 above. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under this Lease, provided that the assignee assumes all of Lessee's obligations herein. This Lease shall run with the Property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity, to whom Lessee (i) has obligations for borrowed money or with respect to guaranties thereof, (ii)has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii)has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or with respect to guaranties thereof. © Sublease - Subject to all permits and approvals from all governmental agencies having jurisdiction thereover, Lessee may lease or license space on the support structure forming a part of the Lessee's Facilities, in its equipment cabinets or elsewhere on the Lessee's Facilities to a third party for installation of transmission,receiving or other types of equipment or facilities, whether similar or dissimilar to Lessee's installation, on such terms and conditions as Lessee, in its sole discretion, desires (a "Third Party Lease"); provided, however, that Lessor shall receive as additional rent under this Agreement, fifty percent (50%) of such Third Party Lease rent actually received by Lessee only after Lessee has been able to recover all direct and indirect costs and expenses of obtaining the sublease. Any such sublessee shall be instructed to pay the foregoing percentage amount directly to Lessor. 15. Termination: This Lease may be terminated without further liability on thirty(30)days prior Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park written notice as follows: (i)by either party upon a default of any covenant or term hereof by the .. other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that the Lease shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty(60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice; or (ii)by Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Lessee Facilities; or (iii)by Lessee if Lessee is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; or (iv) by Lessee if any environmental report for the Property reveals the presence of any Hazardous Material after the Commencement Date; or © (v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference. In the event that Lessee terminates this Lease prior to the expiration of the initial five (5)-year Term pursuant to the terms of paragraph (v) above, Lessee shall pay to Lessor a sum equivalent to three (3) months' then-current Rent as liquidated damages. Notwithstanding the foregoing, no termination fee shall apply if Lessee terminates this Lease for signal interference by Lessor or its lessees, licensees or invitees on the Property. 16. Hazardous Materials: (a) As of the Commencement Date of this Lease: (1) Lessee hereby represents and warrants that it shall not use, generate,handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Premises in violation of any Environmental Law (as defined below), and (2) Lessor hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Premises in - 12 - Sim No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Mhwr Peck violation of any Environmental Law; (ii) no notice has been received by or on behalf of Lessor r... from, and Lessor has no knowledge that notice has been given to any predecessor owner or operator of the Premises by, any governmental entity or any person or entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Property; and (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Property in violation of any Environmental Law. (b) Without limitation of Paragraph 11, Lessor and Lessee shall each indemnify, defend and hold the other harmless from and against all Losses arising from (i)any breach of any representation or warranty made in this Paragraph 16 by such party; and/or (ii)environmental conditions or noncompliance with any Environmental Law(as defined below) ® that result, in the case of Lessee, from operations in or about the Premises by Lessee or Lessee's agents, employees or contractors, and in the case of Lessor, from the ownership or control of, or operations in or about, the Property by Lessor or Lessor's predecessors in interest, and their respective agents, employees,contractors, lessees, guests or other parties. The duties described in this Paragraph 16 shall apply as of the Commencement Date of this Lease and survive termination of this Lease. (c) "Hazardous Material' means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has - 13 - Sim No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Law" means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i)human health; or (ii)environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment. 17. Interference with Communications: © Lessee's Facilities shall not disturb the communications configurations, equipment and frequency which exist on the Property on the Commencement Date ("Pre- existing Communications"), and Lessee's Facilities shall comply with all non-interference rules of the Federal Communications Commission ("FCC"), and the conditions set forth in Development Permit I, regarding the City's public safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC or other Federal agency or department). Lessor shall not and shall not permit its lessees or licensees to use of any portion of the Property in a way that interferes with the communications operations of Lessee described in Section 4, above. Such interference with Lessee's communications operations shall be deemed a material breach by Lessor, and Lessor shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties © acknowledge that continuing interference will cause irreparable injury to Lessee, and therefore, Lessee shall have the right to bring action to enjoin such interference or to terminate this Lease - 14 - 8iW No.: IE24786B n4mann Ft]r Nn 15M_17ST.m Minn,%m immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre-existing !. - Communications operating in the same meaner as on the Commencement Date shall not be deemed interference. 