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HomeMy WebLinkAbout2006 CON Cricket Communications- Leases in ParksLEASE AGREEMENT This Lease Agreement ("Lease") is entered into this 5th day of September, 2006, by and between the City of National City ("Landlord") and Cricket Communications, Inc., a Delaware corporation ("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, "Antennae 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 Antennae Facilities on the Leased Premises, which facilities include installation of freestanding monopole, which is to replace an existing lightstand. 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 Antennae 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 L ease i s not a franchise p ursuant t o C hapter 6.10 o f t he N ational C ity M unicipal 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/Cricket Communications 1 Lease Agreement Sweetwater Heights Park 2. Term. The term of this Lease shall be five (5) years, commencing on September 5, 2006 (the "Commencement Date") and ending September 4, 2011. 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, in event of default 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, or in the event Landlord determines the Leased Premises are needed for a public purpose, the termination shall be effective ninety (90) calendar days from the date of delivery of notice of termination. 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 D ate. T enant s hall 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 fifth 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, Antennae Facilities, and leasehold improvements from the Leased Premises on or before the date of termination, and shall repair any damage City of National City/Cricket Communications 2 Lease Agreement Sweetwater Heights Park 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 lightstand, all at Tenant's sole cost and expense. Any such property or facilities which are not removed by Tenant within sixty (60) 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 sixty (60) 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 Antennae 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 agreements 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 i ssued b y 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 antennae and other facilities will not interfere with Tenant's existing antennae or proposed antennae 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 City of National City/Cricket Communications 3 Lease Agreement Sweetwater Heights Park Tenant's Antennae Facilities. If Tenant determines that the Carrier's installation will interfere with Tenant's Antennae 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 proceed with its installation unless and until it can satisfy Tenant that the proposed installation will not interfere with Tenant's Antennae Facilities. If Landlord disagrees with Tenant's findings, then Landlord and Tenant shall hire a mutually agreed upon i ndependent t elecommunications e ngineer t o e valuate t he 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 Antennae Facilities, then the carrier may proceed with its installation. However, if the independent engineer determines that the proposed installation will interfere with Tenant's Antennae 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 Antennae Facilities. c. Tenant shall not deny Carrier the ability to co -locate the Carrier's transmitting/receiving equipment, and antennae 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 5a, 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 t hat t he i nstalled 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. I f t hat e ngineer d etennines t hat t he i nstalled 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 Antennae Facility as set forth in section 5a, then Carrier shall execute a sublease agreement w ith T enant s etting forth t he r ights, 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 City of National City/Cricket Communications 4 Lease Agreement Sweetwater Heights Park 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 i nterference with Tenant's Antennae Facilities, then Tenant shall provide 30 days' written notice to Landlord of this interference. Landlord shall have 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 T enant a grees t o c omply w ith 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 Baseball Field 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 Antennae 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 Antennae 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 Antennae 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 Antennae 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 the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP 2004-3 City of National City/Cricket Communications 5 Lease Agreement Sweetwater Heights Park • dated March 1, 2006, 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. Tenant s hall h ave t he r ight, a t i is sole cost and expense, to install, operate and maintain on the Property, in accordance with good engineering practices and with all applicable FCC rules and regulations, its Antennae Facilities as described on Exhibit C. Antennae size shall be limited to dimensions shown on the plans approved by Landlord, pursuant to the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP 2004-3 dated March 1, 2006, CUP 2004-3, as approved by National City Planning Commission Resolution No. 10-2004. Said Letter of Approval is attached hereto as Exhibit "E". c. Tenant's installation of all such Antennae 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 Antennae Facilities, Tenant s hall n of 1 ocate o r attach any antennae 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 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 operations of the Antennae Facilities. Tenant shall install temporary fencing upon the Leased Premises during such times as the installation or removal of the Antennae 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 Antennae 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 Antennae 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. City of National City/Cricket Communications 6 Lease Agreement Sweetwater Heights Park 9 t g. f. Any c hange t o T enant's approved antennae type, number of antennas, antennae 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). Each and every contractor, subcontractor and/or supplier engaged in the installation of the equipment 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 Antennae Facilities from time to time without the prior written approval of Landlord, provided that (1) the replacement facilities are not 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 the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP 2004-3 dated March 1, 2006„ 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, antennae 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 Antennae Facilities and protect such from paint and debris fallout which may occur during painting, construction or alteration process. City of National City/Cricket Communications Lease Agreement Sweetwater Heights Park 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 Antennae 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 E ncroachment P ermit 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 doe not materially interfere with Landlord's normal use of Landlord's 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 Antennae 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; City of National City/Cricket Communications 8 Lease Agreement Sweetwater Heights Park 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 and Baseball Field 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, Antennae Facilities and leasehold improvements and t o get refund of the balance of prepaid rent. Before approving the placement of Antennae 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 Antennae 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 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, to 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 City of National City/Cricket Communications 9 Lease Agreement Sweetwater Heights Park 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 