HomeMy WebLinkAbout2007 CON Cricket Communications - Lease Camacho GymnasiumLEASE AGREEMENT
This Lease Agreement ("Lease") is entered into this 18 ., th day of Sept.. , 2007, by and
between the City of National City, a Municipal corporation ("Landlord") and Cricket
Communications, Inc., a Delaware corporation ("Tenant").
RECITALS
A. Landlord is the owner of the real property known as "Louis J. Camacho Gymnasium "
("Landlord's Property") located in the City of National City, San Diego County, State of
California.
B. Tenant desires to lease a portion of Louis .1. Camacho Gymnasium for the installation and
operation of an equipment cabinet 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:
Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord a portion
of Louis J. Camacho Gymnasium 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 facade mounted antennas on the building as shown on the 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 Lease is not a franchise pursuant to Chapter 6.10 of the National City Municipal
Code or is it a permit to use the right-of-way under Chapter 13.12 of the National City
Municipal Code. Any such franchise or permit must be obtained separately from
Landlord.
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SCPrE"RA!es
2. Term. The term of this Lease shall be live (5) years, commencing on .44Agust-2,2, 2007
(the "Commencement Date") and ending August 21, 2012. Provided that Tenant is not in
breach of any of the portions of the provisions of this tease, "Tenant may extend the
initial term of this Lease for four (4) successive five (5) year terms, upon giving Landlord
ninety (90) clays' prior written notice of its intention to extend.
If this Lease is terminated by the Landlord based on any of the grounds specified in
Section 17 of this Lease, the termination shall be effective thirty (30) calendar days from
the date of delivery of the notice of termination if Tenant, within such thirty (30) day
period, has not cured such default. 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 Date. Tenant shall pay Landlord Rent annually in advance on
each anniversary of the Commencement Date. Beginning with the first
anniversary of the Commencement date, the Rent paid shall be increased by five
percent (5%) each year. Beginning with the 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 hear interest until paid at the lesser of the rate of
two percent (2%) per month or the highest rate pennitted 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 tennination 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
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to Leased Premises and its landscape or hardscape caused by such equipment,
normal wear and tear excepted, 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, he 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. 'laces. "Tenant recognizes and understands that this Lcasc 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 Conunission 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 regulations issued by the Federal Communications Commission
FCC) and that its use of Landlord's Property does not interfere with Tenant's use
of the Leased Premises. Landlord shall include a provision in any agreement with
a new Carrier, which provides that installation and use of its communication
equipment shall not interfere with Tenant's use and operation of its
communication system. The Carrier will provide the Landlord and Tenant with a
certified evaluation prepared by a telecommunications engineer that its 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
Tenant's Antennae Facilities. If Tenant determines that the Carrier's installation
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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 independent telecommunications engineer to evaluate the
potential interference problems, the cost to be borne equally by Landlord and
Tenant. If that independent engineer determines that the proposed installation will
not interfcrc with "Tenant's Antenuiac Facilities, then the carrier may proceed with
its installation. Ilowever, 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 5 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 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 that the installed facilities cannot support the additional installation,
then Tenant must notify the Landlord in writing of its findings no later that twenty
days after receipt of the certified evaluation. 'Tenant shall provide all
documentation supporting its findings to landlord and Tenant shall hire a mutually
agreed upon qualified engineer to evaluate whether the installed facilities can
support the additional installation, the cost to be borne equally by Landlord and
Tenant. If that engineer determines that the installed facilities will support the
additional installation, then the Carrier may proceed with its installation.
However, if the independent engineer determines that the installed facilities
cannot support the additional installation, then the Carrier cannot proceed with its
installation unless and until it can satisfy the engineer that the installed facilities
can support the additional installation. Once it has been determined that the
installed facilities can support the additional installation and that the installation
will not interfere with Tenant's Antennae Facility as set forth in section 5a, then
Carrier shall execute a sublease agreement with Tenant setting forth the rights,
duties and obligations of each party, including the rights, duties and obligations of
each party with respect to interference with the communication equipment of the
other party, access to each party's equipment and maintenance and repair of each
party's equipment.
