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HomeMy WebLinkAbout23-City Manager ORIGINAL CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION From:Fred Wilson, City Manager Subject: Resolution authorizing the City Manager to execute a lease agreement Dept: City Manager's Office between the City of San Bernardino and Omnipoint Communications Inc. for the Date: August 14, 2007 lease of one thousand (1000) square feet of land at Wildwood Park. M/CC Meeting Date: September 4, 2007 Synopsis of Previous Council Action: 6/05/2006 - Resolution No. 2006-168 authorizing the execution of a contract with Omnipoint Communications was approved for cell tower placement at Nunez Park. Recommended Motion: Adopt Resolution. R)9?, ignature Contact person: Teri Baker Phone: 5122 Supporting data attached: Staff Report-Reco &Agreement Ward: 4th FUNDING REQUIREMENTS: Amount: $10,000 in revenue in FY 2007/08 Source: (Acct No.) (Acct. Description) Finance: Council Notes: Aso a 5;'OC 7 37.3 Af a&m�& Agenda Item No. a� 3 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute a lease agreement between the City of San Bernardino and Omnipoint Communications Inc. for the lease of one thousand (1000) square feet of land at Wildwood Park, 536 E. 40th Street. Background: Omnipoint Communications, commonly known as T-Mobile, submitted a proposal to lease 1000 square feet of property at Wildwood Park for placement of a Monopine pole that will Omnipoint Communicatio ns will b e responsible onsible accommodate panel antennas (cellular tower). Omni p for payment of any utilities used by their equipment. The agreement provides a five (5) year term with the option of three (3) successive five (5) year renewal periods. The initial monthly rent is $1,999 per month with a 15% increase with each renewal term. The term of the lease begins on the date both parties execute the lease. The monthly rent commences upon issuance of building permits. It appears construction of the Monopine cell tower at Wildwood Park is expected to start in February 2008. Ominpoint has received land use approval and filed an application for a building permit. Financial Impact: The projected revenue in 2007/08 is $10,000 (5 months). The total revenue over the five (5) year period is approximately $120,000. If each of the three (3), five (5) year terms are renewed for a total term of twenty years,total revenue to the City will be approximately $599,000 including the 15% increase with each renewal term. Recommendation: Adopt Resolution. COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE 3 CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN 4 BERNARDINO AND OMNIPOINT COMMUNICATIONS INC. FOR THE LEASE OF ONE THOUSAND SQUARE FEET (1000) OF LAND AT 5 WILDWOOD PARK, 536 E. 40th STREET. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF 7 THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The City Manager is hereby authorized and directed to execute on 9 behalf of the City a contractual agreement between the City of San Bernardino and 10 Omnipoint Communications for the lease of one thousand (1000) square feet of land at 11 Wildwood Park, 536 E. 401h Street, a copy of which is attached hereto, marked as 12 13 Attachment "A", and incorporated herein by this reference. 14 SECTION 3. The authorization granted hereunder shall expire and be void and of no 15 further effect if the agreement is not executed by both parties and returned to the office of 16 the City Clerk within sixty (60) days following the effective date of the resolution. 17 18 19 20 21 22 23 24 25 26 27 28 c�3 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE 2 CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN 3 BERNARDINO AND OMNIPOINT COMMUNICATIONS INC. FOR THE LEASE OF ONE THOUSAND SQUARE FEET (1000) OF LAND AT 4 WILDWOOD PARK, 536 E. 40`h STREET. 5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 6 Mayor and Common Council of the City of San Bernardino at a 7 meeting thereof, held on the day of 8 9 2007, by the following vote, to wit: 10 Council Members: AYES NAYS ABSTAIN ABSENT 11 ESTRADA 12 BAXTER 13 BRINKER 14 DERRY 15 KELLEY 16 17 JOHNSON 18 MCCAMMACK 19 20 Rachel G. Clark, City Clerk 21 � The foregoing resolution is hereby approved this day of 22 , 2007. 23 24 Patrick J. Morris, Mayor 25 City of San Bernardino Approved as to Form: 26 J� 27 mes F. Penman, City Attorney 28 ATTACHMENT "A" LEASE THIS LEASE(Lease),is made and entered into this day of September 2007, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., 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 Wildwood Park ("Property") on the northeast corner of Western and 40th Street in the City of San Bernardino (APN 0154-371-05), 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 Wildwood 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. NOW THEREFORE, the parties hereto agree as follows: 1. Property Leased: Lessor hereby leases to Lessee,and the Lessee hereby leases from Lessor,approximately one thousand(1,000)square feet of land,more particularly described in Exhibit"B" attached hereto(the "Premises"). Said Premises includes any appurtenant facilities and applicable easements for access and utilities as described herein. FAEM PEN O\Agreements\T-Mobile.Agreement.wpd 1 i 2. Term: The term of this Lease shall be five (5) years, commencing with the date both Lessor and Lessee have executed this Lease("Commencement Date"). Lessee shall have the right to extend the term of this Lease for three (3) additional terms of five (5) years each. Each renewal term shall be on the terms and conditions set forth herein. This Lease shall automatically be extended for each successive five (5) year renewal term upon Lessor's receipt of Lessee's written notification of intention to renew no later than ninety(90)days prior to the expiration of the first five(5) year term or any 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 first five (5) year term or any renewal term. 3. Lease Payments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 00/100 dollars ($2,100.00) 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$2,100.00 for work performed. (b) Lessee shall pay Lessor as rent, the annual sum of Twenty-Three Thousand, Nine Hundred and Eighty-Eight and 00/100 Dollars ($23,988.00),payable in monthly installments commencing upon the date the building permit is issued ("Rent Start Date"). The monthly installments shall be in the amount of One Thousand and Nine Hundred and Ninety-Nine and 00/100 Dollars ($1,999.00) 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. 111 F:\EMPENOWQreements\T-Mobile.A,-reement.wpd 2 tee .. Payments shall be mailed or delivered to: City of San Bernardino Development Services Department/Real Property Section 300 North "D" Street San Bernardino, CA 92418 Rent shall he increased on each five (5) year anniversary of the Rent Start Date by an amount equal to fifteen percent (15%) of the rent then in effect for the previous term or renewal term. 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 F:\EMPENO\Agreements\T-M obi le.Agreement.wpd 3 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 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. 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,upon termination of this Lease,be removed from the Premises,and the land returned to its previous state, excepting normal wear and tear. (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, F\EMPENO\Agreements\T-Mobile.Agreement.wPd 4 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 access from the nearest public roadway to the Premises at all times,and hereby grants such non-exclusive ingress and egress rights to Lessee, and to Lessee's agents, employees, and contractors, across the Property as described in Exhibit A, 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. FAEMPENOW greements\T-M obi le.Agreement.wpd 5 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: 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. 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 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. F:\EMPENO\Agreemen is\T-Mobile.Agreement.,ATd 6 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 1 Lessee may maintain. (2)Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Worker's 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) On the Commercial General Liability policy that the City of San Bernardino is named as an additional insured for the acts or omissions of Lessee. (b) The certificates shall include the insurance company name, policy number, period of coverage, and the amount of insurance. (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 modification of the policy. (d) That Lessee's insurance shall be primary to any coverage the City of San Bernardino may have in connection with the acts or omissions of Lessee. F:\EMPENO\Agreemen is\T-Mobile.Agreement.wpd 7 11. Indemnification: 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 personal 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. 