Antennae Facilities or Tenant's business; c. Landlord, if Tenant is in default under this Lease; 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, a nd s hall b e e ffective upon r eceipt o f s uch n otice. A 11 r entals p aid 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 the 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 Antennae Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this Lease upon thirty (30) days' written notice to Landlord. Tenant shall within ninety (90) days remove the Antennae Facilities and all other of its property from the Leased Premises and shall restore the Leased Premises, including reinstallation or replacement with c omparable s ubstitute o f t he e xisting lightstand, 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 Antennae Facilities or other personal property of Tenant. City of National City/Cricket Communications 10 Lease Agreement Sweetwater Heights Park 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 Antennae Facilities, other communications equipment, 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 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. a. Disclaimer of Liability. Landlord shall not at any time be liable for injury o r 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 Antennae Facilities except to the extent caused by Landlord's negligence or willful misconduct. 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 p ersonal i njury, b odily i njury, 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 Antennae Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. City of National City/Cricket Communications 11 Lease Agreement Sweetwater Heights Park 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 Antennae 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 such claims a rise o ut o f t he n egligence o r w illful m isconduct o f o ne o r 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 Antennae 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 whichit is indemnified hereunder, without the prior written consent of Tenant. City of National City/Cricket Communications 12 Lease Agreement Sweetwater Heights Park 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 e mployer's 1 iability 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. 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 Antennae Facilities. Upon completion of the installation of the Antennae Facilities, T enant s hall s ubstitute for t he foregoing insurance policies of fire, extended coverage and vandalism and malicious mischief insurance on the Antennae 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 Antennae Facilities which is damaged and caused the loss of revenue. City of National City/Cricket Communications 13 Lease Agreement Sweetwater Heights Park 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 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." J• 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+ 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 City of National City/Cricket Communications 14 Lease Agreement Sweetwater Heights Park indemnify and s ave h armless L andiord, t he i ndemnitees 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 the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP 2004-3 dated March 1, 2006,. 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, i ndemnify and h old harmless Landlord and its officials, boards, commissions, employees, agents and contractors from, and remediate the property from, any release of 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. Electromagnetic 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 i njuries due t o EMFs t o the extent such p ersonal injuries are asserted to be caused by Lessee's failure to comply with such laws, with Tenant's obligation to include City of National City/Cricket Communications 15 Lease Agreement Sweetwater Hcights Park a 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 so long as such encumbrancer recognizes this Lease and Tenant's right to occupy the Leased Premises. 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. 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 o r w arranty as to t he c ondition o f t he L eased P remises, 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 c harges h ave b een p aid; (c) a s for t he p erson m aking t he c ertificate 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; City of National City/Cricket Communications 16 Lease Agreement Sweetwater Heights Park 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: Cricket Communications, Inc., 10307 Pacific Center Court, San Diego, CA 92121 Attn: Property Manager With a Copy to: Cricket Communications, Inc., 10307 Pacific Center Court, San Diego, CA 92121 Attn: Legal Department 31. Assignment. a. Tenant may not assign this Lease or sublease the Leased Premises at any time without Landlord's consent. However, Tenant may assign its rights under this Lease, without Tenant's consent, to: (i) any of its subsidiaries, partners, members, affiliates or successor legal entities, (ii) in connection with the sale, exchange, or other transfer of Tenant's Federal Communications Commission ("FCC') authorization for the geographic area in which the Premises is located; (iii) in connection with any financing, loan, security interest, pledge, or mortgage of Tenant's property or (iv) to any entity acquiring substantially all of the assets of Tenant. 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. City of National City/Cricket Communications 17 Lease Agreement Sweetwater Heights Park 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. Memorandum of Lease. Following the execution of this Lease, either party at its sole expense, shall be entitled to record a short form" Memorandum of Lease in the county in which the Leased Premises are located. 37. 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. 38. 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 Leased Premises, the license for access granted herein, the Encroachment Permit for utilities, or the Landlord's Property. City of National City/Cricket Communications 18 Lease Agreement Sweetwater Heights Park 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/Cricket Communications 19 Lease Agreement Sweetwater Heights Park LANDLORD CITY OF NATIONAL CITY By: Nick Inzik. l Region Title: Mayor APPROVED AS TO FORM: —� George H. Eiser, III City Attorney City of National City/Cricket Communications 20 TENANT Cricket Communications, Inc., } Delaware corpora By: Name: Antho G. 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BONITA � I. •�. `` y R r�waoo�� "'.'r... ��_ilt,`R c$2800 ` ��^y\ q isiw- �i i .. ?\ \ GEC , LY N.----- \w R DR - 20 LEGAL DESCRIPTION OF LEASE BOUNDARY CRICKET COMMUNICATIONS SITE NO. 725A SWEETWATER HEIGHTS PARK A 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 OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND AS DESCRIBED IN FINAL ORDER OF CONDEMNATION NO. 339389 AND GRANTED TO THE CITY OF NATIONAL CITY PER DEED RECORDED NOVEMBER 3, 1972 AS FILE NO. 295389, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST 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; SAID POINT BEING ALSO THE EASTERLY MOST CORNER OF SAID LAND GRANTED TO THE CITY OF NATIONAL CITY; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID PEOPLES LAND AND THE SOUTHERLY LINE OF SAID NATIONAL CITY LAND, SOUTH 54'46'36" WEST (RECORD SOUTH 53'59'10" WEST) 193.17 FEET; THENCE LEAVING SAID NORTHERLY LINE NORTH 0'0'0" EAST (WORTH), 59.4 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 0'0'0" EAST, 9.17 FEET; THENCE NORTH 90'0'0" EAST (EAST), 15.17 FEET; THENCE SOUTH 0'0'0" WEST (SOUTH), 9.17 FEET; THENCE SOUTH 90'0'O" WEST (WEST), 15.17 FEET TO THE TRUE POINT OF BEGINNING. LEASE BOUNDARY CONTAINS 139.11 SQUARE FEET OR 0.0032 ACRES, MORE OR LESS. JAI;E A. TAN7R, LS 7130 ` DATE EXHIBIT "B" 2005.100 SWEETWATER f,IGNTS PARK • 08/14/2006 23:50 FAX 8585654547 HIRSCH & COMPANY PLAT OF LEASE BOUNDARY CRICKET COMMUNICATIONS SITE NO. 725A SWEETWATER HEIGHTS PARK JAW (N54' 10'28" W 25.09 (41 PROPOSED IF.45E NDAIP�' SEE DETAIL APN 564-290-06 / LAND GRANTED TO CITY OF r NATIONAL CITY BY FINAL ORDER OF CONDEMNATION NO. 337389 RECORDED NOVEMBER 3, 197 AS FILE NO. 295389 OF OFFICIAL RECORDS. 