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d. In the event that any equipment installed pursuant to any future agreements for the
installation of communication/radio equipment on Landlord's Property, other than
any equipment installed on Tenant's installed facilities, does cause interference
with Tenant's 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 Tenant agrees to comply with any rules and regulations that Landlord may
promulgate at any time in reference to utilization of Landlord's Property so long
as those rules do not unreasonably interfere with Tenant's rights to operate its
communication system. It is understood by Tenant that the Landlord's Property is
used by Landlord as a gymnasium 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
CI JP.
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
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,
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including any structural reinforcement necessary to support Tenant's equipment,
and Tenant shall maintain the Leased Premises throughout the term in good and
safe condition, free of litter or other items relating to Tenant's use, and so as not
to create unsafe conditions or an interference with access for any Tenants or other
parties, and with all visible areas maintained in a condition at least equal to that of
the other facilities on the Property.
b. Tenant shall have the right, at its sole cost and expense, to install, operate and
maintain on the Property, in accordance with good engineering practices and with
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-2003-5 dated 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 shall not locate or
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 he accompanied
by a complete and detailed inventory of all equipment, personal property, and
Antennae Facilities.
c. 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.
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f. Any change to Tenant'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 (CPIJC).
g.
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 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 1,cascd 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.
10. Premises Access.
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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 Permit
for such utilities as Tenant deems necessary to serve the Leased Premises. Said
Encroachment Permit shall be for the installation and maintenance of necessary
utilities from the point of the connection with the Utility Companies' distribution
network to Tenant's facilities. The Encroachment Permit shall be over, under or
across such portion of Landlord's Property as is reasonably necessary for the
installation, maintenance and/or repair of such utility services, provided that such
access 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 Pretises 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.
I I. Utilities. Lessee shall have the right to install utilities, at Lessee's expense, and to
improve the present utilities on the Property (including, but not limited to, the installation
of emergency power generators) reasonably necessary to provide service to the
Communications Facility and Lessee shall have the right to install necessary conduit and
sleeving from the roof to the point of connection within the Building. Lessor agrees to
use reasonable efforts to assist Lessee to acquire such utility service. Lessee shall,
wherever practicable, install separate meters for utilities used on the Property. In the
event separate meters arc not permitted by the local utility company servicing the
Premises, Lessee shall furnish and install an electrical submeter at the Premises for the
measurement of electrical power used by Lessee's installation. Lessee shall pay I.essor
Two Thousand Four Hundred and 00/100 Dollars ($2,400.00) per year, in advance, for
the electrical power used by Lessee's installation. Lessor or Lessee may perform an
annual audit within ninety (90) days following the end of each lease year of Lessee's
electrical power usage based on the submeter reading and may request from the other an
adjustment based on the actual electrical power used at the same rate paid for such
electrical power by Lessor to the servicing utility. Said adjustment shall be paid to Lessor
or credited to Lessee within thirty (30) days following presentation of a written statement
that amounts have been overpaid or underpaid. Lessor agrees to cooperate with Lessee to
perform such audit including, but not limited to, the review of Lessor's invoices received
from the servicing utility. Lessor shall, at all times, provide electrical service and
telephone service access within the Premises. Lessee shall be permitted to install,
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maintain and/or provide access to and use of, as necessary (during any power interruption
at the Premises), a temporary power source. Lessor shall diligently correct any variation,
interruption or failure of utility service. The utilities contemplated in this Section shall be
installed and maintained in compliance with the requirements set forth in Section 7
herein.
12. Permits and Business license Fees. 'Tenant 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's 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 he 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, that issues of radio frequency interference with the operations of any
other tenants on Landlord's Property that are communications carriers arc deemed
covered by the provisions of Section 5(a) and 5(h) 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. It' 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
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this Lease and does not curt 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
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 (h)
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 he 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
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subject to Tenant's reasonable approval; and (2) the amount of any Rent pre -paid
by Tenant.