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 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. F:\EMPENO\Agreements\T-Mobile.Agreement.a-pd 8 (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(1)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 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 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. Lessor may assign this Lease, which assignment may be evidenced by written notice to Lessee within a reasonable period of time thereafter, provided that the assignee assumes all of Lessor's obligations herein, including but not limited to, those set forth in Paragraph 13 ("Waiver of Lessor's Lien") above. 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 F:\EMPENO\Agreements\T-Mobile.Agreement.wpd 9 of any financing entity, to whom Lessee (1) 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. 15. Termination: This Lease maybe terminated without further liability on thirty(30)days prior 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; or(vi) by Lessee if the Lessor fails to deliver to Lessee an executed memorandum of Lease or non-disturbance and attornment pursuant to Paragraphs 18(g) and (h) below. 16. Hazardous Materials: ` (a) As of the Commencement Date of this Lease: (1) Lessee hereby represents and RT MPENOWgreements\T-Mobile.Agreement.wpd 10 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 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 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 F:\EMPENOWgreements\T-Mobile.Agreement.wPd I I 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 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 FAEMPENO\Agreements\T-Mobile.Agreement.wpd 12 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 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. 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 their real and personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. (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 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: F\EMPENO\Agreements\T-M obi le.Agreement.wpd 13 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 Attn: PCS Lease Administrator San Bernardino, CA 92410 Site No. IE04897A with a copy to: Attn: Legal Department With a copy to: Omnipoint Communications, Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Manager Site No. IE04897A 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. L (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 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 Land is located. (h) In the event the Land is encumbered by a mortgage or deed of trust, Lessor agrees to obtain and deliver to Lessee an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably F:\EMPENO\Agreemen is\T-Mobile.Agreement.wpd 14 acceptable to both parties. (1) 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. (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 Riders and Exhibits annexed hereto form material parts of this Lease. (n) This Lease may be executed in duplicate counterparts,each of which shall be deemed an original. F:\EMPENO\.4greements\T-Mobile.Agreement.wpd 15 9 LEASE 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, OMNIPOINT COMMUNICATIONS, INC. a Municipal Corporation A SUBSIDIARY OF T-MOBILE USA, INC. FRED WILSON, City Manager By: Jon Zumsteg, Area Director ATTEST: Rachel Clark, City Clerk Approved as to form S F. PENMAN, City Attorney > F:AEMPENMAgreemenu\T-M obi le.Aa eemem.wpd 16 EXHIBIT A DESCRIPTION OF LAND to the Lease Agreement dated , 200 , by and between CITY OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc. as Lessee. The Land is described and/or depicted as follows (metes and bounds description): PTN SEC 14 TP IN R 4W COM AT A PT ON E LI WATERMAN AVE 82.5 FT WIDE WHICH IS N ODEG 20 MIN APN: 0154-371-05 FA\EMPENOW greements\T-Mobi le.Agreement.wpd 17 EXHIBIT B DESCRIPTION OF PREMISES to the Lease Agreement dated , 200 , by and between CITY OF SAN BERNARDINO, as Lessor and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., as Lessee. The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO See Attached 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. F:AEMPENO\Agreements\T-Mobile.A,�reement.wpd 18 Y � Q) oa = T a Qeoe 00 0 N y. 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D � D Eli, d�F ��9p�p 3 r 3 / 66/�/a� �P�-' 4 •4P5 Y, y PRO £ F t 3 WRAF o rp 0 OD i 5,gg u (� CD s ,g �' Qa D vo m o 7C � I I t ' SISI § V § rn` _ w z § z . !| !E k) ! ■ � ) �§ » § § \ m | = d R \n! § � § \: - � / \ } § ) \ |-F | � | v � o 3 | j© � . . .. § — ! f !■ ■ � �� ' { 2 ) § ƒ . \ � / � ' ; D ■ -�■ � _� > �; 6 D EXHIBIT C RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Omnipoint Communications, Inc. a Subsidiary of T-Mobile USA Inc. 3 Imperial Promenade, Suite 1 100 Santa Ana, CA 92707 Attn: Lease Administration Site No. IE04897A Site Name: Wildwood Park MEMORANDUM OF LEASE IE04897A /Wildwood Park APN: 0154-371-05 This MEMORANDUM OF LEASE is entered into on this day of 2007 by CITY OF SAN BERNARDINO, with an address at 300 N. D Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Lessor') and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as "OCI" or "Lessee"). 1. Lessor and Lessee entered into a Lease Agreement("Lease")dated as of this day of ,2007 effective upon full execution of the parties("Effective Date") for the purpose of OCI undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Lease. 2. The term of the Lease is for five(5)years commencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Date with three (3) successive five (5) year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee and all necessary access and utility easements (the "Premises") are set forth in 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, Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., F:\EMPENO\Agreements\T-M obi le.Agreement.wpd 19 NOT FOR EXECUTION - EXHIBIT ONLY NOT FOR EXECUTION - EXHIBIT ONLY By: By: Name: Name: Danny Bazerman Title: Title: Director, Engineering& Operations Date: Date: F:\EMPENO\Agreements\T-Mobile.Agreement.�iTd 20 STATE OF COUNTY OF On before me, , Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: STATE OF COUNTY OF On , before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument,the person,or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: FAEMPENO\Agreements\T-Mobile.Agreement.wpd 21 6 ,1,2 Page 1 of 1 ).bishop @hannahconsuIting.com] Sent: I UUbUdy, --er 11, 2007 1:10 PM To: Fedor Ma; Baker Te Cc: Empeno_He Subject: Wildwood Park MEMORANDUM of LEASE Margaret, Please find attached the Memorandum of Lease for City Manager signature. This document needs to be included in the signed lease package presented to T-Mobile for their signatory's execution. Please note that the signatory on the Memorandum is now noted as Jon Zumsteg -not Danny Bazerman. This is the only change from the Exhibit C document of the Lease Agreement. This document has been created directly from the Exhibit C in the Lease Agreement. Please provide two (2) signed copies of the attached Memorandum along with the three (3) signed Lease Agreement documents. I will present to T-Mobile for signature. Please advise as to whether the City Manager will sign the Memorandum today. I appreciate your attention to, and assistance with, this matter. Best regards, Laura Laura Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email: laura.bishop@hannahconsulting.com C (Dply RECORDED AT REQUEST OF,AND WHEN RECORDED RETURN TO: Omnipoint Communications,Inc. a Subsidiary of T-Mobile USA Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Site No. IE04897A Site Name: Wildwood Park MEMORANDUM OF LEASE IE04897A/Wildwood Park APN: 0154-371-05 This MEMORANDUM OF LEASE is entered into on this day of , 2007 by CITY OF SAN BERNARDINO, with an address at 300 N. D Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Lessor") and Onimpoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as "OCI" or "Lessee"). 1. Lessor and Lessee entered into a Lease Agreement("Lease") dated as of this day of , 2007 effective upon full execution of the parties ("Effective Date") for the purpose of OCI undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Lease. 2. The term of the Lease is for five (5) years commencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Date with three(3) successive five (5)year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee and all necessary access and utility easements (the "Premises") are set forth in the Lease. In witness whereof, the parties have executed this Memorandum of Lease as of the day and year first written above. LESSOR: CITY OF SAN BERNARDINO, LESSEE: Omnipoint Communications Inc., A Municipal corporation a subsidiary of T-Mobile USA Inc. By: By: FRED WILSON Jon Zumsteg Title: City Manager Title: Area Director Date: Date: STATE OF ) COUNTY OF ) On this day of , before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: STATE OF ) COUNTY OF ) On this day of , before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted,executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: Page 1 of 2 Fedor—Ma From: Baker Te Sent: Tuesday, September 11, 2007 4:21 PM To: Fedor Ma Subject: RE: Wildwood Park MOL with Exhibit A Thanks Margaret, I have a call into Henry to make sure he approves this before we execute it. Hopefully, he will call me back today and I will let you know. I'm sure it's fine,but I want to make sure. Teri From: Fedor Ma Sent: Tuesday, September 11, 2007 4:10 PM To: Baker_Te Subject: FW: Wildwood Park MOL with Exhibit A Hi Teri, Got your message. I guess we just need approval from someone in your office (or from Henry)to use the document