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HomeMy WebLinkAbout02 - CC-6 - Lease Agreement with T-Mobile West Corp. - 1/18/2011CITY COUNCIL AGENDA REPORT MEETING DATE: JANUARY 18, 2011 ITEM NUMBER: Item Number SUBJECT: LEASE AGREEMENT WITH T -MOBILE WEST CORPORATION, A DELAWARE CORPORATION DATE: NOVEMBER 17, 2010 FROM: ADMINISTRATIVE SERVICES DEPARTMENT PRESENTATION ANNA TELLEZ, TELECOMMUNICATIONS MANAGER BY: FOR FURTHER INFORMATION CONTACT: ANNA TELLEZ, TELECOMMUNICATIONS MANAGER (714) 754-5142 RECOMMENDATION: Staff recommends that Council approve the attached Lease Agreement with T -Mobile West Corporation, a Delaware corporation, having a mailing address of 2008 McGaw, Irvine, CA 92614, for a cell tower at the Costa Mesa TeWinkle Park and authorize the City Manager to sign the Agreement. BACKGROUND: T -Mobile approached the City about the possibility of placing a cell tower at the Costa Mesa TeWinkle Park. The design is called a stealth tower and it is used to blend the tower into the surrounding area aesthetics (Exhibit B). The Lease Agreement is for $24,000 per year with a 3% annual increase. The term is five (5) years, with five (5) year options. ANALYSIS: Proposed plans for the location of a cell tower by T -Mobile were reviewed by Public Services Engineering and Maintenance Divisions and the Recreation Division. They modified the proposed type and location of the cell tower. The Planning Division of Development Services has reviewed the proposed location plans and found the proposal to be acceptable, per the Minor Conditional Use Permit ZA-09-43 (See Attachment). 1 ALTERNATIVES CONSIDERED: The alternative would be to disapprove the request. This would not be consistent with Federal and State regulations regarding discrimination of personal wireless service providers. FISCAL REVIEW: The Lease Agreement would generate $24,000 annual revenue to the General Fund. There is no negative fiscal impact to the City. LEGAL REVIEW: The City Attorney's Office has reviewed the attached documents and approved them `as to form'. CONCLUSION: Staff recommends the City Council approve the proposed Lease Agreement with T -Mobile West Corporation, for a cell tower at 980 Arlington Drive. ANNA TELLEZ Telecommunications Manager KIMBERLY HALL BARLOW City Attorney STEPHEN N. MANDOKI Director of Administrative Services ATTACHMENTS: 3 Communications Site Lease Agreement Exhibit A - Legal Description of the Premises Exhibit B - Depiction of Premises Exhibit C - Tech. Requirements for Third Party Memorandum of Lease Minor Conditional Use Permit ZA-09-43 November 2010 T -Mobile January 18, 2011 1:17pm E COMMUNICATIONS SITE LEASE AGREEMENT THIS COMMUNICATIONS SITE LEASE AGREEMENT ("Lease") dated as of , 2010 ("Effective Date") is between T -Mobile West Corporation, a Delaware corporation, ("Lessee") whose local market address is, 3 MacArthur Place #1100, Santa Ana, CA. 92707, and the City of Costa Mesa, a Municipal corporation, ("Lessor") whose address is 77 Fair Drive, Costa Mesa, CA 92628-1200 (the Lessor and Lessee are sometimes collectively referred to herein as the "Parties"). The parties hereto agree as follows: 1. Premises. Lessor represents that Lessor owns the real property legally described in Exhibit "A" commonly known as TeWinkle Park, 980 Arlington Drive, Costa Mesa (Assessor's Parcel Number 141-342-43). Subject to the following terms and conditions, Lessor leases to Lessee that portion of Lessor's property ("Lessor's Property") depicted in Exhibit "B", including any applicable easements for access and utilities (the "Premises"). 2. Use. The Premises may be used by Lessee for any lawful activity in connection with the provisions of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communications facilities. Lessor agrees, at no expense to Lessor, to cooperate with Lessee, 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. 3. Condition Precedent. This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all governmental licenses, permits and approvals enabling Lessee, or its assigns, to construct and operate mobile/wireless communications facilities on the Premises. This Lease is limited to those specific facilities and devises which are shown on the approved plans and permits. Any expansion or sublease of the Premises will require modification to this Lease agreement. 4. Term. The initial term of this Lease ("Initial Term") shall be five (5) years commencing with the issuance of a local building permit allowing Lessee to construct its mobile/wireless communications facilities on the Premises, or twelve (12) months from the Effective Date, whichever first occurs, ("Commencement Date"). Lessee shall have the right to extend the Term of this Lease for five (5) additional Terms ("Renewal Term") of five (5) years each (the Initial Term and Renewal Term are sometimes hereinafter collectively referred to as the "Term"). Each Renewal Term shall be on the same terms and conditions as set forth herein. This Lease shall automatically be extended for the first and second five (5) year Renewal Term unless Lessee notifies Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior to the expiration of the then -existing Term or Renewal Term. This Lease may be extended for the third, fourth, and fifth Renewal Terms upon approval of Lessor's City Council. At least ninety (90) days prior to the expiration of the then -existing second, third or fourth Renewal Term, Lessee shall notify Lessor of its intention to renew the Lease. 