18. Liquidated Damages —Termination. Notice of Tenant's termination pursuant to paragraph
17(a) or (b) shall be given to Landlord in writing by certified mail, return receipt
requested, and shall be effective upon receipt of such notice. All rentals paid for the
Lease of the Property prior to said termination date shall be retained by Landlord. 1 Jpon
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 comparable substitute of the existing 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 'I enant.
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
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out of Tenant's construction, maintenance, repair, use, operation, condition or
dismantling of the Leased Premises or Tenant's Antennae Facilities.
b. Indemnification. Tenant shall, at its sole cost and expense, defend, indemnify and
hold harmless Landlord and its officials, hoards, 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
he imposed upon, incurred by or be asserted against the indemnitees by
reason of any act or omission of Tenant, its personnel, employees, agents,
contractors or subcontractors, resulting in personal injury, bodily injury,
sickness, disease or death to any person or damage to, loss of or
destruction of tangible or intangible property, libel, slander, invasion of
privacy and unauthorized use of any trademark, trade name, copyright,
patent, service mark or any other right of any person, firm or corporation,
which may arise out of or be in any way connected with the construction,
installation, operation, maintenance, use or condition of the Leased
Premises or Tenant's Antennae Facilities or Tenant's failure to comply
with any federal, state or local statute, ordinance or regulation.
ii. Any and all liabilities, obligations, damages, penalties, claims, liens, costs
charges, losses and expenses (including without limitations, reasonable
fees and expenses of attorneys, expert witnesses and other consultants),
which are imposed upon, incurred by or asserted against the indemnitees
by reason of any claim or lien arising out of work, labor, materials or
supplies provided or supplied to Tenant, its contractors or subcontractors,
for the installation, construction, operation, maintenance or use of the
Leased Premises or Tenant's 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
City of National CityiCrickct Communications 12
Lease Agreement
Camacho Gym
such claims arise out of the sole negligence or willful misconduct of one
or more indemnitees.
c. Assumption of Risk. Tenant undertakes and assumes for its officers, agents,
affiliates, contractors and subcontractors and employees (collectively "Tenant" for
the purpose of this section), all risk of dangerous conditions, if any, on or about
the Leased Premises, and Tenant hereby agrees to indemnify and hold harmless
the Landlord against and from any claim asserted or liability imposed upon the
lndemnitees 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 I..andlord
and provided farther that Landlord shall not admit liability for, nor enter into any
compromise or settlement of, any claim for which it is indemnified hereunder,
without the prior written consent of Tenant.
e. Notice, Cooperation and Expenses. Landlord shall give Tenant prompt notice of
the making of any claim or the commencements of any action, suit or other
proceeding covered by the provisions of this paragraph. Nothing herein shall he
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 IIundred Thousand Dollars ($100,000) for each accident.
ii. Comprehensive commercial general liability insurance with minimum
limits of Three Million Dollars ($3,000,000) as the combined single limit
for each occurrence of bodily injury, personal injury and property damage.
The policy shall provide blanket contractual liability insurance for all
written contracts, and shall include coverage for products and completed
operations liability, independent contractor's liability; coverage for
property damage from perils of explosion, collapse or damage to
underground utilities, commonly known as XCU coverage.
City of National City/Cricket Communications 1 3
Lease Agreement
Camacho Gym
g.
iii. Automobile liability insurance covering all owned, hired, and non -owned
vehicles in use by Tenant, its employees and agents, with personal
protection insurance and property protection insurance to comply with the
provisions of state law with minimum limits of Two Million Dollars
($2,000,000) as the combined single limit for each occurrence for bodily
injury and property damage.
iv. At the start of and during the period of any construction, builders all-risk
insurance, together with an installation floater or equivalent property
coverage covering cables, materials, machinery and supplies of any nature
whatsoever which are to be used in or accidental to the installation of the
Antennae Facilities. Upon completion of the installation of the Antennae
Facilities, "Tenant shall substitute for the 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 he
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.