they sent us via e-mail as part of your agreement. The"Memorandum of Lease"we currently have was not executed as it reads"NOT FOR EXECUTION - EXHIBIT ONLY" above the signature line, which Laura mentioned was also going to change. Thanks Margaret x3206 -----Orliginal Message----- From: Laura Bishop [mailto:laura.bishop @hannahconsulting.com] Sent: Tuesday, September 11, 2007 3:45 PM To: Fedor—Ma; Baker_Te Cc: Empeno_He Subject: Wildwood Park MOL with Exhibit A Margaret, Teri, The previously sent Wildwood Park MOL did not have an Exhibit A. Please find a complete MOL with the Exhibit A, attached for review and approval by the City Attorney and signature by the City Manager. Thank you, Laura Laura Bishop Hannah Consulting for T-:Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 n n n i� n nn Page 1 of 1 Fedor—Ma From: Baker Te Sent: Tuesday, September 11, 2007 5:19 PM To: 'Laura Bishop'; Fedor—Ma Cc: Empeno_He Subject: RE: Wildwood Park MOL with Exhibit A Margaret, Henry has approved the signing of this document by the City Manager. Please coordinate the Fred Wilson's signature with Marilyn(0652). Thank you, Teri From: Laura Bishop [mailto:[aura.bishop @hannahconsulting.com] Sent: Tuesday, September 11, 2007 3:45 PM To: Fedor—Ma; Baker_Te Cc: Empeno_He Subject: Wildwood Park MOL with Exhibit A Margaret, Teri, The previously sent Wildwood Park MOL did not have an Exhibit A. Please find a complete MOL with the Exhibit A, attached for review and approval by the City Attorney and signature by the City Manager. Thank you, Laura Laura Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email: laura.bishop@hannahconsulting.com Page 1 of 2 Fedor—Ma From: Laura Bishop [laura.bishop @hannahconsulting.com] Sent: Tuesday, September 11, 2007 5:00 PM To: Baker Te Cc: Fedor Ma Subject: Re: Executed Resolution for Wildwood Thank you, Teri. I will include this documentation in the Lease Document package to be presented to T-Mobile. Any word from Henry Empeno's office on whether the last version of the Memorandum of Lease (with the Exhibit A) is OK for the City Manager's signature? If so,please advise as to when the document will be signed and available for pick- up. Thank you, Laura Laura Bishop Hannah Consulting for T-:Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email: laura.bishop@hannahconsulting.com ----- Original Message ---- From: Baker_Te <Baker_Te @ci.san-bernardino.ca.us> To: Laura Bishop <laura.bishop @hannahconsulting.com> Sent: 'Tuesday, September 11, 2007 4:18:47 PM Subject: Executed Resolution for Wildwood Teri Baker Assistant to the City Manager City Manager's Office City of San Bernardino Phone (909) 384-5122 Fax (909) 384-5138 From: CityManagerCopier @sbcity.org [maiIto-. i!yManagerCopier @sbcity.org] Sent: Tuesday,September 11,2007 5:14 PM To: Baker Te Subject: Message from KMBT_C450 <<SKMBT_C45007091116130.pdf>> Page 1 of 1 Fedor Ma From: Laura Bishop [laura.bishop @hannahconsulting.com] Sent: Tuesday, September 11, 2007 5:06 PM To: Baker Te Cc: Fedor Ma Subject: W-9 Teri, Please have the appropriate individual at the City execute the attached W-9 (only page 1 is needed). Even if the City is exempt, T-Mobile is still required to have the W-9 documentation. The W-9 will accompany the lease agreements to T- Mobile for signature. I appreciate your assistance with this item. Best regards, Laura Laura Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email„ laura.bishop @hannahconsulting.com Form -9 Request for Taxpayer Give form to the (Rev.November 2005) Identification Number and Certification requester. Do not Department of the Treasury send to the IRS. Internal Revenue Service N Name(as shown on your income tax return) a) m Q- Business name,if different from above c 0 N CL r- E] Exempt from backup 4-1 Check appropriate box: E] Sole proprietor ❑ Corporation ❑ Partnership ❑ Other ► ------------------ ❑ withholding h Address(number,street,and apt.or suite no.) Requester's name and address(optional) co c co ac w City,state,and ZIP code v d CL 0 List account number(s)here(optional) 0 W FTM Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box.The TIN provided must match the name given on Line 1 to avoid social security number backup withholding. For individuals,this is your social security number(SSN). However,for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number(EIN). If you do not have a number, see How to get a TIN on page 3. or Note.If the account is in more than one name, see the chart on page 4 for guidelines on whose Employer identification number number to enter. Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me),and 2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or(b) I have not been notified by the Internal Revenue Service(IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a U.S. person(including a U.S. resident alien). Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property,cancellation of debt,contributions to an individual retirement arrangement(IRA),and generally, payments other than interest and dividends,you are not required to sign the Certification, but you must provide your correct TIN. (See the instructions on page 4.) Sign Signature of Here U.S.person ► Date ► Purpose of Form • An individual who is a citizen or resident of the United A person who is required to file an information return with the States, IRS, must obtain your correct taxpayer identification number • A partnership, corporation, company, or association (TIN)to report, for example, income paid to you, real estate created or organized in the United States or under the laws transactions, mortgage interest you paid, acquisition or of the United States, or abandonment of secured property, cancellation of debt, or • Any estate(other than a foreign estate) or trust. See contributions you made to an IRA. Regulations sections 301.7701-6(a) and 7(a)for additional U.S. person.Use Form W-9 only if you are a U.S. person information. (including a resident alien), to provide your correct TIN to the Special rules for partnerships. Partnerships that conduct a person requesting it (the requester) and, when applicable, to: trade or business in the United States are generally required 1. Certify that the TIN you are giving is correct (or you are to pay a withholding tax on any foreign partners' share of waiting for a number to be issued), income from such business. Further, in certain cases where a 2. Certify that you are not subject to backup withholding, or Form W-9 has not been received, a partnership is required to 3. Claim exemption from backup withholding if you are a presume that a partner is a foreign person, and pay the U.S. exempt payee. withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the In 3 above, if applicable, you are also certifying that as a United States, provide Form W-9 to the partnership to U.S. person, your allocable share of any partnership income establish your U.S. status and avoid withholding on your from a U.S. trade or business is not subject to the share of partnership income. withholding tax on foreign partners' share of effectively connected income. The person who gives Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding Note. If a requester gives you a form other than Form W-9 to withholding on its allocable share of net income from the request your TIN, you must use the requester's form if it is substantially similar to this Form W-9. partnership conducting a trade or business in the United States is in the following cases: For federal tax purposes,you are considered a person if you • The U.S. owner of a disregarded entity and not the entity, are: Cat.No.10231X Form W-9 (Rev.11-2005) Form W-9(Rev.11-2005) Page 2 • The U.S. grantor or other owner of a grantor trust and not 3. The IRS tells the requester that you furnished an the trust, and incorrect TIN, • The U.S. trust(other than a grantor trust) and not the 4. The IRS tells you that you are subject to backup beneficiaries of the trust. withholding because you did not report all your interest and Foreign person. If you are a foreign person, do not use dividends on your tax return (for reportable interest and Form W-9. Instead, use the appropriate Form W-8 (see dividends only), or Publication 515, Withholding of Tax on Nonresident Aliens 5. You do not certify to the requester that you are not and Foreign Entities). subject to backup withholding under 4 above(for reportable Nonresident alien who becomes a resident alien. interest and dividend accounts opened after 1983 only). Generally, only a nonresident alien individual may use the Certain payees and payments are exempt from backup terms of a tax treaty to reduce or eliminate U.S. tax on withholding. See the instructions below and the separate certain types of income. However, most tax treaties contain a Instructions for the Requester of Form W-9. provision known as a "saving clause." Exceptions specified Also see Special rules regarding partnerships on page 1. in the saving clause may permit an exemption from tax to continue for certain types of income even after the recipient Penalties has otherwise become a U.S. resident alien for tax purposes. Failure to furnish TIN. If you fail to furnish your correct TIN If you are a U.S. resident alien who is relying on an to a requester, you are subject to a penalty of$50 for each exception contained in the saving clause of a tax treaty to such failure unless your failure is due to reasonable cause claim an exemption from U.S. tax on certain types of income, and not to willful neglect. you must attach a statement to Form W-9 that specifies the Civil penalty for false information with respect to following five items: withholding. If you make a false statement with no 1. The treaty country. Generally, this must be the same reasonable basis that results in no backup withholding, you treaty under which you claimed exemption from tax as a are subject to a$500 penalty. nonresident alien. Criminal penalty for falsifying information.Willfully 2. The treaty article addressing the income. falsifying certifications or affirmations may subject you to 3.The article number(or location) in the tax treaty that criminal penalties including fines and/or imprisonment. contains the saving clause and its exceptions. Misuse of TINs. If the requester discloses or uses TINs in 4. The type and amount of income that qualifies for the violation of federal law, the requester may be subject to civil exemption from tax. and criminal penalties. 