18. Casualty: In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within forty-five (45) 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 forty-five (45) days, then Lessee may, at any time following such fire or other casualty, provided Lessor has not completed the restoration required to permit Lessee to resume its operation at the Premises,terminate this Lease upon fifteen (15) days prior written notice to Lessor. Any such notice of termination shall cause ® this Lease 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 Lease and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Lease. Notwithstanding the foregoing, Rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which Lessee's use of the Premises is impaired. 19. Condemnation: In the event of any condemnation of all or any portion of the Property, this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first. If as a result of a partial condemnation of the Premises or Property, Lessee, in Lessee's sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt Lessee's © operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee's option, to - 15 - Sih No.: JE24786B n6/n1/1 n File No.: 15.06-175 Tom Minor Park be exercised in writing within thirty(30)days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. Lessee may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Lease 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 Lease and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Lease. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the ® portion of the Premises remaining, except that the Rent shall be reduced in the same proportion as the rentable area of the Premises taken bears to the total rentable area of the Premises. 20. Miscellaneous: (a) This Lease constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other Leases concerning the subject matter contained herein. Any amendments to this Lease must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Premises and the Property and their real and personal property located thereon shall be in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. Q (c) If any provision of this Lease is invalid or unenforceable with respect to any party, the remainder of this Lease or the application of such provision to persons other than - 16 - Site No.: ff24786B 06/03/10 File No.:15.06-175 Tom Minor Park those as to whom it is held invalid or unenforceable, shall not be affected and each provision of .� this Lease shall be valid and enforceable to the fullest extent permitted by law. (d) This Lease shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (e) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Lessor: Lessee: City of San Bernardino T-Mobile USA, Inc. Development Services Department 12920 SE 38th Street Real Property Section Bellevue, WA 98006 300 N D Street, 3`d Floor Attn: PCS Lease Administrator San Bernardino,CA 92418 Site No. IE24786B with a copy to: Attn: Legal Department © With a copes With a copy to: ATS Communications T-Mobile West Corporation 22642 Lambert Street,#402 3 MacArthur Place, Suite 1100 Lake Forest, CA 92692 Santa Ana, CA 92707 Attn: Lease Administration Manager Site No. IE24786B Lessor or Lessee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. (f) This Lease shall be governed by the laws of the State of California. Any legal proceeding brought to enforce any right, interest, or other demand to this Lease shall be brought in the courts with jurisdiction in the County of San Bernardino, State of California. The prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to - 17- Site No.: IE24786B 06/01/10 File No.:15.06-175 Tom Minor Park recover from the losing party reasonable attorney's fees and court costs, including appeals, if W41101 any, m connection with that action. The costs, salary, and expenses of the City Attorney and members of its office in connection with that action shall be considered as "attorney's fees" for the purposes of this Lease. (g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in the form annexed hereto as Exhibit "C" and acknowledges that such Memorandum of Lease will be recorded by Lessee in the official records of the County where the Property is located. (h) In the event the Property is encumbered by a mortgage or deed of trust, Lessor agrees to provide reasonable cooperation in obtaining and delivering to Lessee an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. (i) Lessor agrees to fully cooperate, including executing necessary documentation, with Lessee to obtain information and documentation clearing any outstanding title issues that could adversely affect Lessee's interest in the Premises created by this Lease. (j) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Lease, such party shall not unreasonably delay or withhold its approval or consent. (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Lease. (1) The captions and headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Lease. (m) All Exhibits annexed hereto form material parts of this Lease. Site No.: IF24786B 06/03/10 File No.:15.06-175 Tom Minor Perk (n) The captions contained in this Lease are inserted for convenience only and are not intended to be part of this Lease. They shall not affect or be utilized in the construction or interpretation of this Lease. (o) Lessor covenants that Lessee, on paying Rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. (p) Lessor represents and warrants to Lessee as of the execution date of this Lease, and covenants during the term hereof that Lessor is seized of good and sufficient title and interest to the Property. (q) The failure of either party to insist upon strict performance of any of the terms or conditions of this Lease or to exercise any of its rights under this Lease 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 Lease, in law or in equity. 21. Risk to Public Safety or Health: In the event the FCC or any successo r federal ral a enc Y thereto 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 the Lessee's use as set forth in this Lease presents a material risk to public health or safety, including, but limited to radio frequency emissions, and if Lessee fails to correct such material risk within sixty(60) days,either Lessor or Lessee may terminate this Lease upon ten (10)days prior written notice to the other party. [Signatures begin on next page] _ 19 - Site No.: MU786B 06/03/10 File No.:15.06-175 Tom Minor Park LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND T- ,� MOBILE WEST CORPORATION. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set forth at the beginning of this Lease. LESSOR: LESSEE: CITY OF SAN BERNARDINO, T-MOBILE WEST CORPORATION a Municipal corporation CC PY CC PY By: CHARLES E. MCNEELY, By: CHRIS ELDRIDGE, City Manager Regional Director of Development ATTEST: RACHEL CLARK, City Clerk Approved as to form: JAMES F. PENMAN, City Attorney - 20- Sim No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park EXHIBIT "A" DESCRIPTION OF LAND LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS, OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. APN: 0261-691-48 - 21 - Site No.: IE24786B 06/03/2010 Pile No.: 15.06-175 Tom Minor Park EXHIBIT "B" DESCRIPTION OF PREMISES The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO See the attached drawin¢s Notes: 1. Lessee may replace this Exhibit with a survey of the Premises once Lessee receives it. 2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental authorities. 3. The access road's width will be the width required by the applicable governmental authorities, including police and fire departments. 4. Lessee may install up to twelve(12) antennas and twenty four(24) coaxial cables subject to City Development Permit approval. The type,number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types,numbers,mounting positions and locations may vary from what is shown above. 5. The location of any utility easement is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations. - 22 - She No.: IE24786B 06/03/2010 File No.: 15.06-175 Tom Minor Park / : & N � i ) Oz ¥/ & � { Ei E � � �&U l Q - - . (§ L T ; £+ » / � \ � � � , 4� \ � j / � � • { ' (» a , lq )& sue. . ~< , � \ - ` \ [ "\ k; } iF ilFz n Q ex --- tli3rvatl � tw 2 v u � E J wg ilia r N I z; ✓ � I I. J °r zl I I I _ ... 3 ntl Wltl d -- I I I I I I I I I I I I I I I I I i I g n I W s.o��nw-em'awa°z>I\m-z\wne ecxw riw eNZ°xlV\ecn-z\na!ue\3M�e ]n�vm uaor-o�oi iz�N ti 3 �• �_ �mw f N: CO o 33 $ m o t F 8 3 a Z ga g Ox f9 of N— 3 � � Q < a N wrvw aan-,,W'e _ mnnuamm.o-sr 3 �y� 'Ia+J'waixaam m[w.aeon-�leln] .-pZ - I I I I I I k 3 s ills �'Ep3,3€Gq %854 $ a e 9k W mevv neon-i W)'o', gy¢ e� a�laW',xxiw'f3x/a mm ew-�1x1 n 3 �R Y€, k iuozoeoion.veo "gn S� 3a¢ g �s . K £ g . 0 w .,-,I a8 sills $ £ I I 4pa SS $ ��� � �=.in•a lain.nwiw owl uun]®n-�!al n£ o-r vax-.m'exea pox�xexixm w,�w aeon-,.lal'o', 3 .za�m-z�»na mx�n no,e..a.zs�neon-,�•ww�amd ma-xra xwo.-erz a a . EXHIBIT "C" RECORDED AT REQUEST OF,AND WHEN RECORDED RETURN TO: CITY OF SAN BERNARDINO CITY CLERK 300 N."D"STREET SAN BERNARDINO,CA 92418 APN:0261-69148 FEE EXEMPT PURSUANT TO SITE NO.IE24786B GOV.CODE SECTION 27383 MEMORANDUM OF LEASE This MEMORANDUM OF LEASE is entered into on this day of 2010, by and between the CITY OF SAN BERNARDINO, a municipal corporation, with an address at 300 N. D Street, San Bernardino, CA 92418 (hereinafter referred to as "Owner"or"Lessor") and T-MOBILE WEST CORPORATION, a Delaware corporation, with an address at 12920 SE 38" Street, Bellevue, WA 98006 (hereinafter referred to as "TMO"or"Lessee"). 1. Lessor and Lessee entered into a Lease Agreement ("Lease") dated on the day of , 2010, for the purpose of installing, operating and maintaining a communications facility and other improvements with respect to a portion of that certain property located on the Northeast comer of Palm Avenue and Irvington Avenue,known as Tom Minor Park, legally described on Exhibit"I"attached hereto and made a part hereof.All of the foregoing is set forth in the Lease. Q2. The initial lease term will be for five (5) years ("Initial Term'j commencing on the date both Lessor and Lessee have executed the Lease above ("Commencement Date', with three (3) successive five (5) year options to renew. 3. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first Written above. LESSOR: LESSEE: CITY OF SAN BERNARDINO T-MOBILE WEST CORPORATION COPY C Y By: By: Name: Charles E. McNeely Name: Chris Eldridge ® Title: City Manager Title: Regional Director of Development Date: Date: - 23 - Site No.- IE24786B 06/03/2010 File No.: 15.06-175 Tom Minot Park EXHIBIT "1" LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS, OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. APN: 0261-691-48 - 24 - Site No.: IE24786B 06/03/2010 File No.: 15.06-175 Tom Minor Park LEASE THIS LEASE ("Lease"), is made and entered into this day of , 2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and T-MOBILE WEST CORPORATION, a Delaware corporation, hereinafter referred to as "Lessee". RECITALS This Lease is made and entered into with respect to the following facts: (a) Lessor is the owner of the Premises herein described. (b) Lessee has requested permission to construct mobile/wireless communications facilities to be located at Tom Minor Park("Property") on the Northeast comer of Palm Avenue and Irvington Avenue in the City of San Bernardino (APN 0261-691-48), which Property is Qmore particularly described in Exhibit "A" attached hereto, and Lessor is willing to lease a portion of the Property to Lessee upon the terms and conditions hereinafter set forth. (c) Lessee believes that the facilities will not interfere with the Department of Parks and Recreation's operations or the public's use of Tom Minor Park. (d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all governmental permits and approvals enabling Lessee, or its assigns to construct and operate mobile/wireless communications facilities on the Premises(as defined below). NOW THEREFORE, the parties hereto agree as follows: 1. Property Leased: (a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, ground space at the Property approximately forty-five feet by eleven feet (45' x 11') and (�. containing approximately four hundred ninety five (495) square feet (the "Equipment Space"), �•/ plus a second parcel of ground space measuring approximately five feet by twenty-five feet (5' x - 1 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park 25') and containing approximately one hundred twenty five (125) square feet of (the "Tower Space") for a total area of approximately six hundred twenty (620) square feet, as more particularly described in Exhibit `B" attached hereto. Lessor also grants Lessee the right to install utility connections between the Equipment Space and Tower Space and to the nearest appropriate utilities providers. The Equipment Space and Tower Space are collectively defined as the "Premises", including any appurtenant facilities and applicable easements for access and utilities as described herein. (b) In connection with the Lessee's construction of the Tower Space, Lessee and Lessor acknowledge and agree that Lessee shall construct three communication antennas camouflaged as flag poles ("Flag Poles"). During the term of this Lease, Lessor shall have the right to use the Flag Poles solely for the purposes of hoisting and maintaining flags thereupon, © provided that Lessor does not interfere with the Lessee's operations or use of the Tower Space. Lessor shall be responsible for repairing any damage Lessor or its agents, employees and contractors cause to the Tower Space or the Flag Poles. 