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 famish 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, hoards,
commissions, employees, agents and contractors, as their respective interests may
appear, as additional insureds (herein referred to as the "Additional Insureds").
Each policy which is to be endorsed to add Additional Insureds shall contain
cross -liability wording, as follows:
"In the event of a claim being made hereunder by one insured for which another
insured is or may be liable, then this policy shall cover such insured against
whom a claim is or may he in the same manner as if separate policies had been
issued to each insured hereunder."
('ity of National City/Cricket Communications 14 Lease Agreement
Camachu Gym
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 claiin or litigation that may result in liability to Landlord.
i. Cancellation of Policies of lnsurancc. 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
indemnify and save harmless Landlord, the indemnitces and Additional Insured
from and against the payment deductible and from the payment of any premium
on any insurance policy required to he furnished by this Lease.
1. Contractors. Tenant shall require that each and every one of its contractors and
their subcontractors who perform work on thc 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 thc 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 he 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
City of National City/Cricket Communications 15
Lease Agreement
Camacho Gym
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, indemnify and hold 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 he 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 injuries due to EMFs to 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
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 he 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 he 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.
City of National City/Cricket Communications 16
1.casc Agreement
Camacho Gym
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 or warranty as to the condition of the Leased Premises, and
Landlord shall not be liable for any latent or patent defect in the Leased Pretises, except
as otherwise stated herein.
29. Estoppel Certificate. Tenant shall, at any time and from time to time upon not less than
ten (10) days prior request by Landlord, deliver to Landlord a statement in writing
certifying that (a) the Lease is unmodified and in full force; (b) the dates to which rent
and other charges have been paid; (c) as for the person making the certificate knows,
Landlord is not in default under any provisions of the ',ease; and (d) such other matters
as Landlord may reasonably request.
30. Notices. All notices, request, demands, and other communications hereunder shall he in
writing and shall be deemed given if personally delivered or mailed, certified mail, return
receipt requested, to the following addresses;
If to Landlord, to:
City Manager
City of National City
1243 National City Boulevard
National City, CA 91950-4301
With a copy to:
Maryam Babaki
City Engineer
City of National City
1243 National City Boulevard
National City, CA 91950-4301
If to Tenant:
Cricket Communications, the.,
4031 Sorrento Valley Boulevard,
San Diego, CA 92121
Attn: Property Manager
With a Copy to:
City of National City/Cricket Communications 17 Lease Agreement
('amacho Gym
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.
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 arc
no representations or understandings of any kind not set forth herein. Any
modifications of or amendment to this Lease must he in writing and executed by
both parties.
c. This Lease shall he 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.
City of National City/Cricket Communications 18
Lease Agreement
Camacho Gym
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 I,andlord 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 arc 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.
h. 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.
- Signatures to Follow -
City of National City/Cricket Communications 19 Lease Agreement
Camacho Gym
I,ANDI.OR1)
TENANT
CITY OF IONAL, CI' �' , Cricket Communications, Inc., a Delaware
A cipal corp f/ corporal
wry. By:
'TV` Ron MooName: Name: lonald R. Simmons
Title: Mayor 'I'itic: Director of Operations, West Region
Date: 17///p7
Date: September 2007
APPROVI+,D AS "1'O FORM:
George H. Kiser, III
City Attorney
I )ate: September 4, 2007
Name: Ril1f/� onard
Title: Vice President of Technical Operations
Date:
's RL 1 07..
City of National City/Cricket Communications 20 Lease Agreement
Camacho Gym
EXATBIT A
18TH STREET
LAS PALMAS ELEMENTARY SCHOOL
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LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of San Diego, described as follows:
The North 'Three Quarter of the Southwest Quarter of Quarter
Section 128 of the Rancho De La Nacion, in the City of National
City, County of San Diego, State of California, according to
Map by Morrill No. 166, filed in the office of the County
Recorder of San Diego County, May 11, 1969.
