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HomeMy WebLinkAbout2005 CON Cingular Wireless - Lease Sweetwater Heights ParkLEASE AGREEMENT This Lease Agreement ("Lease") is entered into this 2nd day of August, 2005, by and between the City of National City ("Landlord") and New Cingular Wireless PCS, LLC, A Delaware Limited Liability Company ("Tenant"). RECITALS A. Landlord is the owner of the real property known as "Sweetwater Heights Park" ("Landlord's Property") located in the City of National City, San Diego County, State of California. B. Tenant desires to lease a portion of Sweetwater Heights Park for the installation and operation of an equipment room and certain antenna facilities collectively, ("Antenna Facilities") for use in connection with its communications business. C. Accordingly, the parties are entering into this Lease on the terms and conditions set forth below. AGREEMENT In consideration of their mutual covenants, the parties agree as follows: 1. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord a portion of Sweetwater Heights Park consisting of the space shown on the Location Map attached hereto as Exhibit "A" and incorporated herein by reference. A legal description of the leased premises is attached hereto as Exhibit `B" and incorporated herein by reference. Said leased premises are referred to herein as "Leased Premises." Tenant intends to locate its Antenna Facilities on the "Leased Premises", which facilities include installation of an underground equipment room to accommodate the co -location of an antenna on a monotree located adjacent to the leased premises. A site plan is attached hereto as Exhibit "C". Tenant may not add additional equipment and/or antenna from that authorized by City of National City Planning Commission Resolution No.10-2004 which is attached hereto as Exhibit "D". Landlord reserves the right to require Tenant to relocate its Antenna Facilities to another location on Landlord's Property at Landlord's expense so long as the other location provides radio receipt and transmission equivalent to the Leased Premises. Tenant shall complete the relocation of its Antenna Facilities within six months after written notice from Landlord. This Lease is not a franchise pursuant to Chapter 6.10 of the National City Municipal Code or is it a permit to use the right-of-way under Chapter 13.12 of the National City Municipal Code. Any such franchise or permit must be obtained separately from Landlord. City of National City Cingular # SS-030-01 1 Lease Agreement Sweetwater Heights Park 2. Term. The term of this Lease shall be five (5) years, commencing on August 2, 2005 (the "Commencement Date") and ending August 1, 2010. Provided that Tenant is not in breach of any of the portions of the provisions of this Lease, Tenant may extend the initial term of this Lease for four (4) successive five (5) year terms, upon giving Landlord ninety (90) days' prior written notice of its intention to extend. If this Lease is terminated by the Landlord based on any of the grounds specified in Section 17 of this Lease, the termination shall be effective thirty (30) calendar days from the date of delivery of the notice of termination if Tenant, within such thirty (30) day period, has not cured such default. If this Lease is terminated by Tenant based on any of the grounds specified in Section 17 of this Lease, such termination shall be effective no sooner than thirty (30) days from delivery of written notice from Tenant to Landlord. 3. Rent. a. Tenant shall pay Landlord as annual initial rent for the Leased Premises the sum of $25,000.00 ("Rent"). Tenant shall pay Landlord Rent for the first year on the Commencement Date. Tenant shall pay Landlord Rent annually in advance on each anniversary of the Commencement Date. Beginning with the first anniversary of the Commencement date, the Rent paid shall be increased by five percent (5%) each year. Beginning with the third anniversary of the Commencement Date, Tenant shall pay Landlord as annual rent an amount equal to the greater of (1) the previous year's rent, adjusted upward by five percent (5%) or (2) the Fair Market Value of the ground lease for similar cellular communications facility in a comparable location as determined by an independent, qualified appraiser retained by Landlord and subject to Tenant's reasonable approval. b. Tenant shall pay Landlord a late payment charge equal to five percent (5%) of the late payment for any payment not paid within ten (10) days after due. Any amounts not paid when due shall bear interest until paid at the lesser of the rate of two percent (2%) per month or the highest rate permitted by law. c. If this Lease is terminated by Tenant at a time other than on the last day of the year. Rent shall be prorated as of the date of termination and, in the event of termination for any reason other than nonpayment of Rent or other breach of this lease by Tenant, the balance of all prepaid Rents shall be refunded to the Tenant. d. Upon termination of this Lease for any reason. Tenant shall remove its equipment, personal property, Antenna Facilities, and leasehold improvements from the Leased Premises on or before the date of termination, and shall repair any damage to Leased Premises and its landscape or hardscape caused by such equipment, normal wear and tear excepted, and shall reinstall or replace with a comparable substitute the existing structure; all at Tenant's sole cost and expense. Any such property or facilities which are not removed by Tenant within thirty City of National City Cingular # SS-030-01 2 Lease Agreement Sweetwater Heights Park (30) days of the termination of the lease term shall become the property of landlord. Any such property or facilities which are not removed by Tenant within thirty (30) days of the termination of the lease may, at Landlord's option, be removed by Landlord within sixty (60) days of termination of the Lease at Tenant's expense, with Tenant reimbursing Landlord for the costs of removal within thirty (30) days after such costs are incurred by Landlord. e. Tenant shall reimburse Landlord for its reasonable costs and expenses, including legal fees, incurred by Landlord in connection with the negotiation of this Lease, all as additional Rent, payable upon execution of this Lease. The reasonable costs and expenses shall not exceed $1,000.00. 4. Taxes. Tenant recognizes and understands that this Lease may create a possesory interest subject to property taxation and that Tenant may be subject to the payment of property taxes levied on such interest. Tenant further agrees to pay any and all property taxes, if any, assessed during the term of this Lease pursuant to Section 107 and 107.1 of the Revenue and Taxation Code against Tenant's possesory interest in the Leased Premises. 5. Use of Leased Premises. a. Tenant shall use the Leased Premises for the installation, operation and maintenance of its Antenna Facilities for the transmission, reception and operation of a communications system and uses incidental thereto and for no other uses. In its use of the Leased Premises, Tenant shall at all times remain in compliance with National City Planning Commission Resolution No. 10-2004 Landlord reserves the right to enter into agreement with other parties including, but not limited to, wireless communications carriers (hereinafter "Carrier") for use of Landlord's property. In the event that an additional Carrier is licensed to use any site on Landlord's property, it shall be the new Carrier's responsibility, at its expense, to ensure that such installation is constructed and operated in accordance with applicable regulations issued by the Federal Communications Commission (FCC) and that its use of Landlord's Property does not interfere with Tenant's use of the Leased Premises. Landlord shall include a provision in any agreement with a new Carrier, which provides that installation and use of its communication equipment shall not interfere with Tenant's use and operation of its communication system. The Carrier will provide the Landlord and Tenant with a certified evaluation prepared by a telecommunications engineer that its Antenna and other facilities will not interfere with Tenant's existing Antenna or proposed Antenna or other facilities. b. Tenant shall have the opportunity to review the certified evaluation and to make its own evaluation regarding whether the Carrier's installation will interfere with Tenant's Antenna Facilities. If Tenant determines that the Carrier's installation will interfere with Tenant's Antenna Facilities, then Tenant must notify the Landlord in writing of its findings no later than twenty days after receipt of the certified evaluation. Tenant shall provide all documentation supporting its findings to Landlord. If Landlord accepts those findings, then the Carrier cannot City of National City Cingular # SS-030-01 Sweetwater Heights Park 3 Lease Agreement proceed with its installation unless and until it can satisfy Tenant that the proposed installation will not interfere with Tenant's Antenna Facilities. If Landlord disagrees with Tenant's findings, then Landlord and Tenant shall hire a mutually agreed upon independent telecommunications engineer to evaluate the potential interference problems, the cost to be borne equally by Landlord and Tenant. If that independent engineer determines that the proposed installation will not interfere with Tenant's Antenna Facilities, then the carrier may proceed with its installation. However, if the independent engineer determines that the proposed installation will interfere with Tenant's Antenna Facilities, then the Carrier cannot proceed with its installation unless and until it can satisfy the independent engineer that the proposed installation will not interfere with Tenant's Antenna Facilities. c. Tenant shall not deny Carrier the ability to co -locate the Carrier's transmitting/receiving equipment, and Antenna facilities within and upon Tenant's installed facilities as provided in condition number 11 of the approved Conditional Use Permit of National City Planning Commission Resolution No.10- 2004 pursuant to the following conditions: in addition to the requirements set forth above in Section 5(a), Carrier shall provide Landlord and Tenant with a certified evaluation prepared by a structural engineer finding that the installed facilities can support the additional installation. Tenant shall have the opportunity to review the certified evaluation and to make its own evaluation regarding whether the installed facilities can support the additional equipment. If Tenant determines that the installed facilities cannot support the additional installation, then Tenant must notify the Landlord in writing of its findings no later that twenty days after receipt of the certified evaluation. Tenant shall provide all documentation supporting its findings to landlord and Tenant shall hire a mutually agreed upon qualified engineer to evaluate whether the installed facilities can support the additional installation, the cost to be borne equally by Landlord and Tenant. If that engineer determines that the installed facilities will support the additional installation, then the Carrier may proceed with its installation. However, if the independent engineer determines that the installed facilities cannot support the additional installation, then the Carrier cannot proceed with its installation unless and until it can satisfy the engineer that the installed facilities can support the additional installation. Once it has been determined that the installed facilities can support the additional installation and that the installation will not interfere with Tenant's Antenna Facility as set forth in section 5(a), then Carrier shall execute a sublease agreement with Tenant setting forth the rights, duties and obligations of each party, including the rights, duties and obligations of each party with respect to interference with the communication equipment of the other party, access to each party's equipment and maintenance and repair of each party's equipment. d. In the event that any equipment installed pursuant to any future agreements for the installation of communication/radio equipment on Landlord's Property, other than any equipment installed on Tenant's installed facilities, does cause interference with Tenant's Antenna Facilities, then Tenant shall provide thirty (30) days' City of National City 4 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park written notice to Landlord of this interference. Landlord shall have ten (10) days' written notice to eliminate such interference. If such interference is not eliminated, then Tenant shall have the right to terminate this Lease. e. Tenant shall exercise due diligence in utilizing the Leased Premises as to not interfere with utilization of the remainder of the Landlord's Property by Landlord, and Tenant agrees to comply with any rules and regulations that Landlord may promulgate at any time in reference to utilization of Landlord's Property so long as those rules do not unreasonably interfere with Tenant's rights to operate its communication system. It is understood by Tenant that the Landlord's Property is used by Landlord as a Park and that it is necessary to maintain adequate security at all times for the primary utilization of the Landlord's Property by Landlord. 6. Construction Standards. The Antenna Facilities shall be installed on the Leased Premises in a good and workmanlike manner without attachment of any construction liens. Landlord will require Tenant to paint the Antenna Facilities in conformance with approved Conditional Use Permit CUP No. CUP 2004-3 so as to blend with the surroundings. If not specified. in CUP 2004-3, Tenant will paint in a color specified by Landlord and otherwise shield the Antenna Facilities from view as required by said CUP. 7. Installation of Equipment. a. Prior to commencing construction. Tenant shall obtain a Building Permit from the National City Department of Building and Safety and a Construction Permit from the National City Engineering Department for street improvements, grading or retaining walls, if required. Tenant shall pay the normal costs for all permits and shall bond for the required street improvements, grading or retaining walls, if any. Tenant shall verify that the soil bearing capacity of the proposed site will support the Antenna Facilities, its ancillary structures and equipment. Tenant shall obtain the Landlord's prior written approval of the Construction Drawings for any of Tenant's improvements or site preparations before commencing such activities and shall be responsible for any environmental review relating to such improvements or site preparations subject to landlord's approval. All improvements shall be constructed by Tenant, at Tenant's sole cost and expense. Landlord may condition its approval on Tenant taking steps reasonably necessary to protect Landlord's property and to comply with all conditions of Conditional Use Permit CUP 2004-3, as approved by National City Planning Commission Resolution No.10-2004. Improvements of the site shall be at Tenant's sole expense, including any structural reinforcement necessary to support Tenant's equipment, and Tenant shall maintain the Leased Premises throughout the term in good and safe condition, free of litter or other items relating to Tenant's use, and so as not to create unsafe conditions or an interference with access for any Tenants or other parties, and with all visible areas maintained in a condition at least equal to that of the other facilities on the Property. b. Tenant shall have the right, at its sole cost and expense, to install, operate and maintain on the Property, in accordance with good engineering practices and with City of National City Cingular # SS-030-01 5 Lease Agreement Sweetwater Heights Park all applicable FCC rules and regulations, its Antenna Facilities as described on Exhibit C. Antenna size shall be limited to dimensions shown on the plans approved by Landlord, pursuant to CUP 2004-3, as approved by National City Planning Commission Resolution No.1 0-2004. c. Tenant's installation of all such Antenna Facilities shall be done according to plans approved by Landlord. Any damage done to the Leased Premises during installation and/or during operations shall be repaired or replaced immediately at Tenant's expense and to Landlord's sole satisfaction. In connection with the installation and operation of the Antenna Facilities, Tenant shall not locate or attach any Antenna on other equipment to the Leased Premises without an approved Building Permit from and in written approval of the Director of Building and Safety or his/her designee. The installation methods for attaching antennas or other equipment to the Tenant's installations, facilities or equipment must be done in a manner that poses no threat of damage or injury to other City property or users of the Property. Tenant shall pay all cost and expenses in relation to maintaining the integrity of Landlord's property in connection with Tenant's installation and operation of the Antenna Facilities. Tenant shall install temporary fencing upon the Leased Premises during such times as the installation or removal of the Antenna Facilities is taking place, and shall remove such temporary fencing upon the completion of installation or removal, all at Tenant's sole cost and expense. Within thirty (30) days after Commencement Date, Tenant shall provide Landlord with as -built drawings of the Antenna Facilities and the improvements installed on the Leased Premises, which show the actual location of all equipment and improvements consistent with Exhibit "C". Said drawings shall be accompanied by a complete and detailed inventory of all equipment, personal property, and Antenna Facilities. e. Tenant shall provide Landlord with copies of all tests reports, and records pertaining to the equipment, which are conducted by or on behalf of Tenant within thirty (30) days after finalization of each test, record, or report. f. Any change to Tenant's approved Antenna type, number of antennas, Antenna location and/or change in transmitter type and power output shall, at the sole expense of Tenant, be made in accordance with applicable regulations issued by the FCC and/or the California Public Utilities Commission (CPUC). g. Each and every contractor, subcontractor and/or supplier shall have or obtain a current National City Business License. The Business License is not required of any subcontractor or supplier who delivers material and/or equipment with the Tenant's contractor's, or subcontractor's vehicle or with a common carrier. 