2. Term: (a) The term of this Lease shall be five (5) years ("Initial Term"), commencing with the date both Lessor and Lessee have executed this Lease ("Commencement Date"). (b) Lessee shall have the right to extend the term of this Lease for three (3) additional terms of five(5)years each ("Renewal Term(s)"). Each Renewal Term shall be on the terms and conditions set forth herein. This Lease shall automatically be extended for each Renewal Term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior to the expiration of the Initial Term or then current Renewal Tenn. - 2 - Site No.: IF24786B 06/03/10 File No.:15.06-175 Tom Minor Park 3 Lease Payments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and no/100 Dollars ($2,100.00) in addition to rent for a document preparation fee upon the Commencement Date of said Lease. In the event the Lease is terminated as a result of testing as set forth in Paragraph 5(a), Lessor shall retain the document preparation fee of Two Thousand One Hundred and no/100 Dollars($2,100.00) for work performed. (b) Within sixty (60) days following the Commencement Date, Lessee shall pay Lessor a one time capital contribution in the sum of Seven Thousand and no/100 Dollars ($7,000.00) for park improvements, which shall be refundable to Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Lessee Facilities as defined below. ® (c) Lessee shall pay Lessor as rent, the annual sum of Twenty-Five Thousand, Two Hundred and 00/100 Dollars ($25,200.00) "Rent', payable in equal monthly installments commencing upon the Commencement Date ("Rent Start Date"). The monthly installments shall be in the amount of Two Thousand One Hundred and no/100 Dollars ($2,100.00) each month, due and payable on the Rent Start Date, and on the same date of each month thereafter. Should the first and last payment of rent be for a partial month, then only the pro-rata portion of the rent shall be paid to Lessor. Payments shall be mailed or delivered to: City of San Bernardino Development Services Department/Real Property Section 300 North"D" Street, 3rd Floor San Bernardino, CA 92418 (d) Rent shall be increased on each yearly anniversary of the Rent Start Date �. by an amount equal to four percent (4%) of the rent then in effect for the previous year. - 3 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park 4. Use Restrictions: The Premises may be used by Lessee for any lawful activity in connection with the provision of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies, and the testing, investigation, construction, maintenance and operation of related communications facilities. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses, permits, and any and all other necessary approvals that may be required for Lessee's intended use of the Premises. 5. Improvements: (a) Lessee shall have the right (but not the obligation) at any time prior to the Commencement Date, to enter the Premises for the purpose of making necessary engineering surveys and inspections (and soil tests where applicable) and other reasonably necessary tests ® ("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined herein) for mobile/wireless communications operations. During any Tests, Lessee shall obtain and maintain insurance as set forth in Paragraph 10, and will notify Lessor at least forty-eight (48) hours prior to any proposed Tests, and will coordinate the scheduling of same with Lessor. If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee shall notify Lessor and this Lease shall terminate. Lessee shall repair any damage to the Premises caused by Lessee and shall restore the Premises to the condition existing prior to conducting the Tests. (b) Lessee shall have the right to construct, erect, maintain, operate and remove mobile/wireless communications facilities on the Premises, including but not limited to an antenna tower or pole and foundation, utility lines, transmission lines, air conditioned equipment shelter(s), electronic equipment,transmitting and receiving antennas, a standby power -4 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park generator and generator pad, and supporting equipment, structures and improvements ("Lessee Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare, maintain and alter the Premises for Lessee's business operations and to install transmission lines connecting the antenna to transmitters and receivers. All of Lessee's construction and installation work shall be performed at Lessee's sole cost and expense and in a good workmanlike manner. Lessee shall hold title to the Lessee Facilities and all of the Lessee Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove the Lessee Facilities at its sole expense on or before the expiration or earlier termination of this Lease as provided in this paragraph 5(b). Once the Lessee Facilities are installed, Lessee shall not make any material alterations to the Premises, or any part thereof, other than as set forth in Paragraph 5 herein, without the prior written consent of Lessor, which consent shall not be ® unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, maintenance, repairs, like-kind or similar replacements of the Lessee Facilities and modifications made within the interior of any shelters or base station equipment shall not be considered "Material Alterations". Any and all alterations and/or improvements made to the Premises pursuant to this Lease, including but not limited to Lessee Facilities, shall, within ninety (90) days of expiration or early termination of this Lease , be removed from the Premises, and the Premises shall be returned to its previous state as of the Commencement Date, excepting normal wear and tear, casualty, or damage caused by Lessor or Lessor's agents, employees, tenants, lessees, licensees i or invitees. (c) Lessor shall provide to Lessee, Lessee's employees, agents and contractors, access to the Premises without notice to Lessor 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 said Premises over the Property, and shall allow Lessee, and Lessee's _ S _ Site No.: IE24786B 06103/10 File Nn.