Hxcept those portions as granted to the State of California in
various deeds of record.
End of Legal Description
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EXHIBIT l.)
City of National City Planning Commission Resolution No. 9-2003
(Attached)
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Cricket Communications, Inc.
10307 Pacific Center Court
San Diego, CA 92121
Attn: Legal Department — Real Estate
(Re: SAN-704B)
(Space above this line for Recorder's use)
Memorandum of Lease
Between City of National City, a Municipal corporation, ("Lessor") and Cricket Communications, Inc., a Delaware
corporation ("Lessee").
A Roof Top Lease ("Lease") by and between City of National City, a Municipal corporation, ("Lessor")
and Cricket Communications, Inc., a Delaware corporation ("Lessee") was made regarding a portion of the
following property:
Sec Attached Exhibit "A" incorporated herein for all purposes.
The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the
"Commencement Date") and shall terminate at midnight on the last day of the month in which the fifth (5th)
anniversary of the Commencement Date shall have occurred. Lcssec shall have the right to extend this Lease for
four (4) additional five (5) year terms.
IN WITNESS WHEREOF, the parties hereto have executed this memorandum effective as of the date of
the last party to sign.
LESSOR:
CITY OF
A Mu
By.
IONAI. CITY,
corporal' n
n Morrison
Title: Mayor
Date: 9/4/07
APPROVED AS TO FORM:
George H.Eiser, III
City Attorney
Date: 9/4/07
LESSEE:
Cricket Co 'cations, Inc., a Delaware corporation
13y:
Name: Donald R. Simmons
Title: Director of Operations, West Region
Date:
13y:
Name: B �n
Title: Vice President of Technical Operations
Date: eievo 4
EXHIBIT A
Legal Description
The Property of which the Premises are a part is legally described as follows:
The land referred to herein is situated in the State of California,
County of San Diego, described as follows:
The North Three Quarter of the Southwest Quarter of Quarter
Section 128 of the Rancho De La Nacion, in the City of National
City, County of San Diego, State of California, according to
Map by Morrill No. 166, filed in the office of the County
Recorder of San Diego County, May 11, 1969.
Except those portions as granted to the State of California in
various deeds of record.
End of Legal Description
LESSOR'S ACKNOWLEDGEMENT
STATE OF )
) SS.
COUNTY OF
On , 200 before me, , notary
public, personally appeared , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
STATE OF
) SS.
COUN'I'Y OF
On , 200 before me, , notary
public, personally appeared , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
LESSEE'S ACKNOWLEDGEMENT
STATE OF OKLAI IOMA
COUNTY OF rulsq
1 certify that 1 know or have satisfactory evidence that Donald R. Simmons and Hill J. Leonard
are the persons who appeared before me. and said persons acknowledged that they signed this instrument,
on oath stated that they were authorized to execute the instrument and acknowledged it as the Regional
Network _Director, Western Region and Vice President of Technical Operations of Cricket
Communications, Inc. to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
Dated: ibliuo1 s.}-R) Zifa.7
C.ykNri!1/t J a'gssW t`1
My commission expires: T l.JZ. Cif,/ 7001
EXHIBIT "D"
RESOLUTION NO. 35-2007
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CYI'Y OF NATIONAL, CITY, CALIFORNIA,
APPROVING A CONDITIONAL IJSE PERMIT
FOR A WIRELESS COMMUNICATIONS FACILITY
IN LAS PALMAS PARK AT 1810 22ND STREET
APPLICANT: CRICKET WIRELESS
CASE FILE NO. 2007-14 C11 P
WIIEREAS, the Planning Commission of the City of National City considered a
Conditional Use Permit application for a wireless communications facility in Las Palmas Park at
1810 22nd Street at a duly advertised public hearing held on May 21, 2007 at which time oral and
documentary evidence was presented; and,
WIIEREAS, at said public hearing the Planning Commission considered the staff report
contained in Case File No. 2007-14 CUP 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,
WIIEREAS, 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 Conunission of the City of
National City, California, that the testimony and evidence presented to the Planning Commission
at the public hearing held on May 21, 2007, support the following findings:
1. That the site for the proposed use is adequate in size and shape, since the proposed
antennas and associated equipment are to be incorporated into an existing building
and will not increase the footprint of that building, thus not affecting parking or
at,(h,ss.
