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HomeMy WebLinkAbout2011 ATT Lease AgreementTELECOMMUNICATIONS FACILITIES LEASE AT SANTA ROSA PARK This Lease dated as of the latter of the signature dates below (the "Effective Date"), is entered into by and between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to as "Lessor"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company (hereinafter referred to as "Lessee"). RECITALS This Lease is made and entered into with respect to the following facts: A. Lessor is the owner of property described in Exhibit A, located at 190 Santa Rosa Street, San Luis Obispo, California, commonly known as "Santa Rosa Park." B. Lessor is willing to lease certain Premises on this property as described m Section 1 to Lessee upon the terms and conditions hereinafter set forth. C. Lessee warrants that use of these Premises will not interfere with the Department of Parks and Recreation's operations or the public's use of the park. D. This Lease is conditioned upon Lessee obtaining all governmental permits and approvals enabling Lessee to operate a wireless communications facility in the Premises, described in Exhibit B as "the project" and as defmed below. E. Lessor and Lessee have heretofore entered into a Memorandum of Understanding dated October 19,2010, concerning the lease of a City site located at Santa Rosa Park. NOW THEREFORE, the parties hereto agree as follows: 1. Premises. Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor approximately one hundred and ten (110) square feet of building space, known as the City's communication room in building B, and all access and utility easements, including space on one of the two antenna towers, described in Exhibit A attached hereto, and by this reference made a part hereof (hereinafter referred to as the "Premises"). This Lease is subject to the terms, covenants and conditions hereinafter set forth and Lessee covenants, as a material part of the consideration for this Lease, to keep and perform each and every term, covenant and condition of said Lease. During the term of this Lease, Lessor also grants to Lessee an irrevocable, nonexclusive right of ingress and egress, seven (7) days a week, twenty-four (24) hours a day, and the right to install and maintain underground utility wires and cables through existing conduits (1) from the Premises to the nearest public right-of-way, and (2) from the radio equipment to the antennas. 2. Improvements. Lessee shall be allowed to make minor improvements, such as the addition of air conditioning or for the provision of emergency electrical service, as necessary to successfully complete this project. Plans for improvements shall have the prior written approval of Lessor in its municipal capacity (not its capacity as landlord). Lessee shall dedicate any pennanent improvements, such as the addition of a generator, HVAC system or changes to the electrical system, to Lessor upon completion thereof. 3. Tenn. The term of this Lease shall be for five (5) years ("Initial Term") commencing with the issuance of a City building permit to construct any improvements ("Commencement Date"). This Lease shall automatically be renewed, on the same terms and conditions, for three (3) additional terms (each a "Renewal Term") of five (5) years each, unless Lessee notifies Lessor of its intention not to renew, at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Tenn. 4. Rent. Rent shall be paid annually in advance as follows: A. Lessee shall pay to Lessor as annual rent on or before the Commencement Date of the Lease the sum of $26,000.00 ("Annual Rent") without deduction, setoff, notice or demand provided. Only with respect to the first installment of Annual Rent due upon the Commencement Date, Lessor hereby grants to Lessee a one-time grace period of thirty (30) days following the Commencement Date within which to deliver the first installment of Annual Rent to Lessor. B. Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease year without deduction, setoff, notice, or demand the preVIOUS year's Annual Rent multiplied by the CPI Adjuster (as defined below), or multiplied by Three Percent (3%), whichever is greater. C. The CPI Adjuster means a percent, which is calculated by dividing the Local Metropolitan Area Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of the U.S. Department of Labor Urban Wage Earners and Clerical Workers three (3) months prior to the adjustment date by the base Index number published three (3) months prior to the Commencement Date, or previous adjustment date, as applicable. If the Index is changed so that the base Index number differs from that in effect when the first extended term commenced, the Index shall be converted in accordance with the conversion factor published by the Bureau of Labor Statistics. If the Index is discontinued or revised during an extended term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. D. If Lessee fails to pay the Annual Rent within thirty (30) days after such rent is due, Lessee shall pay a late fee of 1.5% per month upon written notice to Lessee. This late charge does not establish a grace period. Lessor and Lessee agree that the charge is presumed to be the damages sustained by Lessor for Lessee's late payment of rent and that it is impracticable or difficult to fix the actual damages. 