5. Rent. Within thirty (30) days of the Commencement Date (so long as Lessor has provided Lessee with a signed and completed Substitute W-9 Form) Lessee shall BoilerPIateCelISiteLeaseAgreement 1 pay Lessor, as annual rent, the sum of Twenty -Four -Thousand and no/100 Dollars ($24,000.00) ("Rent"). Rent shall be payable annually, in advance, to Lessor at Lessor's address specified at the beginning of this Lease. The first payment shall be made within thirty (30) days of the Commencement Date. Payment shall be made by check or draft issued and payable to the City of Costa Mesa and received by the City's Finance Director. A late payment charge of ten percent (10%) shall be added to any past due amount that is received more than ten (10) days after Lessee's receipt of written notice from Lessor. On the anniversary of the Commencement Date, Rent shall increase annually at the rate of three percent (3%) over the preceding year's Rent. If this Lease is terminated by mutual agreement before the expiration of any full lease year, Rent shall be prorated for any fractional lease year. Lessee may expand the Premises for its equipment beyond the square footage of the Premises, or sublease all or any portion of the Premises, only upon execution of an amendment to this Lease, and Rent shall be increased in proportion to the extra square footage included in the revised Premises or by a portion of any sublease income. The existing lease area is approximately (insert number) by (insert number). Additional rent may be due, and an amendment to this lease or applicable permits may be required, if Lessee seeks to add equipment to its existing lease area without expanding the square footage of the leased site. 6. Improvements; Access. (a) Lessee shall have the right (but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the Premises for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (collectively "Tests") to determine the suitability of the Premises for Lessee's Facilities (as defined herein) and for the purpose of preparing for the construction of Lessee's Facilities. During any Tests or pre -construction work, Lessee will have insurance as set forth in Section 12, Insurance. Lessee will notify Lessor of any proposed Tests or pre -construction work and will coordinate the scheduling of same with Lessor. If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee will notify Lessor and this Lease will terminate. (b) Lessee has the right to construct, maintain, install, repair, remove and operate on the Premises radio communications facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas, GPS devices and supporting structures and improvements ("Lessee's Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare, add, maintain and alter the Premises for Lessee's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. Notwithstanding the foregoing, Lessee's work shall not affect or interfere with Lessor's facilities existing on the Property as of the Effective Date. Nor shall Lessee's work affect or interfere with the facilities of other lessees of Lessor's property which are in existence as of the date of execution of this Lease. Lessee shall have the right to install any warning signs on or about the BoilerPIateCelISiteLeaseAgreement 2 Premises required by federal, state or local law. All of Lessee's construction and installation work shall be performed by licensed and bondable contractors, at Lessee's sole cost and expense and in good and workmanlike manner. Title to Lessee's Facilities and any equipment placed on the Premises by Lessee shall be held by Lessee or its equipment lessors or assigns. Lessee's Facilities shall not be considered fixtures. Lessee has the right to remove any or all of Lessee's Facilities at its sole expense on or before the expiration of this Lease or within sixty (60) days after an early termination of this Lease. (c) Lessor shall provide Lessee, Lessee's employees, agents, contractors, subcontractors and assigns with access to the Premises during normal business hours, Monday through Friday, 8 A.M through 5 P.M.. Access to the Premises outside of normal business hours will be considered so long as Lessor can reasonably accommodate access without cost to Lessor. In the event Lessor is unable to do so during the normal course of Lessor's business, access will be billed to the Lessee in the amount of Seventy -Five and no/100 Dollars ($75.00) per hour. Lessor represents and warrants that it has full rights of ingress to and egress from the Premises, and hereby grants such rights to Lessee to the extent required to construct, maintain, install and operate Lessee's Facilities on the Premises, and to remove them therefrom. Lessee's exercise of such rights shall not cause undue inconvenience to Lessor. (d) Lessor shall maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow reasonable access. Lessor shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Lessee's use of such roadways. If Lessee causes any such damage, it shall promptly repair same. (e) 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 back-up power). Subject to Lessor's written approval of the location, which approval shall not be unreasonably withheld, conditioned or delayed, Lessee shall have the right to place utilities on (or to bring utilities across) Lessor's Property in order to service the Premises and Lessee's Facilities, so long as such placement does not interfere with the rights of other lessees of Lessor's property for facilities or leaseholds in place at the time of such installation, and so long as such placement does not interfere with Lessor's use of its property at the time of installation. Upon Lessee's request, Lessor shall execute recordable easement(s) evidencing this right. (f) Lessee shall fully and promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of Lessee's Facilities. If practicable, Lessee shall install at Lessee's expense a separate electric meter and pay for electricity directly. In the event utilities to the Premises are furnished by the Lessor and are measured by privately installed sub -meters, Lessee shall pay as additional rent the cost of utility service provided to the Premises and attributable to Lessee's use ("Utility Charge"). Lessee shall pay the estimated cost of the Utility Charge monthly in advance together with the Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred and no/100 Dollars ($200.00) per month. During the Term, at Lessor's request (which request shall not be more frequent than once every twelve months), Lessee shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on the readings from the privately installed sub -meters at Lessor's BoilerPIateCelISiteLeaseAgreement 3 Property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall adjust the Utility Charge to reflect Lessee's actual usage. (g) Upon the expiration, cancellation or termination of this Lease, Lessee shall surrender the Premises to Lessor in good condition, less ordinary wear and tear. (7) Interference with Communications. Lessee's Facilities shall not disturb the communications configurations, uses, equipment and frequency which exist on Lessor's Property on the Commencement Date ("Pre-existing Communications"), and Lessee's Facilities shall comply with all non-interference rules of the Federal Communications Commission. Lessor shall not permit the use of any portion of Lessor's Property in a way which interferes with the use of the Premises described in Paragraph 2, above. 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, in addition to any other rights or remedies at law or in equity. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. Nor shall any of Lessor's pre-existing use of Lessor's property be deemed to interfere with the use of Premises described in paragraph 2, and neither shall be subject to injunction. If Lessor receives any request to locate any communications transmitting equipment on Lessor's property from any third party (a "Carrier"), Lessor shall include in the lease, license or other agreement with the Carrier a provision prohibiting the Carrier from interfering with the Communications operations of Lessee's Facilities and requiring the Carrier to comply with all the provisions set forth in the technical requirements for third party co -location attached to this Lease as Exhibit "C" in designing, locating and operating its transmitting equipment and in reconfiguring or changing the frequency or operation of its equipment. (8) Taxes. Lessee shall pay personal property taxes assessed against Lessee's Facilities and Lessor shall pay when due, all real property taxes and all other taxes, fees and assessments attributable to the Property, Premises and this Lease. (9) Termination. (a) This Lease may be terminated by Lessor if: (1) Lessee commits any default under this Lease and fails to cure such default within (i) ten (10) business days after Lessee received written notice of the default, where the default is a failure to pay any annual installment of Rent when due, or (ii) thirty (30) days after Lessee receives written notice of any non -monetary default and fails to cure such default, provided that if the period to cure takes longer than thirty (30) days and Lessee commences to cure the default within the thirty (30) day notice period, then Lessee shall have such additional time as shall be reasonably necessary to diligently effect a complete cure; or (2) After the expiration of the second Renewal Term, if any, Lessor determines, in its sole discretion exercised in good faith, that Lessor must use Lessor's Property in a manner that is incompatible with Lessee's Facilities following one hundred eighty (180) days' prior written notice to Lessee; provided, however, that (i) Lessor shall BoilerPIateCelISiteLeaseAgreement 4 first use reasonable efforts to locate an alternate site within Lessor's Property or on property owned by Lessor that is in the vicinity of Lessor's Property that is satisfactory to Lessee for relocation of Lessee's Facility. (b) This Lease may be terminated by Lessee without further liability for any reason or for no reason, provided Lessee delivers written notice of termination to Lessor prior to the Commencement Date. (c) This Lease may also be terminated by Lessee without further liability on thirty (30) days' prior written notice (i) if Lessee is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Lessee from installing, removing, replacing, maintaining or operating Lessee's Facilities or using the Premises in the manner described in Paragraph 2 above; or (ii) if Lessee determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference, provided that the right to terminate under this subsection (c)(ii) is exercisable only if Lessee pays Lessor as a termination fee the lesser of three monthly installments of the Rent or the balance of the Rent due for the remaining months in the Initial Term or any Renewal Term of this Lease. (d) This Lease may be terminated by Lessee if Lessor commits a default under this Lease and fails to cure such default within thirty (30) days after Lessor receives written notice of any other default and fails to cure such default, provided that if the period to cure takes longer than thirty (30) days and Lessor commences to cure the default within the thirty (30) day notice period, then Lessor shall have such additional time as shall be reasonably necessary to diligently effect a complete cure. (10) Destruction of Premises. (a) Except for damage or destruction caused by acts or omissions of Lessee, if the Premises or Lessor's Property is destroyed or damaged so as in Lessee's judgment, to hinder its effective use of Lessor's Property, Lessor shall take reasonable efforts to identify and make available to Lessee within ten (10) days a temporary site on the Property (or on other property owned or controlled by Lessor) which in Lessee's reasonable discretion is equally suitable for Lessee's use. Lessee may construct, operate, and maintain substitute Lessee's Facilities thereon until Lessee's Facilities are fully restored and operational on the Premises. Rent shall abate in full during any time that Lessee is unable to operate Lessee's Facilities on the Property or on a temporary site provided hereunder. Alternatively, Lessee