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 is only expected to generate one to two trips per month for
maintenance staff and is unlikely to have any impacts on adjacent traffic.
3. That the proposed use will not have an adverse effect upon adjacent or abutting
properties, since the six-inch wide, six-foot tall antennas are located 175 feet from
the nearest residence, 750 feet from i As Palmas Elementary School, and will not be
noticeable located on the large recreation center building_
4. That the proposed use is deemed essential and desirable to the public convenience
and welfare, since it will improve the performance of Cricket wireless
communications network, resulting in enhanced service for its 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 installation of a wireless communications
facility at 1810 E. 22nd 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. 2007-14 CUP, dated April 23, 2007. Additional antennas must
substantially conform with the design for installation shown on these plans.
2. The permittec shall not object to co -location of additional facilities of other
communication companies and sharing the project site, provided such shared use
does not result in substantial technical or quality -of -service impairment for the
permitted use. In the event a dispute arises with regard to co -locating with other
existing or potential users, the City may require a third party technical study at the
expense of either or both the applicant or the complaining user. This condition in no
way obligates the City to approve any co -location proposal if it is determined by the
City not to be desirable in a specific case.
3. Any antennas, equipment or facilities that are abandoned, decommissioned, or
become obsolete shall he removed.
4. Building plans shall note that. all antennas and rooftop equipment will he painted to
match the exterior of the building, and will meet Code Section 18.86 with regard to
screening of all rooftop equipment, and antennas on the building facade will not
extend above the height of the existing parapet wall.
5. An eight -foot high, locking, chain link fence surrounding the equipment enclosures
must be installed prior to operation of the wireless facility.
6. 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.
7. Cricket Wireless shall obtain an approved lease agreement with the City of National
City prior to commencement of the construction.
8. Project shall he designed, developed, and constructed in compliance with the
California Fire Code (CFC) 2001 edition or CFC in effect at time of permit issuance
and the most current National Fire Protection Association (NFPA) Standards as
adopted by the City of National City.
9. Television cable companies shall be notified a minimum of 48 hours prior to filling
of cable trenches.
10. Within tour (4) days of approval, pursuant to Fish and Game Code 711.4 and the
California Code of Regulations, "Title 14, Section 753.5, the applicant shall pay all
necessary environmental filing fees for the San Diego County Clerk. Checks shall
be made payable to the County Clerk and submitted to the National City Planning
Department. At this time, the filing fee is $50 for a Notice of Exemption or Notice
of Determination, $1,800 for a Negative Declaration or Mitigated Negative
Declaration, and $2,50) for an Environmental Impact Report
11. Before this Conditional Use Permit shall become effective, the applicant shall sign
and have notarized an Acceptance Nona, provided by the Planning Department,
acknowledging and accepting all conditions imposed upon the approval of this
permit. Failure to return the signed and notarized Acceptance Form within 30 days
of its receipt shall automatically terminate the Conditional Ilse Pciinit.
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.
('ERTIFICATION:
This certifies that the Resolution was adopted by the Planning Commission at their meeting of
May 21, 2007, by the following vote:
AYES: Alvarado, Pruitt, Flores, Reynolds, Del,aPaz
NAYS:
ABSENT: Carrillo
ABSTAIN: Baca
CIIAIRWOMAN
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-IMuuTo/. -/Jo L.oM I !PM AbY!Ca IY PAPA., AP/.ZAP,.