5. Use. A. Lessee shall use the Premises for the sole purpose of maintaining, securing and operating wireless communications facilities (including but not limited to cellular, PCS, paging, and broad band). Any other use of the Premises or use of equipment not described in Exhibit "B," is not authorized and shall constitute a breach of this Lease. B. Lessee must obtain all discretionary permits and approvals required by Lessor in its municipal capacity. Installation of a new wireless telecommunication facility at this location shall require architectural review. The applicant shall submit application materials and fees as required by the Community Development Department. The Premises shall not be modified prior to obtaining any required City building permit. It shall be the responsibility of the owner/operator of a telecommunications facility to provide the City with a notice of intent to modify site in any way. Lessor shall reasonably cooperate (at no expense to Lessor) with Lessee in connection with Lessee's efforts to obtain all such permits and approvals; provided, however, Lessor shall not be obligated to apply for any permits or approvals with Lessee. Lessee shall maintain the Lessee's Facilities free from hazards or risk to the public health, safety and welfare. C. At all times throughout the term of this Lease, Lessee's use of the Premises shall be in conformance with, and subject to all conditions of, any and all discretionary permits in effect. D. Lessor agrees that Lessee's ability to use the Premises is dependent upon Lessee's obtaining all necessary certificates, permits and/or other approvals which may be required from Lessor in its municipal or regulatory capacity and from any federal, state or other local authority. Lessor agrees to cooperate with Lessee as to Lessee's obtaining such certificates, permits or other approvals. In the event Lessee is unable to obtain any necessary certificate, permit or other approval in order to operate a wireless communication facility, Lessee may terminate this Lease as provided herein, upon thirty (30) days prior written notice. 6. Interference. A. Lessee warrants that its operations in or repair of Lessee's Premises will not interfere with Lessor's fire, police, public works and other public safety or City department communication broadcasts or frequencies. All operations by Lessee shall be in compliance with all Federal Communications Commission requirements and all applicable laws. B. If Lessor suspects or has reason to believe that Lessee's use of the Premises creates radio or television interference for nearby residents or interference with Lessor's communication systems, and if Lessee (i) does not proceed diligently to eliminate such interference, or (ii) provide evidence that Lessee is not the source of such interference, within ten (10) business days after notice from Lessor to do so, Lessor may immediately terminate this Lease by giving notice to Lessee. C. Lessee shall provide Lessor with a contact person who shall be available twenty-four (24) hours a day to receive reports of any interference with Lessor's frequencies. In the event that there is interference with Lessor's public safety frequencies, Lessee shall immediately cease the operations creating the interference when directed to do so by the City's Fire Chief and/or Police Chief until such time that the interference can be eliminated to the satisfaction of the City's Fire Chief and/or Police Chief. Lessee's failure to immediately cease such operations shall be considered a material breach of this Lease notwithstanding Paragraph 6.B. above. 7. Radio Frequency Emission Exposure. A. No wireless telecommunication facility shall be sited or operated in such a manner that it violates any condition of its Federal Communication Commission's (FCC) permit or license. To that end no facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive legally enforceable and applicable standard subsequently adopted or promulgated by the city, county, the state of California, or the federal government. For purposes of radio frequency emissions, compliance with FCC exposure limitations shall constitute a conclusive presumption that there is no hazard or risk to the public health, safety or welfare. B. Initial compliance with this requirement shall be demonstrated for any facility within three hundred (300) feet of residential uses or sensitive receptors such as schools, churches, hospitals, etc. and all broadcast radio and television facilities, regardless of adjacent land uses, through submission, at the time of application for the necessary permit or entitlement, calculations specifying MPE levels in the inhabited area where the levels produced are projected to be highest. If these calculated levels exceed eighty percent (80%) of the MPE limits, the applicant shall hire a qualified electrical engineer licensed by the State of California to measure exposure levels at the location after the facility is in operation. A report of these measurements and the engineer's findings with respect to compliance with MPE limits shall be submitted to the Community Development Director. Lessee's Premises shall not commence normal operations until it complies with, or has been modified to comply with this standard. Proof of compliance shall be a certification provided by the engineer who prepared the original report. In order to assure the objectivity of the analysis, the City may require, at the applicant's expense, independent verification of the results of the analysis. C. Every wireless telecommunication facility within three hundred (300) feet of an inhabited area and all broadcast radio and television facilities shall demonstrate continued compliance with its FCC permit or license and MPE limits. Every five (5) years a report listing each transmitter and antenna present at the facility and the effective radiated power radiated shall be submitted to the Community Development Director. If either the equipment or effective radiated power has increased, calculations specifying exposure levels in the inhabited areas where the levels are projected to be highest shall be prepared. Calculations shall also be prepared every time the adopted MPE limits change. If calculated levels in either of these cases exceed eighty (80%) of the MPE limits, the operator of the facility shall hire a qualified electrical engineer licensed by the State of California to measure the actual exposure levels produced. A report of these calculations, required measurements, if any, and the engineer's findings with respect to compliance with the current MPE limits shall be submitted to the Community Development Director within five (5) years of facility approval and every five (5) years thereafter. In the case of a change in the limits, the required report shall be submitted within ninety (90) days of the date the change becomes effective. D. Failure to supply the required reports or to remain in continued compliance with any FCC license, permit or MPE limits shall be considered a material breach of this Lease. 