may elect to terminate this Lease as of the date of the damage or destruction by so notifying Lessor no more than thirty (30) days following the date of damage or destruction. (b) If the Premises is significantly damaged or destroyed and thereafter Lessor elects to demolish and not rebuild the Premises, either party shall have the right to terminate this Lease if a suitable relocation alternative does not otherwise exist elsewhere upon Lessor's Property where Lessee's Facilities affected by the damage or destruction may be relocated. If the Property is significantly damaged or destroyed in such a manner that the Premises are directly affected by the casualty event and Lessor thereafter elects to rebuild the damaged or destroyed area, Lessee shall cooperate with Lessor to facilitate Lessor's efforts to repair or restore the damaged or destroyed area of BoilerPIateCelISiteLeaseAgreement 5 the Premises. Except if the damage or destruction is caused by Lessee, Lessor shall similarly cooperate in identifying and making available a temporary site for Lessee in accordance with the first sentence of this Section 10. If the specific nature of the damage or destruction to the Lessor's Property is such that there is no means to continue Lessee's operations in the Premises or elsewhere temporarily upon Lessor's Property pending the repair or restoration of the damaged Premises, then Lessor shall have the right to terminate this Lease upon not less than ten (10) days' prior written notice to Lessee. (11) Condemnation. If a condemning authority takes all or a portion of Lessor's Property, which in Lessee's opinion is sufficient to render the Premises unsuitable for Lessee's use, then Lessee may terminate this Lease as of the date when possession is delivered to the condemning authority. In any condemnation proceeding each party shall be entitled to make a claim against the condemning authority for just compensation (which for Lessee shall include, the value of the Lessee's Facilities, moving expenses, prepaid rent, business dislocation expenses, bonus value of the lease and any other amounts recoverable under condemnation law). Sale of all or part of the Premises to a purchaser with the power of eminent domain under the threat of the exercise of its power of eminent domain, shall be treated as a taking by a condemning authority. (12) Insurance. During the Term or any Renewal Term, and also prior to the Commencement Date if Lessee enters Lessor's Property under section 6(a), Lessee shall maintain the following insurance: (1) Commercial General Liability with limits of $5,000,000.00 per occurrence, such limit may be satisfied by a combination of primary and umbrella policies, covering Lessee's use, occupancy and operations on the Premises; (2) Automobile Liability with a combined single limit of $1,000,000.00 per accident; (3) Workers' Compensation as required by law; and (4) Employer's Liability with limits of $1,000,000.00 per occurrence. Each party to this Lease shall maintain standard form property insurance ("All Risk" coverage) equal to at least 90% of the replacement cost covering their respective property. Each party waives any rights of recovery against the other for damages or loss due to hazards covered by their property insurance and each party shall require such insurance policies to contain a waiver of recovery against the other. Lessee and Lessor shall have the right to self -insure with respect to any of the above insurance. Endorsements on the policies of insurance required by this Section 12 shall contain the following provisions: (a) Lessor and its elected and appointed boards, members, officers, agents and employees shall be named as additional insureds as respects the Commercial General Liability and Auto Liability policies; (b) The policy of insurance shall not terminate, nor shall be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to Lessor; and (c) Any other insurance maintained by Lessor shall be in excess and shall not be contributing with respect to the insurance provided by this policy. BoilerPIateCelISiteLeaseAgreement 6 (13) Indemnification and Hold Harmless. Except where prohibited by laws, Lessee shall protect, defend, indemnify and hold harmless Lessor City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not by way of limitation, all civil claims or workers' compensation claims arising out of or in any way connected with the intentional or negligent acts, error or omissions of Lessee, its employees, agents or subcontractors in the performance of this Lease. This obligation is separate from and independent of Lessee's obligation to obtain insurance as provided for in Paragraph 12 above. In no event shall Lessee indemnify, defend or hold Lessor harmless for claims arising out of or in any way connected with Lessor's negligence or willful misconduct. (14) Assignment. Lessee may assign this Lease, or sublet the Premises, at any time to (i) any of Lessee's partners or parent firms, (ii) Lessee's affiliates and subsidiaries, or the affiliates or subsidiaries of its parent, (iii) in connection with the sale, exchange, or other transfer of Lessee's FCC authorization for the geographic area in which the Premises are located or substantially all of Lessee's assets in the geographic area where the Premises are located; or (iv) in connection with any financing, loan, security interest, pledge, or mortgage of Lessee's property. Any such assignment or sublease shall require Lessee to notify Lessor in writing within ten (10) days of such assignment or sublease. Any other assignment or sublease of any portion of the leased Premises requires Lessor's prior written approval, which approval shall not be unreasonably withheld, delayed or conditioned, but may include a requirement for increased rent. Upon approved assignment, Lessee shall be relieved of all liabilities and obligations hereunder, except those