-15 06-175 Tnm Minn,Park agents, employees, and contractors access from the nearest public roadway to the Premises at all times, and hereby grants such non-exclusive ingress and egress rights to Lessee along a six foot (6') wide right-of-way extending from the nearest public right-of-way to the Premises, as further described in Exhibit`B", to the extent required to construct, erect, maintain, install, remove and operate the Lessee Facilities on the Premises. Lessee shall repair any damages Lessee, its agents, employees, officers, or contractors cause to the Property in accessing the Premises over the above-described ingress and egress area. 6. Maintenance and Inspections: Lessee shall, at Lessee's own cost and expense, keep and maintain all improvements hereinafter constructed on the Premises in good condition and repair, and shall use all reasonable precaution to prevent waste, damage or injury to the Premises. Lessor shall,at any ® reasonable time, have the right to go upon the Premises upon seventy-two (72) hour prior notice to Lessee, and inspect and examine the same relative to such maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an employee or authorized representative of Lessee. 7. Utilities: Lessee shall have the right to install utilities at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency power generators), subject to Lessor's approval of the location, which approval shall not be unreasonably withheld. Lessee shall pay for all electricity, gas, water, telephone service, and all other services and utilities, including service installation fees and charges for such utilities, used by © Lessee related to the Premises during the term of this Lease. - 6 - Site No.: IE24796B nano/In File Mn ISn6_I7STnm Mi.,Park 8. Liens and/or Encumbrances: Lessee shall pay or cause to be paid, all costs of construction and/or installation of all improvements. Lessee shall keep the Premises free and clear of any and all claims arising out of performance of work on Lessee's behalf, furnishing of materials on Lessee's behalf, and upon use of utilities by Lessee. This Lease shall be subordinate to any lien, mortgage or deed of trust currently on record against said Property. 9. Permits and Fees: (a) Lessee shall pay all license fees, assessments, penalties or fines which may be levied against Lessee by virtue of the installation of Lessee's leasehold improvements at the Property. (b) Lessor shall pay when due all real property taxes for the Property, including ® the Premises. In the event that Lessor fails to pay any such real property taxes or other fees and assessments, Lessee shall have the right, but not the obligation, to pay such owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing, Lessee shall pay any personal property tax, real property tax or any other tax and/or fee which are directly attributable to the presence or installation of the Lessee's Antenna Facilities, only for so long as this Lease has not expired of its own terms or is not terminated by either party. Lessor hereby grants to Lessee the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of Lessor and/or Lessee, any personal property or real property tax assessments that may affect Lessee. If Lessor receives notice of any personal property or real property tax assessment against the Lessor, which may affect Lessee and is directly attributable to Lessee's installation, Lessor shall provide timely notice of the assessment to Lessee sufficient to allow Lessee to consent to or challenge such assessment. Further, Lessor shall provide to -7 - Site No.: IE24786B 06/07/10 File No.-15.06-175 Tom Minor Fork Lessee any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 9. 10. Liability Insurance: Lessee agrees to procure and maintain in force during the term of this Lease and any extension, at Lessee's sole cost and expense, the following insurance from companies with an A.M. Best Rating of at least A-VII, and with such minimum limits as set forth below, which shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and contractors, arising out of or in connection with Lessee's use of the Premises as provided for herein; (1) Commercial General Liability with limits of five million dollars ($5,000,000.00)per occurrence, provided such limit may be satisfied by a combination of primary and umbrella policies, Lessee may satisfy this requirement by obtaining the appropriate endorsement to any ® master policy of liability insurance Lessee may maintain. (2)Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Workers' Compensation Insurance as required by law and Employers' Liability with limits of one million dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor a certificate of insurance and name Lessor as an additional insured for the general liability policy, which certificate provides: (a) Additional Insured: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insured with respect to this contract with the City." (b) The certificates shall include the insurance company name, policy number, period of coverage, and the amount of insurance. - 8 - Site No.: 16247866 06/03/10 File No.: 15.06-175 Tom Minor Park C (c) That the Real Property Section of the Development Services Department of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation or reduction of required limits of the policy. (d) That Lessee's insurance shall be primary to any coverage the City of San Bernardino may have in connection with Lessee's negligence. 