41 N0 .59 `0,40 M44/4424 A. TAYNO"R, LS 7130 DATE Zste ELY MOST CORNER NATIONAL CITY (AND l 003 SCALE: 1 "=100' TP09 LEASE N90'0'0 "E 15.17' PROPOSED LEASE 0 BOUNDARY 'I in w fi z LEASE BOUNDARY DETAIL SCALE: 1"=20' EXHIBIT "C" 2005.100 SWEETWATER HEIGHTS PARR ABBREVIATIONS I VICINITY MAP Comfortable SWEETWATER 3859 NATIONAL • CAGLE SAN-725 CITY, Wireless HEIGHTS STREET CA PARK 91950 ,Ag CO,, WO OS ; rFYM,Mr NV WMIC USEp .XV M To .0..........V.. 0. ° ......M1. is SITaV ImrMrrq.m.o., No .tl..ur reA°.MXi.[ moon�M moon °i° ono MENA WV 0.0. .°M rtOV.0 •.x5.. 5° IrwWV t NO Bow A. .71501 .1 , VrY L YU 4Oh ` .1 \ 1 lR \�\1j0.0 ✓ ``^� C.W^ �Al.f f�IRf°� ✓ MI �,�'AMCr ( I Si ['® A �F W y I� C1 kI} ii, y r'A 7P.' YI i i {N \i` F.M. err tiN. ., F� � �' yoo } �'" art r P ,"--T,' SOS R M/ prt °6MIM Am rous Too ors warm• jV°" w w1....O u'A MAW MM ' coo ex..mai Mpuma COXa C.C. w 1S.."`�:sarpA Mrs pgOr... sc. ° O. O. conmuormi. `c OR. W. .° KW O [°°r°m Orc Fri ow. FE Kr Yw ontonpw�� w. twoo..t M R .. ma lore Mux OM MMus. 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Ip .womr + eoa41 I800 pF • $� f e . `� ®. ®©®®®®©®000000 000 3 3 f3 i. 3 3 3 3 3 3 3 3 3 3 3 3 3 i3 a 3 R 1 � _ E F £i 1° p x y$ ] 4N-725 /EETWATER IGHTS PARK MSA cricVet Wi 1 - Y ' z r 1 Comfortable 918R IEGO CSTDNE COURT, EAPI DIEl30, CPLIFDRNN WIr•lae® e SUITE K721 150 •I,333e i 9fle 3(Ai 4 R p p q ° Hai NOI1VA3131S3M NOI1VA313 H1dON O O O 9 ai)! 1 2 ti 0 ®4>®4.4>1>1>®4®000000 000 3 3 R? 5 5 o y s 5 € fl ;IJ c crick t® Comfortable Wirslessm 8180 CORNERSTONE COURT, SUITE 150 S4N OIEGO, CALIFORNIA 92121 P He a Pot of 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 m 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 monopme, 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 EXHIBIT "D" • • 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 facility 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 Califorma 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 thansix 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 cornmumcations facility shall be replaced by the applicant. 8 All existing irrigation shall be moved or re-routed so that coverage to the existmg lawn can be maintained during and after construction. 9 The proposed antennas shall be painted to match the color of the monopme needles. 10 The monopine needles shall be of appropriate size and number to adequately screen the proposed antennas 11 The pennittee shall not object to co -locating additional facilities of other communication companies and sharing the project site, provided suchshared 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 of both the applicant or the complaining user. This condition in no .R • • 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 buildmg. 14 Service vehicles used in conjunction with the wireless facility shall be prohibited from driving on park property. All velucles 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 appmval 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• 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 CHAI �dGII 6 AN City of National City Planning Department 1243 National City Blvd., National City, CA 91950 (619) 336-4310 ROGER G. POST - DIRECTOR March 1, 2006 Cricket Communications C/o: Patricia Ruiz 10307 Pacific Center Court San Diego, CA 92121 Subject: Conditional Use Permit for a Wireless Communications Facility at 3859 Cagle Street, National City, CA 91950 Dear Patricia, This letter is to inform you that based on photo simulations and associated materials you submitted January 24, 2006, 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 new Conditional Use Permit is not required. However, there will be stipulations as follows: 1. The facility shall conform with the Conditions of Approval for CUP-2004-3 (see attached Resolution). 2. All associated equipment for the proposed facility, including telecommunications equipment, shall be placed underground. 3. A lease agreement shall be negotiated with the City to the satisfaction of the City Attorney for the area of the underground equipment shelter prior to issuance of any building permits. 4. All landscape improvements damaged during the construction activities shall be replaced by the contractor to the satisfaction of the Parks Superintendent. 5. The work area shall be delineated and maintained in a safe and clean condition at all times. The area required to accommodate the construction activities shall be limited to that shown on the plans submitted for review. Prior to start, the contractor shall meet with the Parks Superintendent to mark out the work area. 6. Vehicular and/or construction equipment access to the park shall be minimized and restricted to areas approved by the Parks Superintendent. 7. Prior to commencement of the work, the contractor shall provide the Parks Superintendent a schedule for the project and emergency contact information. Cricket Communications Substantial Conformance with CUP-2004-3 EXHTB1 T°'E" Recycled Paper r The plans and especially the photo simulations you submitted were instrumental in helping us make this decision. Thank you. If you h'e any questions please call me at (619) 336-4311. Sincerely, (c?g-u._ ANGELA REEDE Assistant Planner Attachments: Planning Commission Resolution 10-2004 Cc: George Eiser, City Attorney Steve Kirkpatrick, City Engineer Miguel Diaz, Parks Superintendent Cricket Communications Substantial Conformance with CUP-2004-3 Page 2 of 2 LEASE AGREEMENT This Lease Agreement ("Lease") is entered into this 5th day of September, 2006, by and between the City of National City ("Landlord") and Cricket Communications, Inc., a Delaware corporation ("Tenant"). RECITALS A. Landlord is the owner of the real property known as "El Toyon 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 El Toyon Park for the installation and operation of an equipment room and certain antenna facilities (collectively, "Antennae 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 El Toyon 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 Antennae Facilities on the Leased Premises, which facilities include installation of freestanding monopole, which is to replace an existing lightstand. 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. 9-2003 which is attached hereto as Exhibit "D". Landlord reserves the right to require Tenant to relocate its Antennae 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 L ease i s n of a franchise p ursuant t o C hapter 6.10 o f t he N ational C ity M unicipal 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/Cricket Communications 1 Lease Agreement El Toyon Park 2. Term. The term of this Lease shall be five (5) years, commencing on September 5, 2006 (the "Commencement Date") and ending September 4, 2011. 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, in event of default 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, or in the event Landlord determines the Leased Premises are needed for a public purpose, the termination shall be effective ninety (90) calendar days from the date of delivery of notice of termination. 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 D ate. T enant s hall 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 fifth 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, Antennae Facilities, and leasehold improvements from the Leased Premises on or before the date of termination, and shall repair any damage City of National City/Cricket Communications 2 Lease Agreement El Toyon Park 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 lightstand, all at Tenant's sole cost and expense. Any such property or facilities which are not removed by Tenant within sixty (60) 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 sixty (60) 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 Antennae 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. 