liabilities and obligations which arose prior to the approved assignment, and Lessor shall look solely to the assignee for performance under this Lease and all obligations hereunder. Additionally, Lessee may, upon notice to Lessor, collaterally assign or grant a security interest in this Lease and the Lessee's Facilities, and may assign this Lease and the Lessee's Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively "Secured Parties"). In such event, Lessor shall execute such consent to leasehold financing as may reasonably be required by such Secured Parties. (15) Title and Quiet Enjoyment. (a) Lessor represents and warrants that it has full right, power, and authority to execute this Lease. Lessor further warrants that Lessee shall have quiet enjoyment of the Premises during the Term of this Lease. Lessor hereby represents and warrants that it has obtained all necessary approvals and consents, and has taken all necessary action to enable Lessor to enter into this Lease and allow Lessee to install and operate Lessee's Facilities on the Premises, including without limitation, approvals and consents as may be necessary from other tenants, licensees and occupants of Lessor's Property. (b) Lessee has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice. If, in the opinion of Lessee, such title report shows any defects of title or any liens or encumbrances which may adversely BoilerPIateCelISiteLeaseAgreement 7 affect Lessee's use of the Premises, Lessee shall have the right to terminate this Lease immediately upon written notice to Lessor. (16) Repairs. Lessee shall not be required to make any repairs to the Premises except for damages to the Premises caused by Lessee, its employees, agents, contractors, subcontractors, or invitees. (17) Environmental. Lessor represents that, to the best of its knowledge, the Premises have not been used for the generation, storage, treatment or disposal of Hazardous Materials. In addition, Lessor represents that, to the best of its knowledge, no Hazardous Materials or underground storage tanks are located on or near the Premises. Lessee shall not bring any Hazardous Materials onto the Premises except for those contained in its back-up power batteries (e.g. lead -acid batteries) and properly stored, reasonable quantities of common materials used in telecommunications operations (e.g. cleaning solvents). Lessee shall handle, store and dispose of all Hazardous Materials it brings onto the Premises in accordance with all federal, state, and local laws and regulations. "Hazardous Materials" means any substance chemical, pollutant or waste that is presently identified as hazardous, toxic, dangerous under any applicable federal, state or local law or regulation and specifically includes but is not limited to asbestos and asbestos containing materials, polychlorinated biphenyl's (PCBs) and petroleum or other fuels (including crude oil or any fraction or derivative thereof). (18) Miscellaneous. Notices shall be in writing and shall be delivered to Lessee, T -Mobile USA, Inc., 12920 SE 38th Street, Bellevue, WA 98006, Attn: PCS Lease Administrator, with a mandatory copy to: Attn: Legal Dept. and with a mandatory copy to: T -Mobile West Corporation, 3 MacArthur Place, #1100, Santa Ana, CA 92707, Attn: Lease Administration Manager, with a mandatory copy to: Attn: Legal Dept.. Delivery of notices shall be made by hand, U.S. mail return receipt requested or reliable overnight courier. Any notice served personally shall be deemed delivered upon receipt, and served by certified or registered mail or by reliable overnight courier shall be deemed delivered on the date of receipt as shown on the addressee's registry or certification of receipt or on the date receipt is refused as shown on the records or manifest of the U.S. Postal Service or such courier. If Lessee is to pay Rent to a payee other than the Lessor, Lessor shall notify Lessee in advance in writing of the rent assignment and payee's name and address. The substantially prevailing party in any legal claim hereunder arising shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. Lessor shall obtain for the benefit of Lessee a reasonable Non -Disturbance Agreement from the present and any future mortgagee(s) or holder(s) of a deed of trust confirming that Lessee's right to quiet possession of the Premises during this Lease shall not be disturbed, so long as Lessee is not in default under this Lease. 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 BoilerPlateCelISiteLeaseAgreement 8 provision of the Lease shall be valid and enforceable to the fullest extent permitted by law. Terms and conditions of this Lease which by their sense and context survive the termination, cancellation or expiration of the Lease will so survive. This Lease shall be governed under California law, and be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. The Lease shall be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against either party. The Lease shall not be interpreted or construed against the party preparing it. In the event of any legal action to enforce or interpret this Lease, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California. Upon request, either party may record a Memorandum of Lease confirming the (i) Lease commencement, (ii) expiration date of the Initial Term, and (iii) the duration of any Renewal Terms. Where either Lessor or Lessee is required to obtain the consent or approval of the other party, such consent shall not be unreasonably withheld or delayed and each party will attempt to respond within twenty (20) business days of submitting a written request for consent or approval unless otherwise specified herein. Each person executing this Lease for either Lessee or Lessor represents and warrants, for himself or herself and for the party for which the person purports to act, that such person is authorized to execute the Lease on behalf