11. Indemnification: (a) Lessor and Lessee shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from or related to the indemnifying party's breach of any term or condition of this Lease or the negligence or willful misconduct of the indemnifying party, or its agents, employees or © contractors in or about the Premises. Except as provided in the first sentence, Lessee shall defend (if requested by Lessor), indemnify, and hold harmless Lessor, its agents, boards, officers, employees, representatives or contractors against any and all claims, suits, damages for bodily injury, including death, property damage, demands, loss or liability of any kind or nature ("Claims") arising from or related to Lessee's operations under this Lease except for claims arising out of the negligence or misconduct of Lessor, its agents, officers, employees, representatives or contractors.. The duties described in this Paragraph 11 shall apply as of the Effective Date of this Lease and survive the termination of this Lease. i (b) Neither Party shall be liable to the other, or to any of their respective agents, representatives, officers or employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort(including negligence), strict liability or otherwise. - 9 - Site No.: IF.24786B 06/03/10 File No.: 15.06-175 Tom Minor Park 12. Taxes/Possessory Interest: Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of property taxes levied on such interest. Lessee agrees to, and shall indemnify and hold harmless, Lessor from any and all liability for any such taxes during the Lease term due pursuant to Paragraph 9, Permits and Fees above. 13. Waiver of Lessor's Lien. (a) Lessor waives any lien rights it may have concerning the Lessee Facilities, all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. (b) Lessor acknowledges that Lessee has entered into a financing arrangement ® including promissory notes and financial and security Leases for the financing of the Lessee Facilities ("Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Lessor (i) consents to the installation of the Collateral; (ii)disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 14. Assignment and Subletting: Lessee may not assign all or any part of its interest in this Lease or in the Premises without the prior written consent of Lessor; provided, however, that Lessee may assign without notice to Lessor its interest to its parent company, any subsidiary or affiliate of it or its © parent company or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease as set - 10 - Site No.- IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park forth in Paragraph 13 above. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under this Lease, provided that the assignee assumes all of Lessee's obligations herein. This Lease shall run with the Property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity, to whom Lessee (i) has obligations for borrowed money or with respect to guaranties thereof, (ii)has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii)has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or with respect to guaranties thereof. ® Sublease - Subject to all permits and approvals from all governmental agencies having jurisdiction thereover, Lessee may lease or license space on the support structure forming a part of the Lessee's Facilities, in its equipment cabinets or elsewhere on the Lessee's Facilities to a third party for installation of transmission,receiving or other types of equipment or facilities, whether similar or dissimilar to Lessee's installation, on such terms and conditions as Lessee, in its sole discretion, desires (a "Third Party Lease"); provided, however, that Lessor shall receive as additional rent under this Agreement, fifty percent (50 1/o) of such Third Party Lease rent actually received by Lessee only after Lessee has been able to recover all direct and indirect costs and expenses of obtaining the sublease. Any such sublessee shall be instructed to pay the foregoing percentage amount directly to Lessor. 15. Termination: This Lease may be terminated without further liability on thirty(30)days prior C 11 - Sim No.: IE24786B 06/03/10 File No.: 15.156-175 Tom Minor Park written notice as follows: (i)by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that the Lease shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty(60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice; or (ii)by Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Lessee Facilities; or (iii)by Lessee if Lessee is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; or (iv) by Lessee if any environmental report for the Property reveals the presence of any Hazardous Material after the Commencement Date; or © (v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference. In the event that Lessee terminates this Lease prior to the expiration of the initial five (5)-year Term pursuant to the terms of paragraph (v) above, Lessee shall pay to Lessor a sum equivalent to three (3) months' then-current Rent as liquidated damages. Notwithstanding the foregoing, no termination fee shall apply if Lessee terminates this Lease for signal interference by Lessor or its lessees, licensees or invitees on the Property. 16. Hazardous Materials: (a) As of the Commencement Date of this Lease: (1) Lessee hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Premises in violation of any Environmental Law (as defined below), and (2) Lessor hereby represents and warrants that (i) it has no knowledge of the © presence of any Hazardous Material located in, on, under, upon or affecting the Premises in - 12 - site Nu.: IE24786B Wnq/i n violation of any Environmental Law; (ii) no notice has been received by or on behalf of Lessor from, and Lessor has no knowledge that notice has been given to any predecessor owner or operator of the Premises by, any governmental entity or any person or entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Property; and (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Property in violation of any Environmental Law. (b) Without limitation of Paragraph 11, Lessor and Lessee shall each indemnify, defend and hold the other hamiless from and against all Losses arising from (i) any breach of any representation or warranty made in this Paragraph 16 by such party; and/or (ii)environmental conditions or noncompliance with any Environmental Law (as defined below) ® that result, in the case of Lessee, from operations in or about