8. Equipment Upgrade. Tenant may update or replace the Antenna Facilities from time to time with the prior written approval of Landlord, which will not be unreasonably withheld, delayed or denied, provided that (1) the replacement facilities are not City of National City Cingular # SS-030-01 6 Lease Agreement Sweetwater Heights Park materially greater in number or size that the existing facilities, (2) that any change in their location on the pole is approved in writing by Landlord and (3) that any modification is in compliance with CUP 2004-3, as approved by National City Planning Commission Resolution No.10-2004. Tenant shall submit to Landlord a detailed proposal for any such replacement facilities and any supplemental materials as may be requested, for Landlord's evaluation and approval. 9. Maintenance and Operations. a. Tenant shall, at its own expense, maintain the Leased Premises in a safe condition, and in good repair so as to not to conflict with the use of or leasing of the remainder of the Landlord's Property by Landlord. b. Tenant shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, Antenna facilities, and leasehold improvements, and shall keep the same in good repair and condition during the Lease term. c. Tenant shall keep the Leased Premises free of graffiti, debris and anything of a dangerous noxious or offensive nature or which create a hazard or undue vibration, heat, noise or interference. d. In the event Landlord or another tenant of Landlord's undertakes painting, construction or other alterations in the vicinity of the Leased Property, upon receipt of written notice al least five (5) business days in advance of the painting, construction or other alterations, Tenant shall take reasonable measures at Tenant's cost to cover Tenant's equipment, personal property or Antenna Facilities and protect such from paint and debris fallout which may occur during painting, construction or alteration process. 10. Premises Access. a. Tenant is hereby given and granted a license for ingress and egress to the Leased Premises over, upon, and across adjoining lands and easements owned by Landlord as may be required for the purpose of erection, installation, maintenance and removal of Tenant's Antenna Facilities (the "Access Easement"). Such license shall be over existing roads. b. Upon prior written approval of Landlord, Landlord agrees to grant to Tenant or to such Utility Companies which Tenant shall designate, an Encroachment Permit for such utilities as Tenant deems necessary to serve the Leased Premises. Said Encroachment Permit shall be for the installation and maintenance of necessary utilities from the point of the connection with the Utility Companies' distribution network to Tenant's facilities. The Encroachment Permit shall be over, under or across such portion of Landlord's Property as is reasonably necessary for the installation, maintenance and/or repair of such utility services, provided that such access does not materially interfere with Landlord's normal use of Landlord's City of National City 7 Cingular # SS-030-01 Sweetwater Heights Park Lease Agreement Property, and provided further that it shall be consistent with the plans approved by National City Planning Commission Resolution No. 10-2004. c. Landlord will have access to the Leased Premises at all times and may examine and inspect the Tenant's facilities for safety reasons or to ensure that the Tenant's covenants are being met. In exercising this right of access to the Leased Premises, Landlord and its employees, agents or contractors shall not damage nor interfere with Tenant's equipment or ongoing operations therein. 11. Utilities. Tenant shall, at its expense, separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall timely pay all costs associated herein. 12. Permits and Business License Fees. Tenants shall pay, as they become due and payable, all business license taxes, fees, charges, taxes and expenses required for licenses and/or permits required for or occasioned by Tenant" use of the Leased Premises. 13. Approvals -Compliance with Laws. Tenant's use of the Leased Premises is contingent upon its obtaining certificates, permits, zoning, and other approvals that may be required by any federal, state or local authority. Tenant shall erect, maintain and operate its Antenna Facilities in accordance with site standards, statutes, ordinances, the provisions of CUP 2004-3, as approved by National City Planning Commission Resolution No. 10- 2004 and the rules and regulations now in effect or that may be issued thereafter by the FCC, or any other governing bodies. 14. Interference. Tenant's installation, operation and maintenance of its transmission facilities shall not damage or interfere in any way with Landlord's operations or related repair and maintenance activities on the remainder of Landlord's Property who were in possession of that Property prior to the commencement date of such interference; provided, however, that issues of radio frequency interference with the operations of any other tenants on Landlord's Property that are communications carriers are deemed covered by the provisions of Section 5(a) and 5(b) of this Lease. Tenant agrees to cease all such actions that interfere with Landlord's use of the remainder of Landlord's Property as a Park promptly upon actual notice of such interference; provided, however, in such case, Tenant shall have the right to terminate the Lease and remove all of its equipment, personal property, Antenna Facilities and leasehold improvements and to get refund of the balance of prepaid rent. Before approving the placement of Antenna Facilities, Landlord may obtain, at Tenant's expense, an interference study indicating whether Tenant's intended use will interfere with any existing communications facilities on the Leased Premises and an engineering study indicating whether the Leased Premises' soil conditions are able to structurally support Tenant's Antenna Facilities without prejudice to the Landlord's primary use of the remainder of the Landlord's Property. Tenant's use and operation of its facilities shall not interfere with the use and operation of other communication facilities existing on the Property as of the Commencement City of National City 8 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park Date. If Tenant's facilities cause interference, Tenant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within thirty (30) days, Landlord may terminate this Lease. 15. Default by Tenant and Landlord's Remedies. It shall be a default if Tenant fails to pay Rent or any other sums to Landlord when due, and does not cure such default within ten (10) days; or if Tenant defaults in the performance of any other covenant or conditions of this Lease and does not cure such other default within thirty (30) days after written notice from Landlord specifying the default complained of; provided, however, that if the nature of Tenant's default of a non -monetary obligation is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter diligently pursues such cure to completion; or if Tenant abandons or vacates the Lcased Premises; or if Tenant is adjudicated a bankrupt or makes any assignment for the benefit of creditors; or if Tenant becomes insolvent. If suit shall be brought by Landlord for recovery of possession of the property for the recovery of any rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant. Tenant shall pay to Landlord all expenses incurred therefor, including reasonable attorney's fees, provided that Landlord is the substantially prevailing party in said suit. 16. Cured by Landlord. In the event of a default, Landlord shall have the right, at its option, in addition to and not exclusive of any other remedy Landlord may have by operation of law, without any further demand of notice, either: (a) terminate Tenant's right to possession of the Leased Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession to Landlord. In such event, Landlord shall be entitled to recover from Tenant (i) the amount of the unpaid rent accrued through the date of termination, (ii) the worth at the time of award of the amount by which the unpaid rent reserved for the balance of the term exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided (net the costs of reletting), and (iii) any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations under the Lease; or (b) pursue any other remedy now or hereafter available under the laws or judicial decisions of the State of California. 17. Optional Termination. This Lease may be terminated by: a. Tenant, if it determines that it is no longer practical to use the Leased Premises for its intended purpose; b. Tenant, if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and/or operation of the Antenna Facilities or Tenant's business; c. Landlord, if Tenant is in default under this Lease; City of National City Cingular # SS-030-01 Sweetwater Heights Park 9 Lease Agreement d. Landlord, upon ninety (90) days' written notice to Tenant, if Landlord determines, in its sole discretion, that the Leased Premises are needed for a public Purpose. In the event of such determination, Landlord shall reimburse Tenant (1) the Fair Market Value of all improvements installed by Tenant on the Leased Premises, as determined by an independent qualified appraiser retained by Landlord and subject to Tenant's reasonable approval; and (2) the amount of any Rent pre -paid by Tenant. 18. Liquidated Damages — Termination. Notice of Tenant's termination pursuant to paragraph 17(a) or (b) shall be given to Landlord in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice. All rentals paid for the Lease of the Property prior to said termination date shall be retained by Landlord. Upon termination of this Lease by either party, this Lease shall terminate for all purposes and t he parties shall have no further obligations to each other. 19. Alteration, Damage or Destruction. If the Leased Premises or any portion thereof is altered, destroyed or damaged so as to a materially hinder effective use of the Antenna Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this Lease upon thirty (30) days' written notice to Landlord, in such event. Tenant shall within ninety (90) days remove the Antenna Facilities and all other of its property from the Leased Premises and shall restore the Leased Premises, including reinstallation or replacement with comparable substitute of the existing structure, to the same condition as existed prior to this Lease. Upon the completion of such removal and restoration all rights and obligations of the parties shall cease as of the date of the alteration, damage or destruction and Tenant shall be entitled to the reimbursement of any rent prepaid by Tenant. Landlord shall have no obligation to undertake any repair to Tenant's Antenna Facilities or other personal property of Tenant. 20. Condemnation. In the event that all or part of the Leased Premises or any interest of Tenant in the Leased Premises is taken by eminent domain by the City of National City or any other governmental agency, quasi -governmental agency or other public body thereby making it physically or financially unfeasible, as determined by Tenant in its sole discretion, for the Leased Premises to be used in the manner it was intended to be used by Tenant under this Lease, Tenant shall have the right to terminate this Lease effective as of the date the condemning agency takes possession of the Leased Premises, and the rent shall be equitably prorated. Tenant shall not be entitled to any portion of the award paid for the taking, (except for Antenna Facilities, other communications equipment, leasehold and personal property of Tenant), and Landlord shall receive the remainder of such award. Tenant hereby expressly waives any right of claim for loss of business or goodwill. All damages awarded as compensation for diminution in value of the leasehold or to the Landlord's Property shall belong to the Landlord. If only a portion of the Leased Premises is taken by eminent domain, and Tenant elects not to terminate this Lease under this provision, then rental payments provided under this Lease shall be reduced proportionally as to the portion taken which is not then usable by Tenant and this Lease shall continue in effect. 21. Indemnity and Insurance. City of National City Cingular # SS-030-01 10 Lease Agreement Sweetwater Heights Park a. Disclaimer of Liability. Landlord shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use, operation, condition or dismantling of the Leased Premises or Tenant's Antenna Facilities. b. Indemnification. Tenant shall, at its sole cost and expense, defend, indemnify and hold harmless Landlord and its officials, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "indemnitees"), from and against: Any and all liability, obligation, damages, penalties claims, lien, costs, charges, loses and expenses including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnitees by reason of any act or omission of Tenant, its personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance, use or condition of the Leased Premises or Tenant's Antenna Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. ii. Any and all liabilities, obligations, damages, penalties, claims, liens, costs charges, losses and expenses (including without limitations, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which are imposed upon, incurred by or asserted against the indemnitees by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to Tenant, its contractors or subcontractors, for the installation, construction, operation, maintenance or use of the Leased Premises or Tenant's Antenna Facilities, and, upon the written request of Landlord, Tenant shall cause such claim or lien covering Landlord's property to be discharged or bonded within thirty (30) days following such request. iii. Any and all liability, obligation, damages, penalties, claims liens costs, charges losses and expense (including without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any financing or securities offering by Tenant or its affiliates for violation of the common law or any laws, statutes, or regulations of the State of California, or United States, including those of the Federal Securities and exchange Commission, whether by Tenant or otherwise. iv. Tenant's obligations to indemnify indemnitees under this Lease shall not extend to claims, losses, and other matters covered hereunder to the extent City of National City 11 Lease Agreement Cingular # SS-030-01 Sweetwater I !eights Park such claims arise out of the sole negligence or willful misconduct of one or more indemnitees. c. Assumption of Risk. Tenant undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors and employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions, if any, on or about the Leased Premises, and Tenant hereby agrees to indemnify and hold harmless the Landlord against and from any claim asserted or liability imposed upon the Indemnitees for personal injury or property damage to any person other than from indemnitee's gross negligence or willful misconduct) arising out of the Tenant's installation, operation, maintenance, condition or use of the Building or Tenant's Antenna Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. d. Defense of Landlord. In the event any action or proceeding shall be brought against the landlord by reason of any matter for which the Landlord is indemnified hereunder. Tenant shall, upon notice from Landlord, at Tenant's sole cost and expense, resist and defend the same with legal counsel mutually selected by Tenant and Landlord; provided however, that Tenant shall not admit liability in any such matter on behalf of the Landlord without the written consent of Landlord and provided farther that Landlord shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent of Tenant. e. Notice, Cooperation and Expenses. Landlord shall give Tenant prompt notice of the making of any claim or the commencements of any action, suit or other proceeding covered by the provisions of this paragraph. Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the defense of any litigation by Landlord's own counsel. f. Insurance. During the term of the Lease, Tenant shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance: Worker's compensation insurance meeting applicable statutory requirements and employer's liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. ii. Comprehensive commercial general liability insurance with minimum limits of Three Million Dollars ($3,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. City of National City Cingular # SS-030-01 12 Lease Agreement Sweetwater Heights Park g. iii. Automobile liability insurance covering all owned, hired, and non -owned vehicles in use by Tenant, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law with minimum limits of Two Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury and property damage. iv. At the start of and during the period of any construction, builders all-risk insurance, together with an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature whatsoever which are to be used in or accidental to the installation of the Antenna Facilities. Upon completion of the installation of the Antenna Facilities, Tenant shall substitute for the foregoing insurance policies of fire, extended coverage and vandalism and malicious mischief insurance on the Antenna Facilities. The amount of insurance at all times shall be representative of the insurable values installed or constructed. v. Business interruption insurance coverage in an amount sufficient to cover such loss of revenues, for the period of time which it would take, under normal circumstances, to repair or replace that part(s) of the Antenna Facilities which is damaged and caused the loss of revenue. vi. All policies other than for Worker's Compensation shall be written on an occurrence and not on claims made basis. vii. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. viii. Tenant shall furnish certificates of insurance to Landlord before commencement of work. Named Insureds. All policies, except for business interruption and worker's compensation policies, shall name Landlord and its officials, boards, commissions, employees, agents and contractors, as their respective interests may appear, as additional insureds (herein referred to as the "Additional Insureds"). Each policy which is to be endorsed to add Additional Insureds shall contain cross -liability wording, as follows: "In the event of a claim being made hereunder by one insured for which another insured is or may be liable, then this policy shall cover such insured against whom a claim is or may he in the same manner as if separate policies had been issued to each insured hereunder. " h. Evidence of Insurance. Certificates of insurance of each insurance policy required to be obtained by Tenant in compliance with this insurance policy required to be obtained by Tenant in compliance with this paragraph, along with written City of N ational City Cingular # SS-030-OI 13 Lease Agreement Sweetwater I Ieights Park evidence of payment of required premiums shall be filled and maintained with Landlord annually during the term of the Lease. Tenant shall immediately advise Landlord of any claim or litigation that may result in liability to Landlord. i. Cancellation of Policies of Insurance. All insurance policies maintained pursuant to this Lease shall contain the following endorsement: J. "At least sixty (60) days prior written notice shall he given to Landlord by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the parties named in this paragraph of the Lease." Insurance Companies. All insurance shall be affected under valid and enforceable policies, insured by insurers licensed to do business by the State of California or surplus carriers on the State of California Insurance Commissioner's approved list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A- VII or better by A.M. Best Company. k. Deductibles. All insurance policies may be written with deductibles not to exceed $50,000 unless approved in advance by Landlord. Tenant agrees to indemnify and save harmless Landlord, the indemnitees and Additional Insured from and against the payment deductible and from the payment of any premium on any insurance policy required to be furnished by this Lease. 1. Contractors. Tenant shall require that each and every one of its contractors and their subcontractors who perform work on the Leased Premises to carry, in full force and effect, Workers' Compensation, comprehensive public liability and automobile liability insurance coverages of the type which Tenant is required to obtain under the terms of this paragraph with appropriate limits of insurance. m. Review of Limits. Once during each calendar year during the term of this Lease or any renewal thereof, Landlord may review the insurance coverages to be carried by Tenant. If landlord determines that higher limits of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant shall be so notified and shall obtain the additional limits of insurance at its sole cost and expense. 22. Hazardous Substance Indemnification. Tenant represents and warrants that its use of the Leased Premises herein will not generate any hazardous substance, and it will not store or dispose on the Leased Premises nor transport to or over the Building any hazardous substance. Tenant shall be allowed to store on site the number of batteries as shown on the plans approved pursuant to CUP 2004-3. The batteries shown on the plans are to be used for emergency backup power. No additional batteries may be stored on the site without the prior written approval of Landlord. Tenant further agrees to defend, indemnify and hold harmless Landlord and its officials, boards, commissions, employees, agents and contractors from, and remediate the property from, any release of City of National City Cingular # SS-030-01 14 Lease Agreement Sweetwater Heights Park any such hazardous substance by Tenant or anyone acting on behalf of Tenant, and any damage, loss or expense or liability resulting from such release by Tenant or anyone acting on behalf of Tenant, including all attorney's fees, costs and penalties incurred as a result thereof, except any release caused by the negligence of Landlord, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations, or rules may be amended from time to time; and shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 23. Electric Magnetic Field (EMF) Indemnification. Tenant shall comply with all present and future laws, orders, and regulations relating to Electromagnetic Fields (EMFs"), and the American National Standard Institute (ANSI) standards. Tenant, on behalf of itself and its successors and assigns, shall defend, indemnify and hold harmless Landlord and its officials, boards, commissions, employees, agents and contractors from and against all claims of injuries due to EMFs to the extend such personal injuries are asserted to be caused by Lessee's Antenna Facilities on the Leased Premises, with Tenant's obligation to include payment of Lessor's reasonable attorney fees and costs. Landlord and Tenant shall mutually select the attorney to defend against all such claims. 24. Cathodic, Interference Protection. Tenant has been advised and understands and agrees not to create any interference of any kind with the City's signals and further agrees to immediately correct any interference that may result from Tenant's equipment or to immediately cease all operations of Tenant's equipment until non-interference with the City's signals have has been obtained to the' satisfaction of the City Manager or his designee. 25. Holding Over. Any holding over after the expiration of the term hereof, with the consent of Landlord, shall be construed to be tenancy from month to month at two times the rent herein specified (prorated on a monthly basis) and shall otherwise be under the conditions specified in this lease agreement, so far as applicable. 26. Subordination to Mortgage. Any mortgage now or subsequently placed upon any properties of which the Leased Premises is a part shall be deemed to be prior in time and senior to the rights of Tenant under this Lease. Tenant subordinates all of its interest in the leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall, at Landlord's request, execute any additional documents necessary to indicate this subordination. 27. Signing Deposit. With the execution of this Lease, Tenant shall pay Landlord the non- refundable sum of $2,000 as a signing deposit to guarantee Tenant's faithful performance, in lieu of a security deposit. Receipt by Landlord of the signing deposit shall not bar Landlord from pursuing its remedies under Section 15 if Tenant defaults in its obligation and duties under this lease. City of National City Cingular # SS-030-01 15 Lease Agreement Sweetwater Heights Park 28. Acceptance of Premises. By taking possession of the Leased Premises, Tenant accepts the Leased Premises in the condition existing as of the Commencement date. Landlord makes no representations or warranty as to the condition of the Leased Premises, and Landlord shall not be liable for any latent or patent defect in the Leased Premises, except as otherwise stated herein. 29. Estoppel Certificate. Tenant shall, at any time and from time to time upon not less than ten (10) days prior request by Landlord, deliver to Landlord a statement in writing certifying that (a) the Lease is unmodified and in full force; (b) the dates to which rent and other charges have been paid; (c) for as the person making the certificate knows, Landlord is not in default under any provisions of the Lease; and (d) such other matters as Landlord may reasonably request. 30. Notices. All notices, request, demands, and other communications hereunder shall be in writing and shall he deemed given if personally delivered or mailed, certified mail, return receipt requested, to the following addresses; If to Landlord, to: City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 With a copy to: If to Tenant: With a copy to: 31. Assignment. Stephen M. Kirkpatrick City Engineer City of National City 1243 National City Boulevard National City, CA 91950-4301 c/o Cingular Wireless LLC Attn: Network Real Estate Administration Re: Cell Site #SS-030-01; Cell Site Name: Sweetwater Heights Park 6100 Atlantic Boulevard Norcross, Georgia 30071 Cingular Wireless LLC Attn: Legal Department Re: Ce11 Site #SS-030-01; Cell Site Name: Sweetwater Heights Park 15 E Midland Avenue Paramus, New Jersey 07652 City of National City Cingular # SS-030-01 16 Lease Agreement Sweetwater Hcights Park a. Tenant may not assign this Lease or sublease the Leased Premises at any time without Landlord's consent. b. Nothing in this Lease shall preclude Landlord from leasing other space for communications equipment to any person or entity that may be in competition with Tenant, or any other party. 32. Successors and Assigns. This lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 33. Recordation. This Lease may be recorded by either party hereto. 34. Miscellaneous. a. Landlord and Tenant represent that each, respectively, has full right, power, and authority to execute this Lease. b. This Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modifications of or amendment to this Lease must be in writing and executed by both parties. c. This Lease shall be construed in accordance with the laws of the State of California. d. If any term of this Lease is found to be void or invalid, such invalidity shall not effect the remaining terms of this Lease, which shall continue in full force and effect. 35. Quiet Possession. The Landlord hereby warrants and represents that there are no liens, encumbrance or exceptions to property title as of the date of this lease that would interfere with Tenant's rights hereunder and that Landlord has the legal right and title to enter into this Lease. 36. Fixtures. Landlord agrees that no part of the improvements constructed, erected or placed by Tenant on the Leased premises shall be or become, or be considered as being, affixed to, or part of Landlord's real property, and any and all provisions and principles of law to the contrary not withstanding, it being the specific intention of Landlord to covenant and agree that all improvements of every kind and nature constructed, erected, or placed by Tenant on the Premises, shall be and remain the property of the Tenant. 37. Environmental Conditions. Landlord hereby makes the following representation and warranties to Tenant, for the benefit of Tenant. a. Landlord is not aware of, and has not received notice of, the disposal or release or presence of hazardous substances, as defined under federal and state law, on the City of National City Cingular # SS-030-01 17 Lease Agreement Sweetwater Heights Park Leased Premises, the license for access granted herein, the Encroachment Permit for utilities, or the Landlord's Property. b. If during the term of this Lease or any extension thereof, it is determined that the Leased Premises, the license for access, the Encroachment Permit for utilities, or Landlord's Property is contaminated with Hazardous Substances, Tenant shall have the right, in addition to other rights and remedies, to terminate this Lease upon thirty (30) days' written notice to Landlord. This lease was executed as of the date first set forth above. -Signature Page to Follow - City of National City 18 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park LANDLORD CITY OF NATIONAL CITY By: Nick Inzunza Title: Mayor APPROVED AS TO FORM: George H. Eiser, III City Attorney TENANT New Cingular Wireless PCS, LLC, a Delaware Limited Liability Company By: Name: Scott Sutherland Title: Manager, Real Estate & Construction Date: City of National City 19 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park St o a\ ---C si \, \ 2ZNp .r r ` -Sj NNg IS 1 \ \ Si taK \ �� SC., w 1 �i" � �' Ar P. i v f , r, JG • y.. Svsue lc ,. 90 �'\pf ,-, r ,-- `SWE ATER \F� • PLAZA ..E- pTER RD y SWEETWATER * TOWN & COUNTRY EXHIBIT A LOCATION MAP T�1o;\k sVL\W -z p0N �1� ONL T :•' - 6 .YIL�S�N ST\Gyti R(-WOOOi � 1 f f Nr�, o �/ k tt�_~t => \�WZ- R UITAT ION p N ) BONITA �-/ VIEWPOINT\ OR .: Oft SOG�6 J 'r)' ' 055' Ppr�zro A HEIGHTS ` G, 1STAZ \ra SSP�3U0• �r 47- \r E 1 `ap , S0:E et 1,, �\ G EN 1 OY�NNW`D \LL1 DR`• 20 EXHIBIT B LEGAL DESCRIPTION All that certain real property situated in the County of San Diego, State of California, described as Follows: That portion or Quarter Section 100 of Rancho De La Nacion, in the County of San Diego, State of California, according to Map thereof No. 166, filed in the Office of the County Recorder of San Diego County, described as follows: Beginning at the intersection of the East line of said Quarter Section 100 with the centerline of the 50.00 foot strip over which an easement for road purposes was reserved by the San Diego Land Corporation, in Deed recorded in Book 806, Page 70 of Deeds, records of said County said point of intersection being North 18°34'00" West (record North 19°00'00" West) 461.60 feet from the Southeasterly corner of the Northeasterly Quarter of said Quarter Section 100; thence along the centerline of said 50.00 foot strip, the following courses and distances; Southwesterly along the arc of a curve, concave Southeasterly, having a radius of 1160.00 feet through a central angle of 21°45'00" a distance of 440.35 feet (record 440.30 feet).to.the beginning of a reverse curve, concave Northwesterly, having a radius of 1160.00 feet, Southwesterly along the arc of said last mentioned curve through a central angle of 18°38'32" a distance of 377.43 feet to the True Point of Beginning; thence continuing Southwesterly along said centerline 205.65 feet and South 45°59'00" West (record South 45'33'00' West) 217.32 feet to a point on the Southwesterly line of the land described in Deed to Alice Trubee Sallmon, recorded in Book 806, Page 70 of Deeds, records of said County; thence' along said Southwesterly line, South 51°34'00" East (record South 52°00'00" East) 12.53 feet to the Northwest corner of the land conveyed to Casa Peoples and Pauline Ora Peoples, by Deed recorded in Book 401, Page 7 of Official Records of said County; thence along the boundary of said Peoples' Land, South 68°34'00" East (record South 69°00'00" East) 200.00 feet and North 53°59'10" East, 487.65 feet (record North 53°22'00" East, 488.30 feet, more or less) to the Northeast corner of said Peoples Land; thence North 72°56'06" West, 292.31 feet to a line which bears South 54°10'28" case, reef racially from the i rue Point or Beginning; thence North 54°10'28" West, 25.00 feet to the True Point of Beginning. 21 EXHIBIT C SITE PLANS ATTACHED 22 Bggrll SINGLE FAMILY RESIDENCES EDGE OF ROAD EASEMENT PER TIRE REPORT 8 SURVEY SHEET C-1 DEMO �t POWER SERVICE CONNECTION AT EXISTING SIG-- ELECTRICAL HAND —HOLE. SEE UILDY SERVICE PUN SHEET E-2 EXISTING PLAYGROUND \ AREA S \ /\ 002 PROPERTY LINE (1TPA.AL) EXOSING CONTCUR UNES O 1'-0• INTERNALS SITE PLAN tIG1LG1•wl/d TELCO SERVICE CONNECTION AT EXISTING TELCO PEDESTAL SEE IDNIY SERVICE PLAN SHEET E-2 /b PROPOSED UNDERGROUND TELEPHONE / / SERVICE CONDUIT. SEE UTILITY SERVICE PLAN SHEET E-2 REMOVE AND REPLACE EXISTING ELECTRICAL PEDESTAL WITH NEW 600 AMP METER PEDESTAL SEE UTILITY SERVICE PLAN SHEET E-2 EXISTING TELCO SPUCE BOX ON STEEL H—FRAME .