RESOLUTION NO. 2007 — 221
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A
LEASE AGREEMENT WITH CRICKET COMMUNICATIONS, INC.
FOR A PORTION OF LOUIS J. CAMACHO GYMNASIUM FOR
THE INSTALLATION AND OPERATION OF AN EQUIPMENT CABINET
AND CELLULAR COMMUNICATIONS ANTENNA FACILITIES
WHEREAS, Cricket Communication, Inc. ("Cricket"), a telecommunications
company, is currently installing antenna facilities throughout the region to provide increased
service to their subscribers; and
WHEREAS, because certain regional geological features interfere with
telecommunications, Cricket has investigated the local areas, and have determined that one of
the optimum locations for an antenna facilities is within Las Palmas Park on top of the Louis J.
Camacho Gymnasium ("Gymnasium"); and
WHEREAS, installation of the antenna facilities will require the placement of
equipment on or in the gymnasium, and the use of power from the gymnasium for the operation
of the equipment; and
WHEREAS, at it's regular meeting held on May 21, 2007, the Planning
Commission approved Resolution No. 35-2007, for the installation and operation of an
equipment cabinet and cellular communications antenna facilities at the Gymnasium at the Las
Palmas Park.
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 a portion of Louis J. Camacho Gymnasium for the installation and
operation of an equipment cabinet and cellular communications antenna facilities. Said
agreement is on file in the office of the City Clerk.
PASSED and ADOPTED this 18th day of S
Ron Morrison, ayor
ATTEST:
APPROVED AS TO FORM:
CD .10:lit
George H. Eiser, III
City Attorney
Passed and adopted by the Council of the City of National City, Califomia, on
September 18, 2007 by the following vote, to -wit:
Ayes: Councilmembers Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: Councilmember Zarate.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Mayor of the City of National City, California
w 4 %- City Cle of the City of ational City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2007-221 of the City of National City, California, passed and
adopted by the Council of said City on September 18, 2007.
City Clerk of the City of National City, California
By:
Deputy
caoor•ti'A
City of National City, California
COUNCIL AGENDA STATEMENT
MEETING DATE September 18, 2007
AGENDA ITEM NO.
6
ITEM TITLE Resolution of the City Council of the City of National City authorizing the Mayor to sign a
lease agreement with Cricket Communications Inc. to lease a portion of the Louis J. Camacho Gymnasium
for the installation and operation of an equipment cabinet and certain antenna facilities.
PREPARED BY Charles Nissley DEPARTMENT Engineering EXT. 4386
EXPLANATION
. See attached Explanation.
Environmental Review X N/A
MIS Approval , ,t
Financial Statement Approved By:
Revenues will be $25,000 rent per year, with 5% escalation per year for the next fivyears. Thereafter,
rent will be evaluated based on market rates. (See attached)
Account No. 001-00000-3325
STAFF RECOMMENDATION
dt he Resolution.
✓Ii#
/ COMMISSION R OMMEDATION
N/A
ATTACHMENTS (Listed Below)
1. Resolution
2. Lease Agreement
Resolution No. a ° ° - a a
cricket
A-200 (Rev. 7/03)
City of National City
Office of the City Clerk
1243 National City Boulevard, National City, CA 91950-4397
Michael R. Della, CMC - City Clerk
(619) 336-4228 Fax: (619) 336-4229
September 24, 2007
Mr. Donald R. Simmons
Director of Operations, West Region
Cricket Communications, Inc.
4031 Sorrento Valley Blvd.
San Diego, CA 92121
Dear Mr. Simmons,
On September 18, 2007, Resolution No. 2007-221 was passed and adopted by
the City Council of National City, authorizing execution of a lease agreement with
Cricket Communications, Inc.
We are enclosing for your records a certified copy of the above Resolution and a
fully executed original contract.
Michael R. Dalla, CMC
City Clerk
Enclosure
cc: Engineering Department
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