8. Visual Mitigation. Lessee will use a variety of visual mitigation strategies for all of its facilities, as determined necessary by the Community Development Director and as required through the Architectural Review process, with the goal of achieving a 100% stealth installation. Facilities shall be creatively designed to minimize the visual impact to the greatest extent possible by means of placement, screening and camouflage. The applicant shall use the smallest and least visible antennas possible to accomplish the coverage objectives. The project shall be designed to blend into its surroundings so that the antenna(s) and equipment are not apparent to the casual observer. Ground mounted support equipment shall be undergrounded or otherwise screened from view so as to be effectively unnoticeable. All connections between the base of the antenna(s) and support equipment shall be undergrounded using existing conduit. Electrical and telephone service to the support equipment shall be undergrounded using existing conduit. 9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption caused by noise to people working and living in the vicinity. At no time shall equipment noise from any source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such equipment, whichever is less. This requirement may be modified at the discretion of the Community Development Director where typical ambient noise levels exceed 55 dB. Outdoor noise producing construction activities shall take place only on weekdays between the hours of 8:00 am and 5:00 pm, unless a different schedule is approved as part of the use permit. Any facility utilizing temporary backup generators shall be required to meet or exceed Air Pollution Control District Standards. All generators shall be fitted with approved air pollution control devices. Projects that propose to include backup generators shall require review and approval from the Air Pollution Control District. Project plans shall indicate location, size, horsepower and type of fuel used for any proposed generator. Generators shall only be operated during power outages and for testing and maintenance purposes. Testing and maintenance shall only take place on weekdays between the hours of 10:00 am and noon. 10. Nondiscrimination. Subject to applicable laws, rules, and regulations, Lessee shall not discriminate against any person or group on the basis of age, sex, sexual orientation, AIDS, AIDS related condition, marital status, race, religion, creed, ancestry, national origin, disability, or handicap. 11. Subsurface Restrictions. The parties agree that this Lease covers only the surface of the Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premises as permitted in this Lease (including, without limitation, cables, conduits and pipes within the Premises to connect Lessee's communications equipment from building B to an existing antenna tower). 12. Liens. Lessee shall keep the Premises free of mechanic's, material supplier's or other liens for any work done, labor performed or materials furnished therein by or for Lessee, and Lessee shall defend, indemnify and hold Lessor, its officials, employees and agents harmless from and against all claims, liens, demands, causes of action, liability, loss, cost and expense (including reasonable attorney's fees) of whatever kind for any such work done, labor performed or materials furnished. 13. No Utilities. Lessor shall not provide any utilities to the Premises. Lessee shall arrange and pay for the installation and use of all utilities of whatsoever kind to the Premises. 14. Maintenance. A. Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintain the Premises and all improvements thereon in good condition, free from rodents, weeds, noxious plants, wild growth and graffiti, in substantial repair, in a safe and sanitary condition, and in compliance with all applicable laws and regulations and shall promptly repair any damage caused by Lessee. If Lessee fails to maintain the Premises as required herein, Lessor may notify Lessee of said failure. If Lessee fails to correct the situation within thirty (30) days after receipt of written notice from Lessor or such longer period as may be established by Lessor, Lessor may make the necessary correction and the cost thereof, including but not limited to the cost of administration, labor, materials, and equipment, shall be paid by Lessee within thirty (30) days after receipt of a statement of said cost from Lessor, except to the extent that the failure to maintain the Premises pertains to a situation which creates an imminent threat to the health and safety of City residents, in which event Lessee shall have seventy-two (72) hours after receipt of written notice from Lessor to correct such situation, after which Lessor may undertake repairs which are reasonably necessary to abate the imminent threat to the health and safety of City residents, and the cost thereof shall be paid by Lessee within thirty (30) days after receipt of a statement of said cost from Lessor. If said statement is not timely paid, Lessor may, at its option, choose any remedy available herein or by law, including the termination of this Lease. Lessee hereby waives to the extent permitted by law any right to make repairs at the expense of Lessor or to vacate the Premises in lieu thereof as may be provided by law. B. Lessor shall have no duty to maintain or repair the Premises or any of Lessee's improvements, including the antenna towers on the Premises. 15. Taxes. Lessee acknowledges that this Lease may create a possessory interest subject to property taxation and that Lessee may be liable for payment of taxes levied on such interest. Lessee shall promptly pay, prior to delinquency, all taxes, assessments and other governmental fees that may be lawfully levied against the Premises and any improvements or personal property located on the Premises and on any possessory interest created by this Lease, and provide proof of payment to Lessor on demand. 