--EXISING GAGED BACKFLOW VALVE EXSING BASKETBALL COURT PROPOSED CONCRETE CURB E PROPOSED UNIT. SEE UTTUTY PINE FEEDER N M S SEE UNLDY / /TREE (TYPICAL) SERVICE PLAN SHEET E-2 i' i i , PROPOSED LANDSCAPING. j µ! /) SEE STREET L-1 (TYPICAL/ -,o i' i PUBLIC PARK i APN / 564-290-06 .i � EASING J IURF AREA EXISTING PLAYGROUND AREA EXISTING CH/UNLINK FENCE 0 h' ,—E%ISDNG CONCRETE BLOCK TELECOMMUNICATION EQUIPMENT BUILDING EXISTING TELECOMMUNICATIONS MCNOPALI 92 EXISTING PALM TREE (YPICAL) 1' E(ISDNG TELECOMNUNICATKIN CONTROLLED DAIRONMENT VAULT (SHOWN DASHED) EXISTING 55'-0' HIGH MONOPINE TO BE REMOVED. RELOCATE EXISTING ANTENNAS TO NEW NONOPINE PROPOSED LINGUAE) WIRELESS ANTENNAS At TMA UNITS PIPE MOUNTED TO A NEW 55'-0' HIGH MONOPINE SEE ANTENNA PUN SHEET A-1 AND EXTERIOR ELEVATIONS SHEET A-3 k A-4. PROPOSED 11'—Er = 28'-6' COMMIX I FO DASHED FOR MACULAR 111REESS TELECOMMUNICATIONS EQUIPMENT. SEE ENLARGED SITE PLAN SHEET A—t. REMOVE DIG—NERT MARKINGS: THE GENERAL CONTRACTOR SHALL REMOVE ALL I DIG —ALERT MARKINGS MADE FOR THIS PROJECT I CIRCULAR WIRELESS TELECOMMUNICATIONS TRANSMITTER FREQUENCIES AND POWER LEVELS: 824-580 MHz BAND WIDTH 1868-1980 MHz BAND WIDTH 200 WATTS PER SECTOR BOUNDARY NOTE: THE PROJECT BOUNDARY SHOWN ON THIS DRAWING S APPROXIMATE AND S SHOWN FOR REFERENCE ONLY. A BOUNDARY SURVEY WAS NOT PERFORMED. EASEMENTS: ALL PLOWABLE EASEMENTS ARE SHOWN. SEE SURVEY SHEETS C-1 8 C-2 FOR MORE DEEM. 411GN1T5CTUPE .. fl4rirllrlc om�. .ucwr¢, wain , •AW •..rec, o w. C•.t:..0 C. .v t. n.m u. • •• PREPARED FOR cingular- WIRELESS 6925 LUSK BOULEVARD SAN DIEGO, CA 92121 APPROVALS DATE ZONING DATE CONSTRUCTION DATE SITE ACOUISITION DATE OWNER APPROVAL DATE PROJECT NAME SWEETWATER HEIGHTS PARK PROJECT NUMBER Jig-03C-C R 3859 "B" CAGLE STREET NATIONAL CITY, CA 9195C SAN DIEGO COUNTY 02/14/05 02/15/05 02/23/05 04/04/05 04/11/05 04/12/05 04/25/05 05/23/05 DRAWING DATES PRELIM 20 REVIEW (rai) FINAL 20 REVIEW (roI) REVISED MINA. ZO (rew) PRELIM CO REVIEW (raw) REVISED 2D: NONPINE (raw) 20 SUBMITTAL (raw) FINAL CO REVIEW (rem) REVISED FINAL CD (rew) SHEET TITLE SITE PLAN PROJECTS\cingulor\05018cd\05018cA0.OWG A-O ANTENNAS Al-A4 AZIMUTH Cr 4'-0` • TYPICAL • TYPICAL M ANTENNAS CI-C4 AZIMUTH 240 ANTreENNA PLAN LII1Aew. ANTENNAS B1-84 AZIMUTH 120' Ea KEYED NOTES: YRGPUxu —8' -F _u - u VAL'L (SOWN DASHED & SHADED) FOR ORACULAR WIRELESS FOXCOMMUNICATIONS EQUIPMENT 0 PROPOSED VAULT HATCH PROPOSED CINGULOR AWELESS ANTENNAS & 1MA UNITS PIPE MOUNTED TO A NEW 55-0' NIGH MONOPINE SEE EXTERIOR ELEVATIONS SHEETS A-3 & A-4 28'-8 PROPOSED 11•-8' X 28'-8' CONTROLLER ENVIRONMENT VAULT SHOWN DASHED & SHADED) FOR CNQULA TELECOMMUNICATIONS EQUIPMENT. SEE GRADE LEVEL PLAN SHEET V-1 AND FLOOR PLAN SHEET V-2 O PROPOSED 85-0 HIGH MONOPINE 70 REPLACE DIVING UONOPNE O COSTING CONTROLLED ENVIRONMENT VAULT (SHOWN DASHED) OS COSTING VAULT LATCH © PROPOSED CNGLIAR WIRELESS ANTENNAS & TYA UNITS PIPE MOUNTED TO RODE ARMS MOUNTED TO NEW IICNOPLNE O PROPOSED SNFET METAL COMAE CABLE SHROLAII PAINTED TO MATCH MONOPINE TRUNK. USE GRAT111-RESISTANT PANT AS APPROVED BY PARK: CINGIAAR WIRELESS CONSTRUCTION MANAGER AND NATIONAL CITY NT 0 PROPOSED A/C VENT WITH CONCRETE APRON (TYPICAL OF 2) `tY COSTING PVC ABC VENT WITH CONCRETE APRON PROPOSED COAXAL CABLE TRENCH PROPOSED CONCRETE CURB TO MATCH COSTING EXS1IN6 CONCRETE CURB / ENLARGED SITE PLAN WOMG . PROPOSED LANDSCAPE EDGING EXISMO LANDSCAPE EDGING EXISTING CHWNUNK FENCE ® EXISTING TINE TREE TO REI AN ® PROPOSED PINE TREE ® DOSING CONCRETE W515R• DORM HAND -HOLE 0O511NG IRRIGADON BOX EXISTING GROUND WELL ® PROPOSED TELCO * POWER UTILITY TRENCH. REPNR LANDSCAPE AND WRIGAIWN DAMAGED SV CONSTRUCTION 1O AS -NEW CONDITION • Ek15DNG CONTOUR UNES G 1'-0• INTERVALS ® PROPERTY LNE (1YPMA4.) ® cosmic TURF AREA • E%SRINC IAN5SGAP[ SHRUHS !ND WGGD MULCH Tu nGNrh ® PROPOSED LANDSCAPE SHRUBS AND W000 MULCH TO MATCH DOSING ® MHO LANDSCAPE AREA MN GROUND COVER ® PROPOSED LANDSCAPE AEA WITH GROUND COVER TO MATCH COSTING EXISTING 55'-0• HIGH MONOPINE TO BE REMOVED. Ce5T1N0 ARTENN55 SHALL BE REL001TED TO NEW MONOPINE ® NEW comm. CABLE TRENCH To DOSING CONTROLLED DETRIMENT VAULT • ATER IEMMHG COME CABLE FROM D0511NG CONOUR, TROM, CAP AND SEAL CONTOR AND COVER ENDS WITH 3' M 3' X 3' CONCRETE SWRRE BED REMOVE POR ON I)F E05RNi CONCRETE CURB (SHOWN DASHED) ® REMOVE C04DNG MONOPINE FOOTING INCLUDING BOLTS & RENFORCD/ERT To MINIMUM I2 BELOW FINE4E0 GRADE • t Th CP Bra 8._ ARR ...<x.re<, iGYfaT , 01,11, ..1,e r«1 oc. .,n u41.:2.e _. ..m11 a m .u.r ll PREPARED FOR Xcingular- WIRELESS 6925 LUSK BOULEVARD SAN DIEGO, CA 92121 APPROVALS R.F. DATE ZONING DATE CONSTRUCTION DATE 517E ACQUISITION DATE OWNER APPROVAL DATE PROJECT NAME SWEETWATER HEIGHTS PARK PROJECT NUMBER 3859 "B" CAGLE STREET NATIONAL CITY, CA 91950 SAN DIEGO COUNTY 02/14/05 02/15/05 02/23/05 04/04/05 04/11/05 04/12/05 04/25/05 05/23/05 DRAWING DATES PRELIM 20 REVIEW (rel) FINAL 20 REVIEW (roI) REVISED FINAL ZD (row) PRELIM CO REVIEW (raw) REVISED 20: MONOPINE (row) ZO SUBMITTAL (raw) FINAL CO REVIEW .(row) REVISED FINAL CD (row) SHEET TITLE ENLARGED SITE PLAN ANTENNA PLAN PROJECTS \cingulnr\050 I Scd\05018cA I.OWG A-1 •l TOP OF NEW MONOPINE TOP OF RELOCATED T—MOBILE ANTENNAS TOP OF PROPOSED--, CIRCULAR WIRELESS l ANTENNAS BOTTOCHT3M OF BRAN TOP OF FOOTING EXISTING PVC A/C VENT WITH CONCRETE APRON EXLSTNC MONOPINE— TO BE REMOVED COASTING TREE r J L L J NORTH ELEVATION WCJ/L T.fOd EXISTING PALM TREE (TYPICAL EXISTING TREE PROPOSED A/C DUCT COVER WITH CONCRETE APRON. PANT DUCT CCNER DARK GREEN. (TYPIGL OF 2) EXISTING CONTROLLED ESMRONMENT VAULT (SHOWN DASHED) EXISTING ANTENNAS RELOCATED—� TO NEW MONOPINE PROPOSED citacum WIRELESS AMENWIS & TAM UNITS PIPE MOUNTED TO A NEW 55'-0' HIGH MONOPINE /.-uuimG wONOPALM COSTING GRADE (TURF AREA) DOSTING CONCRETE BLOCK TELECOMMUNICATION EGUIPMEITT BUILDING WEST ELEVATION P7WE i•.10'C PROPOSED PINE TREE PROPOSED 11'-8" x 28'-6' CONTROLLED ENVIRONMENT VAULT (SHOWN DISHED) FOR CINCULAR WIRELESS TELECOMMUNICATIONS EQUIPMENT EXISTING ANTENNAS RELOCATED TO NEW MONOPINE PROPOSED CNG1IAR WNEl65 ANTENNAS & TAT, UNITS PIPE MOUNTED TO A NEW 55'-0' HIGH MONOPINE EXISTING PINE TREE (TYPICAL) PROPOSED PINE TREE J PROPOSED LANDSCAPE SHRUBS TO MATCH EXISTING J EXISTING TREE —EXISTING GRADE (TURF AREA) PROPOSED 11'-8' : 2B'—e' CONTROLLED ENVIRONMENT VAULT (SHOWN DASHED) FOR CINGULAR WIRELESS TELECOMMUNICATIONS EQUIPMENT EXISTING PINE TREE (TTPPAL) um IECru R0 as PLan;unc .C.01 5..14E .0+a. ..n ..., a.P c. ..c,. n.w ylr PREPARED FOR x cingular- WIRELESS 6925 LUSK BOULEVARD SAN DIEGO, CA 92121 APPROVALS DATE ZONING DATE CONSTRUCTION SITE ACQUISITION OWNER APPROVAL DATE OATS DATE PROJECT NAME SWEETWATER HEIGHTS PARK PROJECT NUMBER SS-030-01 3859 "B" CAGLE STREET NATIONAL CITY, CA 91950 SAN DIEGO COUNTY DRAWING DATES 02/14/ns PRELIM ZD REVIEW (rm) 005/05 FINAL 20 REVIEW (eel) 02/23/05 REVISED 2.D REVIEW (rew) 04/04/05 PRELIM CD REVIEW (raw) OA/II/05 REVISED ZEN MONOPINE (rew) 04/12/05 ZD SUBMITTAL (rew) 04/25/05 FINAL CD REVIEW (rew) 05/23/05 REVISED FINAL CO (rew) EXTERIOR ELEVATIONS PROJECTS \erg far\050113ci\050IDca3DWG A-3 4 EXISTING TREE PROPOSED LANDSCAPE SHRUBS TO MATCH EDOSRNG PROPOSED ORACULAR WIRELESS ANTENNAS & TMA UNITS PRE MOUNTED TO A NEW 55'-0' HIGH MONOPINE DOSING PINE TREE (TYPICAL) PROPOSED PINE TREE T' L 1 I I L J SOUTH ELEVATION IC 1S rd,U COSTING MONOPINE TO BE REMOVED TOP OF RELOCATED T—MOBILE ANTENNAS TOP OF F00DN0 I L EXISTING (1YPICAL) PINE TREE EAST ELEVATION ADM r EXISTING ANTENNAS TO BE RELOCATED TO NEW MONOPINE COSTING STING MONOPINE TO BE .. - / REMOVED PROPOSED COAXIAL CABLE SHROUD PANTED TO MATCH MONOPINE TRUNK PROPOSED WC DUCT COVER WITH CONCRETE APRON. PANT DUCT COVER DARK GREEN. (117IfM. OF 2) PROPOSED 11'—B' y 28'-8' CONTROLLED EINIRONMENT VAULT (SHOWN DASHED) FOR CNGULAR WIRELESS TEIFCOMMUNICATKINS EQUIPMENT EXISING ANTENNAS NELOCATED TO NEW MONOPINE PROPOSED MACULAR WIRELESS ANTENNAS & TAN UNITS PIPE MOUNTED TO A NEW 55'-0' HIGH MONOPINE —DOSBNG GRADE (TURF AREA) PROPOSED 11'—Err 2r-6' CONIROIlID ENVRONMENT VAULT (SHOWN DASHED) FOR ORACULAR WIRELESS TELECOMMUNICATIONS EQIPUENT EXISTING PINE TREE (TYPICAL) 1 .l I� D(ISTING TREE EXISTING PVC WC VENT WRH CONCRETE APRON COSTING CONTROLLED IFNNRONMEM VAULT (SHOWN DASHED) COSTING PALM TREE (TYPICAL) EXITING TREE COSTING CONCRETE BLOCK TELECOMMUNICATION EQUIPMENT BUILDING COSTING GRADE (TURF AREA) TEE 4A C fli-'CTUR:i. :1 PLtiOO.ily a iJ"x s. C.i tECl PC. .u.Pfl ..C.,It, r 1" PREPARED FOR cingular- WIRELESS 6925 LUSK BOULEVARD SAN DIEGO, CA 92121 APPROVALS DATE ZONING GATE CONSTRUCTION DATE SITE ACQUISITION DATE OWNER APPROVAL DATE PROJECT NAME SWEETWATER HEIGHTS PARK PROJECT NUMBER SS-030-01 3859 "3" CAGLE STREET NATIONAL CITY, CA 91950 SAI'1 DIEGO COUNTY DRAWING DATES 02/14/05 PREUM ZD REVIEW (ral) 02/15/05 FINAL ZD REVIEW (ral) 02/23/05 REVISED FINAL 20 (rew) 04/04/05 PRELIM CD REVIEW (rew) OAP 1/OS REVISED 20: MONOPINE (rew) 04/12/G5 20 SUBMITTAL (rev) 04/25/05 FINAL CO REVIEW (rew) 05/23/05 REVISED f1NAL CO (rew) SHEET TITLE EXTERIOR ELEVATIONS PROTECTS\cingulor\05018.1\0501BeA4.0WG A-4 EXHIBIT D PLANNING DEPARTMENT RESOLUTION ATTACHED 25 FROM : 07/07/2905 05:50 PHONE NO. : 619 2222160 75e7354913 Jul. 07 2005 12:05PM P5 NLANCU City of National City Planning Department 1243 National City Blvd., National City, CA 91950 (619) 336-4310 ROGER G. POST - DIRECTOR Cingular Vi iircicsa Cfo: Shelly Kilboum 302 Stare Place r-,A 9'9029 June 30, 2005 Subject. Conditional Use Permit for a Wireless Communications Facility at 3820 Cagle Street, National City, CA 91950 Dear Smelly, This letter is to inform you that based On photo simulations and associated materials you submitted May 26, 2005, the Planning Department has determined the proposed facility to be in substantial conformance with CUP-2004.3 for an existing Wireless communications facility at this site. Thus, a Conditional Use Permit is not required. However, there will be stipulations as follows: 1. The facility shall conformwith the Conditions of Approval for CUP-2004.3 (see attached Resolution). 2. A detailed landscape and underground irrigation platy including plant types, methods ofplaating, etc. shall bc submitted for review and approval by the Planning Director, The plan should indicate that the proposed landscaping raatchos existing development as closely as possible. It should bc included with the materials submitted for a building permit. 3. The original monopine and footing shall be removed completely and the area landscaped. 4. All associated equipment for the proposed facility shall be placed underground including teleeomrnunicationa equipment. 5, A lease agreement shall be negotiated with the City to the satisfaction of the City Attorney for the area of the underground equipment shelter. Oak ,_,.w,_1 r.hnr FROM : • PHONE NO. : 619 2222160 07/07,2005 09:58 7a7354y1:3 P1.441`14U Jul. 07 2005. 12:05PM•� P6 ras The plans and especially the photo simulations you submitted were instrumental in helping us make this decision. Thank you. If you have any questions please call me at (619) 336-4315. Sincerely, MARTIN FtEEDER Planning; Technician Attachments: Planning Commission Resolution 10-2004 Cc: George Eiser, City Attorney Steve Kirkpatrick, City Engineer RESOLUTION 10-2004 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NATIONAL CITY, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY IN SWEETWATER HEIGHTS CENTENNIAL PARK AT 3820 CAGLE STREET APPLICANT: CINGULAR WIRELESS CASE FILE NO. CUP-2004-3 WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit for a wireless communications facility in Sweetwater Heights Centennial Park at 3820 Cagle Street at a duly advertised public hearing held on March 15, 2004 and continued to the- meeting of April 5, 2004, at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearings the Planning Commission considered the staff report contained in Case File No. CUP-2004-3, which is maintained by the City and incorporated herein by reference along with evidence and testimony at said hearing; and, WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of National City, California, that the testimony and evidence presented to the Planning Commission at the public hearing held on March 15, 2004 and continued to April 5, 2004, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since the small lease area (420 square feet) will have little effect on use of the 2.35 acre park. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the unmanned wireless communications facility, requires only one to two visits each month for routine maintenance. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the 55-foot monopine, the only portion of the project that is above ground, will adequately screen the twelve panel antennas, and sine some screening is provided by existing mature trees in the park. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since the new facility will improve the performance of the Cingular Wireless wireless communications network, resulting in enhanced service for it's customers. BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: 1. This Conditional Use Permit authorizes a wireless communications fadility at Sweetwater Heights Centennial Park. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibit A -Revised, Case File no. CUP-2004-3, dated 3/24/2004. 2. Plans must comply with the 2001 editions of the California Building Code, the California Mechanical Code, the California Plumbing Code, the California Electrical Code, and California Title 24 energy and handicapped regulations. 3. The applicant shall obtain an approved lease agreement with the City of National City before any construction of the wireless facilities within the park. 4. No Fire Department access shall be blocked at any time. 5. The monopine and the exterior walls of any exposed equipment, to a height of not less than six feet, shall be treated with "Graffiti Melt Coating" manufactured by Genesis Coatings, Inc. A similar product may be used, subject to approval from the Building and Safety Director. Graffiti shall be removed within 24 hours of its observance. 6. A detailed landscape and underground irrigation plan, including plant types, methods of planting, etc. shall be submitted for review and approval by the Planning Director. The landscape plan shall reflect the use of drought tolerant planting and water conserving irrigation devices. 7. All park property, including landscaping, paving, etc., damaged during construction, installation and maintenance of the wireless communications facility shall be replaced by the applicant. l! „, , � �.. hl_ �... .' .a..��.;ll �11c:.. ��:.:IlG . �.i ..� ii:-r.,,,�e�. .,.. that .,vVbfdo;, w ._ ., ..<>iStLab lawn can be maintained during and after construction. 9. The proposed antennas shall be painted to match the color of the monopine needles. 10. The monopine needles shall be of appropriate size and number to adequately screen the proposed antennas. 11. The permtteee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided such shared use does not result in substantial technical or quality -of -service impairment for the permitted use. In the event a dispute arises with regard to co -locating with other existing or potential users, the City may require a third party technical study at the expense of either or both the applicant or the complaining user. This condition in no • way obligates the City to approve any co -location proposal if it is determined by the City not to be desirable in a specific case. 12. Any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete shall be removed. 13. Plans submitted for the equipment enclosure shall specify that it will be of standard construction and not a modular building. 14. Service vehicles used in conjunction with the wireless facility shall be prohibited from driving on park property. All vehicles shall utilize public streets for access and parking. 15. HVAC ducting vents shall be designed in such a way as to ensure debris cannot be purposefully placed inside them. 16. Before this Conditional Use Permit shall become effective, the applicant shall sign and have notarized an Acceptance Form, provided by the Planning Department, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. 17. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.116.190 of the National City Municipal Code. BE IT FURTHER RESOLVED that copies of this Resolution be transmitted forthwith to the applicant and to the City Council. BE IT FINALLY RESOLVED that this Resolution shall become effective and final on the day following the City Council meeting where the Planning Commission resolution is set for review, unless an appeal in writing is filed with the City Clerk prior to 5:00 p.m. on the day of that City Council meeting. The City Council may, at that meeting, appeal the decision of the Planning Commission and set the matter for public hearing. CERTIFICATION: 2,ss I l , April 19, 2004, by the following vote: AYES: PRUITT, CARRILLO, SALUDARES, ALVARADO, FLORES, BACA, GRAHAM NAYS: ABSENT: MARTINELLI, REYNOLDS ABSTAIN: RESOLUTION NO. 2005 —163 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH NEW CINGULAR WIRELESS, PCS, LLC FOR THE INSTALLATION AND OPERATION OF AN EQUIPMENT ROOM AND ANTENNAE FACILITIES IN SWEETWATER HEIGHTS PARK WHEREAS, New Cingular Wireless PCS, LLC ("New Cingular Wireless") desires to lease a portion of Sweetwater Heights Park for the installation and operation of an equipment room and antennae facilities which shall be used for the operation of their communication business; and WHEREAS, after regular meetings of the Planning Commission held on March 15 and April 15, 2004, the Commission adopted Resolution No. 10-2004 approving the Conditional Use Permit CUP-2004-3 allowing Cingular Wireless the use of a portion of Sweetwater Heights Park, and subsequently, the City entered into a lease agreement with Cingular Wireless for the use of the site for the installation and operation of an equipment room and antennae facility; and WHEREAS, New Cingular Wireless has proposed a facility to be installed on the leased premises which has been determined by the Planning Department to be in substantial conformance with CUP-2004-3. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute a lease agreement with New Cingular Wireless PCS, LLC for a portion of Sweetwater Heights Park for the installation and operation of a wireless communication equipment room and antennae facilities. Said lease agreement is of file in the office of the City Clerk. PASSED and ADOPTED this 2"d day of August, 2005. ATTEST Mich el Dalla, ity Clerk APPROVED AS TO FORM: aulo George H. ser, III City Attorney Passed and adopted by the Council of the City of National City, California, on August 2, 2005, by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Parra, Zarate, Nays: None. Absent: Inzunza Abstain: None. AUTHENTICATED BY: By: NICK INZUNZA City/4 erk of the City of al ity, California Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2005-163 of the City of National City, California, passed and adopted by the Council of said City on August 2, 2005. City Clerk of the City of National City, California By: Deputy City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE August 2, 2005 14 AGENDA ITEM NO. (-ITEM TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH NEW CINGULAR WIRELESS, PCS, LLC FOR THE INSTALLATION AND OPERATION OF AN EQUIPMENT ROOM AND ANTENNAE FACILITIES IN SWEETWATER HEIGHTS PARK PREPARED BY George H. Eiser, III?`,'" DEPARTMENT City Attorney (Ext. 4221) EXPLANATION Pursuant to Resolution No. 10-2004, the Planning Commission approved a CUP (CUP-2004-3) allowing Cingular Wireless the use of a portion of Sweetwater Heights Park for the installation of an equipment room and antennae facilities. Subsequently, the City entered into a lease agreement with Cingular Wireless for this use. New Cingular Wireless has now proposed use of the same site for additional facilities. The new facilities have been determined to be in substantial compliance with CUP-2004-3 by the Planning Department. The proposed lease agreement would allow the installation and operation of the additional facilities by New Cingular Wireless. Environmental Review X N/A Financial Statement The cost of installing, operating and maintaining the facilities shall be borne by New Cingular Wireless. Account No. STAFF RECOMMENDATION Adopt resolution. BOARD / COMMISSION RECOMMENDATION Planning Commission approved CUP-2004-3. ATTACHMENTS ( Listed Below ) A-200 (9/80) Resolution Lease Agreement Resolution No. CODS RESOLUTION NO. 2005 — 161 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH NEW CINGULAR WIRELESS, PCS, LLC FOR THE INSTALLATION AND OPERATION OF AN EQUIPMENT ROOM AND ANTENNAE FACILITIES IN SWEETWATER HEIGHTS PARK WHEREAS, New Cingular Wireless PCS, LLC ("New Cingular Wireless") desires to lease a portion of Sweetwater Heights Park for the installation and operation of an equipment room and antennae facilities which shall be used for the operation of their communication business; and WHEREAS, after regular meetings of the Planning Commission held on March 15 and April 15, 2004, the Commission adopted Resolution No. 10-2004 approving the Conditional Use Permit CUP-2004-3 allowing Cingular Wireless the use of a portion of Sweetwater Heights Park, and subsequently, the City entered into a lease agreement with Cingular Wireless for the use of the site for the installation and operation of an equipment room and antennae facility; and WHEREAS, New Cingular Wireless has proposed a facility to be installed on the leased premises which has been determined by the Planning Department to be in substantial conformance with CUP-2004-3. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute a lease agreement with New Cingular Wireless PCS, LLC for a portion of Sweetwater Heights Park for the installation and operation of a wireless communication equipment room and antennae facilities. Said lease agreement is of file in the office of the City Clerk. PASSED and ADOPTED this 2nd day of August, 2005. Nick Inzunza, Mayor ATTEST: Michael Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney LEASE AGREEMENT This Lease Agreement ("Lease") is entered into this 2nd day of August, 2005, by and between the City of National City ("Landlord") and New Cingular Wireless PCS, LLC, A Delaware Limited Liability Company ("Tenant"). RECITALS A. Landlord is the owner of the real property known as "Sweetwater Heights Park" ("Landlord's Property") located in the City of National City, San Diego County, State of California. B. Tenant desires to lease a portion of Sweetwater Heights Park for the installation and operation of an equipment room and certain antenna facilities collectively, ("Antenna Facilities") for use in connection with its communications business. C. Accordingly, the parties are entering into this Lease on the terms and conditions set forth below. AGREEMENT In consideration of their mutual covenants, the parties agree as follows: 1. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord a portion of Sweetwater Heights Park consisting of the space shown on the Location Map attached hereto as Exhibit "A" and incorporated herein by reference. A legal description of the leased premises is attached hereto as Exhibit `B" and incorporated herein by reference. Said leased premises are referred to herein as "Leased Premises." Tenant intends to locate its Antenna Facilities on the "Leased Premises", which facilities include installation of an underground equipment room to accommodate the co -location of an antenna on a monotree located adjacent to the leased premises. A site plan is attached hereto as Exhibit "C". Tenant may not add additional equipment and/or antenna from that authorized by City of National City Planning Commission Resolution No.10-2004 which is attached hereto as Exhibit "D". Landlord reserves the right to require Tenant to relocate its Antenna Facilities to another location on Landlord's Property at Landlord's expense so long as the other location provides radio receipt and transmission equivalent to the Leased Premises. Tenant shall complete the relocation of its Antenna Facilities within six months after written notice from Landlord. This Lease is not a franchise pursuant to Chapter 6.10 of the National City Municipal Code or is it a permit to use the right-of-way under Chapter 13.12 of the National City Municipal Code. Any such franchise or permit must be obtained separately from Landlord. City of National City Cingular # SS-030-01 1 Lease Agreement Sweetwater Heights Park 2. Term. The term of this Lease shall be five (5) years, commencing on August 2, 2005 (the "Commencement Date") and ending August 1, 2010. Provided that Tenant is not in breach of any of the portions of the provisions of this Lease, Tenant may extend the initial term of this Lease for four (4) successive five (5) year terms, upon giving Landlord ninety (90) days' prior written notice of its intention to extend. If this Lease is terminated by the Landlord based on any of the grounds specified in Section 17 of this Lease, the termination shall be effective thirty (30) calendar days from the date of delivery of the notice of termination if Tenant, within such thirty (30) day period, has not cured such default. If this Lease is terminated by Tenant based on any of the grounds specified in Section 17 of this Lease, such termination shall be effective no sooner than thirty (30) days from delivery of written notice from Tenant to Landlord. 3. Rent. a. Tenant shall pay Landlord as annual initial rent for the Leased Premises the sum of $25,000.00 ("Rent"). Tenant shall pay Landlord Rent for the first year on the Commencement Date. Tenant shall pay Landlord Rent annually in advance on each anniversary of the Commencement Date. Beginning with the first anniversary of the Commencement date, the Rent paid shall be increased by five percent (5%) each year. Beginning with the third anniversary of the Commencement Date, Tenant shall pay Landlord as annual rent an amount equal to the greater of (1) the previous year's rent, adjusted upward by five percent (5%) or (2) the Fair Market Value of the ground lease for similar cellular communications facility in a comparable location as determined by an independent, qualified appraiser retained by Landlord and subject to Tenant's reasonable approval. b. Tenant shall pay Landlord a late payment charge equal to five percent (5%) of the late payment for any payment not paid within ten (10) days after due. Any amounts not paid when due shall bear interest until paid at the lesser of the rate of two percent (2%) per month or the highest rate permitted by law. c. If this Lease is terminated by Tenant at a time other than on the last day of the year. Rent shall be prorated as of the date of termination and, in the event of termination for any reason other than nonpayment of Rent or other breach of this lease by Tenant, the balance of all prepaid Rents shall be refunded to the Tenant. d. Upon termination of this Lease for any reason. Tenant shall remove its equipment, personal property, Antenna Facilities, and leasehold improvements from the Leased Premises on or before the date of termination, and shall repair any damage to Leased Premises and its landscape or hardscape caused by such equipment, normal wear and tear excepted, and shall reinstall or replace with a comparable substitute the existing structure; all at Tenant's sole cost and expense. Any such property or facilities which are not removed by Tenant within thirty City of National City Cingular # SS-030-01 2 Lease Agreement Sweetwater Heights Park (30) days of the termination of the lease term shall become the property of landlord. Any such property or facilities which are not removed by Tenant within thirty (30) days of the termination of the lease may, at Landlord's option, be removed by Landlord within sixty (60) days of termination of the Lease at Tenant's expense, with Tenant reimbursing Landlord for the costs of removal within thirty (30) days after such costs are incurred by Landlord. e. Tenant shall reimburse Landlord for its reasonable costs and expenses, including legal fees, incurred by Landlord in connection with the negotiation of this Lease, all as additional Rent, payable upon execution of this Lease. The reasonable costs and expenses shall not exceed $1,000.00. 4. Taxes. Tenant recognizes and understands that this Lease may create a possesory interest subject to property taxation and that Tenant may be subject to the payment of property taxes levied on such interest. Tenant further agrees to pay any and all property taxes, if any, assessed during the term of this Lease pursuant to Section 107 and 107.1 of the Revenue and Taxation Code against Tenant's possesory interest in the Leased Premises. Use of Leased Premises. a. Tenant shall use the Leased Premises for the installation, operation and maintenance of its Antenna Facilities for the transmission, reception and operation of a communications system and uses incidental thereto and for no other uses. In its use of the Leased Premises, Tenant shall at all times remain in compliance with National City Planning Commission Resolution No. 10-2004 Landlord reserves the right to enter into agreement with other parties including, but not limited to, wireless communications carriers (hereinafter "Carrier") for use of Landlord's property. In the event that an additional Carrier is licensed to use any site on Landlord's property, it shall be the new Carrier's responsibility, at its expense, to ensure that such installation is constructed and operated in accordance with applicable regulations issued by the Federal Communications Commission (FCC) and that its use of Landlord's Property does not interfere with Tenant's use of the Leased Premises. Landlord shall include a provision in any agreement with a new Carrier, which provides that installation and use of its communication equipment shall not interfere with Tenant's use and operation of its communication system. The Carrier will provide the Landlord and Tenant with a certified evaluation prepared by a telecommunications engineer that its Antenna and other facilities will not interfere with Tenant's existing Antenna or proposed Antenna or other facilities. b. Tenant shall have the opportunity to review the certified evaluation and to make its own evaluation regarding whether the Carrier's installation will interfere with Tenant's Antenna Facilities. If Tenant determines that the Carrier's installation will interfere with Tenant's Antenna Facilities, then Tenant must notify the Landlord in writing of its findings no later than twenty days after receipt of the certified evaluation. Tenant shall provide all documentation supporting its findings to Landlord. If Landlord accepts those findings, then the Carrier cannot City of National City Cingular # SS-030-01 3 Lease Agreement Sweetwater Heights Park proceed with its installation unless and until it can satisfy Tenant that the proposed installation will not interfere with Tenant's Antenna Facilities. If Landlord disagrees with Tenant's findings, then Landlord and Tenant shall hire a mutually agreed upon independent telecommunications engineer to evaluate the potential interference problems, the cost to be borne equally by Landlord and Tenant. If that independent engineer determines that the proposed installation will not interfere with Tenant's Antenna Facilities, then the carrier may proceed with its installation. However, if the independent engineer determines that the proposed installation will interfere with Tenant's Antenna Facilities, then the Carrier cannot proceed with its installation unless and until it can satisfy the independent engineer that the proposed installation will not interfere with Tenant's Antenna Facilities. c. Tenant shall not deny Carrier the ability to co -locate the Carrier's transmitting/receiving equipment, and Antenna facilities within and upon Tenant's installed facilities as provided in condition number 11 of the approved Conditional Use Permit of National City Planning Commission Resolution No.10- 2004 pursuant to the following conditions: in addition to the requirements set forth above in Section 5(a), Carrier shall provide Landlord and Tenant with a certified evaluation prepared by a structural engineer finding that the installed facilities can support the additional installation. Tenant shall have the opportunity to review the certified evaluation and to make its own evaluation regarding whether the installed facilities can support the additional equipment. If Tenant determines that the installed facilities cannot support the additional installation, then Tenant must notify the Landlord in writing of its findings no later that twenty days after receipt of the certified evaluation. Tenant shall provide all documentation supporting its findings to landlord and Tenant shall hire a mutually agreed upon qualified engineer to evaluate whether the installed facilities can support the additional installation, the cost to be borne equally by Landlord and Tenant. If that engineer determines that the installed facilities will support the additional installation, then the Carrier may proceed with its installation. However, if the independent engineer determines that the installed facilities cannot support the additional installation, then the Carrier cannot proceed with its installation unless and until it can satisfy the engineer that the installed facilities can support the additional installation. Once it has been determined that the installed facilities can support the additional installation and that the installation will not interfere with Tenant's Antenna Facility as set forth in section 5(a), then Carrier shall execute a sublease agreement with Tenant setting forth the rights, duties and obligations of each party, including the rights, duties and obligations of each party with respect to interference with the communication equipment of the other party, access to each party's equipment and maintenance and repair of each party's equipment. d. In the event that any equipment installed pursuant to any future agreements for the installation of communication/radio equipment on Landlord's Property, other than any equipment installed on Tenant's installed facilities, does cause interference with Tenant's Antenna Facilities, then Tenant shall provide thirty (30) days' City of National City Cingular # SS-030-01 4 Lease Agreement Sweetwater Heights Park written notice to Landlord of this interference. Landlord shall have ten (10) days' written notice to eliminate such interference. If such interference is not eliminated, then Tenant shall have the right to terminate this Lease. e. Tenant shall exercise due diligence in utilizing the Leased Premises as to not interfere with utilization of the remainder of the Landlord's Property by Landlord, and Tenant agrees to comply with any rules and regulations that Landlord may promulgate at any time in reference to utilization of Landlord's Property so long as those rules do not unreasonably interfere with Tenant's rights to operate its communication system. It is understood by Tenant that the Landlord's Property is used by Landlord as a Park and that it is necessary to maintain adequate security at all times for the primary utilization of the Landlord's Property by Landlord. 