of such party, that such person is acting within the scope of such person's authority, and that all necessary action has been taken to give such party the authority, and the party has the authority to enter into this Lease and to be bound by the terms of this Lease. This Lease constitutes the entire Lease between the parties and supersedes all understandings, offers, negotiations and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of any of the terms and conditions of this Lease must be in writing and executed by both parties. BoilerPlateCelISiteLeaseAgreement 9 IN WITNESS WHEREOF, the Parties have entered into this Lease effective as of the date first above written. LESSEE: T -Mobile West Corporation, a Delaware corporation By:_ By:_ Name: Title: Date: ATTEST WITNESS Date: BoilerPIateCelISiteLeaseAgreement 10 Title: LESSOR: City of Costa Mesa, a Municipal corporation Name: Date: ATTEST WITNESS Date: Recorded, Requested By, and When Recorded Return To: T -Mobile West Corporation 2008 McGaw Avenue Irvine, CA 92614 Attn: Property Management, Site # LA03595D MEMORANDUM OF LEASE This Memorandum of Lease with option ("Memorandum") dated as of is entered into between the City of Costa Mesa, a municipal corporation ("Landlord") and T -Mobile West Corporation, a Delaware corporation ("Tenant") regarding a portion of the property. See Attached Exhibit "A" incorporated herein for all purposes The Lease is for a term of five (5) years and will commence on the exercise of the option period. Tenant shall have the right to extend this Lease for five (5) additional Five-year terms. This memorandum is solely for the purpose of giving constructive notice of the Lease. In the event of a conflict between the terms of the Lease and this Memorandum, the terms of the Lease shall control. IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as of the date of the last party to sign. (Signatures to follow on next page) Rev 1-2-08 LANDLORD: City of Costa Mesa, a Municipal corporation By: _ Printed Name: Title: Date: TENANT: T -Mobile West Corporation, a Delaware corporation am Printed Name: Danny Bazerman Title: Director, Network Operations and Engineering Date: Exhibit A Legal Description of the Premises THAT PORTION OF LOT 11 AND LOT 12, BERRY RANCHO, AS SOWN ON MAP RECORDED IN BOOK 9, PAGE 7 OF MISCELLANEOUS MAPS, OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF A LINE THAT IS PARALLEL AND DISTANT NORTHWESTERLY, MEASURED AT RIGHT ANGLES, 285 FEET FROM THE CENTER LINE OF NEWPORT BOULEVARD, 60 FEET WIDE, AND A LINE THAT IS PARALLEL WITH AND 430 FEET NORTHERLY, MEASURED AT RIGHT ANGLES WITH THE SOUTH LINE OF SAID LOT 12, OR ITS EASTERLY PROJECTION THEREOF. THENCE FROM SAID POINT OF BEGINNING ALONG SAID LAST PARALLEL LINE NORTH 89" 38' 13" WEST 400.00 FEET; THENCE NORTH 01 21'47" EAST 496.96 FEET; THENCE NORTH 890 38' 13" WEST PARALLEL WITH THE SOUTH LINE OF LOTS 11 AND 12, A DISTANCE OF 2,193.25 FEET TO THE NORTHEAST CORNER OF THE LAND OF THE COSTA MESA UNIFIED SCHOOL DISTRICT BEING COORDINATE STATION NORTH 1929.26 AND EAST 3443.81 AS PER PLANE COORDINATE SYSTEM ESTABLISHED BY THE UNITED STATES ARMY ENGINEERS FOR THE SANTA ANA ARMY AIR BASE; THENCE SOUTH 00 43' 27" WEST 929.28 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 1 1 ; THENCE SOUTH 890 38' 13" EAST ALONG THE SOUTH LINE OF SAID LOT 11 AND 12, A DISTANCE OF 2.232.93 FEET, MORE OR LESS, TO A POINT LYING EASTERLY OF A LINE PARALLEL WITH AND DISTANT NORTHWESTERLY 285.00 FEET, MEASURED AT RIGHT ANGLES FROM THE CENTER LINE OF NEWPORT BOULEVARD 60.00 FEET WIDE; THENCE NORTH 401 37' 39" EAST ALONG SAID PARALLEL LINE TO THE POINT OF BEGINNING. CONTAINING 49.5 ACRES, MORE OR LESS. EXCEPTING THEREFROM AND RESERVING TO THE UNITED STATES OF AMERICA ONE ELEVATED STEEL 500,000 GALLON WATER TANK AND ONE STEEL 200,000 GALLON WATER TANK NOW LOCATED ON THE SAID PREMISES, TOGETHER WITH THE RIGHT TO ENTER UPON THE SAID PREMISES AND REMOVE THE SAID WATER TANKS, SUCH RIGHT OF REMOVAL TO CONTINUE FOR A PERIOD OF ONE YEAR FROM THE DATE OF THIS INSTRUMENT. Assessor's Parcel No: 141-342-43,141-342-44 and 141-342-07 CITY OF COSTA MESA P.O. BOX 1200 • 77 FAIR DRIVE • CALIFORNIA 82020-1200 DEVELOPMENT SERVICES DEPARTMENT January 7, 2010 Tim Miller 5912 Bolsa Avenue, Suite 202 Huntington Beach, CA 92649 RE: ZONING APPLICATION ZA-09.43 MINOR CONDITIONAL USE PERMIT FOR A "MONOEUCALYPTUS' (T -MOBILE) 980 ARLINGTON, COSTA MESA Dear Mr. Miller: Staff review of the minor conditional use permit for the above -referenced project has been completed. The application, as described in the attached project description, has been approved, based on the findings and subject to the conditions of approval (attached). The decision will become final at 5 p.m. on January 14, 2010 (seven days), unless appealed by an affected party (including filing of the necessary application and payment of the appropriate fee), or is called up by a member of the Planning Commission or City Council. If you have any questions regarding this letter, please feel free to contact the project planner, Rebecca Robbins, at (714) 754-5609 or rrobbins(cDci.costa-mesa.ca.us. Sincerely, WILLA BOUWENS-KILLEEN, AICP Zoning Administrator Attachments: Project description Findings Conditions of approval Approved conceptual plans cc: Anna Tellez, Communications Engineering Fire Protection Analyst Building Division Budding Dwision(714) 750 M • Letle EMmwment (714) 7545823 • Planning DNiainn(714) 7545245 FAX (714) 7544858-TDD(714)7545244 wmv.m.mss-mese.ca.us ZA-09-43 January 7, 2010 Page 2 DESCRIPTION • The property is zoned Institutional and Recreational (I&R) and is surrounded by single- family residences to the north, the Orange County Fairgrounds to the south, Costa Mesa High School to the west, and City owned parks to the east. The property is an approximately 49 -acre public park (TeWinkle Park) owned •by the City. • The applicant proposes to install a 70 -foot