16. Insurance. Concurrent with the execution of this Lease, Lessee shall procure and maintain, at its cost, during the initial and any extended or Renewal Term of this Lease from an insurer admitted in California or having a minimum rating of or equivalent to A: VII in Best's Insurance Guide: A. Commercial General Liability insurance with a limit of Five Million Dollars ($5,000,000.00) for each occurrence, and Five Million Dollars ($5,000,000.00) aggregate. Lessor, its officials, employees and agents shall be included as additional insureds with respect to liability arising from activities performed by or on behalf of Lessee. Said insurance shall be primary insurance with respect to Lessor and shall contain a cross liability provision. B. "All Risk" property insurance in an amount sufficient to cover the full replacement value of Lessee's personal property, improvements and equipment on the Premises. Lessee is granted permission to self-insure this coverage in a manner consistent with its risk management program in effect from time to time. C. Upon the execution of this Lease, Lessee shall deliver to Lessor certificates of insurance with copies of applicable endorsements evidencing the coverage required by this Lease. The certificates shall be signed by a person authorized by the insurer to bind coverage on its behalf. D. Said insurance shall contain a provision requiring insurers to provide prior written notice in accordance with state law to Lessor before cancellation of coverage. E. Any deductibles or self-insured retention shall be the sole responsibility of Lessee. In the event such insurance does provide for deductibles or self-insured retention, Lessee agrees that it will fully protect Lessor, its officials and employees in the same manner as these interests would have been protected had a policy of commercial insurance been in effect. With respect to damage to property, Lessor and Lessee hereby waive all rights of subrogation, one against the other, but only to the extent that collectible commercial insurance is available for said damage. F. The procuring of insurance shall not be construed as a limitation on Lessor's liability or as full performance on Lessee's part of the indemnification provision of this Lease. Lessee understands and agrees that, notwithstanding any insurance, Lessee's obligation to defend and indemnify Lessor, its officials and employees hereunder is for the full amount of any damage, loss, cost or expense. G. Any modification or waiver of these insurance requirements shall only be made with the written approval of Lessor's Risk Manager or designee. 17. Removal of Improvements. On the expiration or sooner termination of this Lease, Lessee at Lessee's sole cost shall have the right to remove Lessee's equipment or temporary improvements placed in or on the Premises by Lessee by giving notice of its intention to do so to Lessor and by removing same within forty-five (45) days after expiration or sooner termination of this Lease. Lessor may treat any such equipment or improvements as abandoned if Lessee fails to timely remove them and, in such event, (a) Lessor shall be deemed owner of them without accounting to Lessee, or (b) Lessor may cause their removal at Lessee's cost, with the exception of the underground conduits which may be abandoned in place by Lessee. 18. Relocation. Lessee agrees that nothing contained in this Lease shall create any right in Lessee for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapter 16 of the California Government Code from Lessor on account of the expiration or sooner termination of this Lease. 19. Notice. Any notice required hereunder shall be in writing and personally delivered or deposited in the U.S. Postal Service, registered or certified, return receipt, postage prepaid, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the respective parties as set forth below: If to Lessor: City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Ifto Lessee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site # SBL051 Cell Site Name: Santa Rosa Park (CA) Fixed Asset #: 10145610 12555 CingularWay, Suite 1300 Alpharetta, GA 30004 With the required copy oflegal notice sent to Lessee at the address above, a copy to AT&T Legal Department: If sent via certified or registered mail: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department Re: Cell Site # SBL051 Cell Site Name: Santa Rosa Park (CA) Fixed Asset #: 10145610 P.O. Box 97061 Redmond, WA 98073-9761 If sent via nationally recognized overnight courier: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department Re: Cell Site # SBL051 Cell Site Name: Santa Rosa Park (CA) Fixed Asset #: 10145610 16331 NE nnd Way Redmond, WA 98052-7827 Notice shall be deemed effective on the date shown on the return receipt or on the date personal delivery is made, whichever first occurs. If delivery is refused, the date of deposit of the copy in the mail shall be deemed the date of notice. Change of address shall be given as provided herein for notices, upon thirty (30) days prior written notice by either party. 20. Hazardous Materials and Waste. A. Lessee shall comply with all applicable laws regarding the use, storage and disposal of hazardous materials on the Premises. Lessee shall comply with California Health and Safety Code Section 25359.7 or its successor regarding notice to Lessor on discovery by Lessee of the presence or suspected presence of any hazardous substance on the Premises. B. Lessee shall not bring any hazardous materials onto the Premises except for those contained in its back-up power batteries and common materials used in telecommunications operations, e.g., cleaning solvents. Lessee shall treat all hazardous materials brought onto the Premises by it in accordance with all federal, state and local laws and regulations. C. If Lessee requires any proposed generator usage from an existing Verizon Wireless generator on the Property, Lessee shall be solely responsible to enter into a shared use agreement with Verizon Wireless. D. Lessor represents that the Premises have not been used for the generation, storage, treatment or disposal of hazardous materials, hazardous substances or hazardous wastes. In addition, Lessor represents that no hazardous materials, hazardous substances, or hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil, or any fraction or derivative thereof), or underground storage tanks are located on or near the Premises. 