the Premises by Lessee or Lessee's agents, employees or contractors, and in the case of Lessor, from the ownership or control of, or operations in or about, the Property by Lessor or Lessor's predecessors in interest, and their respective agents, employees, contractors, lessees, guests or other parties. The duties described in this Paragraph 16 shall apply as of the Commencement Date of this Lease and survive termination of this Lease. (c) "Hazardous Materiar' means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has - 13 - Sim No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Law"means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i)human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment. 17. Interference with Communications: QLessee's Facilities shall not disturb the communications configurations, equipment and frequency which exist on the Property on the Commencement Date ("Pre- existing Communications"), and Lessee's Facilities shall comply with all non-interference Hiles of the Federal Communications Commission ("FCC"), and the conditions set forth in Development Permit I, regarding the City's public safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC or other Federal agency or department). Lessor shall not and shall not permit its lessees or licensees to use of any portion of the Property in a way that interferes with the communications operations of Lessee described in Section 4, above. Such interference with Lessee's communications operations shall be deemed a material breach by Lessor, and Lessor shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties © acknowledge that continuing interference will cause irreparable injury to Lessee, and therefore, Lessee shall have the right to bring action to enjoin such interference or to terminate this Lease - 14 - Site No.: IE24786B ® immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 18. Casualty: In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within forty-five (45) 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 forty-five (45) days, then Lessee may, at any time following such fire or other casualty, provided Lessor has not completed the restoration required to permit Lessee to resume its operation at the Premises, terminate this Lease upon fifteen (15) days prior written notice to Lessor. Any such notice of termination shall cause ® this Lease 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 Lease and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Lease. Notwithstanding the foregoing, Rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which Lessee's use of the Premises is impaired. 19. Condemnation: In the event of any condemnation of all or any portion of the Property, this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first. If as a result of a partial condemnation of the Premises or Property, Lessee, in Lessee's sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt Lessee's ® operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee's option, to _ 15 - Site No.: IF24786B 06/03/10 File No.: 15.06-175 Tom Minor Park be exercised in writing within thirty (30)days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. Lessee may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Lease 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 Lease and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Lease. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the ® portion of the Premises remaining, except that the Rent shall be reduced in the same proportion as the rentable area of the Premises taken bears to the total rentable area of the Premises. 20. Miscellaneous: (a) This Lease constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other Leases concerning the subject matter contained herein. Any amendments to this Lease must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Premises and the Property and their real and personal property located thereon shall be in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. p (c) If any provision of this Lease is invalid or unenforceable with respect to any party, the remainder of this Lease or the application of such provision to persons other than - 16 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. (d) This Lease shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (e) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Lessor: Lessee: City of San Bernardino T-Mobile USA, Inc. Development Services Department 12920 SE 38w Street Real Property Section Bellevue, WA 98006 300 N D Street, 3`"Floor Attn: PCS Lease Administrator San Bernardino, CA 92418 Site No. IE24786B • with a copy to: Attn: Legal Department With a copy to: With a cony to: ATS Communications T-Mobile West Corporation 22642 Lambert Street,#402 3 MacArthur Place, Suite 1100 Lake Forest, CA 92692 Santa Ana, CA 92707 Attn: Lease Administration Manager Site No. IE24786B Lessor or Lessee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. (I) This Lease shall be governed by the laws of the State of California. Any legal proceeding brought to enforce any right, interest, or other demand to this Lease shall be ® brought in the courts with jurisdiction in the County of San Bernardino, State of California. The prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to - 17 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park recover from the losing party reasonable attorney's fees and court costs, including appeals, if any, in connection with that action. The costs, salary, and expenses of the City Attorney and members of its office in connection with that action shall be considered as "attorney's fees" for the purposes of this Lease. (g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in the form annexed hereto as Exhibit"C" and acknowledges that such Memorandum of Lease will be recorded by Lessee in the official records of the County where the Property is located. (h) In the event the Property is encumbered by a mortgage or deed of trust, Lessor agrees to provide reasonable cooperation in obtaining and delivering to Lessee an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. 10 (i) Lessor agrees to fully cooperate, including executing necessary documentation, with Lessee to obtain information and documentation clearing any outstanding title issues that could adversely affect Lessee's interest in the Premises created by this Lease. 0) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Lease, such party shall not unreasonably delay or withhold its approval or consent. (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Lease. (l) The captions and headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Lease. (m) All Exhibits annexed hereto form material parts of this Lease. - 18 - Site No.: IE24786B 06/03/10 File Nn 15 M-M Tnm Minn.P.,k (n) The captions contained in this Lease are inserted for convenience only and are not intended to be part of this Lease. They shall not affect or be utilized in the construction or interpretation of this Lease. (o) Lessor covenants that Lessee, on paying Rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. (p) Lessor represents and warrants to Lessee as of the execution date of this Lease, and covenants during the term hereof that Lessor is seized of good and sufficient title and interest to the Property. (q) The failure of either party to insist upon strict performance of any of the terms or conditions of this Lease or to exercise any of its rights under this Lease 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 Lease, in law or in equity. 21. Risk to Public Safety or Health: In the event the FCC, or any successor federal agency thereto, 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 the Lessee's use as set forth in this Lease presents a material risk to public health or safety, including, but limited to radio frequency emissions, and if Lessee fails to correct such material risk within sixty(60) days, either Lessor or Lessee may terminate this Lease upon ten(10) days prior written notice to the other party. [Signatures begin on next page] - 19 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Purl: LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND T- MOBILE WEST CORPORATION. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set forth at the beginning of this Lease. LESSOR: LESSEE: CITY OF SAN BERNARDINO, T-MOBILE WEST CORPORATION a Municipal corporation By: CHARLES E. MCNEELY, By: CHRIS ELDRIDGE, City Manager Regional Director of Development ATTEST: RACHEL CLARK, City Clerk Approved as to form: J S F. PEAIAN, City Attorney -20 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliillillilililllillillillillillillilliililllllllllllliiiilllIiiiiiI NINE • EXHIBIT "A" DESCRIPTION OF LAND LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS, OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. APN: 0261-691-48 - 21 - Sik No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park EXHIBIT "B" DESCRIPTION OF PREMISES The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO See the attached drawings Notes: 1. Lessee may replace this Exhibit with a survey of the Premises once Lessee receives it. 2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental authorities. 3. The access road's width will be the width required by the applicable governmental authorities, including police and fire departments. 4. Lessee may install up to twelve(12)antennas and twenty four(24) coaxial cables subject to City Development Permit approval. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers,mounting positions and locations may vary from what is shown above. 5. The location of any utility easement is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations. V - 22 - Site No.: IE24786B 06/03/10 File No.:15.06-175 Tom Minor Park �. WA` '•li a P Alm ( S YS � _€ / ''y33 8$ v z Q H 4 3 -_-J -----------yauu_-. Oil • I ¢ w! T � I 1 / Z --- ml -I 6 d-.._..- —------ I --------------------------.--_-_-_-_-_---- -. ---� r_- I I I I I I I I I I I I I I I © I I I I 3 i CM LQ1i�� m� ° € VXsii�° O= Rip s w� g ..=w wI Q °3 i 3nv vi3rvan w — — — — — — �g Mll p IN- i b e- G^ S A 6ro Wx-KO WY[�Z]\4)-[\nne e0xm M�mm[�gV�YJn-IVx.!ea\3F\e 3W-3WJ wepy _OAK i[M . L � 9 —0 if L W jQ Y 0 s ppL F `-+ VQ9 0. 2i�1 & 3 w yB 9t Q 4 - 3C avme,wn,.vro]o-.sr PoPo 1-.er 9 �q �` I I I I ;gig It a \ Ea @ J-n , I J� €e `�y$sei y "� 3�¢b 4 z lied YuB� t €o� :ag M. ff35�o� W meav.neoT-i.lal m 8 Q ,\WU»:wow Vm-ew ,n¢n-11YIA5 IeW'.»ivw awabvm 3son-awn �y ��' � g� �e 2 5h uw aaaW. w, ast I gs mld gi,fie ln "' m � tYFg�e e� a 3!go o z %a4ppna �� d I I. caw Mwwuw w 7 fail»wwr yr wen« -i WI u] fF . ..a 3 swi..n-.m-eee..o�m-:�ma uo.i.w ewnxa�nean-nnawum< avr-ziw wn.-o�u �x w EXHIBIT « „ C ® WHEN RETURN NTO: WHEN RECORDED RETURN TO: CITY OF SAN BERNARDINO CITY CLERK 300 N."D"STREET SAN BERNARDINO,CA 92418 APN: 0261-691-48 FEE EXEMPT PURSUANT TO SITE NO. IE24786B GOV. CODE SECTION 27383 MEMORANDUM OF LEASE This MEMORANDUM OF LEASE is entered into on this day of . 2010, by and between the CITY OF SAN BERNARDINO, a municipal corporation, with an address at 300 N. D Street, San Bernardino, CA 92418 (hereinafter referred to as "Owner"or"Lessor") and T-MOBILE WEST CORPORATION, a Delaware corporation, with an address at 12920 SE 38" Street, Bellevue, WA 98006 (hereinafter referred to as "TMO"or"Lessee"). I. Lessor and Lessee entered into a Lease Agreement (`Lease") dated on the day of 2010, for the purpose of installing, operating and maintaining a communications facility and other improvements with respect to a portion of that certain property located on the Northeast comer of Palm Avenue and Irvington Avenue, known as Tom Minor Park, legally described on Exhibit"1"attached hereto and made a part hereof.All of the foregoing is set forth in the Lease. 10 2. The initial lease term will be for five (5) years (`Initial Term') commencing on the date both Lessor and Lessee have executed the Lease above ("Commencement Date"), with three (3) successive five (5) year options to renew. 3. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first written above. LESSOR: LESSEE: CITY OF SAN BERNARDINO T-MOBILE WEST CORPORATION By: By: Name: Charles E. McNeely Name: Chris Eldridge Title: City Manager Title: Regional Director of Development v Date: Date: - 23 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park EXHIBIT "1" �rrd LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS, OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. APN: 0261-691-48 - 24 - Site No.: IE24786B 06/03/10 File No.: 15.06-175 Tom Minor Park