5. Sufficient facts to justify the exemption from tax under Specific Instructions the terms of the treaty article. Example.Article 20 of the U.S.-China income tax treaty Name allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the If you are an individual, you must generally enter the name United States. Under U.S. law, this student will become a shown on your income tax return. However, if you have resident alien for tax purposes if his or her stay in the United changed your last name, for instance, due to marriage States exceeds 5 calendar years. However, paragraph 2 of without informing the Social Security Administration of the the first Protocol to the U.S.-China treaty(dated April 30, name change, enter your first name, the last name shown on 1984) allows the provisions of Article 20 to continue to apply your social security card, and your new last name. even after the Chinese student becomes a resident alien of If the account is in joint names, list first, and then circle, the United States. A Chinese student who qualifies for this the name of the person or entity whose number you entered exception (under paragraph 2 of the first protocol) and is in Part I of the form. relying on this exception to claim an exemption from tax on Sole proprietor. Enter your individual name as shown on his or her scholarship or fellowship income would attach to your income tax return on the "Name" line.You may enter Form W-9 a statement that includes the information your business, trade, or"doing business as(DBA)" name on described above to support that exemption. the "Business name" line. If you are a nonresident alien or a foreign entity not subject Limited liability company (LLC). If you are a single-member to backup withholding, give the requester the appropriate LLC (including a foreign LLC with a domestic owner)that is completed Form W-8. disregarded as an entity separate from its owner under What is backup withholding?Persons making certain Treasury regulations section 301.7701-3, enter the owner's payments to you must under certain conditions withhold and name on the "Name" line. Enter the LLC's name on the pay to the IRS 28% of such payments (after December 31, "Business name" line. Check the appropriate box for your 2002).This is called "backup withholding." Payments that filing status (sole proprietor, corporation, etc.), then check may be subject to backup withholding include interest, the box for"Other" and enter"LLC" in the space provided. dividends, broker and barter exchange transactions, rents, Other entities.Enter your business name as shown on royalties, nonemployee pay, and certain payments from required federal tax documents on the "Name" line.This fishing boat operators. Real estate transactions are not name should match the name shown on the charter or other subject to backup withholding. legal document creating the entity. You may enter any You will not be subject to backup withholding on payments business, trade, or DBA name on the "Business name" line. you receive if you give the requester your correct TIN, make Note.You are requested to check the appropriate box for the proper certifications, and report all your taxable interest your status (individual/sole proprietor, corporation, etc.). and dividends on your tax return. Payments you receive will be subject to backup Exempt From Backup Withholding withholding if: If you are exempt, enter your name as described above and 1. You do not furnish your TIN to the requester, check the appropriate box for your status, then check the 2. You do not certify your TIN when required (see the Part "Exempt from backup withholding" box in the line following 11 instructions on page 4 for details), the business name, sign and date the form. Form W-9(Rev.11-2005) Page 3 Generally, individuals(including sole proprietors) are not part I. Taxpayer Identification exempt from backup withholding. Corporations are exempt Number (TIN) from backup withholding for certain payments, such as interest and dividends. Enter your TIN in the appropriate box. If you are a resident Note. If you are exempt from backup withholding, you alien and you do not have and are not eligible to get an SSN, should still complete this form to avoid possible erroneous our TIN is your IRS individual taxpayer identification number backup withholding. (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below. Exempt payees. Backup withholding is not required on any If you are a sole proprietor and you have an EIN, you may payments made to the following payees: enter either your SSN or EIN. However, the IRS prefers that 1. An organization exempt from tax under section 501(a), you use your SSN. any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2), If you are a single-owner LLC that is disregarded as an 2. The United States or any of its agencies or entity separate from its owner(see Limited liability company (LLC)on page 2), enter your SSN (or EIN, if you have one). If instrumentalities, the LLC is a corporation, partnership, etc., enter the entity's 3.A state, the District of Columbia, a possession of the EIN. United States, or any of their political subdivisions or Note.See the chart on page 4 for further clarification of instrumentalities, name and TIN combinations. 4.A foreign government or any of its political subdivisions, How to get a TIN. If you do not have a TIN, apply for one agencies, or instrumentalities, or immediately. To apply for an SSN, get Form SS-5, 5. An international organization or any of its agencies or Application for a Social Security Card, from your local Social instrumentalities. Security Administration office or get this form online at Other payees that may be exempt from backup www.socialsecurity.gov. You may also get this form by withholding include: calling 1-800-772-1213. Use Form W-7,Application for IRS 6. A corporation, Individual Taxpayer Identification Number, to apply for an 7. A foreign central bank of issue, ITIN, or Form SS-4, Application for Employer Identification 8. A dealer in securities or commodities required to register Number, to apply for an EIN. You can apply for an EIN online in the United States, the District of Columbia, or a by accessing the IRS website at www.irs.gov/businesses and possession of the United States, clicking on Employer ID Numbers under Related Topics. You 9. A futures commission merchant registered with the can get Forms W-7 and SS-4 from the IRS by visiting Commodity Futures Trading Commission, www.irs.gov or by calling 1-800-TAX-FORM (1-800-829-3676). 10. A real estate investment trust, If you are asked to complete Form W-9 but do not have a 11. An entity registered at all times during the tax year TIN,write "Applied For" in the space for the TIN, sign and under the Investment Company Act of 1940, date the form, and give it to the requester. For interest and 12. A common trust fund operated by a bank under dividend payments, and certain payments made with respect section 584(a), to readily tradable instruments, generally you will have 60 13. A financial institution, days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule 14. A middleman known in the investment community as a does not apply to other types of payments. You will be nominee or custodian, or subject to backup withholding on all such payments until you 15. A trust exempt from tax under section 664 or provide your TIN to the requester. described in section 4947. Note.Writing "Applied For" means that you have already The chart below shows types of payments that may be applied for a TIN or that you intend to apply for one soon. exempt from backup withholding. The chart applies to the Caution:A disregarded domestic entity that has a foreign exempt recipients listed above, 1 through 15. owner must use the appropriate Form W-8. IF the payment is for.. . THEN the payment is exempt for. .. Interest and dividend payments All exempt recipients except for 9 Broker transactions Exempt recipients 1 through 13. Also,a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker Barter exchange transactions Exempt recipients 1 through 5 and patronage dividends Payments over$600 required Generally,exempt recipients to be reported and direct 1 through 7 sales over$5,000' See Form 1099-MISC,Miscellaneous Income,and its instructions. z However,the following payments made to a corporation(including gross proceeds paid to an attorney under section 6045(f),even if the attorney is a corporation)and reportable on Form 1099-MISC are not exempt from backup withholding:medical and health care payments,attorneys'fees;and payments for services paid by a federal executive agency. Form W-9(Rev.11-2005) Page 4 Part 11. Certification What Name and Number To Give the To establish to the withholding agent that you are a U.S. Requester person, or resident alien, sign Form W-9. You may be For this type of account: Give name and SSN of: requested to sign by the withholding agent even if items 1, 4, and 5 below indicate otherwise. 