21. Indemnification. A. Lessee shall defend, protect, indemnify and hold harmless Lessor, its officials, employees and agents from all claims, demands, damages, causes of action, losses, liability, costs or expenses, including reasonable attorney's fees, of any kind or nature whatsoever (except those resulting from Lessor's sole negligence or willful misconduct) which Lessor, its officials, employees and agents may incur for injury to or death of persons or damage to or loss of property occurring in, on or about the Premises arising from the condition of the Premises (other than conditions existing prior to Lessee's occupancy of the Premises), the alleged acts or omissions of Lessee, any parent, subsidiary, affiliate or partnership in which any such entity participates, Lessee's officers, employees or agents, the occupancy, use or misuse of the Premises by Lessee, any parent, subsidiary, affiliate or partnership in which any such entity participates, Lessee's officers, employees or agents, or any breach of this Lease. B. Lessor shall protect, indemnify and save harmless Lessee, and its officers, agents and employees, from and against all claims, demands and causes of action by Lessor's employees or third parties on account of personal injuries or death or on account of property damages arising out of the use of the Premises by Lessor hereunder and resulting from the sole negligence or willful misconduct of Lessor or its officers, agents and employees. 22. Assignment and Subletting. Except for an assignment, sublease or transfer to Lessee's affiliate, parent, subsidiary, member or partner, or as a result of a merger or sale of substantially all of Lessee's assets ("Permitted Assignment"), Lessee shall not assign or transfer this lease or any interest herein, without the prior written consent of Lessor which shall not be unreasonably withheld, provided, however, that Lessee shall endeavor to notify Lessor in writing of a Permitted Assignment within thirty (30) days. To obtain Lessor's consent to a proposed assignment or transfer (hereinafter collectively referred to as "transfer"), Lessee shall meet the following requirements and Lessee's failure to meet any requirement shall allow Lessor to withhold consent: A. Lessee shall notify Lessor at least sixty (60) days prior to the date when Lessee desires the transfer to take effect ("Transfer Date") which notice shall contain the name, address and telephone number of the proposed transferee; the nature of the proposed transferee's business and details of its business experience. B. Lessor shall notify Lessee at least thirty days (30) days prior to the Transfer Date whether Lessor approves or disapproves of the proposed transfer. C. Any approved transferee shall assume and be deemed to have assumed this Lease and shall be jointly and severally liable with Lessee for the payment of rent and performance of the terms, covenants, and conditions of this Lease. No approved transfer shall be binding on Lessor until such transferee shall deliver to Lessor a counterpart of the transfer agreement with contains a covenant of assumption by transferee but the failure or refusal to execute or deliver such instrument shall not release transferee from its liability as stated herein. D. The consent of Lessor to any transfer shall not relieve Lessee of the obligation to obtain such consent to any further transfer. Further, neither this Lease nor any interest herein shall be subject to transfer by attachment, execution, proceedings in insolvency or bankruptcy (either voluntary or involuntary), or receivership. In the event of the transfer without the prior written consent of Lessor, such transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest. Any transfer without Lessor's consent shall constitute a default of this Lease. E. To obtain Lessor's consent to a sublease, other than a sublease through a Permitted Assignment, Lessee shall meet the following requirements and Lessee's failure to meet any requirement shall allow Lessor to withhold consent: 1) The Lessee must pay to Lessor the same amount of Annual Rent on the sublease tenant's behalf as the Lessee ("Additional Annual Rent"), other than a sublease payment through a Permitted Assignment. For example, if there were two sublease tenants by the beginning of the third year of this Agreement, the total rent due from the Lessee would be $82,750.20: the Annual Rent for the Lessee ($27,583.40, which is the first year's rent of $26,000 increased by 3% for two years) and the Additional Annual Rent for the two sublease tenants ($27,583.40 each). While the Lessee may require the sublease tenant to pay this amount as part of their sublease agreement with the Lessee, payment of the Additional Annual Rent is the sole responsibility of the Lessee, and is subject to the same terms, conditions and remedies as the Annual Rent. 2) Lessee shall notify Lessor at least sixty (60) days prior to the date when Lessee desires the sublease to take effect ("Sublease Date"), which notice shall contain the name, address and telephone number of the proposed sublease tenant; the nature of the proposed sublease tenant's business and details of its business experience. The first year of Additional Annual Rent shall be paid prior to the Sublease Date and will be prorated to the Lessee's Annual Rent payment due date; and shall be due annually thereafter with the Annual Rent. 3) Lessor and Lessee agree (by way of example and without limitation) that it shall be reasonable for Lessor to withhold its consent if any of the following exist or may exist: the proposed transferee's use of the Premises conflicts with or is inconsistent with the use of the Premises stated herein; the Lessee is in default under this Lease at the time the request for sublease is made and has not cured such default, if the same can be cured, prior to ten (10) business days prior to the Sublease Date. 4) The sublease tenant is subject to the same terms and conditions of this Agreement as the Lessee. 5) Lessor shall notify Lessee at least fifteen (IS) days prior to the sublease date whether Lessor approves or disapproves of the proposed sublease. 