6. Construction Standards. The Antenna Facilities shall be installed on the Leased Premises in a good and workmanlike manner without attachment of any construction liens. Landlord will require Tenant to paint the Antenna Facilities in conformance with approved Conditional Use Permit CUP No. CUP 2004-3 so as to blend with the surroundings. If not specified in CUP 2004-3, Tenant will paint in a color specified by Landlord and otherwise shield the Antenna Facilities from view as required by said CUP. 7. Installation of Equipment. a. Prior to commencing construction. Tenant shall obtain a Building Permit from the National City Department of Building and Safety and a Construction Permit from the National City Engineering Department for street improvements, grading or retaining walls, if required. Tenant shall pay the normal costs for all permits and shall bond for the required street improvements, grading or retaining walls, if any. Tenant shall verify that the soil bearing capacity of the proposed site will support the Antenna Facilities, its ancillary structures and equipment. Tenant shall obtain the Landlord's prior written approval of the Construction Drawings for any of Tenant's improvements or site preparations before commencing such activities and shall be responsible for any environmental review relating to such improvements or site preparations subject to landlord's approval. All improvements shall be constructed by Tenant, at Tenant's sole cost and expense. Landlord may condition its approval on Tenant taking steps reasonably necessary to protect Landlord's property and to comply with all conditions of Conditional Use Permit CUP 2004-3, as approved by National City Planning Commission Resolution No.10-2004. Improvements of the site shall be at Tenant's sole expense, including any structural reinforcement necessary to support Tenant's equipment, and Tenant shall maintain the Leased Premises throughout the term in good and safe condition, free of litter or other items relating to Tenant's use, and so as not to create unsafe conditions or an interference with access for any Tenants or other parties, and with all visible areas maintained in a condition at least equal to that of the other facilities on the Property. b. Tenant shall have the right, at its sole cost and expense, to install, operate and maintain on the Property, in accordance with good engineering practices and with City of National City 5 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park all applicable FCC rules and regulations, its Antenna Facilities as described on Exhibit C. Antenna size shall be limited to dimensions shown on the plans approved by Landlord, pursuant to CUP 2004-3, as approved by National City Planning Commission Resolution No.10-2004. c. Tenant's installation of all such Antenna Facilities shall be done according to plans approved by Landlord. Any damage done to the Leased Premises during installation and/or during operations shall be repaired or replaced immediately at Tenant's expense and to Landlord's sole satisfaction. In connection with the installation and operation of the Antenna Facilities, Tenant shall not locate or attach any Antenna on other equipment to the Leased Premises without an approved Building Permit from and in written approval of the Director of Building and Safety or his/her designee. The installation methods for attaching antennas or other equipment to the Tenant's installations, facilities or equipment must be done in a manner that poses no threat of damage or injury to other City property or users of the Property. Tenant shall pay all cost and expenses in relation to maintaining the integrity of Landlord's property in connection with Tenant's installation and operation of the Antenna Facilities. Tenant shall install temporary fencing upon the Leased Premises during such times as the installation or removal of the Antenna Facilities is taking place, and shall remove such temporary fencing upon the completion of installation or removal, all at Tenant's sole cost and expense. d. Within thirty (30) days after Commencement Date, Tenant shall provide Landlord with as -built drawings of the Antenna Facilities and the improvements installed on the Leased Premises, which show the actual location of all equipment and improvements consistent with Exhibit "C". Said drawings shall be accompanied by a complete and detailed inventory of all equipment, personal property, and Antenna Facilities. e. Tenant shall provide Landlord with copies of all tests reports, and records pertaining to the equipment, which are conducted by or on behalf of Tenant within thirty (30) days after finalization of each test, record, or report. f. Any change to Tenant's approved Antenna type, number of antennas, Antenna location and/or change in transmitter type and power output shall, at the sole expense of Tenant, be made in accordance with applicable regulations issued by the FCC and/or the California Public Utilities Commission (CPUC). g• Each and every contractor, subcontractor and/or supplier shall have or obtain a current National City Business License. The Business License is not required of any subcontractor or supplier who delivers material and/or equipment with the Tenant's contractor's, or subcontractor's vehicle or with a common carrier. 8. Equipment Upgrade. Tenant may update or replace the Antenna Facilities from time to time with the prior written approval of Landlord, which will not be unreasonably withheld, delayed or denied, provided that (1) the replacement facilities are not City of National City 6 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park materially greater in number or size that the existing facilities, (2) that any change in their location on the pole is approved in writing by Landlord and (3) that any modification is in compliance with CUP 2004-3, as approved by National City Planning Commission Resolution No.10-2004. Tenant shall submit to Landlord a detailed proposal for any such replacement facilities and any supplemental materials as may be requested, for Landlord's evaluation and approval. 9. Maintenance and Operations. a. Tenant shall, at its own expense, maintain the Leased Premises in a safe condition, and in good repair so as to not to conflict with the use of or leasing of the remainder of the Landlord's Property by Landlord. b. Tenant shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, Antenna facilities, and leasehold improvements, and shall keep the same in good repair and condition during the Lease term. c. Tenant shall keep the Leased Premises free of graffiti, debris and anything of a dangerous noxious or offensive nature or which create a hazard or undue vibration, heat, noise or interference. d. In the event Landlord or another tenant of Landlord's undertakes painting, construction or other alterations in the vicinity of the Leased Property, upon receipt of written notice al least five (5) business days in advance of the painting, construction or other alterations, Tenant shall take reasonable measures at Tenant's cost to cover Tenant's equipment, personal property or Antenna Facilities and protect such from paint and debris fallout which may occur during painting, construction or alteration process. 10. Premises Access. a. Tenant is hereby given and granted a license for ingress and egress to the Leased Premises over, upon, and across adjoining lands and easements owned by Landlord as may be required for the purpose of erection, installation, maintenance and removal of Tenant's Antenna Facilities (the "Access Easement"). Such license shall be over existing roads. b. Upon prior written approval of Landlord, Landlord agrees to grant to Tenant or to such Utility Companies which Tenant shall designate, an Encroachment Permit for such utilities as Tenant deems necessary to serve the Leased Premises. Said Encroachment Permit shall be for the installation and maintenance of necessary utilities from the point of the connection with the Utility Companies' distribution network to Tenant's facilities. The Encroachment Permit shall be over, under or across such portion of Landlord's Property as is reasonably necessary for the installation, maintenance and/or repair of such utility services, provided that such access does not materially interfere with Landlord's normal use of Landlord's City of National City Cingular # SS-030-01 7 Lease Agreement Sweetwater Heights Park Property, and provided further that it shall be consistent with the plans approved by National City Planning Commission Resolution No. 10-2004. c. Landlord will have access to the Leased Premises at all times and may examine and inspect the Tenant's facilities for safety reasons or to ensure that the Tenant's covenants are being met. In exercising this right of access to the Leased Premises, Landlord and its employees, agents or contractors shall not damage nor interfere. with Tenant's equipment or ongoing operations therein. 11. Utilities. Tenant shall, at its expense, separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall timely pay all costs associated herein. 12. Permits and Business License Fees. Tenants shall pay, as they become due and payable, all business license taxes, fees, charges, taxes and expenses required for licenses and/or permits required for or occasioned by Tenant" use of the Leased Premises. 13. Approvals -Compliance with Laws. Tenant's use of the Leased Premises is contingent upon its obtaining certificates, permits, zoning, and other approvals that may be required by any federal, state or local authority. Tenant shall erect, maintain and operate its Antenna Facilities in accordance with site standards, statutes, ordinances, the provisions of CUP 2004-3, as approved by National City Planning Commission Resolution No. 10- 2004 and the rules and regulations now in effect or that may be issued thereafter by the FCC, or any other governing bodies. 14. Interference. Tenant's installation, operation and maintenance of its transmission facilities shall not damage or interfere in any way with Landlord's operations or related repair and maintenance activities on the remainder of Landlord's Property who were in possession of that Property prior to the commencement date of such interference; provided, however, that issues of radio frequency interference with the operations of any other tenants on Landlord's Property that are communications carriers are deemed covered by the provisions of Section 5(a) and 5(b) of this Lease. Tenant agrees to cease all such actions that interfere with Landlord's use of the remainder of Landlord's Property as a Park promptly upon actual notice of such interference; provided, however, in such case, Tenant shall have the right to terminate the Lease and remove all of its equipment, personal property, Antenna Facilities and leasehold improvements and to get refund of the balance of prepaid rent. Before approving the placement of Antenna Facilities, Landlord may obtain, at Tenant's expense, an interference study indicating whether Tenant's intended use will interfere with any existing communications facilities on the Leased Premises and an engineering study indicating whether the Leased Premises' soil conditions are able to structurally support Tenant's Antenna Facilities without prejudice to the Landlord's primary use of the remainder of the Landlord's Property. Tenant's use and operation of its facilities shall not interfere with the use and operation of other communication facilities existing on the Property as of the Commencement City of National City 8 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park Date. If Tenant's facilities cause interference, Tenant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within thirty (30) days, Landlord may terminate this Lease. 15. Default by Tenant and Landlord's Remedies. It shall be a default if Tenant fails to pay Rent or any other sums to Landlord when due, and does not cure such default within ten (10) days; or if Tenant defaults in the performance of any other covenant or conditions of this Lease and does not cure such other default within thirty (30) days after written notice from Landlord specifying the default complained of; provided, however, that if the nature of Tenant's default of a non -monetary obligation is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter diligently pursues such cure to completion; or if Tenant abandons or vacates the Leased Premises; or if Tenant is adjudicated a bankrupt or makes any assignment for the benefit of creditors; or if Tenant becomes insolvent. If suit shall be brought by Landlord for recovery of possession of the property for the recovery of any rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant. Tenant shall pay to Landlord all expenses incurred therefor, including reasonable attorney's fees, provided that Landlord is the substantially prevailing party in said suit. 16. Cured by Landlord. In the event of a default, Landlord shall have the right, at its option in addition to and not exclusive of any other remedy Landlord may have by operation of law, without any further demand of notice, either: (a) terminate Tenant's right to possession of the Leased Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession to Landlord. In such event, Landlord shall be entitled to recover from Tenant (i) the amount of the unpaid rent accrued through the date of termination, (ii) the worth at the time of award of the amount by which the unpaid rent reserved for the balance of the term exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided (net the costs of reletting), and (iii) any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations under the Lease; or (b) pursue any other remedy now or hereafter available under the laws or judicial decisions of the State of California. 17. Optional Termination. This Lease may be terminated by: a. Tenant, if it determines that it is no longer practical to use the Leased Premises for its intended purpose; b. Tenant, if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and/or operation of the Antenna Facilities or Tenant's business; c. Landlord, if Tenant is in default under this Lease; City of National City Cingular # SS-030-01 9 Lease Agreement Sweetwater Heights Park d. Landlord, upon ninety (90) days' written notice to Tenant, if Landlord determines, in its sole discretion, that the Leased Premises are needed for a public Purpose. In the event of such determination, Landlord shall reimburse Tenant (1) the Fair Market Value of all improvements installed by Tenant on the Leased Premises, as determined by an independent qualified appraiser retained by Landlord and subject to Tenant's reasonable approval; and (2) the amount of any Rent pre -paid by Tenant. 18. Liquidated Damages — Termination. Notice of Tenant's termination pursuant to paragraph 17(a) or (b) shall be given to Landlord in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice. All rentals paid for the Lease of the Property prior to said termination date shall be retained by Landlord. Upon termination of this Lease by either party, this Lease shall terminate for all purposes and t he parties shall have no further obligations to each other. 19. Alteration, Damage or Destruction. If the Leased Premises or any portion thereof is altered, destroyed or damaged so as to a materially hinder effective use of the Antenna Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this Lease upon thirty (30) days' written notice to Landlord, in such event. Tenant shall within ninety (90) days remove the Antenna Facilities and all other of its property from the Leased Premises and shall restore the Leased Premises, including reinstallation or replacement with comparable substitute of the existing structure, to the same condition as existed prior to this Lease. Upon the completion of such removal and restoration all rights and obligations of the parties shall cease as of the date of the alteration, damage or destruction and Tenant shall be entitled to the reimbursement of any rent prepaid by Tenant. Landlord shall have no obligation to undertake any repair to Tenant's Antenna Facilities or other personal property of Tenant. 