1. Individual The individual For a joint account, only the person whose TIN is shown in 2.Two or more individuals(joint The actual owner of the account Part I should sign (when required). Exempt recipients, see account) or,if combined funds,the first Exempt From Backup Withholding on page 2. individual on the account' Signature requirements.Complete the certification as 3. Custodian account of a minor The minor 2 indicated in 1 through 5 below. (Uniform Gift to Minors Act) 4. a.The usual revocable The grantor-trustee 1. Interest, dividend, and barter exchange accounts savings trust(grantor is opened before 1984 and broker accounts considered also trustee) active during 1983. You must give your correct TIN, but you b.So-called trust account The actual owner' do not have to sign the certification. that is not a legal or valid 2. Interest, dividend, broker, and barter exchange trust under state law 3 accounts opened after 1983 and broker accounts 5. Sole proprietorship or The owner considered inactive during 1983.You must sign the single-owner LLC certification or backup withholding will apply. If you are For this type of account: Give name and EIN of: subject to backup withholding and you are merely providing 6.Sole proprietorship or The owner 3 your correct TIN to the requester, you must cross out item 2 single-owner LLC in the certification before signing the form. 7.A valid trust,estate, or Legal entity 4 3. Real estate transactions.You must sign the pension trust certification. You may cross out item 2 of the certification. 8. Corporate or LLC electing The corporation 4. Other payments. You must give your correct TIN, but corporate status on Form you do not have to sign the certification unless you have 8832 been notified that you have previously given an incorrect TIN. 9.Association,club, religious, The organization "Other payments" include payments made in the course of charitable,educational, or the requester's trade or business for rents, royalties, goods other tax-exempt organization (other than bills for merchandise), medical and health care 10.Partnership or multi-member The partnership services (including payments to corporations), payments to a LLC nonemployee for services, payments to certain fishing boat 11.A broker or registered The broker or nominee crew members and fishermen, and gross proceeds paid to nominee attorneys (including payments to corporations). 12.Account with the Department The public entity 5. Mortgage interest paid by you, acquisition or of Agriculture in the name of cancellation of debt a public entity(such as a abandonment of secured property, � state or local government, qualified tuition program payments (under section 529), school district, or prison)that IRA, Coverdell ESA, Archer MSA or HSA contributions or receives agricultural program distributions, and pension distributions.You must give payments your correct TIN, but you do not have to sign the Certification. List first and circle the name of the person whose number you furnish.If only one person on a joint account has an SSN,that person's number must be furnished. 2Circle the minor's name and furnish the minor's SSN. 3You must show your individual name and you may also enter your business or"DBA"name on the second name line.You may use either your SSN or EIN(if you have one).If you are a sole proprietor,IRS encourages you to use your SSN. °List first and circle the name of the legal trust,estate,or pension trust.(Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.)Also see Special rules regarding partnerships on page 1. Note. If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. Privacy Act Notice Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid,the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA, or Archer MSA or HSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. The IRS may also provide this information to the Department of Justice for civil and criminal litigation, and to cities, states, the District of Columbia, and U.S. possessions to carry out their tax laws. We may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to a payer. Certain penalties may also apply. Page 1 of 2 Fedor Ma From: Laura Bishop [laura.bishop @hannahconsulting.com] Sent: Friday, November 02, 2007 2:43 PM To: Fedor Ma Cc: Jennifer Carney; Kris Sanders Subject: Fw: IE04897A Wildwood Park and IE24766D Colony Park Margaret, The Wildwood Park lease is signed -please see attached. The originals will be mailed on Monday. Will this suffice; to meet the Nov. 5 deadline or will you need the actual originals in hand on this date? Please advise. Thank you, Best regards, Laura Laura Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email: laura.bishop@hannahconsulting.com ----- Forwarded Message ---- From: "Carney, Jennifer" <Jennifer.Carney2 @T-Mobile.com> To: Laura Bishop <laura.bishop @hannahconsulting.com>; "Sanders, Kris (Hannah Consulting)" <kri s.s anders @hannahconsulting.com> Sent: ]Friday, November 2, 2007 2:03:15 PM Subject: RE: IE04897A Wildwood Park and IE24766D Colony Park _ Laura, Here is a soft copy of the wildwood lease. If I can not get the originals out today, will a soft copy work? Thank you, Jennii-'er Carney Glotel 111c Site Acquisition Specialist - Area 5 - IE T-Mobile Contractor Development / Engineering 3257 E. Guasti Road Ontario, Ca 91761 Mobile: 909-331-7344 Fax: 909-975-3638 From: Laura Bishop [mailto:laura.bishop @hannahconsulting.com] Sent: Friday, November 02, 2007 1:41 PM To: Carney, Jennifer ; Sanders, Kris (Hannah Consulting) Subject: IE04897A Wildwood Park and IE24766D Colony Park Page 2 of 2 Jennifer, Margaret Fedor at the City Clerk's office indicates she has still not received the two (2) original signed lease documents and the one (1) original signed MOL for both the IE04897A Wildwood Park and IE24766D Colony Park sites. The deadline for signature for each site is: November 5, 2007 Wildwood November 16, 2007 Colony Park If the leases are signed, the City requires their two original lease docs and one original MOL for each site. Can you please check into the status of each of these sites' leases with the T-Mobile property department? I appreciate your help with this item. Best regards, Laura Laura Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email: laura.bishop @hannahconsulting.com 0 Py 2007-373 ATTACHMENT "A" LEASE THIS LEASE(Lease),is made and entered into this 4th day of September 2007, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "L.essor", and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., 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 Wildwood Park ("Property")on the northeast corner of Western and 40th Street in the City of San Bernardino (APN 0154-371-05), 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 Wildwood Park. I (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. NOW THEREFORE, the parties hereto agree as follows: I_ Property Leased: Lessor hereby leases to Lessee,and the Lessee hereby leases from Lessor,approximately one thousand(1,000)square feet of land,more particularly described in Exhibit"B"attached hereto(the "Premises"), Said Premises includes any appurtenant facilities and applicable easements for access and utilities as described herein. FAEMPEh0\AgrccmentsCr-Mobi le..Agreemeawpd 1 2007-373 2. Term: The term of this Lease shall be five (5) years, commencing with the date both Lessor and Lessee have executed this Lease("Commencement Date"). Lessee shall have the right to extend the term of this Lease for three (3)additional terms of five(5)years each. Each renewal term shall be on the terms and conditions set forth herein. This Lease shall automatically be extended for each successive five (5) year renewal term upon Lessor's receipt of Lessee's written notification of intention to renew no later than ninety(90)days prior to the expiration of the first five(5)year term or any 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 first five (5) year term or any renewal term. 3. Lease Payments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 00/100 dollars ($2,100.00) 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$2,100.00 for work performed. (b) Lessee shall pay Lessor as rent,the annual sum of Twenty-Three Thousand, Nine Hundred and Eighty-Eight and 00/100 Dollars ($23,988.00), payable in monthly installments commencing upon the date the building permit is issued ("Rent Start Date"). The monthly installments shall be in the amount of One Thousand and Nine Hundred and Ninety-Nine and00/100 Dollars ($1,999.00) 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. I1/ FF"EMPENOWgreementsU-M©hi Ie.Agreement,wpd 2 2007-373 Payments shall be mailed or delivered to: City of San Bernardino Development Services Department/Real Property Section 300 North "D" Street San Bernardino, CA 92418 Rent shall be increased on each five(5)year anniversary of the Rent Start Date by an amount equal to fifteen percent (15%n) of the rent then in effect for the previous term or renewal term. 