23. No Permits. Lessee shall not grant any rights-of-way, easements, franchises or permits in, on or across the Premises. 24. Encumbrances. Lessee shall take the Premises subject to any and all existing easements and other encumbrances. 25. Reservations. Lessor reserves the right to grant franchises, easements, rights-of­ way or permits for pipeline purposes which will not interfere with Lessee's use of the Premises. 26. Default. The occurrence of any of the following acts under Subsection 26(A) through (E) shall constitute a default by Lessee, and Subsection 26(F) shall constitute a default by Lessor: A. Failure to pay Annual Rent or Additional Annual Rent when due where such failure shall continue for a period often (10) business days after Lessee's receipt of written notice from Lessor. B. Failure to perform any of the terms, covenants or conditions of this Lease if said failure is not cured within thirty (30) days after Lessee's receipt of written notice from Lessor of said failure. If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lessee shall not be in default if Lessee begins to cure within the thirty-day period and diligently proceeds to cure to completion. Lessor's notice shall describe the default and shall demand that Lessor perform or quit the Premises. No such notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects in the notice. C. Any attempted assignment, transfer or sublease except as permitted in Section 22 hereof. D. Failure to maintain all necessary permits and business licenses required by the City in its municipal or regulatory capacity or failure to pay any fees for permits or licenses to the City when due; E. Failure to report or pay to the City all applicable sales taxes, transient occupancy taxes, business taxes, utility taxes or other excise taxes, when due. Subject to the terms of this Section, if Lessee does not comply with each term, covenant and condition of this Lease or if a default occurs, then Lessor may terminate this Lease and Lessor may then enter the Premises and take possession thereof provided, however, that these remedies are not exclusive but cumulative to other remedies provided by law in the event of Lessee's default, and the exercise by Lessor of one or more rights and remedies shall not preclude the Lessor's exercise of additional or different remedies for the same or any other default by Lessee. F. Lessor's failure to perform any of the terms, covenants or conditions or this Lease if said failure is not cured within thirty (30) days after Lessor's receipt of written notice from Lessee of said failure. If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lessor shall not be in default if Lessor begins to cure within the thirty-day period and diligently proceeds to cure to completion. Lessee's notice shall describe the default and shall demand that Lessor perform or Lessee may terminate this Lease. No such notice shall be deemed a forfeiture or termination of the Lease unless Lessee so elects in the notice. 27. Right of Entrv. A. In the event of an emergency which poses an immediate threat of harmor damage to persons or property, Lessor may enter the Premises and take such actions as are required to protect persons or property from such immediate threat of harm or damage, provided that promptly after such emergency entry into the Premises (and in no event later than twenty­ four (24) hours) Lessor gives telephonic and written notice to Lessee of Lessor's entry into the Premises. In addition to Lessor's rights under the immediately preceding sentence, Lessor shall have the right, upon forty-eight (48) hours prior telephonic notification to Lessee (which notification shall specify the date and time at which Lessor seeks to enter the Premises), to enter the Premises to determine whether or not Lessee is complying with this Lease . Except in the event of an emergency, Lessor agrees that it shall not enter the Premises without a representative of Lessee being present, and Lessee agrees to make its representative promptly and readily available to accompany Lessor on the date and at the time given in Lessor's telephonic notice. If Lessee fails to make its representative available on the date and at the time given in Lessor's telephonic notice or at a mutually agreeable time, then Lessor may enter the Premises accompanied by a peace officer. B. Lessee shall install a lock box system on the Premises and give the City access to the lock box in order to allow the City to inspect the Premises pursuant to Paragraph A above. 28. ~ Lessee shall not place, affix, maintain or permit any sign, advertisement, name, insignia, logo, descriptive material or similar item (collectively "sign") on the Premises without the prior written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at all times. Lessor may remove any sign not approved by Lessor at Lessee's cost. The cost of removal shall be additional rent. 29. Condemnation. If the whole of the Premises shall be taken by any public or quasi-public authority under the power of eminent domain, then this Lease shall terminate as to the date of such taking. If any part of the Premises shall be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, as of the day possession (of that part) is required for any public purpose, and on or before that day Lessee shall elect in writing either to terminate this Lease or to continue in possession of the remainder of the Premises provided, however, that rent shall only be reduced in proportion to the amount of the Premises taken if Lessee is unable to operate at the same level after the condemnation as before the condemnation. All damages awarded for any taking shall belong to Lessor, whether such damages be awarded as compensation for diminution in value to the leasehold or to the fee provided, however, that Lessor shall not be entitled to any portion of the award made for loss of Lessee's business or relocation expenses. Notwithstanding the above, the parties will each be entitled to pursue their own separate awards in the condemnation proceeds, which for Lessee will include, where applicable, the value of its Lessee's Facilities, moving expenses, prepaid Rent, and business dislocation expenses, provided that any award to Lessee will not diminish Lessor's recovery. 