high wireless communications facility disguised as a eucalyptus tree ("monoeucalyptus") and associated equipment cabinets enclosed in a new extension off the existing pump house at TeWinkle Park. The height of the monoeucalyptus is compatible with the height of the existing eucalyptus trees in the area. The antennas and support pole will be camouflaged in the form of a eucalyptus tree and will be surrounded by existing live eucalyptus trees so that the monoeucalyptus will blend in with the surrounding vegetation. ■ The equipment cabinets, containing the equipment room and the emergency generator, will be located adjacent to the monoeucalyptus within a new extension off the existing pump station house. The equipment room will be designed to match the pump station house in, including but not limited to, color and materials. ■ The proposed antennas will transmit and received at frequency ranges between 1710MHz and 1755MHz and 2110MHz and 2155MHz for Personal Communications Services (PCS) and Cellular Radiotelephone. The applicant has submitted a letter stating the proposed facility is in compliance with FCC radio frequency (RF) exposure levels. ■ Conditions have been included in this approval to ensure that the antenna frequencies do not interfere with the frequency used for public safety communication. • The proposed use is consistent with General Plan Community Design Element Goal CD -8A.8 in that the proposed monoeucalyptus will camouflage the antennas from public views. FINDINGS The information presented substantially complies with Section 13-29(g)(2) and Section 13-144(b) of the Costa Mesa Municipal Code in that: a. The proposed use is substantially compatible with development in the same general area and would not be materially detrimental :to other properties within the area in that the equipment cabinets will be located within a new extension of the existing pump house and designed to match. The antennas and support pole will be camouflaged in the form of a eucalyptus tree and will be surrounded by existing live eucalyptus trees so that the monoeucalyptus will blend in with the surrounding vegetation. b. Granting the minor conditional use permit will not be materially detrimental to the health, safety, and general welfare of the public or otherwise injurious to property and improvements within the immediate neighborhood because the environmental radio frequency radiation generated by the antennas will not exceed ANSUIEEE standards. The antennas will transmit and receive at frequency ranges between 1710MHz and 1755MHz and 2110MHz and 2155MHz. Conditions have also been included to insure that the antennas do not transmit frequency that is used by the City. ZA-o9-43 January 7, 2010 Page 3 c. Strict conformance with the 30 -foot height limit will unreasonably limit, or prevent, reception or transmission of signals, or result in excessive expense in light of the cost of purchase, installation and operation of the antennas. d. The deviation from applicable development standards represents the minimum adjustment necessary to prevent unreasonable limitations on the reception or transmission of signals. e. Granting the minor conditional use permit will not allow a use, density, or intensity which is not in accordance with the General Plan designation for the property since the monopalm will camouflage the antennas. 2. The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City environmental procedures, and has been found to be exempt under Section 15303, New Construction, of CEQA. 3. The project is exempt from Chapter XII, Article 3 Transportation System Management, of Title 13 of the Costa Mesa Municipal Code. CONDITIONS OF APPROVAL Ping. I. The antennas and support pole shall be camouflaged in the form of a eucalyptus tree. As part of the plan check submittal package, submit to the Planning Division sample materials to be used for the "bark" and "eucalyptus leaves" of the monoeucalyptus. Materials shall resemble texture and color of live eucalyptus trees. 2. Depending on their locations, the antennas shall be painted the appropriate colors to imitate the baric and leaves of the eucalyptus tree. 3. All equipment cabinets shall be screened from view. Screening material and color shall be compatible with the existing pump station at the property. 4. All construction -related activity shall be limited to between the hours of 7 a.m. and 8 p.m., Monday through Friday, and 8 a.m. to 6 p.m. Saturday. Construction is prohibited on Sundays and federal holidays. Exceptions may be made for activities that will not generate noise audible from off-site, such as painting and other quiet interior work. 5. Address assignment shall be requested from the Planning Division prior to submittal of working drawings for plan check. The approved address of individual units, suites, buildings, etc., shall be blueprinted on the site plan and on all floor plans in the working drawings. 6. Any future additions or modifications to the equipment or antennas shall be done with the approval of Planning Staff and may require filing and approval of a minor conditional use permit. 7. The working drawings shall clearly delineate any wiring, indicating if it is to be exposed or how it is to be screened. The plans shall also delineate the method of mounting the antennas to the support pole. 8. The antennas, support structure, and all associated equipment shall be completely removed upon discontinuance of use. The applicant shall Z A-09-43 January 7, 2010 Page 4 a 10- 11. 12. 13 14. 