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 F;TMPEN01AgreemenLr\T-Mobi le.Agreement upd 3 2007-373 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 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. 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,upon termination of this Lease,be removed from the Premises,and the land returned to its previous state, excepting normal wear and tear. (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, F`:\EM PENOI Agreeizterrts\T-Mobile.Agreement,wpd 4 2007-373 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 access from the nearest public roadway to the Premises at all times,and hereby grants such non-exclusive ingress and egress rights to Lessee, and to Lessee's agents, employees, and contractors, across the Property as described in Exhibit A, 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. FAE M PEN MgrecmentslT-Mobi Ic.A.greement.wpd 5 2007-373 S. 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: 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. Lessor shall pay when due all real property taxes for the Property, including the Premises. In the event that Lessor fai is 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 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. FAEMPENMA eementsU-Mobile.Ageemer,t.wpd 6 2007-373 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) Worker's 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) On the Commercial General Liability policy that the City of San Bernardino is named as an additional insured for the acts or omissions of Lessee. (b) The certificates shall include the insurance company name, policy number, period of coverage, and the amount of insurance. (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 modification of the policy. (d) That Lessee's insurance shall be primary to any coverage the City of San Bernardino may have in connection with the acts or omissions of Lessee. F:I FMPENQ\Agreenien ts\T-Mobile.Agreement.wpd 7 2007-373 11, Indemnification: 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 personal 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. 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 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. F:1)r M PE-hoVkgreements lT-Mobile.Agreement.wpd 8 2007-373 (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,Ievy, 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 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%)ormore of its stock or assets,subject to any financing entity's interest, if any, in this Lease as set 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. Lessor may assign this Lease, which assignment may be evidenced by written notice to Lessee within a reasonable period of time thereafter, provided that the assignee assumes all of Lessor's obligations herein, including but not limited to, those set forth in Paragraph 13 ("Waiver of Lessor's Lien") above. 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 F:1ENIPENO1,AgreementslT-Mobi le.Agree men t.%vpd 9 2007-373 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. 15. Termination: This Lease may be terminated without further liability on thirty(30)days prior 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; or (vi) by Lessee if the.Lessor fails to deliver to Lessee an executed memorandum of Lease or non-disturbance and attornment pursuant to Paragraphs 18(g) and (h) below. 16. Hazardous Materials: (a) As of the Commencement Date of this Lease: (1) Lessee hereby represents and FAEMPENO4kgreemenu\T-Mobs lcAgreement.%pd 10 i 2007-373 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 an ( ) y P ( ) g p Y r affecting the Premises in violation of an Hazardous Material located in on under, upon n y p 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 harmless from and against all Losses arising from (1) 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 F:IEMPENO�Agreem nts\T-Mobile:Agreemenlwpd 11 2007-373 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 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, li 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 1, 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 F:\EMPPNO1Agreeincnts\T:Milbile.Agreement.wpd 12 2007--373 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 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. 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 their real and personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. (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 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 assitrnees 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: FAEMPEN01.Agreenientsff-M obi le.Agreementmpd 13 2007-373 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 Attn: PCS Lease Administrator San Bernardino, CA 92410 Site No. IE04897A with a copy to: Attn: Legal Department With a copy to: Omnipoint Communications, Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Manager Site No. IE04897A 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. (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 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 deliverto 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 Land is Iocated. (h) In the event the Land is encumbered by a mortgage or deed of trust, Lessor agrees to obtain and deliver to Lessee an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably f=:1E.MFENOt Agreements\T-Mobile.Ag,Teement.w•pd 14 2007-373 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. 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. (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 Riders and Exhibits annexed hereto form material parts of this Lease. (n) This Lease may be executed in duplicate counterparts,each of which shall be deemed an original. ll1 11l Ill F;IEMPENQ1.Agreements\T-Mobile.Agreement.wpd 15 2007-373 LEASE IN WITNESS WHEREOF,the parties have executed this Lease on the day and year set forth at the beginning of this Lease. C) LESSOR: LESSEE: CITY OF SAN BERNARDINO, OMNIPOINT COMMUNICATIONS, INC. a Municipal Corporation A SUBSIDIARY OF T-MOBILE USA, INC. "D ILS6, City Manager ion 25iniste z i-S ' Apea Director ATTEST: T-Mobile Legal Approval By: RacherClark, City Clerk Approved as to form ES F. PENMAN, City Attorney FAEMPENO1Ag-Teernen OT-Mob i le.Agreement.wpd 16 2007-373 EXHIBIT A DESCRIPTION OF LAND to the Lease Agreement dated , 2001_ .Z,by and between CITY OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc. as Lessee. The Land is described and/or depicted as follows (metes and bounds description): PTN SEC 14 TP IN R 4W COM AT A PT ON E LI WATERMAN AVE 82.5 FT WIDE WHICH IS N ODEG 20 MIN APN: 0154-371-05 F:1EMPENO\Agreements lT-Mobile.Agrectnent.wpd 17 2007-373 EXHIBIT B DESCRIPTION OF PREMISES to the Lease Agreement dated --Q� , 200 , by and between CITY OF SAN BERNARDINO, as Lessor and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., as Lessee. The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO See Attached :Votes: I. 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 casement is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations. 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I 6 s ab ■„�a a ° :ill I I ¢ v Al a, A Mc O 6q� _ oo L{ �p 7 ,D 9 —I A 4A 6f A tTa ll, gprFj FgRQP c � C= I \ 1 I 4 %SSd :� �•Q� St Ufig9yi }11,' Sa ({t �{f �\ 1 j q�3 � P 4T 1j! ( !oil r ijr j ��t ■ pill RI 1 E ■ m m s r a m i m �= I 0 CO to 2007-373 8I-8i z m I ' � pt N a �1; 1 D �,..... rn� � 33 ddd I r � A� ' OE m O C N r Q n Q z! m 4 Z:' N I i i� i m ��{ pry m ! o as ¢3:i n 1 r 1 Y 1 P Q I i 5 \ r • aJ ' Cn y > ° (00 1 I 31 Kip p 2007-373 EXHIBIT C RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Omnipoint Communications, Inc. a Subsidiary of T-Mobile USA Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Site No. LE04897A Site Name: Wildwood Park MEMORANDUM OF LEASE IE04897A /Wildwood Park APN: 0154-371-05 This MEMORANDUM OF LEASE is entered into on this day of , 2007 by CITY OF SAN BERNARDINO, with an address at 300 N. D Street, San Bernardino,CA 92410 (hereinafter referred to as "Owner" or "Lessor") and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as "OCI" or"Lessee"). 1. Lessor and Lessee entered into a Lease Agreement("Lease")dated as of this day of ,2007 effective upon full execution of the parties("Effective Date") for the purpose of OCI undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Lease. 