20. Condemnation. In the event that all or part of the Leased Premises or any interest of Tenant in the Leased Premises is taken by eminent domain by the City of National City or any other governmental agency, quasi -governmental agency or other public body thereby making it physically or financially unfeasible, as determined by Tenant in its sole discretion, for the Leased Premises to be used in the manner it was intended to be used by Tenant under this Lease, Tenant shall have the right to terminate this Lease effective as of the date the condemning agency takes possession of the Leased Premises, and the rent shall be equitably prorated. Tenant shall not be entitled to any portion of the award paid for the taking, (except for Antenna Facilities, other communications equipment, leasehold and personal property of Tenant), and Landlord shall receive the remainder of such award. Tenant hereby expressly waives any right of claim for loss of business or goodwill. All damages awarded as compensation for diminution in value of the leasehold or to the Landlord's Property shall belong to the Landlord. If only a portion of the Leased Premises is taken by eminent domain, and Tenant elects not to terminate this Lease under this provision, then rental payments provided under this Lease shall be reduced proportionally as to the portion taken which is not then usable by Tenant and this Lease shall continue in effect. 21. Indemnity and Insurance. City of National City 10 Cingular # SS-030-01 Sweetwater Heights Park Lease Agreement a. Disclaimer of Liability. Landlord shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use, operation, condition or dismantling of the Leased Premises or Tenant's Antenna Facilities. b. Indemnification. Tenant shall, at its sole cost and expense, defend, indemnify and hold harmless Landlord and its officials, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "indemnitees"), from and against: Any and all liability, obligation, damages, penalties claims, lien, costs, charges, loses and expenses including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the indemnitees by reason of any act or omission of Tenant, its personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance, use or condition of the Leased Premises or Tenant's Antenna Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. ii. Any and all liabilities, obligations, damages, penalties, claims, liens, costs charges, losses and expenses (including without limitations, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which are imposed upon, incurred by or asserted against the indemnitees by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to Tenant, its contractors or subcontractors, for the installation, construction, operation, maintenance or use of the Leased Premises or Tenant's Antenna Facilities, and, upon the written request of Landlord, Tenant shall cause such claim or lien covering Landlord's property to be discharged or bonded within thirty (30) days following such request. iii. Any and all liability, obligation, damages, penalties, claims liens costs, charges losses and expense (including without limitation, .reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any financing or securities offering by Tenant or its affiliates for violation of the common law or any laws, statutes, or regulations of the State of California, or United States, including those of the Federal Securities and exchange Commission, whether by Tenant or otherwise. iv. Tenant's obligations to indemnify indemnitees under this Lease shall not extend to claims, losses, and other matters covered hereunder to the extent City of National City 1 I Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park such claims arise out of the sole negligence or willful misconduct of one or more indemnitees. c. Assumption of Risk. Tenant undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors and employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions, if any, on or about the Leased Premises, and Tenant hereby agrees to indemnify and hold harmless the Landlord against and from any claim asserted or liability imposed upon the Indemnitees for personal injury or property damage to any person other than from indemnitee's gross negligence or willful misconduct) arising out of the Tenant's installation, operation, maintenance, condition or use of the Building or Tenant's Antenna Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. d. Defense of Landlord. In the event any action or proceeding shall be brought against the landlord by reason of any matter for which the Landlord is indemnified hereunder. Tenant shall, upon notice from Landlord, at Tenant's sole cost and expense, resist and defend the same with legal counsel mutually selected by Tenant and Landlord; provided however, that Tenant shall not admit liability in any such matter on behalf of the Landlord without the written consent of Landlord and provided farther that Landlord shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent of Tenant. e. Notice, Cooperation and Expenses. Landlord shall give Tenant prompt notice of the making of any claim or the commencements of any action, suit or other proceeding covered by the provisions of this paragraph. Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the defense of any litigation by Landlord's own counsel. f. Insurance. During the term of the Lease, Tenant shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance: i. Worker's compensation insurance meeting applicable statutory requirements and employer's liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) for each accident. ii. Comprehensive commercial general liability insurance with minimum limits of Three Million Dollars ($3,000,000) as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. City of National City Cingular # SS-030-01 12 Lease Agreement Sweetwater Heights Park g. iii. Automobile liability insurance covering all owned, hired, and non -owned vehicles in use by Tenant, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law with minimum limits of Two Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury and property damage. iv. At the start of and during the period of any construction, builders all-risk insurance, together with an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature whatsoever which are to be used in or accidental to the installation of the Antenna Facilities. Upon completion of the installation of the Antenna Facilities, Tenant shall substitute for the foregoing insurance policies of fire, extended coverage and vandalism and malicious mischief insurance on the Antenna Facilities. The amount of insurance at all times shall be representative of the insurable values installed or constructed. v. Business interruption insurance coverage in an amount sufficient to cover such loss of revenues, for the period of time which it would take, under normal circumstances, to repair or replace that part(s) of the Antenna Facilities which is damaged and caused the loss of revenue. vi. All policies other than for Worker's Compensation shall be written on an occurrence and not on claims made basis. vii. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. viii. Tenant shall furnish certificates of insurance to Landlord before commencement of work. Named Insureds. All policies, except for business interruption and worker's compensation policies, shall name Landlord and its officials, boards, commissions, employees, agents and contractors, as their respective interests may appear, as additional insureds (herein referred to as the "Additional Insureds"). Each policy which is to be endorsed to add Additional Insureds shall contain cross -liability wording, as follows: "In the event of a claim being made hereunder by one insured for which another insured is or may be liable, then this policy shall cover such insured against whom a claim is or may be in the same manner as if separate policies had been issued to each insured hereunder. " h. Evidence of Insurance. Certificates of insurance of each insurance policy required to be obtained by Tenant in compliance with this insurance policy required to be obtained by Tenant in compliance with this paragraph, along with written City of National City Cingular # SS-030-01 13 Lease Agreement Sweetwater Heights Park evidence of payment of required premiums shall be filled and maintained with Landlord annually during the term of the Lease. Tenant shall immediately advise Landlord of any claim or litigation that may result in liability to Landlord. Cancellation of Policies of Insurance. All insurance policies maintained pursuant to this Lease shall contain the following endorsement: "At least sixty (60) days prior written notice shall he given to Landlord by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the parties named in this paragraph of the Lease." Insurance Companies. All insurance shall be affected under valid and enforceable policies, insured by insurers licensed to do business by the State of California or surplus carriers on the State of California Insurance Commissioner's approved list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A- VII or better by A.M. Best Company. k. Deductibles. All insurance policies may be written with deductibles not to exceed $50,000 unless approved in advance by Landlord. Tenant agrees to indemnify and save harmless Landlord, the indemnitees and Additional Insured from and against the payment deductible and from the payment of any premium on any insurance policy required to be furnished by this Lease. 1. Contractors. Tenant shall require that each and every one of its contractors and their subcontractors who perform work on the Leased Premises to carry, in full force and effect, Workers' Compensation, comprehensive public liability and automobile liability insurance coverages of the type which Tenant is required to obtain under the terms of this paragraph with appropriate limits of insurance. m. Review of Limits. Once during each calendar year during the term of this Lease or any renewal thereof, Landlord may review the insurance coverages to be carried by Tenant. If landlord determines that higher limits of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant shall be so notified and shall obtain the additional limits of insurance at its sole cost and expense. 22. Hazardous Substance Indemnification Tenant represents and warrants that its use of the Leased Premises herein will not generate any hazardous substance, and it will not store or dispose on the Leased Premises nor transport to or over the Building any hazardous substance. Tenant shall be allowed to store on site the number of batteries as shown on the plans approved pursuant to CUP 2004-3. The batteries shown on the plans are to be used for emergency backup power. No additional batteries may be stored on the site without the prior written approval of Landlord. Tenant further agrees to defend, indemnify and hold harmless Landlord and its officials, boards, commissions, employees, agents and contractors from, and remediate the property from, any release of City of National City Cingular # SS-030-01 14 Lease Agreement Sweetwater Heights Park any such hazardous substance by Tenant or anyone acting on behalf of Tenant, and any damage, loss or expense or liability resulting from such release by Tenant or anyone acting on behalf of Tenant, including all attorney's fees, costs and penalties incurred as a result thereof, except any release caused by the negligence of Landlord, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations, or rules may be amended from time to time; and shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 23. Electric Magnetic Field (EMF) Indemnification. Tenant shall comply with all present and future laws, orders, and regulations relating to Electromagnetic Fields (EMFs"), and the American National Standard Institute (ANSI) standards. Tenant, on behalf of itself and its successors and assigns, shall defend, indemnify and hold harmless Landlord and its officials, boards, commissions, employees, agents and contractors from and against all claims of injuries due to EMFs to the extend such personal injuries are asserted to be caused by Lessee's Antenna Facilities on the Leased Premises, with Tenant's obligation to include payment of Lessor's reasonable attorney fees and costs. Landlord and Tenant shall mutually select the attorney to defend against all such claims. 24. Cathodic, Interference Protection. Tenant has been advised and understands and agrees not to create any interference of any kind with the City's signals and further agrees to immediately correct any interference that may result from Tenant's equipment or to immediately cease all operations of Tenant's equipment until non-interference with the City's signals have has been obtained to the' satisfaction of the City Manager or his designee. 25. Holding Over. Any holding over after the expiration of the term hereof, with the consent of Landlord, shall be construed to be tenancy from month to month at two times the rent herein specified (prorated on a monthly basis) and shall otherwise be under the conditions specified in this lease agreement, so far as applicable. 26. Subordination to Mortgage. Any mortgage now or subsequently placed upon any properties of which the Leased Premises is a part shall be deemed to be prior in time and senior to the rights of Tenant under this Lease. Tenant subordinates all of its interest in the leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall, at Landlord's request, execute any additional documents necessary to indicate this subordination. 27. Signing Deposit. With the execution of this Lease, Tenant shall pay Landlord the non- refundable sum of $2,000 as a signing deposit to guarantee Tenant's faithful performance, in lieu of a security deposit. Receipt by Landlord of the signing deposit shall not bar Landlord from pursuing its remedies under Section 15 if Tenant defaults in its obligation and duties under this lease. City of National City Cingular # SS-030-01 15 Lease Agreement Sweetwater Heights Park 28. Acceptance of Premises. By taking possession of the Leased Premises, Tenant accepts the Leased Premises in the condition existing as of the Commencement date. Landlord makes no representations or warranty as to the condition of the Leased Premises, and Landlord shall not be liable for any latent or patent defect in the Leased Premises, except as otherwise stated herein. 29. Estoppel Certificate. Tenant shall, at any time and from time to time upon not less than ten (10) days prior request by Landlord, deliver to Landlord a statement in writing certifying that (a) the Lease is unmodified and in full force; (b) the dates to which rent and other charges have been paid; (c) for as the person making the certificate knows, Landlord is not in default under any provisions of the Lease; and (d) such other matters as Landlord may reasonably request. 30. Notices. All notices, request, demands, and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, to the following addresses; If to Landlord, to: City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 With a copy to: Stephen M. Kirkpatrick City Engineer City of National City 1243 National City Boulevard National City, CA 91950-4301 If to Tenant: c/o Cingular Wireless LLC Attn: Network Real Estate Administration Re: Cell Site #SS-030-01; Cell Site Name: Sweetwater Heights Park 6100 Atlantic Boulevard Norcross, Georgia 30071 With a copy to: Cingular Wireless LLC Attn: Legal Department Re: Cell Site #SS-030-01; Cell Site Name: Sweetwater Heights Park 15 E Midland Avenue Paramus, New Jersey 07652 31. Assignment. City of National City 16 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park a. Tenant may not assign this Lease or sublease the Leased Premises at any time without Landlord's consent. b. Nothing in this Lease shall preclude Landlord from leasing other space for communications equipment to any person or entity that may be in competition with Tenant, or any other party. 32. Successors and Assigns. This lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 33. Recordation. This Lease may be recorded by either party hereto. 34. Miscellaneous. a. Landlord and Tenant represent that each, respectively, has full right, power, and authority to execute this Lease. b. This Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modifications of or amendment to this Lease must be in writing and executed by both parties. c. This Lease shall be construed in accordance with the laws of the State of California. d. If any term of this Lease is found to be void or invalid, such invalidity shall not effect the remaining terms of this Lease, which shall continue in full force and effect. 35. Quiet Possession. The Landlord hereby warrants and represents that there are no liens, encumbrance or exceptions to property title as of the date of this lease that would interfere with Tenant's rights hereunder and that Landlord has the legal right and title to enter into this Lease. 36. Fixtures. Landlord agrees that no part of the improvements constructed, erected or placed by Tenant on the Leased premises shall be or become, or be considered as being, affixed to, or part of Landlord's real property, and any and all provisions and principles of law to the contrary not withstanding, it being the specific intention of Landlord to covenant and agree that all improvements of every kind and nature constructed, erected, or placed by Tenant on the Premises, shall be and remain the property of the Tenant. 