9-2003 Landlord reserves the right to enter into agreements 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 r egulations i ssued b y t he 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 antennae and other facilities will not interfere with Tenant's existing antennae or proposed antennae 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 City of National City/Cricket Communications 3 Lease Agreement El Toyon Park Tenant's Antennae Facilities. If Tenant determines that the Carrier's installation will interfere with Tenant's Antennae 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 proceed with its installation unless and until it can satisfy Tenant that the proposed installation will not interfere with Tenant's Antennae Facilities. If Landlord disagrees with Tenant's findings, then Landlord and Tenant shall hire a mutually agreed upon i ndependent t elecommunications engineer t o e valuate t he 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 Antennae Facilities, then the carrier may proceed with its installation. However, if the independent engineer determines that the proposed installation will interfere with Tenant's Antennae 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 Antennae Facilities. c. Tenant shall not deny Carrier the ability to co -locate the Carrier's transmitting/receiving equipment, and antennae 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. 9- 2003 pursuant to the following conditions: in addition to the requirements s et forth above in Section 5a, 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 t hat t he i nstalled 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. I f t hat e ngineer d etermines t hat t he i nstalled 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 Antennae Facility as set forth in section 5a, then Carrier shall execute a sublease agreement w ith T enant s etting forth t he r ights, 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 City of National City/Cricket Communications 4 Lease Agreement El Toyon Park 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 i nterference with Tenant's Antennae Facilities, then Tenant shall provide 30 days' written notice to Landlord of this interference. Landlord shall have 10 days' written notice to eliminate s uch i nterference. I f s uch i nterference i s n of e liminated, 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 T enant agrees t o c omply w ith 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 Baseball Field 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 Antennae 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 Antennae Facilities in conformance with approved Conditional Use Permit CUP No. CUP-2003-5 so as to blend with the surroundings. If not specified in CUP 2003-5, Tenant will paint in a color specified by Landlord and otherwise shield the Antennae 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 Antennae 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 the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP-2003-5 City of National City/Cricket Communications 5 Lease Agreement El Toyon Park dated June 6, 2006, as approved by National City Planning Commission Resolution No. 9-2003 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 s hall have the right, a t its sole cost and expense, to install, operate and maintain on the Property, in accordance with good engineering practices and with all applicable FCC rules and regulations, its Antennae Facilities as described on Exhibit C. Antennae size shall be limited to dimensions shown on the plans approved by Landlord, pursuant to the Letter of Approval of Substantial Conformance w ith C onditional U se P ermit C UP-2003-5 d ated June 6, 2006, as approved by National City Planning Commission Resolution No. 9-2003. Said Letter of Approval is attached hereto as Exhibit "E". c. Tenant's installation of all such Antennae 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 Antennae Facilities, Tenant s hall not 1 ocate o r attach any antennae 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 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 operations of the Antennae Facilities. Tenant shall install temporary fencing upon the Leased Premises during such times as the installation or removal of the Antennae 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 Antennae 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 Antennae 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. City of National City/Cricket Communications 6 Lease Agreement El Toyon Park g• f. Any c hange t o T enant's approved antennae type, number of antennas, antennae 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). Each and every contractor, subcontractor and/or supplier engaged in the installation of the equipment 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 Antennae Facilities from time to time without the prior written approval of Landlord, provided that (1) the replacement facilities are not 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 the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP-2003-5 dated June 6, 2006„ as approved by National City Planning Commission Resolution No. 9-2003 . Tenant shall submit to Landlord a d etailed p roposal 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, antennae 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 T enant's e quipment, p ersonal p roperty o r A ntennae F acilities a nd protect such from paint and debris fallout which may occur during painting, construction or alteration process. City of National City/Cricket Communications 7 Lease Agreement El Toyon Park 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 Antennae 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 P ermit 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 doe not materially interfere with Landlord's normal use of Landlord's Property, and provided further that it shall be consistent with the plans approved by National City Planning Commission Resolution No. 9-2003. 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. hi 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 Antennae Facilities in accordance with site standards, statutes, ordinances, the provisions of CUP-2003-5, as approved by National City Planning Commission Resolution No. 9- 2003 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, City of National City/Cricket Communications 8 Lease Agreement El Toyon Park that i ssues o f r adio frequency i nterference w ith t he operations o f 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 and Baseball Field 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, Antennae Facilities and leasehold improvements and to get refund of the balance of prepaid rent. Before approving the placement of Antennae 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 Antennae 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 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, to 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 City of National City/Cricket Communications 9 Lease Agreement El Toyon Park 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 Antennae Facilities or Tenant's business; c. Landlord, if Tenant is in default under this Lease; 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 s hall b e e ffective upon r eceipt o f s uch notice. A 11 r entals p aid 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 the 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 Antennae Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this Lease upon thirty (30) days' written notice to Landlord. Tenant shall within ninety (90) days remove the Antennae Facilities and all other of its property from the Leased Premises and shall restore the Leased Premises, including reinstallation or replacement with c omparable s ubstitute o f t he e xisting lightstand, 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 Antennae Facilities or other personal property of Tenant. City of National City/Cricket Communications 10 Lease Agreement El Toyon Park 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 Antennae Facilities, other communications equipment, 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 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. 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 Antennae Facilities except to the extent caused by Landlord's negligence or willful misconduct. 