10 17. notify the Planning Division when this occurs and obtain the necessary demolition permits to remove the wireless facility and associated equipment. , The applicant recognizes that the frequencies used 6y the 6611dlar facility located at the subject property are extremely close to the frequencies used. by the City of Costa Mesa for Public Safety. This proximity will require extraordinary "comprehensive, advanced planning and frequency coordination" engineering measures to prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public Safety Communications Officials, International, Inc. (APCO), and as endorsed by the federal Communication Commission (FCC)_ Prior to the issuance of any permits to install the facility, applicant shall meet in good faith to coordinate the use of frequencies and equipment with the Communications Division of the Orange County Sheriff -Coroner Department to minimize, to the greatest extent possible, any interference with the Public Safety 800 MHz Countywide Coordinated Communications System (CCCS). Similar consideration shall be given to any other existing or proposed wireless communications facility that may be located on the subject property. At all times, the applicant shall not prevent City of Costa Mesa from having adequate spectrum capacity on City's 800 MHz radio frequency. Before activating its facility, the applicant shall submit to a post- installation test to confirm that "advanced planning and frequency coordination" of the facility does not interfere with the City of Costa Mesa. Public Safety radio equipment. This test shall be conducted by the Communications Division of the Orange County Sheriff's Department or a Division -approved contractor at the expense of the applicant. This post -installation testing process shall be repeated for every proposed frequency addition and/or change to confirm the intent of the "frequency planning" process has been met. The applicant shall provide a 24-hour phone number to which interference problems may be reported. The applicant shall provide a "single point of contact" in its Engineering and Maintenance Departments to ensure continuity on all interference issues. The name, telephone number, fax number, and e-mail address of that person shall be provided to City's designated representative upon activation of the facility. The applicant shall ensure that lessee or other user(s) shall comply with the terms and conditions of this permit and shall be responsible for the failure of any lessee or other users under the control of applicant to comply. The conditions of approval and Code requirements of Zoning Application ZA-09-43 shall be blueprinted on the face of the site plan. The applicant shall contact the Planning Division to arrange for an inspection of the site prior to the release of utilities. This inspection is to confirm that the conditions of approval and Code requirements have zA-o9-43 January7, 201 a Page 5 been satisfied. 18, A copy of the conditions of approval for the conditional use permit must be kept on premises and presented to any authorized City official upon request. New business/property owners shall be notified of conditions- of approval upon transfer of business or ownership of land. Rec. 19. Given the cell towers close proximity to an existing baseball field, the City and/or user groups will not be liable for damages caused by balls hit, thrown, or struck into the cell tower or building. CODE REQUIREMENTS The following list of federal, state, and focal laws applicable to the project has been compiled by staff for the applicant's reference. Any reference to "City" pertains to the City of Costa Mesa. Ping. 1. Approval of the planning application is valid for one (1) year from the effective date of this approval and will expire at the end of that period unless applicant establishes the use by obtaining building permits for the authorized construction and initiates construction. If the applicant is unable to obtain building permits within the one-year time period, the applicant may request an extension of time. The Planning Division must receive a written request for the time extension prior to the expiration of the planning application. 2. Once the use is legally established, the zoning application herein approved shall be valid until revoked. The Development Services Director or his designee may refer the zoning application to the Planning Commission for modification or revocation at any time if, in his opinion, any of the following circumstances exist: 1) the use is being operated in violation of the conditions of approval; 2) the use is being operated in violation of applicable laws or ordinances or 3) one or more of the findings upon which the approval was based are no longer applicable. 3. No sign or banner of any kind shall be posted or displayed on the monopalm or equipment enclosure. 4. All electrical and antenna wiring shall be encased in tubing or other devices acceptable to the Planning Division and/or concealed to the maximum extent feasible to minimize visual impact. Bus. 5. All contractors and subcontractors must have valid business licenses to Lic. do business in the City of Costa Mesa. Final inspections will not be granted until all such licenses have been obtained_ Bldg. 6. Comply with the requirements of the 2007 California Building Code. 7. Provide structural calculations prepared under the supervision of a California -registered civil or structural engineer or California -licensed architect. Eng. 8. A Construction Access Permit and deposit of $2,730 will be required by City of Costa Mesa, Engineering Division prior to start of any on-site work, necessary during construction for street sweeping and to guarantee replacement costs in case of damage to existing public improvements. ZA-03-43 January 7, 2010 Page 5 SPECIAL DISTRICT REQUIREMENTS The requirement of the fallowing special district is hereby forwarded to the applicant: CDFA _ Comply with the requirements of the California Department of Food and Agriculture (CDFA) to determine if red imported fire ants exist on the property prior to any soil movement or excavation. AQMD 2. Applicant shall contact the Air Quality Management District (800) 288-7664 for potential additional conditions of development or for additional permits required by the district.