2. The term of the Lease is for five(5)years commencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Date with three(3) successive five (5) year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee and all necessary access and utility easements (the "Premises") are set forth in 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, Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., FA EMPEWAgreementsMMobilc.Agreement.wpd 19 2007-373 NOT FOR EXECUTION - EXHIBIT ONLY NOT FOR EXECUTION -EXHIBIT ONLY By: By: Name: Name: Danny Bazerman Title: Title: Director, Engineering& Operations Date: Date: F:IEMPFtiO1 Agreement+\T-Mobile.Agreement.wpd 20 2007-373 STATE OF COUNTY OF On , before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS mil hand and official seal. (SEAL) Notary Public My commission expires: STATE OF COUNTY OF On , before me, Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity,and that by his signature on the instrument,the person,or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: F IEMPENO\Agresr mm\T-Mabiie.Agmement.wpd 21 RECORDED AT REQUEST OF,AND WHEN RECORDED RETURN TO: Omnipoint Communications,Inc. a Subsidiary of T-Mobile USA Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Site No. IE24766D Site Name: Colony Park MEMORANDUM OF LEASE IE24766D/Colony Park APN: 0141-321-14 This MEMORANDUM OF LEASE is entered into on this day of , 2007 by CITY OF SAN BERNARDINO, with an address at 300 N. D Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Lessor") and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as "OCI" or"Lessee"). 1. Lessor and Lessee entered into a Lease Agreement("Lease") dated as of this day of , 2007 effective upon full execution of the parties ("Effective Date") for the purpose of OCI undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Lease. 2. The term of the Lease is for five (5) years commencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Date with three (3) successive five(5)year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee and all necessary access and utility easements (the "Premises") are set forth in the Lease. In witness whereof, the parties have executed this Memorandum of Lease as of the day and year first written above. LESSOR: City of San Bernardino, LESSEE: Omnipoint Communications, Inc. a Municipal corporation a subsidiary of T-Mobile USA, Inc. By: By: Fred Wilson Jon Zumsteg Title: City Manager Title: Area Director Date: Date: STATE OF ) COUNTY OF ) On this day of before me, Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: STATE OF ) COUNTY OF ) On this day of , before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: 9093845138 SRD CITY ADMIN PAGE 01/13 cZO r/7 J 3 M f .. 0 INTER OFFICE MEMORANDUM cl OFFICE OF THE CITY ATTORNEY �`� ` CITY OF SAN BERNARDiNO �� �� MCP O: Rachel Clark. City Clerk , FROM: Henry Empeno Jr., Senior Deputy City Attorney DATE: October. 4, 2007 ICE: Lease Agreement with Omnipoint Communications Inc. for cell tower site at Colony Park cc: James F. Penman, City Attorney; Fred Wilson, City Manager and Teri Baker, Assistant to City Manager(w/attachaments) Attached please find two sets of three corrected pages which should be inserted in the original Lease Agreement approved by the Mayor and Council as Agenda Item No. 9 on October. 1, 2007. Omuipoint Communications Inc., through Laura Bishop of Hawah Consulting for T- Mobile, on October 3, 2007, requested this c:offecdon because she mistakenly listed the wmug parcel number on these three pages. The correct parcel number should read: 0141-321-14. These three pages are as follows: I. Page 1 - the APN listed in the Recitals, Section(b) 2. Page 17 -Exhibit A (Legal Description) 3. Page 19 -Exhibit C(Memorandum of Lease) Attached for your information is a copy of Laura Bishop's e-mail making this request,along with bier e-mail dated September 11,2047,in which she sent the original Lease Agreemew with the wrong parcel number. These non-substantive,clerical corrections can be rude to the original Lease Agreement without further Council action. Please contact me if I can provide any further assistance in this matter. Henry Empetlo, Jr. T Senior Deputy City Attomey A.ttacbmemts f FMp l�tf 111vx use Mew&I-elxersWelm U,Ra hel Clark m Celltmver Site.wpd 10/11/2007 09:08 9093845138 SBD CITY ADMIN PAGE 06/13 Fax: (866) 291-5828 Email: laura_bishop( ,hannahconsulting.com 10/4/2007 10111/2007 09:08 9093845138 SBD CITY ADMIN PAGE 10113 Attorney From: Baker_Te Sent: Tuesday, September 11, 2007 4:15 PM To: Empeno_He Subject: FWD T-Mobile Colony Park Lease Agreement and MOL Henry, here are the Colony documents. I will work on the staff report and reso tomorrow. Teri From: Laura Bishop [mailto;laura.bishop @hannahconsulting.com] Sent:Tuesday, September 11, 2007 3:29 PM To: Baker_Te Subject:T-Mobile Colony Park Lease Agreement and MOL Teri, Please find attached the L.ease,.Agreement and Memorandum of Lease for Colony Park. I've also attached the redline version for use in determining the exact changes made to the document that was originally the Wildwood Park lease template. Please route for Henry's review and approval and for presentation at the City Council hearing on October 1 st. I appreciate your help with this item, Best regards, Laura Laura Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866)291-5828 Email: laura.bishop@hamahconsulting.com hannahconsulting.com 9111/2007 10/11/2007 09:08 9093845138 SBD CITY ADMIN PAGE 09/13 EXHIBIT C RECORDED AT REQUEST OF,AND WHEN RECORDED RETURN TO. ()mnipoint Communications,Inc. a Subsidiary of T-Mobile USA Inc. 3 Imperial Promenade,Suite 1100 Santa Ana, CA 92707 Attn:Lease Administration. Site No. IE24766D Site Name: Colony Park MEMORANDUM OF LEASE IE24766D/Colony Park APN: 0141-321-14 This MEMORANDUM OF LEASE is entered into on this day of 2007 by CITY OF SAN BERNARDINO, with an address at 300 N_ D Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner„ or "Lessor") and Omnipoint Communications Inc., a subsidiary of T-Mobile LISA Inc.,(liminafter.referred to as"00"or"Lessee"). 1. Lessor and Lessee entered into a Lease Agreement("Lease")dated as of this day of , 2007 effective upon full execution of the parties ("Effectivt- Date") for the purpose of OCI undortaking certain Jovestigations and Tests and, upon finding the. Land appropriate, for the purpose of installing, operating and maintaining a communications facility and.other improvements. All of the foregoing is set forth in the Lease. 2. The terns of the Lease is for five(5) years commencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement pate with three(3) successive five(5)year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee and all necessary access and utility easements(the "Premises") are set forth in the Lease. Its witness,whereof, the parties have executed this Memorandum of Lease as of the day and year first-written above. LESSOR:City of San Bernardino, LESSEE: Onimpoint Communications, Inc. A Municipal corporation a subsidiary of T-Mobile USA,Inc. NOT FOR EXECUTION-EXHIBIT ONLY NOT FOR EXECUTION^EXHIBIT ONLY By: - 'By: - Fred Wilson Jon zulnsteg Title: City Manager Title: Area Director Late: hate. CAD*cuments and Scttings\sriorney%ocal 5ettings\Tempor. Intemet 19 rileskOLK]36%IE24766Lt_Coiony_Park_L=so_Agreement_P-XF-CUTABLE.09_I 1_072.doc ,ter.,... 1.0!11/2007 09:08 9093845138 SBD CITY ADMIN PAGE 08/13 EXHIBIT A DESCRIPTION OF LAND to the Lease Agreement dated . 200 ___, by and between CITY OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc. as Lessee. The sand is described and/or depicted as follows (metes and Mounds description): Wt 9 of TRACT NO, 11414, in the City of san Bernardino, County of San Bernardi ro, Statia of California, as per plat recorded in book 157 of Maps, gages 41 through 44, inclusive, records of said County. APN:0141-321-14 C=UJocuments and SettingslattorneyVl ocal SettingsZemporary Internet 17 FilcskO LK1361IE24766D_Colony_Park_Lease Aga^Bement_EXECUT,ABLE,99_II_473.doc 10/1112007 09:08 9093845138 SBD CITY ADMIN PAGE 07/13 LEASE T141S LEASE (Lease), is made and entered into this day of October 2007, by and between the CITY OF SAN BERNARMNO, a municipal corporation, hereinafter referred to as "Lessor", and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., 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 Colony Park ("Property") on the west side of the intcrseetion of E. Harwick Drive and S. Weir Road in the City of San Bernardino (APN 0141.321-14), 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 Colony Park. (d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all govenunent l permits and approvals enabling Lessee, or its assigns to construct and operate mobile/wireless communications facilities on the Premises. NOW THEREFORE,the parties hereto agree as follows: 1. Property Leased: Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately three hundred ten (3 10) square feet of land, more ,particularly described in Exhibit "B" attached hereto (the "Premises"), Said Premises includes any appurtenant facilities and applicable easements for access and utilities as described herein_ cADocuments and sewnoattorneytLocal Settir,&Temporary Internet l Files\OLK136V1E2d7661i Calory_Park_Lewe_A,greement-EXECUTABLE_09_11,872.doe 10111/2007 09:08 9093845138 SBD CITY ADMIN PAGE 13/13 RECORDED AT REQUEST OF,AND WHEN RECORDED RETURN TO: O.tttnipoint Communications,Inc- a Subsidiary ofT-ll obile USA Inc- 3 Imperial Promenade, Suite 1100 Santa Ana, CA 921707 Attn. Lease administration Site No.IE24766D Site Name: Colony Park MEMORAN'DUMi OF LEASE IE24766D J Colony Park APN: 0164-321-14 This MEMORANDUM OF LEASE is entered into on this day of 2007 by CITY OF SAN BERNARDINO, -%vith an address at 300 N. D Street, San Bernardino,CA 92410 (hereinafter referred to as "Owner" or "Lessor") and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc_,(hereinafter referred to as"OCI"or"Lessee"). I_ Lessor and Lessee entered into a Lease Agreement("Lease") dated as of this day of , 2007 effective upon full execution of the parties ("Effective Date") for the purpose of OCI undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Lease_ 2. The term of the Lease is for five(5) years commencing on the date of full execution of the parties ("Effective,Date") attd terminating on the fifth anniversary of the Commencement Date with three(3)successive five(5)year options to renew. 