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 p ersonal i njury, b odily i njury, 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 Antennae Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. City of National City/Cricket Communications 1 1 Lease Agreement El Toyon Park 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 Antennae 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 such claims a rise o ut o f t he n egligence o r willful m isconduct o f o ne o r 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 thanfrom 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 Antennae 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. City of National City/Cricket Communications 12 Lease Agreement El Toyon Park 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. 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 Antennae Facilities. Upon completion of the installation of the Antennae Facilities, T enant s hall s ubstitute for t he foregoing insurance policies of fire, extended coverage and vandalism and malicious mischief insurance on the Antennae 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 Antennae Facilities which is damaged and caused the loss of revenue. City of National City/Cricket Communications 13 Lease Agreement El Toyon Park J. g. 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 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+ 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 City of National City/Cricket Communications 14 Lease Agreement El Toyon Park indemnify and s ave h armless L andlord, t he i ndemnitees and A dditional 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 the Letter of Approval of Substantial Conformance with Conditional Use Permit CUP-2003-5 dated June 6, 2006,. 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, i ndemnify and h old harmless Landlord and its officials, boards, commissions, employees, agents and contractors from, and remediate the property from, any release of 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. Electromagnetic 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 i njuries due t o EMFs t o the extent such personal injuries are asserted to be caused by Lessee's failure to comply with such laws, with Tenant's obligation to include City of National City/Cricket Communications 15 Lease Agreement El Toyon Park 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 so long as such encumbrancer recognizes this Lease and Tenant's right to occupy the Leased Premises. 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. 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 o r w arranty as to the c ondition o f t he L eased P remises, 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 c harges h ave b een p aid; (c) a s for t he p erson m aking t he c ertificate 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; City of National City/Cricket Communications 16 Lease Agreement El Toyon Park 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: Cricket Communications, Inc., 10307 Pacific Center Court, San Diego, CA 92121 Attn: Property Manager With a Copy to: Cricket Communications, Inc., 10307 Pacific Center Court, San Diego, CA 92121 Attn: Legal Department 31. Assignment. a. Tenant may not assign this Lease or sublease the Leased Premises at any time without Landlord's consent. However, Tenant may assign its rights under this Lease, without Tenant's consent, to: (i) any of its subsidiaries, partners, members, affiliates or successor legal entities, (ii) in connection with the sale, exchange, or other transfer of Tenant's Federal Communications Commission ("FCC") authorization for the geographic area in which the Premises is located; (iii) in connection with any financing, loan, security interest, pledge, or mortgage of Tenant's property or (iv) to any entity acquiring substantially all of the assets of Tenant. 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. City of National City/Cricket Communications 17 Lease Agreement El Toyon Park 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. Memorandum of Lease. Following the execution of this Lease, either party at its sole expense, shall be entitled to record a short form" Memorandum of Lease in the county in which the Leased Premises are located. 37. 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. 38. 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 Leased Premises, the license for access granted herein, the Encroachment Permit for utilities, or the Landlord's Property. City of National City/Cricket Communications 18 Lease Agreement El Toyon Park 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. LANDLORD CITY OF NATIONAL CITY - Signatures to Follow - TENANT Cricket Communications, Inc., 1 elaware corporatio By: Name: Anthony . Benyola By: Title: Regional Network Director, Western Region Title: Mayor APPROVED AS TO FORM: George H. Eiser, III City Attorney By: %2 Name: Bi11nard Title: Vice President of Technical Operations Date: City of National City/Cricket Communications 19 Lease Agreement El Toyon Park EXHIBIT A LOCATION MAP .. mu. 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'a 1 "" ',4? 1,‘,- A \ .2 4.,,,,.* ,.. -- ce IA r. a4 4 L2% -1 ,t4/ s %I.: -,. . 1,,,:-. • DR ..c,% 0.• R\ a, d'iT(' ,.., , -; , LY- , r... •-• . ,, :... •,..1, ( . 4.': '''' ' 4, S N..< r,..c. .0- a ..;:r n '''. .,;(c.-2 x 4-,,,f 4,,,,, ..... 4 ''•.(;, , , , , 4-> -....._, • N '',' DV- • ...... 741 . ! ae4ii,c., igli- 1 '. — 'Q:iiniagerir ttgitibink..,- e .0fe,i'.:,1!::' ,.../ i., , ,..,:." . .. =..., . \ . 2,- VIENPOINT DR 0 ' ' LEGAL DESCRIPTION OF LEASE BOUNDARY CRICKET COMMUNICATIONS SITE NO. 707A TOYON PARK A PORTION OF THE WESTERLY HALF OF EIGHTY ACRE LOT 1 1N QUARTER SECTION 130, BEING A PART OF RANCHO DE LA NACIAON, ACCORDING TO THE MAP THEREOF NO. 166 ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT OF WAY LINE OF INTERSTATE. HIGHWAY 805 AND THE NORTHERLY RIGHT OF WAY LINE OF 4TH STREET AS SHOWN ON RECORD OF SURVEY NO. 17409 RECORDED MAY 17, 2002 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE EASTERLY ALONG THE NORTHERLY LINE OF 4TH STREET NORTH 72`03'25" EAST, 117.23 FEET; THENCE LEAVING SAID NORTHERLY LINE NORTH 18'O'O" WEST, 569.0 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 18'0'0" WEST, 11.5 FEET; THENCE NORTH 72'0'O" EAST, 11.5 FEET; THENCE SOUTH 18°0'O" EAST, 11.5 FEET; THENCE SOUTH 72'0'0" WEST, 11.5 FEET TO THE TRUE POINT OF BEGINNING. LEASE BOUNDARY CONTAINS 132.25 SQUARE FEET OR 0.003 ACRES, MORE OR LESS. LS 7130 / DATE 2005.100 TOYON PARR EXHIBIT "B" 08/14/2006 23:49 FAX 8585654547 HIRSCH & COMPANY Q002 ZP tea. `}sue , � ` APN 554-050-15 PLAT OF LEASE BOUNDARY CRICKET COMMUNICATIONS SITE NO. 707A TOYON PARK 6' 1 0"] `-, V PROPOSED EQUIPMENT 4:11 LEASE SEE DETAIL 8,89 J s'T .�c>'� rae 45wfr . )=RECORD PER Ros r7409 o.J:RECORD PER LEGAL OE$C.WPTION of TITLE REPORT pl atyr+ 1 EL TOYAN PARK 1 Ca pB• �7,109 G �. ,�T INTERSECTION OF EASTERLY ROW FOR HIGHWAY 805 AND NORTHERLY RIGHT OF WAY OF 4TH AVENUE PER ROS 17409 JAIME . TAYN L S 7130 - DATE . SCALE. 1 "-200, LEASE BOUNDARY DETAIL SCALE: 1"a10' EXHIBIT "C" zow. TOWN PARK HtItI lit VIA I IONS I ;T. IRrodrt . R.% ODAMIET VICINITY MAP I •cncKet Comfortable TOYON 2005 'C' EAST NATIONAL CITY, Wireless PARK 4TH . STREET. CA ® 91950 ms Se of Of•FM.L.10.0ocu.RITS IS PK... Of HAL. AM V55 . ELATES 7 V.. CODA.O.O. W non, ,ononno. .3. ...., KV ix. INKRAMei MT rave F.. Fil. A ARO MT ALIORLATL La ccounrco atm ALL.. LI. LOW RM. NAPO!. AMY MOW. SESIM MR DA; WAND ROE W.. KR VOM,TACTPRTA SAM SADO. hoW W.. µFR. . OCKM Of WA DR.M.N.) C COKRAT AO. wont/ oroone 0000 noo, no coon, 4. 4ST ix PLA. OR COME DTL Inot <„, _ RIX ROI 01 COP... OA MVO Ko M.. f.A. COW... CEO ol.S. NOS TO St. ..o. COP.Eir DAscwAY TuTI po. OM COO. 0. ..... OM COP.. COPC ....5 OP. OPIOWIC GIP OPOOSTE F.F. co....F.,. , 00,000,0 0_ CORIWK. LIR COOK pt, PLATIL OR PRKIERTI L. 0.0. OPRI Dullm mom MI6. MI DOM Ol. 000,4 TV p MONS r0 001.,11 p. poor oo, n. .... ,„ ...CM o, ppm, RS 00. SPOUT ono concon 4, CZTM EL OM.. SOF. EN. TEDC.M. RF., SKI. .co. po,R, FF. SM 9.5, Co. co. or son so noun 5PS O.K. roomy, co, wows) co EOM scow co, cow., ol, sco, nor EAT MGM 9,.s. ...SS SIM c.o. noon a, no snow, ca cc, non 4p. ODOOMOLO OA /ICOR sm SO.M.L , ,... .... ,...., na nucco, IA FACt OF TVO ...../..... F.= FROE OF COK/CANW It traria. F. F. OF AwSower Vat. TOP OF CO.REIE f.0.1 PPM OF 5/. on cum FP fn. t.or MIERCLASS Kftfacro VII, MP of PL. PAKIIC FS. mom suer. T.......