30. Nuisance. Lessee shall not do or permit to be done in or on the Premises any act, which may be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or occupants of adjoining property, or to the neighborhood. 31. Exculpation. Except as expressly provided herein, Lessor shall not be liable to Lessee for any damages to Lessee's property from any cause. To the extent permitted by law, Lessee waives all claims against Lessor for damage or injury to persons or property arising or alleged to have arisen from any cause whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's breach of its obligations hereunder. 32. Waiver of Rights. The failure or delay of either party to insist on strict enforcement of any term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that such party may have and shall not be deemed a waiver of any subsequent or other . breach of any term, covenant, or condition herein. The receipt and acceptance by Lessor of delinquent rent shall not constitute a waiver of any other default but shall only constitute a waiver of timely payment for the particular rent payment involved. Any waiver by either party of any default or breach shall be in writing. Either party's consent to or approval of any act by the other party requiring a party's consent or approval shall not be deemed to waive such party's consent or approval of any subsequent act of the other party. 33. Partial Invalidity. If any term, covenant or condition of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect. 34. Successors in Interest. This Lease shall be binding on and inure to the benefit of the parties and their successors, heirs, personal representatives, approved transferees and assignees, and all of the parties hereto shall be jointly and severally liable hereunder. 35. Right to Re-Enter. Lessor acknowledges that Lessee's use of the Premises includes proprietary trade secrets. Lessor shall have no right whatsoever to enter the Premises except as provided in Paragraph 27.A. above, without Lessee's written consent which Lessee shall not unreasonably withhold. Lessee shall peaceably deliver possession of the Premises to Lessor on the effective date of termination or expiration of this Lease. On giving notice of termination to Lessee, Lessor shall have the right to re-enter and take possession of the Premises on the termination or expiration date without further notice of any kind and without institution of summary or regular legal proceedings. Termination of the Lease and re-entry of the Premises by Lessor shall in no way alter or diminish any obligation of Lessee under the Lease and shall not constitute an acceptance or surrender. Lessee waives any and all right of redemption under any existing or future law, in the event of eviction from the Premises and in the event Lessor re-enters and takes possession. Lessee agrees that should the manner and method used by Lessor in re­ entering or taking possession after breach by Lessee gives Lessee a cause of action for damages or in forcible entry and detainer, the total amount of damages to which Lessee shall be entitled in any such action shall be One Dollar ($1.00). Lessee agrees that this Section may be filed in any such action and that when filed it shall be a stipulation by Lessee fixing the total damages to which Lessee is entitled in such action. 36. Holding Over. If Lessee holds over and remains in possession of the Premises after the expiration of the Lease, such holding over shall be construed as a tenancy from month to month on the same terms, covenants, and conditions herein, except that monthly rent shall be one­ twelfth (1/12) of one hundred twenty-five percent (125%) of the annual rent then in effect. Nothing in this Section shall be construed as consent by Lessor to any holding over by Lessee. 37. Time. Time is of the essence in this Lease and every provision hereof. 38. Attorney's Fees. In any action or proceeding relating to this Lease, the prevailing party shall be entitled to its costs, including reasonable attorney's fees and court costs. 39. Integration and Amendments. This Lease represents and constitutes the entire understanding between the parties and supersedes all other agreements and communication between the parties, oral or written, concerning the subject matter herein. This Lease shall not be modified except in writing duly signed by the parties and referring to this Lease. 40. Recordation. Concurrently with the execution of this Lease, Lessor shall execute before a notary and deliver to Lessee for recording a "Memorandum of Lease" substantially in the form of Exhibit "C" attached hereto and by this reference incorporated herein (the "Memorandum"). Lessee may record the Memorandum and shall pay any fees or taxes applicable to or arising from said recordation. Upon expiration or sooner termination of this Lease, Lessee shall, at its sole cost, immediately record a Quitclaim Deed with respect to its interest under this Lease. 41. Governing Law. This Lease shall be governed by and construed in accordance with the laws of the State of California. 42. Captions. The various headings and numbers herein and the grouping of the terms hereof into separate sections, paragraphs and clauses are for convenience only and shall not be considered a part hereof, and shall have no effect on the construction or interpretation of this Lease. 43. Abandoned Property. The vacating or abandonment of the Premises by Lessee shall include but not be limited to the failure of Lessee to occupy the Premises for a continuous period of forty-five (45) days or more while not paying rent. If Lessee abandons the Premises, title to any personal property belonging to Lessee and left on the Premises forty-five (45) days after such abandonment shall be deemed to have been transferred to Lessor. Lessor shall thereafter have the right to remove and to dispose of said property without liability to Lessee or to any person claiming under Lessee, and shall have no duty to account therefor. 44. Compliance with the Law. Lessee shall comply with all laws, ordinances, rules and regulations of all federal, state and local governmental authorities having jurisdiction over the Premises and business thereon. 