3_ The Land that is the subject of the Lease is described in Exhibit A annexed hereto- The portion of the Land being leased to.Lessee and all necessary access and utility easements(the "Premises") are set forth in the Lease. In witness whereof, the patties have executed this Memorandum of Leasc as of the day and year first written above. LESSOR: City of Scut Bernardino, LESSEE- Omnipoint Communications, Inc. a Municipal corporation a subsidiary of T-Mobile USA,Inc. By: 13y,Fred Wilson Jon Zumsteg Title: City Manager Title: Area Director Date,- Date: 10/11/2007 09:08 9093845138 SBD CITY ADMIN PAGE 12/13 EXHIBIT A DESCRIPTION OF LAND to the Leasc Agreement dated 1200--_---, by and bet«jeen CITY OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA.Inc. as Lessee. The Land is described and/or depicted as follows(metes and bounds description) Jot: 9 of TRACT 90. 11414, in the City of San aernardinn, County of sat Bernardino, state of California, as per p12l t recorded In Book 157 of Maps, pages 41 through 44, I inclusive, records of Said County* ANN: 164-321-14'?� 3W! px-)cumEN'p ANP semN 1ArroRNEYI LmAL o ET RL QLKi 47 K I 10/11/2007 09:08 9093845138 SBD CITY ADMIN PAGE 11/13 LEASE I"1-fIS LEASE(Lease),is made and entered into this day of September 2007, by and between the CITY OF SAN BERNARDIINO, a municipal corporation, hereinafter referred to as "Lessor",and Oranipoint Communications Inc., a subsidiary of T-M bile USA Inc., hereinafter referred to as "Lessee". RECITALS Thzs 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 Colozryk1wee4 Park("Property")on the west side of intersection of:E. Harwick.Drive and S_ Weir Road in the City of San Bernardino (APN 0164-321-140494 371 85), 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 inteifere with the Department of barks and Recreation's operations or the public's use of 444 d-Colnq.v 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. NOW THEREFORE,the parties hereto agree as follows: 1. Property Leased: Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately three hundred ten 310 square feet of land, more particularly described in C:�p V IS AND - XMXF1LESMX I 36VE24766D NY PARK TRASP 10/11/2007 09:08 9093845138 5BU CITY ADMIN PAGE 04/13 EXH1131T C RECORDED AT REQUEST OE,AND WHEN,RECORDED RETURIN TO: Omnlpo nt Communications, Inc. a Subsidiary),of T-Mobile USA.Inc. 3 Imperial Promenade, Suite 1100 Santa Ana, CA 9270 Attn: Lease Administration Site No. IE24766D Site Name: Colonv Paris MEMORANDUM OF LEASE IE24766D/Colony Park APN: 0141-329-14 This MEMORAN'D NI OF LEASE is entered into on this day of 3007 by CITY OF SAN BERNARDLNO, with an address at 300 N, U Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Lessor") and Onimpomt Communicatiohs Inc., a subsidiary of T-Mobile USA Jnc.,(hereinafter referred to as "OCT" or"Lessee"). 1. Lessor and_Lessee entered into a Lease Agreement("Lease") dated as of this _day of , 20011 effective. upon full execution of the parties ("Effective Date") for the purpose of OCT undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the puupose of installing, operating and tnaintairuing a communications facility and other improvements. All of the foregoing is set forth in the Lease. ? The term of the Lease is for five (5) years cornmencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Datc with tbree (3) successive five (5)year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annem d hereto. The portion of the Land being leased to Leas"and all necessary access and utility casements(the "Pretnises") are set forth in the Lease. In witness whereof, the parties have executed this Memorandum of Lease as of the day and year first written abcsve, LESSOR: City of San Bernardino, LESSEE: Onmipoint Communicatiorks, Lnc. A Municipal corporation a subsidiary of T-Mobile USA,Ittc. NOT FOR EXECLTTION-EXHIBIT ONLY NOT FOR ENECUITION—EXHIBIT ONLY By; Fred Wilson Jock Zurnsteg Title: City Manager Title: Area.Director Date: Date: F-`FAfPEN0,tC0l0Ay Pak Lease Agreerant1IF247+56D Colony Earl:Len 19rAgreement_EXECVTeN E_09_1 i_Ot doe 10/11/2007 09:08 9193845138 SED CITY ADMIN PAGE 03/'13 EXHIBIT A. DESCRIPTION OF LAND to the Lease Agreement dated ,200 , by and between CITE' OF SAID BERNA_R.DINO, as Lessor, and OM-nipoint Communications Inc,, a subsidiary of T-Mobile USA Inc. as Lessee. The Land is described and/or depicted as follows(metes and bounds description): Lot 9 Rf TRACT NO. 11414, in tbo City of San Bernardino, coonLy of Sail Dernaraina, state of California, as petr plat recorded in :5ook 157 of Maps, pages 41 tbz-Ou9b 44, inclusive, .records of said CoujAty .. LPN:0141-321-14 P"EMPENDCokrny Park Lease Ageeemeat\M-24766D Cotoay Park L=sc,Agreement_EX.ECUTABLE-09N11-07.doe 10/11/2007 09:08 9093945138 SSLI CITY APMIN PAGE 02/13 _ cormeltj Pot LEASE THIS LEASE (Lease), is made and entered into this __-day of October 2007, by and between the CITY OF SAN BER,'vARDINO, a Murucipal corporation, hereinafter referred to as "Lessor", and OmDipoint Communications Inc., a subsidiary of r'-Mobile USA Inc., 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 Colony Park („Property") on the west side of the intersection of E= Marwick Drive and S. Weir Road in the City of Saxe Bernardino (APN 0141-321-14), 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 to nis and conditions hereinafter set forth. (c) Lessee believes that the facilities will not interfere with the Department of Parrs and Recreation's operations or the public's use of Colony Parr_ (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 comxzauni.cations facilities on the Premises. NOW THEREFORE, the parties hereto agree as follows: 1. Property Leased: Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately three hundred ten (310) square feet of land., more particularly described in Exhibit "B” attached here-to (the "T'remases")_ Said Pretaaises izacludes any appurtenant facilities anal applicable easements for access and utilities as described herein_ F_%EMFEN01Co)ofly Park Lease A8 eement'�K, 4766t)colony FAVIC I-ea.5E AgMeMent_EXECUTAI3I.E._04_I I_QTdgc 1011112007 09:08 9093845138 SBD t_ITY ADMIN PAGE 05/13 . j agc i u.t {L Attorney From: Baker—Te Sent: Tnursday, October 04, 2007 7:50 AM To: Empena_He cc: `iaura.bishop(Jhannahc�onsuiting.com'; Fedor—Ma Subject: Ml: T-Mobile at Colony Park Henry, Can this be done administratively or do we need to go back to council'! Teri From: Laura Bishop[mailto:iaura.bishop @hannahconsulting.comj Sent: Wedrwsday, October 03, 2007 10:32 PM To: Baker_Te Subject:T-Mobile at Colony Park Teri, I am putting together the Lease Document package for Colony Park and noticed that the APN number is the OLD Assessor's number and is incorrect. The correct parcel number should read: _0141-321-14. The following pages will need to be slip-sheeted with the correct document pages from the attached document: Page 1 -the APN is listed in the project description. Page 17 - Exhibit A of the Lease Agreement Page 19 - Memorandum Exhibit of the Lease Agreement The Memorandum of Lease will also need to be switched out. The Lease Agreement and the Memorandum with the correct parcel numbers are attached. There are no material changes to either document-only the APN has been changed. please pass by Henry. Empeno for approval of the slip-sheet of the necessary pages- X appreciate your consideration and assistance with this item and apologize for any inconvenicace- Best regards, Laura Laura Bishop Hannah Consulting for T-Mobile. Phone: (949)7 12-9005. Page 1 of 1 Fedor—Ma From: Baker Te Sent: Wednesday, October 10, 2007 8:55 AM To: 'Laura Bishop'; Fedor—Ma Subject: RE: T-Mobile at Colony Park- Memorandum of Lease and City Council Resolution I can't remember who signs the MOL (Mayor or CM). In case it is the City Manager, I thought I better let you know that he is away at a conference and will not be back until tomorrow. Teri From: Laura Bishop [mailto:laura.bishop @hannahconsulting.com] Sent: Wednesday, October 10, 2007 8:50 AM To: Feclor_Ma Cc: Baker_Te Subject: T-Mobile at Colony Park - Memorandum of Lease and City Council Resolution Margaret, I've completed the Lease Document package materials for T-Mobile signature but am missing the following documentation: 1. Two (2) original City-executed Memorandum of Lease documents. The signature on each document must be notary acknowledged; and 2. A copy of the City Council Resolution approving the Lease Agreement. Please advise as to whether the Memorandum can be signed today - if so, I can pick up the signed document around 3:00 p.m. Please call me at (949) 212-9005 to advise. I appreciate your consideration and assistance with this request. Best regards, Laura Laura, Bishop Hannah Consulting for T-Mobile Phone: (949) 212-9005 Fax: (866) 291-5828 Email: laura.bishop @hannahconsulting.com