• .....• roc 1•00.0 om "Lome U. TIMM moo, coo, coo', coop ooncoo CA ... Alf, VEROY If nao D. OLAK E.LAL GLUE LAD Kw sw [rm. ,,p, , co, con , MTIIMAT .. MAR.. MOW 10:05000105 mac noccon morn , A ? 101,10115 0 VMACO SOFTCL..f 1 ES 1 MA., RCASED MI SC crick t® Comfortable Wireless® 6100 CORNERSTONE COURT, SUITE 150 SAN DIEGO, CALIFORNIA 92121 NOT 70 SCALE oo ono, „loco, coo, c,.„, o. o„, „co , 44 KIRK.. VA MM. OAK MGM, LOITIOD. FM DEETI LIMASE KOLL.. TO NOT EACE. OK PROJECT DESCRIPTION SPECIAL INSPECTIONS SHEET INDEX MS PK.. Ca.. Of MC connonnoo OF III mow, caccoomonnon, monn co , mat. ME rale.. • (I) AFSKLABOD Of . CR.. MOOR PMINCT MO WM. R. KOKO A (R, CMC PAO . 0 wocALLAINW Of . .................O......., • . nsuccoox or coo. agnorn. a mnorceoc SE.CE o . lon innoun, OT .C. MR COMI FR. 0.0,,,coo 70 MOOR. . (r) WALL.. OF . CPS ANTIMPA MOWED TO 115 500Of 1115 (1) KN. 000. NOT APPLICABLE FOFI LAND USE PLANNING 4 MI .51. Al SITE PIM AR pUpplp AAA.i. SRO AL. MIM,.... MKS As Km.. AA ELM.. MSA ANIMeMoe O.... 6941.finsaatt,Snen2 Sn0locc,C•3110 It.358.530.003 Fc1615361461 5 1 WS 106 CODE COMPLIANCE I SYMBOLS ocsrno - 7.7,7-7, 7./AM 7., OK. TO DE REDOYED pw....., _ _ — _ 4540,T,PRTIM4 Li. cnoros csa sfIE coacco OF 1..... OMES As AMP. Of TRE V.. cOKIMBIC.1.10.... 0.0 •4 RAF. PL.. M Or comma. To no, Am. Nor mem.. To MKE ca., I nor,. WALL. MK R, unif. PO.. con MK OF. 1.6 II • S.) .00T S. WO. 65MK CORE OKI 1 unOMMI WOOMCAL fort URI a. VAI/CO.Of ORMI.KS 1 waSVEM-RAL-F UK son, O. xf.-101-1.0 — nYnnocn cconoccoon aro oc won, orr CONSULTANTS LEGAL DESCRIPTION enccr0nx .,.. ,......,A o2,„ OK K.. WIR Suli 201 COMA. A. RAW. .10010V KIM MORE MIS) .324,-.0 COM.: KM W... woo, ono noco, 515,01.5.50 1111.111,09.60011 MEP P.m. mlommagm SIS W IA.., OR MOO SMO. MA CA 9,705 Fo.., .owy, Rog P.... .7-Ms• w.R. FF.) sm.. con (MO, no-eno ., ,.... CEVCARTMO TAW. CA "SwAir .5.11 (.... REF oFF.F.0. — . X— V m. Of WS. 0.7.11. ORM. OC... MY. MOCK SY, En.. feriv..0011. - .... Of .S. COMMAMOM 2105. MAK./ LOFT 51.M.OM WV, Of PROPM. OMSMUCtt. TM' SJ. PROPOS. 0....111.5. • CT. UMI TOICI 0 0 0_ .11010 RMETWOM M. .017 "MICE PROPOSED umomr. MS: R-N PROPOKO PIK SPR...1 ....A P/A IKORT OF W... COOSINCTO. S. (FOL. MVO.) CURPOIT TIMM ImOS a Me, MO. APPIICANTA fnc, PROPFM VORIR110.11C0 -i MirlItilf..V- ppmppmppp,p KOK EuvAllEw cc,. 'AUL 0 ("masa. 0010.00010 ,-----.72. Vrt APPROVALS SAN-707 TOYON PARK WM Me 0.311.11. K.., ROOK . COMMUCTON 000M.TS ME MIRDECT TO. REM. BY 1. LOCAL BUM. 051.1005A. NTT ONO. MO U0*50210M5 Ma ... WO. TITLE SHEET CP.. c0,....110. OW. WY Of .7., WY moo tootoronow ca, ,.. ,,,, s. DO, CA RM. COPTIPPO ncon con oocoo .ocoo o. cocra. _ ,,„,, „...„, OGMOIPE ocic __,-.. _ Ma.. t72235000 ORA.X.EMON flo...) MPOORT AL-.., •.” MIR., _ to, ,,,, µpomp. SRI KOOK). Ti o ow CONSTRKPOR FA.. �.s \\ • \ \, \ rt: / wx. v V -� K \' m Z ®©®®®®oa®©®oTUrn00 aasasa;aaaaaa�asaaass Eli' crick t• Comfortable Wireless® 6180 CORNERSTONE COURT. SUITE 150 SAN DIEGO. CALIFORNIA 92121 S B 1 R a: A RS ANTENNA MOUNTING [PLAN] oOX m„ Oi» Nc un [/-w vna1aunart 36111101. w.o+ (9 O(911.c wn1 MOW. 10 RI N- +r[ 010 woo, .mm 001100 PACK Oe01 1 m w..N(9 ]OQj Y.S coo cont .RKK ®(q o.aaoa a0n. VIIR, 1�PI uo. noisy non Coa.. m,.o ono .dE Or06Ntl 1 s (a rier W m666Inn ru oes REVISIONS atwroe 1/11)01 p{Dww ms a/n/a SAN-707 TOYON PARK ENLARGED PARTIAL SITE PLAN, ANTENNA MOUNTING DETAILS ANTENNA MOUNTING [ELEVATION] 3 ENLARGED PARTIAL SITE PLAN A2 KEY NOTES: Ortl 1-001m 01m.a or,CP i011.0wzmwnToWINN(r) Omrcm 1 -wc MVP,/ an1111/ OM PAM venal l/ VW. .61 CM atom Raps rwo. NM (� mny. OE SEVEN YE A M YAFFX. WMpIFD N M (9 SEVEN Mon POLL O(M m¢. <O(M POP PRAM. PALL 10 Kai w (fl 140.701 0(0 ES. ROVE XE�1mSta, YI R PEEP M BfW?M1 Q CP. 1)w CD Ex1lI.T.Y( FINISH SCHEDULE PWIN PAM PEPIN COLOR Wra Win MN. Wia o1566 uuR POLE O. w)T MOW r-11041 Slur Id[[ 1 WRX MT. 1-w!m 9Y.SA IdM1K a MOE E0LL001. INORIPPV. OM... in Pm1/,.m WEM M. A1/ M�ONSITULTOO 4 m0y TWO �sOH. a MCAT MONOeA PENSIONS Vu/m m/n/m lecro m's MSA M0S7d0. RR0.:ysa (BNI&unv PJ,UP NE Sa+DIW. Ca4Nf1 A INMOST lNSXImi P.O-Nee . SWIG . n.aa ME EV, SAN-707 TOYON PARK ELEVATIONS WEST ELEVATION 2 SOUTH ELEVATION A3 KEY NOTES: �In w,a .aa O] QJ i-wY[ MTDM.i M. nt ] Os inmaa coon.; mnmi ro Y.mr m 51.120 TCX. 1. T.we.c .at.+e.r anT.11.01 v Olq rxa +wa x/ sr.= rear. O0.3.1. 0431 8 S.3/32 mr AN sw Hwr W aawc s¢ LW sMw wxa TO .mxm Oe p�au mw.w..0 TO wrw N.11. TOM e., Fn. .03 ^B c wnar. OREMOR FINISH SCHEDULE mm MR SET Of . wx.a Mr TM m, FOAM CIIP 1. TOT PP. 1111.1 P NS1HS wR I/Tsros =/le/m OO O MOOED PAM WPM 1.1m r.esa E. rug 2. wax Dame TT.. sm rmtt 3. W. MOW 7-.0. 9wm 1MIrt .. 04 MSA Smm..03.** 3.5 61201finnorp45mD12 SAD,, C. 3m 8.61904m E. 6131111467 SAN-707 TOYON PARK ELEVATIONS EAST ELEVATION 2 NORTH ELEVATION A4 RESOLUTION NO. 9-2003 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NATIONAL CITY, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY IN EL TOYON PARK, AT 2005 E. 4TH STREET APPLICANT: CINGULAR WIRELESS CASE FILE NO. CUP-2003-5 WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit application for a wireless communications facility in El Toyon Park, at 2005 E. 4th Street at a duly advertised public hearing held on April 7, 2003, at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearing the Planning Commission considered the staff report contained in Case File No. CUP-2003-5 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 April 7, 2003, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since the small 160 square foot facility can easily be accommodated within this 10.3 acre portion of the 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 facility will typically be visited one to two times per month and can be accessed by an existing paved service road from U Avenue, a residential collector street. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the facility is designed to be no more obtrusive than the light poles in the park. Additionally, the equipment enclosure has been designed to be compatible with the adjacent snack shop. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since it will improve the performance of the Cingular Wireless wireless communications network, resulting in enhanced service for its customers. EXHIBIT "D" re BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: 1. This Conditional Use Permit authorizes the construction and operation of a wireless communications facility up to 104 feet tall in El Toyon Park, at 2005 E. 4th Street. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform with Exhibit A, Case File no. CUP-2003-5. Additional antennas may be approved by the Planning Director if found to substantially conform with the design for installation shown on these plans. 2. Plans submitted for all permits shall be consistent with Exhibit B, Case File no. CUP-2003-5, dated 3/26/2003. 3. Plans submitted for the equipment enclosure shall specify that it will be of standard construction and not a modular building. Additionally, plans should note that the exterior materials and colors will be compatible with the existing accessory structures in the park. 4. Plans should note that the new pole and antennas will be painted with non -reflective paint to match the existing poles. 5. The permittee 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 rr: y 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 deteiiuined by the City not to be desirable in a specific case. 6. Any antennas, equipment or facilities that are abandoned, decommissioned, or become obsolete shall be removed. 7. 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. 8. Exterior walls of buildings/poles to a height of not less than 6 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. 9. Cingular Wireless shall obtain an approved lease agreement with the City of National City prior to the construction of the wireless communications facility. 10. Plans submitted for all permits shall include a fire suppression system approved by the National City Fire Department. 11. 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 Foimu within 30 days of its receipt shall automatically terminate the Conditional Use Permit. mac. • 12. 