37. Environmental Conditions. Landlord hereby makes the following representation and warranties to Tenant, for the benefit of Tenant. a. Landlord is not aware of, and has not received notice of, the disposal or release or presence of hazardous substances, as defined under federal and state law, on the City of National City Cingular # SS-030-01 17 Lease Agreement Sweetwater Heights Park Leased Premises, the license for access granted herein, the Encroachment Permit for utilities, or the Landlord's Property. b. If during the term of this Lease or any extension thereof, it is determined that the Leased Premises, the license for access, the Encroachment Permit for utilities, or Landlord's Property is contaminated with Hazardous Substances, Tenant shall have the right, in addition to other rights and remedies, to terminate this Lease upon thirty (30) days' written notice to Landlord. This lease was executed as of the date first set forth above. -Signature Page to Follow - City of National City 18 Lease Agreement Cingular # SS-030-01 Sweetwater Heights Park LANDLORD TENANT CITY OF NATIONAL CITY New Cingular Wireless PCS, LLC, a Delaware Limited Liability Company By: By: Nick Inzunza Title: Mayor APPROVED AS TO FORM: George H. Eiser, III City Attorney Name:Scott Sutherland Title: Manager, Real Estate & Construction Date: City of National City Cingular # SS-030-01 19 Lease Agreement Sweetwater Heights Park •. y SWEETWATER i SWETER t,C` PLAZA •".y EXHIBIT A LOCATION MAP _ r wINCH p \l �,,.+ \\72 .. /� ARIA 1. S po rG 1 gI O6 6�Y ,, ' \`-E6Sj \ \ CHATTANOOGA `��,'/ r0 �] r �;� .i ST ga • y �tia t4( ` \< <•, a`—.LYO/IA ST 3E{`.' '"..•?�FFvO 2 PO-�GEWAy \• �•:-. 1Jy `,4„,•; ,rj.. • - L...Av -._ r X, C( v% Hy. l-- \c+ S 1 ,, Ac es PARR ` 0 `t T>•i�s ,60'. - "\y —,20' 5I R <<��oo N y�`9:.. "Q" tO Li" "r �Np0 �1t^ TER RD � a\r2_ �� A5 TRIA" -O2 VteW �r 0 Cyr AZ. Noa \£5__:: 0 i 1 - n yrC' ':S p ` f fµ ),.1 \J4`1h"\�"n -•31 FL.,W0.t` m'p TG = y v/ rn '. G ♦0Y . rs T �' rL.,y \ ^ Qy }�Nti'� \.p0 a0�\Z P J fa C \ c ^, \p50N ST C4y RALW000 15* ,. V. EWPOINT OR_ ''SoT r ..ed 51 T c;cLos5 o�N 2 t O` Pm reR �aP iu PE�i \ 1 fiJ l� NEftl/T5 t:., PARK��,� \:• O NEWgER'<S�ya SC3�00 5��� " ��pGy \- EAGLE ' NP% �1^ P IGG$ , O �- FAIRLOMAS . is PLAZA`) $6tEER¢,�-T�ER�? `ems msanT,r \ Qs 2800-- Z tiR • l 0 r._ I POI C t• LYNNW000 20 EXHIBIT B LEGAL DESCRIPTION All that certain real property situated in the County of San Diego, State of California, described as follows: That portion of Quarter Section 100 of Rancho De La Nacion, in the County of San Diego, State of California, according to Map thereof No. 166, filed in the ul LIle County ReLorder oi':pan Diego County, aescroea as ruiLows: Beginning at the intersection of the East line of said Quarter Section 100 with the centerline of the 50.00 foot strip over which an easement for road purposes was reserved by the San Diego Land Corporation, in Deed recorded in Book 806, Page 70 of Deeds, records of said County said point of intersection being North 18°34'00" West (record North 19°00'00" West) 461.60 feet from the Southeasterly corner of the Northeasterly Quarter of said Quarter Section 100; thence along the centerline of said 50.00 foot strip, the following courses and distances; Southwesterly along the arc of a curve, concave Southeasterly, having aJius UI 1160.00 feet tiii ()ugh d Cel lLt dl angle of 21'43 00'' d distance or 440.35 feet (record 440.30 feet) to.the beginning of a reverse.curve, concave Northwesterly, having a radius of 1160.00 feet, Southwesterly along the arc of said last mentioned curve through a central angle of 18°38'32" a distance of 377.43 feet to the True Point of Beginning; thence continuing Southwesterly along said centerline 205.65 feet and South 45°59'00"West (record South 45°33'00" West) 217.32 feet to a point on the Southwesterly line of the land described in Deed to Alice Trubee Sallmon, recorded in Book 806, Page 70 of Deeds, records of said County; thence along said Southwesterly line, South 51°34'00" East (record South 52°00'00" East) 12.53 feet to the Northwest corner of the land conveyed to Casa Peoples and Pauline Ora Peoples, by Deed recorded in Book 401, Page 7 of Official Records of said County; thence along the boundary of said Peoples' Land, South 68°34'00" East (record South 69°00'00" East) 200.00 feet and North 53°59'10" East, 487.65 feet (record North 53°22'00" East, 488.30 feet, more or less) to the Northeast corner of said Peoples Land; thence North 72°56'06" West, 292.31 feet to a line which bears South 54°10'28" East, 25.00 feet radially from the True Point of Beginning; thence North 54°10'28" West, 25.00 feet to the True Point of Beginning. 21 EXHIBIT C SITE PLANS ATTACHED 22 oars 1103 SOUTH ELEVATION SOUTH MONO AMMME 10S IONN9 MW KNW 109E TX EAST ELEVATION J FRWm COM. SO 0000 IOII.MPE MRM[ InN.n.a Ut PIICI 00001 AIM IXWOE M0IL N NW MAX 000. R10L (mac K R N F/T® Ir-e . ar-r an AMASS MMONI MM®I 1011 LaM1OR DE100 000* 9 NRPGIFD WNW Carling venoms TO re •Roc)RE IC K R uo-PPP[ 100111E 90049E m 9C AMON 0IO0I0 PIE119[ 01001.) WNK AIM -OMNI COMIWp IXAMMIffil`1Wi NNA1I paxm) m19M FMM 11021 (11g9{). RMIW 000 (I191PMw maMM4NWla GwWWv? 11111rM PMT® Ir-e . i'.i 00410LL1 MOLAR RIMMRCIM Ix4 bNM OMO).MW (010010017 AAM9s9KlS iIILOAAM:A EASING TfL 0' P MD) PREPARED FOR xcingular- WIRELESS 6925 LUSE BWI£VARO SAN EEGS CA 92121 APPROVALS RS. WE DATE CONSIwc1M1 WE SRL ICWA,. ME OMNER APPROVAL Mn R PROJECT MANE SWEETWATER HEIGHTS PARK PROJECT NUMBER SS-030-01 3959 'BP CAGLE 57REET NATIONAL CTT3. CA 91950 SAN DIEGO COUNTY 19 DRAWING OATES m/LAM raw 10 90r (I+) M/1EM 4RAL a MMEII 0..) KAU/m ammo no. ro U.y ovum My 01 mi. (n.) /IIM MVNW a MNMYRE (r..) N/IEM D 3I0I000. 00.0 /Af/N not co OLYNII (...) 05/=AM 90. M1W 6 (m) SWEET TITLE EXTERIOR ELEVATIONS 1010409\th,*\O50Ik4C001•0AAN L 11 A-4 ice OF NCO IMOK'-.. P61YC N1100M5 0i1199 105 1000 0T-YORE.WIOM�G-N ����f�_ NORTH ELEVATION RMCT•N WEST ELEVATION MNlT.1Ii PROPIENN V.. MINI. NW RUC, CORR (Tvicm.MOtm 2�A ‘-01611110 mR1-Ym OMIONMR ONO, PAN R"N®1 PIWtm 9Tl • Tit-1P ONNIMMm0e a mMNMI m-.,* ENNA = NODWS Y 0 )w 9R ID TF NOUNIEO A WM Si NON AI MOM. YYYYM[ MOM 10 MINI OOIM MING CMOE ONE AWN 111 PREPARED FOR X cingular- wIEEL"S 5915 LU5[ BOULEVARD SAN DIELO. CA 92121 APPROVALS PATE SOME RACE re sae KVX9110N RATE awe. N.90.K mh PROJECT PAYE SWEETWATER HEIGHTS PARK PROJECT NUMBER SS-030-01 1e59 0' CAOLE STREET NATIONAL CITY, CA 91950 SAN NERO COUNTY ORA9RN0 OATES 011/1•/E5 MAN IN wMw 9•0 EN/MMEGA MALm AMP ENO 01/:1/03 Il501 m NOTE (...1 04/9E/m ANON IN AR.rw 5...) �; /99 A*M.N 5...) 04/21/99 nu, m wow (...) 92/12/92 c5A9110* m Iml aNEE1 i:.... EXTERIOR ELEVATIONS Y A-3 NMOAN NVO' MO' 1RtrM • iRr/t MO I yI x.Pe ANTENNA PLAN tMe „_M _llI IY KEYED NOTES v-x� v. r �...- Drm4+..ur soa M COON. lYYas ®. We wee norm ® MO N. M SP, NMI IN6 TO WOW. COMIC p OMR -MY1/0 B.ONORE VN.I ORIN OMMW9 ® OOND W. PRIM 0 009* OMANI AMOR µgNMt ML 4NN N2 IM MO 10 WOOL MN WMO TO ILO IMMO ® —ME MOS I NA. 5NMIf MAR maw re n CRAW WNSISS IOMMOM O6MMICRM MOM .MI NOWA OR MOS MOPOMO IA VIM MI COMM MICR R (TRICK M O) M IMI PC NO MON MN OOEIE MON MO® WML WC IMO PAWNOR ON/OE eta m WWI 0000 4WOO *tie ors ENLARGED SITE PLAN x (J M.tx.MP PROMO COMORE NOOPK MOM ITOPOSANO 00000 L LMOOJE IRO BOOM OMAN MO BONG ONrr DOMINO PMM¢ 15 Wm MAN MIME* MIKE ® _. [MOBO IOW MIR 1W-BOR moo prow. mo CO MO MOW Me MONO EGO t POMO MOM WORM ORRgM m0/11 M0GO • FOOO RMOM BMO O 1.-11. M INOS ® MINOR( ON (MVO ® 59* rum MMA ® P3Rt LVSRJFl 100* NO MO WGt •PR+WR LVOMPE ROAM NO ROOD N4R W 0401 CORM • 0000 NNW. MEA5*! 01111M — O lm10 WWI OMNI SRN Ons ®COMO Y4 NON MON E W RE ADM.B. CRAW MONO OWL IR IIERIRC A PO IINRNE ®NM COMAECYLLCOMM. BUNCO MN. RW® DRINIOND ® Arm moo. ewes ONE IOM MIND COMM 1RL CM NO MX MONO O[5— NO CORN Di RW}t}AS ® ROAM RRRN O MAW =MID OM MOM OMO) LOA.MSWNOM POW MOURNS Mm• ® M RMDm0E W RMr Lr MOO MRRO OM PREPARED FOR X cingular- S925 LUSE BOULEVARD SAN DIEGO. CA 93121 APPROVALS 4R iMYMRT9t DAR R 51[.?C1Y1911M OAR 4rt PROJECT NAME SWEETWATER HEIGHTS PARK PROJECT��N�UM�BER SeS-0 0.01 3859 'R. CAGLE STREET NATIONAL CNY. CA 91950 SAN DIEGO COUNTY a DRAWING DATES 01/14/4 Pau m RMC. (..0 O2/0/0 Rttt R RM. OM 05/23/( IRV1101 NW W (...) INMAN MONO IN MOM. Cm, M/M/W W OMMRN E..) Rµ/OW9/0 16 GLO OPAL 0 OMER On) a ENLARGED SITE PLAN a ANTENNA PLAN M4ECts eiar{OtatNCttWtM+t.K A-1 SITE PLAN Q.-A A AMWm 1pmeYM,AGa5 ,MRAMIIM NMMsia lJ0 PAWN IR.. mh.sMN WM NOM —0 N AM IRM INO - MO IMAM AM!OM .AM.MV NOM IRE NMB.R ARNOMY ROAM ON TM MVM# NMLNTI MO IL 910001 IM NDStla GNU. A MOWN 9NMY OS NOT SOJGId. OSOADOld - 0. .PLOW D NOMS M MhY 9OML SEE 99AET5 • :iW MI PREPARED CDR x cingular- WIRELEss ESS5 LUSR BOULEVARD SAN DIEGO, CA 931I1 APPROVALS lf. OM AMONG RAM f>11NCRW YTA AU A3YI41YN YR IWO wrllmr o.rt PROJECT NAME SWEETWATER HEIGHTS PARK PROJECT NUMBER SS-03ao1 MS 'B' CAGLE STREET NATIONAL CITT. CA 9H950 SAN DIEGO COUNTY C DRAWING DATES s/I./M MOM IN MAN* RAO Yn:/CS 1.A1 ID AMER (..) rans0,04/0 II CAmmoO swamAAL so (...1 s ) ..nl/GS slum m w+.N (...) Y/11/0S SO ANWISY (..) sgIA/m Mx m sutw 1...) M/v/m Mwm mu m (...) SHEET ISLE SITE PLAN PmNcriVms..\Aml.ensR,StlOMC A-0 EXHIBIT D PLANNING DEPARTMENT RESOLUTION ATTACHED 25 FROM : PHONE NO. : 619 2222160 07J07/2005 05:5a 7507354913 F�-ANCU Jul. 07 2005 12:05PM P5 wuat tat City of NatlOnel City Planning Department 1243 National City Blvd., National Clty, CA 91950 (61 ti) 336-4310 ROGER G. POST - DIRECTOR Cingular Wireless C/o: Shelly Kilboum 302 State Plaac Tune 30, 2005 Subject. Conditional Use Permit for a Wireless Communications .Facility at 3820 Cagle Street, National City, CA 91950 Dear Shelly, 'This letter is to inform you that based on photo simulations and associated materials you submitted May 26, 2005, the Planning Department has determined the proposed facility to be in substantial conformanec with CUP•2004.3 for an existing Wireless communications facility at this site. Thus, a Conditional Use Permit is not required. However, there will be stipulations es follows' 1. The facility &hall conform with the Conditions of Approval for CUP-2004-3 (see attached Resolution). 2. A detailed landscape and underground irrigation plan, including plant types, methods of planting, etc. shall be submitted for review and approval 'by the Planning Director. The plan should indicate that the proposed landscaping matches existing • development as closely as possible. h should be included with the materials submitted for a building permit. 3. The original nlonopinc and footing ;hall be removed completely and the area landscaped. 4. All associated equipment for the proposed facility shall be placed underground including telecommunications oquipmrnt. 5. A lease agreement shall be negotiated with the City to the satisfaction of the City Attorney for the axes of the undergmund equipment shelter. A .w•l..l P..... FROM B7/07/2505 05:58 7p07354yr4 PHONE NO. : 619 2222160 ri_wwu Jul. 07 2005 12:05PM P6 The plats andespecially the photo simulations you submitted were instrumental in helping us make this decision. Thank you. If you have any questions please call the at (619) 336-4315. Sincerely, MARTIN REEDER Planning Technician Attaohmenta: Planning ing Commission Resolution i 0-ZOU4 Cc: George Eieer, City Attomcy Steve Kirkpatrick, City Engineer RESOLUTION 10-2004 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NATIONAL CITY, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY IN SWEETWATER HEIGHTS CENTENNIAL PARK AT 3820 CAGLE STREET APPLICANT: CINGULAR WIRELESS C k T rrr F NO rup.2nnn WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit for a wireless communications facility in Sweetwater Heights Centennial Park at 3820 Cagle Street at a duly advertised public hearing held on March 15, 2004 and continued to the- meeting of April 5, 2004, at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearings the Planning Commission considered the staff report • contained in Case File No. CUP-2004-3, which is maintained by the City and incorporated herein by refeit.t along with tesLliikony said he ii g; WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of National City, California, that the testimony and evidence presented to the Planning Commission at the public hearing held on March 15, 2004 and continued to April 5, 2004, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since the small lease area (420 square feet) will have little effect on use of the 2.35 acre park. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the unmanned wireless communications facility, requires only one to two visits each month for routine maintenance. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the 55-foot monopine, the only portion of the project that is above ground, will adequately screen the twelve panel antennas, and since some screening is provided by existing mature trees in the park. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since the new facility will improve the performance of the Cingular Wireless wireless communications network, resulting in enhanced service for it's customers. BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: 1. liu Cuiiuitiutlai autliotib%J a vvllVies coliattutticati:.,,, lacilitj at Sweetwater Heights Centennial Park. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibit A -Revised, Case File no. CUP-2004-3, dated 3/24/2004. 2. Plans must comply with the 2001 editions of the California Building Code, the California Mechanical Code, the California Plumbing Code, the California Electrical Code, and California Title 24 energy and handicapped regulations. 3. The applicant shall obtain an approved lease agreement with the City of National City before any construction of the wireless facilities within the park. 4. No Fire Department access shall be blocked at any time. 5. The monopine and the exterior walls of any exposed equipment, to a height of not less than six feet, shall be treated with "Graffiti Melt Coating" manufactured by Genesis Coatings, Inc. A similar product may be used, subject to approval from the Building and Safety Director. Graffiti shall be removed within 24 hours of its observance. 6. A detailed landscape and underground irrigation plan, including plant types, methods of planting, etc. shall be submitted for review and approval by the Planning Director. The landscape plan shall reflect the use of drought tolerant planting and water conserving irrigation devices. 7. All park property, including landscaping, paving, etc., damaged during construction, installation and maintenance of the wireless communications facility shall be replaced by the applicant. 8. All existing irrigation shall be moved or re-routed so that coverage to the existing lawn can be maintained during and after construction. 9. The proposed antennas shall be painted to match the color of the monopine needles. 10. The monopine needles shall be of appropriate size and number to adequately screen the proposed antennas. 11. The perrnittee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided such shared use does not result in substantial technical or quality -of -service impairment for the permitted use. In the event a dispute arises with regard to co -locating with other existing or potential users, the City may require a third party technical study at the expense of either or both the applicant or the complaining user. This condition in no way obligates the City to approve any co -location proposal if it is determined by the City not to be desirable in a specific case. 12. Any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete shall be removed. 13. Plans submitted for the equipment enclosure shall specify that it will be of standard construction and not a modular building. 14. Service vehicles used in conjunction with the wireless facility shall be prohibited from driving on park property. All vehicles shall utilize public streets for access and parking. 15. HVAC ducting vents shall be designed in such a way as to ensure debris cannot be purposefully placed inside them. 16. Before this Conditional Use Permit shall become effective, the applicant shall sign and have notarized an Acceptance Form, provided by the Planning Department, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. I%. Tins pCmirtwun(1 void if live � `� ' �-� ��� :;�erci�.0 ,�aitlun ,it.l. , v� after adoption of the resolution of approval unless extended according to procedures specified in Section 18.116.190 of the National City Municipal Code. BE IT FURTHER RESOLVED that copies of this Resolution be transmitted forthwith to the applicant and to the City Council. BE IT FINALLY RESOLVED that this Resolution shall become effective and final on the day following the City Council meeting where the Planning. Commission resolution is set for review, unless an appeal in writing is filed with the City Clerk prior to 5:00 p.m. on the day of that City Council meeting. The City Council may, at that meeting,- appeal the decision of the Planning Commission and set the matter for public hearing. CERTIFICATION: This certifies that the Resolution was adopted by the Planning Commission at their meeting of April 19, 2004, by the following vote: AYES: PRUITT, CARRILLO, SALUDARES, ALVARADO, FLORES, BACA, GRAHAM NAYS: ABSENT: MARTINELLI, REYNOLDS ABSTAIN: CHAII3dVIAN