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 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 21, 2003, by the following vote: AYES: PRUITT, SALUDARES, ALVARADO, FLORES, BACA, MARTINELLI, REYNOLDS, GRAHAM. NAYS: ABSENT: ABSTAIN: CARRILLO City of National City Planning Department 1243 National City Blvd., National City, CA 91950 (619) 336-4310 ROGER G. POST - DIRECTOR June 6, 2006 Cricket Communications C/o: Deena Recine 24445 Stonehill Drive Dana Point, Ca 92629 Subject: Substantial Conformance request for a Wireless Communications Facility at El Toyon Park, National City, CA 91950 Dear Ms. Recine, This letter is to inform you that based on photo simulations and associated materials you submitted May 25, 2006, the Planning Department has determined the proposed facility to be in substantial conformance with CUP-2003-5 for an existing Wireless communications facility at this site. Thus, a Conditional Use Permit is not required. However, there will be stipulation as follows: • The facility shall conform with the Conditions of Approval for CUP-2003-5 (see attached Resolution). The plans and 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) 336-4319. Sincerely, MARTIN REEDER Planning Technician Attachments: Planning Commission Resolution 9-2003 EXHIBIT "E" Recycled Paper RESOLUTION NO. 2006 — 192 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE LEASE AGREEMENTS WITH CRICKET COMMUNICATIONS FOR THE INSTALLATION AND OPERATION OF ANTENNAE FACILITIES AT EL TOYON PARK AND SWEETWATER HEIGHTS PARK WHEREAS, On June 1, 2005, the City entered into a lease agreement, originally with New Cingular Wireless, for a portion of Sweetwater Heights Park, for the installation of a cellular antenna facility. On August 5, 2003, the City entered into a lease, originally with Pacific Bell Wireless, for a portion of El Toyon Park, for the same purpose; and WHEREAS, TMO CA/NV ("TMO") is the successor in interest to New Cingular Wireless and to Pacific Bell Wireless; and WHEREAS, on August 22, 2006, the City Council adopted Resolution No. 2006- 171, approving a Site License Agreement between TMO and Cricket Communications ("Cricket") for both the Sweetwater Heights Park and El Toyon Park sites to enable Cricket to install its own cellular antenna facilities on those sites; and WHEREAS, Cricket Communications desires to lease portions of El Toyon Park and Sweetwater Heights Park that are located outside the portions of park land leased by the City to New Cingular Wireless and Pacific Bell in the original lease agreements for the installation and operation of antennae facilities at each park that will be used for the operation of their communication business; and WHEREAS, the Planning Department has determined that the proposed facilities to be installed on the leased premises are insubstantial conformance with the Conditional Use Permits for the existing wireless communications facilities on the sites. 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 Cricket Communications for portions of El Toyon Park and Sweetwater Heights Park for the installation and operation of wireless communication equipment room and antennae facilities at each park. Said agreements are of file in the office of the City Clerk. PASSED and ADOPTED this 5th day of September, 2006. ATTEST: Mic ael Della, 'ity Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on September 5, 2006, by the following vote, to -wit: Ayes: Councilmembers: Inzunza, Morrison, Natividad , Parra, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: By: NICK INZUNZA Mayor of the City of National City, California A City blerk of th City bf National City, California Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-192 of the City of National City, California, passed and adopted by the Council of said City on September 5, 2006. City Clerk of the City of National City, California By: Deputy City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE September 5, 2006 AGENDA ITEM NO. 12 ITEM TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING LEAS AGREEMENTS WITH CRICKET COMMUNICATIONS FOR CELLUAR ANTENNA FACILITIES AT EL TOYON PARK AND SWEETWATER HEIGHTS PARK PREPARED BY George H. Eiser, III (Ext. 4221) DEPARTMENT City Attorney EXPLANATION On June 1, 2005, the City entered into a lease, originally with New Cingular Wireless, for a portion of Sweetwater Heights Park, for the installation of a cellular antenna facility. On August 5, 2003, the City entered into a lease, originally with Pacific Bell Wireless, for a portion of El Toyon Park, for the same purpose. TMO CA/NV ("TMO") is the successor in interest to New Cingular Wireless and to Pacific Bell Wireless TMO requested the City's consent to enter into a Site License Agreement with Cricket Communications ("Cricket") for both the Sweetwater Heights Park and El Toyon Park sites, to enable Cricket to install its own cellular antenna facilities on those sites. The City Council approved the Site License Agreements at the Council meeting of August 22, 2006. Some of the antenna facilities that Cricket will place on the Sweetwater Heights Park site and El Toyon Park site will be located outside the portions of park land leased by the City to New Cingular Wireless and Pacific Bell Wireless. As a result, Cricket is required to enter into leases with the City for the portions of park land that are not included in the leased premises under the orignal leases. The proposed resolution will apprve those leases. The Planning Department has determined that the proposed facilities to be installed on the leased premises are in substantial conformance with the Conditional Use Permits for the existing wireless communications facilities on the sites. The leases will be for a term of 5 years, with the Tenant having an option to renew for 4 additional 5 year terms. Starting rent will be $25,000 per year, with an annual increase of not less than 5 percent. The Tenant will be responsible for all taxes, utilities, and maintenance of the leased premises. Site plans showing the leased premises at each park site are attached. The lease agreements are avialable for review in the City Attorney's office Environmental Review '1 N/A Financial Statement N/A Approved By: Finance Director Account No. STAFF RECOMMENDATION Adopt resolution BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below ) Site plans Proposed resolution Resolution No. 2. p -' / 9 A-200 (9/99) RESOLUTION NO. 2006 — 192 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE LEASE AGREEMENTS WITH CRICKET COMMUNICATIONS FOR THE INSTALLATION AND OPERATION OF ANTENNAE FACILITIES AT EL TOYON PARK AND SWEETWATER HEIGHTS PARK WHEREAS, On June 1, 2005, the City entered into a lease agreement, originally with New Cingular Wireless, for a portion of Sweetwater Heights Park, for the installation of a cellular antenna facility. On August 5, 2003, the City entered into a lease, originally with Pacific Bell Wireless, for a portion of El Toyon Park, for the same purpose; and WHEREAS, TMO CA/NV ("TMO") is the successor in interest to New Cingular Wireless and to Pacific Bell Wireless; and WHEREAS, on August 22, 2006, the City Council adopted Resolution No. 2006- 171, approving a Site License Agreement between TMO and Cricket Communications ("Cricket") for both the Sweetwater Heights Park and El Toyon Park sites to enable Cricket to install its own cellular antenna facilities on those sites; and WHEREAS, Cricket Communications desires to lease portions of El Toyon Park and Sweetwater Heights Park that are located outside the portions of park land leased by the City to New Cingular Wireless and Pacific Bell in the original lease agreements for the installation and operation of antennae facilities at each park that will be used for the operation of their communication business; and WHEREAS, the Planning Department has determined that the proposed facilities to be installed on the leased premises are insubstantial conformance with the Conditional Use Permits for the existing wireless communications facilities on the sites. 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 Cricket Communications for portions of El Toyon Park and Sweetwater Heights Park for the installation and operation of wireless communication equipment room and antennae facilities at each park. Said agreements are of file in the office of the City Clerk. PASSED and ADOPTED this 5th day of September, 2006. ATTEST: Michael Dalla, City Clerk Nick Inzunza, Mayor APPROVED AS TO FORM: George H. Eiser, III City Attorney ABP"-'',ATIONS 1 IIMm VICINITY MAP crickt: Comfortable SWEETWATER 3859 NATIONAL CAGLE SAN-725 CITY, Wirelessum HEIGHTS STREET CA PARK 91950 0.1.05S.L 0 T AO' slANi� M U. µ W. ... . .0701Pirl _ "W.° R.Mm L. Et. Mu. cuSM My I¢,015C. a - foe MUM carr unman OR 4m. u, !WE I MPS. PRE ow. eon. OPi M ONXIL �. o.a« a meAs a n 0 W. DO 0 5 IA4m5ae w. RITM a vwf n ofmg 0 E_ M ECN IOUPPMS Spit' SOWN MP .000 r5. ill00 0. 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Kl %.-e- maw,Rd.SS.. • IN MEwuNn a V.C. ¢R6x# a 1661¢( sum . m leasmuxm or m. u.� .0.0.5 m .pro.. r.l..e..x • mwTwA.m.10CPSWM. NOT APPLICABLE FOR LAND USE PLANNING el mLE WEE no RYE M S�rz MA ..wlEw. .0 MSA wL al SannleproQ mZ1 nLBS%EmA r`°'�S°1° rsm . s..E.. s.vy --+- SYMBOLS '""' CODE COMPLIANCE -----ALL -or 1�.JI T//T//T// % Smnm wrgEwY 1n1 PSnE m Z 000 I.VWr KIM Rf[2x3 - � � _�__ M E .. M ww a. 0..3 ISQ SxC IE2.� loge mo WWWS OWL R pass.. AW oso:b A.Amon.A. 0.. a..moms 1116 MECO. MOM 4 ADOPTER Or b Z 05.52.O re MO.., KB 00.0I0c GNEM. MINS M rKT RM5 5 1R AR¢].n 9 r 500. aCam0E afro .[[0 1. 0500 ....r 00 ]M1 6d . pracmRM1 xwrac c0¢'.vc Y/Err c 000 NwM..'. .....4 on w . e:uslw car rouorep -- Axv ME ._ ESSIRI[ cam.. me -- [ASM�M WMW YSRv WA A 00. 00000.0 ss'_0' me wmNe a P.m. m..0eme n Moro P.PO. ttcsP.[Y ME: 9 Mon ME 50 1. Arne v-x Mona ME zmv..n SW. ./. u.vr zo.la. m orcR v.L700 v'renrEEs .M rap PpPIICANlAES4E PROPERTY IrvI"OPUPMOx CONSULTANTS LEGAL DESCRIPTION (�_EOy6,YATS] . 0577.0 , MEM,. nrcr.C% 1•.. PPmm V .xp.mRTP UMW NO 6.00 IY u . • ETINM ORN.. SP, SURE ISO MA .MUM.. a RAW. m'a4u[nlaurmA. Ovee no MAMA v�nxrt Az cORT.csOE 0600: IMS� SE6_55.0 .000 0Ew 000.0 PIM. OM) 5%6)a ywy®pty 0. s.e. 00E00. 0.1. IMC ..aem .Y .....0 SAN. My:uRR P. pop F.. 17: 6n7 -Be. COMM N •07 MP irwl ma.0o w.[: IT>)1 ev-.n6 IN TO IRmE« pp. IX.. room : i irza ¢�5m SS cover. AGOG. SUM CP., u H6.R.c nr %� K MI Gli. N r. ME of FOOT sumo IM .M M[ cp.n .( Or ME'A.m iWr SOW O. T S W O. MFx w EASEWw Mt NOM 0emosEs S RS¢.Bo 1..E %R PM Lure CORP.. L N .m P... T wm am. a. m a m0s..cares . SUM M.T. im Aver Or RO M EO. %K POGO 10N. LNG (..... N.I. N G NS NN.Mu S.[ s0urwsrz.r coven Or r..nrxusrcnr worm or SUM uuarz Ia• •m; .x[xc[ .Lac nrt a.. ........ 0wprx[ Aim of A�w. OMiG. S0.cOMSEI MO100 10.5.w.s A 5 II a r ¢ 1x..... 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Toor um m.a NMI vu.. c0R¢0. ma ma PACE x xEm, .ca. x sou coon: 'ilocE .o. zoo SW.MRo °o, o{, sa.x sf56b' �K6 6050 55 Ammoorob %1 rtw.ES Aro mar .. rcmL¢w a Boon . x a .mRa v 5. cow. rnEecE ern, ARE se MO IA. sou. 65Nc As1 l.mo (mom TITLE SHEET caM cm m moo. ore E51,0 w come. AOCREss. .5.wWL un R. L.ma. a u.I.: 0.12 . on, u 5.%-.501 w edmo oR.z Rua ..S cox., __ o.. � iawc Pdux h -- wP.x_ %.-190-u ^ •'A.E sem,. CAM LEL,0 vend „..' EAsr. *4 . 0 0000 ...MO . art ACu4�M w m[ c .¢ 1 a ..6rnun 0,00 % 0. Epp, T 1 aw aMS Morn 54.0..E 051. M. eite Ia...0. nrt I E Part E555.5 .rear .n 15m rm. to %R a . MOM • •.5 cE LEch x pow was ¢ coM5 WSIYMKx w.e[R LEM nos K PS L A. q 0A ryEGK xs x nos REF.R. M 5 ..M01C x M • • / \ \ \ \ • \• • ix \ — Y • \• SITE PLAN LEGEND PROM, LW • • KEY NOTES: OM 55\0. 007000 OO) COWro ro u�wen-c' xs xn.Nws p TO auxrta .aana .0 cm 1010*7*0*11 c0!07*w0ommMai OM .wr. NI e¢+wx a w0N uxc «nrn MOM, R0 R 0Msro Oro AG. MM... 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TA3' B 85' EMS BRR65-18-%YDP 55 H x 8'M x 2.75 0 IT 343' 190' EMS /RR6S-16-YYDP SSH x 6'' 0 2.35"D 1 0 ;IS ANTENNA SCHEDULE. 3 ENLARGED PARTIAL SITE PLAN WA WWI,. <>1111 rnan *MISS a roix] ROM. PEAS OIh aNm saes nxr vo.m/HmR mmni O1n MN SW Oln ',CMS Y<. MANOR MAI Qro 01.4R weans u.0. mun. WO Os. s wrMu NOW ®fxl vo.mrnn ruwT (H1) OM +wr .192 MOO m IN[xwr 0spsr ®IO 00 WM owe us rtxx ®In se mm no-ms en soma Pere. g(n 0.IpM ®mmwwIFD0OI ®I0,K.MN w m.. vu nmlw rWj m.Y C'Nf vVR1 NT a.».. w. YALE' 1 PENSIONS I/MVm MRMNr ms m wvm m vwo. 6 MSA n.fSmmn hNLVIIfA swat* • 6w.. -.e.nm SAN-725 SWEETWATER HEIGHTS PARK ENALRGED PARTIAL SITE PLAN & ANTENNA MOUNTING DETAIL A2 N9 9 Ehyi _ tltl a fl OS1. ® sae ®}�DL�J IUD6tlINtl0iINJ'00310 uns'1tlf1003NO15tl3Ntl000919 aj I IM T eIQ9l10i1000 NV9 �taiil 1�L�fr iG 1 pA 34 1 Ei qq S.�E� J 9 Y icy LH 3- nwICC � I Pi' 2 W W M CM "x k a' S 1 ? 0. 2 Y a _ i '1 ;pp Q6 b pe„i t. p§ i y1 6 3! V# 3 s&s: �.,s 2& e .s P.E 2 E a: S e <><>0 000.0-0-04®0®4>0®©4>.1> � si e- SH SCHEDULE I mw I w, {Km fa $ i j i a 1 fx 1 3 '? 9 1 e I-0e 00 0 I SOUTH ELEVATION '.",,`b• I p r Id 1 I EAST ELEVATION .o-s4 MIMIw (l)V .0_, fXI,ryN, 55413WN. 1]gIW 1C)'L'3 0 t2Y Eir 11., 1 f I A� IILJP^_C _ 0 o O ,yyt,FF -�1 1a O 01 S r 1 yur�(( �,1� V II r az -- n i O r, » w 4!}5`e L'.. . ry 'am i s O - O O O 0 3 a. itrSl. 7F��, A }4 t. O 6wu3,1M1 P60x-3 {)) '0'1 �0-,fS NORTH ELEVATION sccce 1 KEY NOTES: <> >»-B MEN e040.1XL O(rl COT nnl,ds AWAY. 0 T0Tal . un,xn 10 (9 coon,[ WV FOR WOOS LWOW BY ROOMY PROM, (9/h con 0a,•Am woo cat ooze eeBler CCNRM[O nIM1 A COMMA= MTgMCR OS MK°. A910YY5 O19 snrrt ernowm cr cc mom VW! 110.401 Oe IC)T-mc.wrOlwl ®V) os wrz1., OV) PO.m/T.00 CAbC (1,0 ®p9 nue rad ®l9 BITe. m. �N N von ©CI cur XV= Mod m Rocco,. most oco PR.. w ROOMco.. :RO PROW 1«,a• V•.• OW. ROAM PROMOAke WW1•/�u ®,,/ Arc.a n// E1[ Acm. M[ RUMP .' Pcoracocc LOCLOSURC VTR f51TI nv REVISI0t$ 1/Inwn. [03 1/.r ]O. I/"1L 1YC,� EXTERIOR FINISH SCHEDULE COW 0 OO 14014 vwr IMICX 0• CD Noma YAK DOTING CW/ID,06 IlW/141WT 1,Bew1 MSA .waY..alry M. @nrremHa,Seem Se Die, EL NM FIT ssleen F rases ue n.oe .•S ../� . 1.41v 4C WA: SAN-725 SWEETWATER HEIGHTS PARK ELEVATIONS WEST ELEVATION 2 A4 ABBRF\(IATIONS m in MOE 9W[,Ex VICINITY MAP TEE,,,,.' Co xnx ,Hx ur �wvRn M Ens aE a �rwr a«x xFiNE1 J:IRNiU1pA5 6 In sunnM ur u6acon � �r n r AN. I an II O° CxC:YT , M x COIIRLLT M NOR x.^Alx" MOW. IErm 6u anm6 amarms•", CMC C¢MR. wIXMOM m UN Os OU.DE arm 6�A 6Mr ota ��w CONC CONCRETE coon. ,,00p,os ma nan °R R of MOMS 6mrriaAm CI MMN. Rob 6E..0 DOOPKr Ds. Co. sPOur On 01.1.0 W Kr E0 ELEV.. En_ ass. S(f.0w. n Err alriore u. SOMA. MEL M 11W6 °""" "° SAE."""°' m r o NNE 6w Tavoxw.y/n»ExnwE na 6 cac/wre ru 6 aro. r:a% rrc 6 xLLM. in"S. FACE Orr ...SW1Fl4 a CONCROE n T ws Kona. T.O.P. TOP 6 RATE PUS. To:n: 6 aWLL • FEUA6 rnp-"' TTo96Fnµ1Wrlro 040010) Fro MMc .ban 6oAo vii x �omm040 ru I ..,� N. 0 Mr nI 'E< cm 6oNNA IN„""'"`°r MI. MOSE MO H/ .0 MGHwMIC ,Anta noMmHW" OPUS. uC rsuimro:uEERW WOO TOR .1.C.L. Las • refM.rom �1F __ _ '< _ i!'�'�SU J ) \ crick'et: E/1]/S Comfortable Wireless TOYON PARK 2005 'C' EAST 4TH STREET NATIONAL CITY, CA 91950 ® ® Io +, 0 la mff r os __ MTn w6..AR 6 ma anr. A> RE Ql PER TONL Ong KUMIl 000)0. Ea M r. LIIO * ..En . m NOT 913030 2]OCCCES SAN 70 7 - o • - ` 2 PROJECT DESCRIPTION SPECIAL INSPECTIONS SHEET INDEX u4 E g w . • o ��:nwE mE Eouewlc:6 rR mmxcmx 6..: iEwwiEo msw.6.¢.me f.�6:T i0 • Os) moo.. 6 0) OMIT MOOR nartr pre onion Og wENnm A MI wxc. rA xsnwn.6 (9 Pon WM.. AN.. OR NA Mg... unx . ONNato. X 6 xa ..... A P... cON. . (a) W.I. x 6 ua 09! CAM Rai: [ ..vs.. lc woo.NOVpwe..Miig.M. (a) rmumx 6 0) EA r0+x Mon. In Tin ME a T E [I) HOAR CAME" it mR srim SPE CON Al. TPL... arm art rut. 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TOM. a aloe MSA eros2142282 2BM tlIDAfimvo1l ➢ 2 Sn Nest 92I1111 nS19e.00 R.6ESritK/ m tr.*. • SOW.. f.. Mm 2.2 SAN-707 TOYON PARK ELEVATIONS EAST ELEVATION SOLO 2 NORTH ELEVATION A4 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 20, 2006 Cricket Communications, Inc. Attention: Property Manager 10304 Pacific Center Court San Diego, CA 92121 Project: National City — Antennae Facilities at El Toyon and Sweetwater Parks Dear Property Manager: On September 5, 2006, the City Council of the City of National City passed and adopted Resolution No. 2006-192, authorizing a lease with Cricket Communications at El Toyon and Sweetwater Heights Parks. We are pleased to enclose one fully executed original contract and one certified copy of the Resolution for your records. Should you have any questions, please contact the City Manager's Office at (619) 336-4240. Sincerely, Michael R. Dalla City Clerk MRD Enclosure cc: City Manager Engineering Cricket Communications Legal Dept. File C2006-42 9 Recycled Paper