45. Quiet Enjoyment. Lessor covenants that, if Lessee performs the terms, covenants and conditions of this Lease, Lessee shall peaceably and quietly hold and enjoy the Premises. 46. Lessor's Representation of Authority. Lessor represents that it has title to the Premises and full authority to execute this Lease and to grant the easements and access to the Premises. Lessor further represents that there are no undisclosed liens, judgments, impediments or exceptions of title on the Premises that would affect this Lease. 47. Non-Interference Provision. Lessor will use its best efforts to provide Lessee with notice of any applications received from any other communications companies wishing to utilize any part of Santa Rosa Park. Further, Lessor will use its best efforts to not lease property in Santa Rosa Park to other communication companies, nor to use Santa Rosa Park for communications purposes, that might interfere with Lessee's use of the Premises. In the event Lessor or any other communication company at Santa Rosa Park does, in fact, interfere with Lessee's use of the Premises, Lessor shall eliminate, or cause to be eliminated, such interference within seventy-two (72) hours of written notice by Lessee. If such interference is not eliminated in such time period, Lessee may exercise any right or remedy at law or in equity to eliminate the interference or may terminate this Lease. IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities required by law as of the Effective Date. LESSOR: CITY OF SAN LUIS OBISPO, a Municipal Corporation BY~~Ja M , ayor Date: 5""11 3!Jo II r 7 ATTEST: By~~e Iainaeatlo, City Clerk :PROV:AST~ 1. Christine Dietrick, City Attorney LESSEE: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation :: ManagerLIi~---, Print Name: ' I'!1i1R,t::ZI.Ci2';4 Its: 4At bmrE f ~S7JZuC770tV Date: -=5"-/0-1/ [ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING PAGE] CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT • State of California County of LO~ AljbE.U?S On~ \Ol~\ Date personally appeared CHRISTINA M. WAGER Commission # 1842203 j :~D Notary Public· California ~ Z Orange County ~l.~": ... ..MZ SOT"1' tx~r:s ~ai 2J -}~1: ( Place Notary Seal Above } Name's)OfSigner(s}., before me, who proved to me on the basis of satisfactory evidence to be the person(p1' whose name<csr is/~ subscribed to the within instrument and acknowledged to me that he/s~th1'"'executed the same in his/l"\e11lhe1f authorized capacity(i~ and that by his/hprith~ signature<S) on the instrument the perso~, or the entity upon behalf of which the person(pf acted, executed the instrument. I certify under PENALTY OF PERJU Y under the laws of the State of California that the egoing paragraph is . true and correct. Signature ------:r--+=~--;-:-:-:;::__=__:ov::_--____>,,__- WITNESS my hand an OPTIONAL -........,j:.....----------­ Top of thumb here RIGHT THUMBPRINT OF SIGNER Signer's Name: _ D Individual D Corporate Officer - Title(s): _ D Partner -D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: _ Document Date: _ Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Signer(s) Other Than Named Above: Description of Attached Document TWeor~peofDocument: ~~ _ Capacity(ies) Claimed by Signer(s) Signer's Name: _ D Individual D Corporate Officer ­ Title(s): D Partner -D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: r-__ Signer Is Representing: _ ©2007 National Notary Association· 9350 De Soto Ave., P.O.Box 2402 • Chatsworth, CA 91313-2402' www.NationaINotary.org Item #5907 Reorder: Call Toll-Free 1-800-876·6827 ------------------------------ -------------- LESSOR ACKNOWLEDGMENT State of California County of -') On before me, (insert name and title of the officer) personally appeared ________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _ (Seal) LESSEE ACKNOWLEDGMENT State of California County of -') On before me, (insert name and title of the officer) personally appeared__-,------,------:: -,-----__-,-----_-,-----__-,------,--------,---: who proved to me on the basis of satisfactory evidence to be the person(s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _ (Seal) Exhibit A LEGAL DESCRIPTION OF THE PROPERTY AND PREMISES Allthatreal property located intheStateofCalifornia, CountyofSanLuis Obispo, described as follows: BASIS OF BEARING: THE BEARING AREBASEDUPONCALIFORNIA COORDINATE SYSTEM, ZONE5,NAD83. NOTES: l. ACREAGE PARCEL: .005 ACRBS 2. PROPOSEDLEASEAREA: 12.00' X 17.83'-214.00SF 3. NO PARKING REMOVED OR PROPOSED 4. UNMANNED FACILITY {NO EMPLOYEE.S) 5. PCS FACILITY -WIRELESS COMMUNICATIONS FIRM CLASSIFICATION THE PROPERTY SHOWN HEREON FALLS WITHIN ZONE "C" AS SHOWN ON FLOOD INSURANCE RATEMAP NO.060310-0005-C,EFFECTIVE DATEJULY7,1981. AS PUBLISHED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY IN ACCORDANCE WITH THE NATIONAL FLOOD INSURANCE PROGRAM. PROPOSED ANTENNA GEODETIC COORDINATES; THE CENTER OF THE PROPOSED ANTENNAS AS SHOWN HEREON IS LOCATED AT THE POLLOWING COORDINATES (NAD 83): LATITUDE: N 35'17'24.38' LONGITUDE: W 120'39'48.89 BENCHMARK: THE STATION MARK AND REFERENCE MARKS NO. 1 AND NO.2 WERE RECOVERED AS DESCRIDED WITHTHE FOLLOWING REVISIONS. STATION IS 17.5 FEb"T SOUTH OF THE CENTERLINE OF BUENA VISTA AVENUE. 6.1 FEET NORTH OF THE SOUTH FACE OF A 9 FEET HIGH CONCRETE RETAINING WALL, 5.5 FEET SOUTH OF THE CURB FACEOF BUENA VIS!AAVENUE, 1.9FEET NORTH OF A CARSONITE WITNESS POST, AND ABOm 1 FOOTmGHER THANTHE ROADWAY. ELEV=464.00FEET AMSL (NAVD 88) PID=PV1478 Exhibit B DESCRIPTION OF THE PROJECT SCOPE OF WORK • AT&T proposes to install twelve (12) new panel antennas on two (2) existing light standards in Santa Rosa Park • Each light standard will have six (6) antenna mounted for a total of twelve (12). • AT&T will retrofit the existing park equipment room to house associated equipment. • AT&T will install two (2) new AlC wall mounted units on the existing park equipment room. • AT&T will install co-axial cables from the equipment area to the antennas in existing and new underground conduits. • AT&T will modify existing power and telco services to accommodate its new facility. The accompanied Plans and Specifications dated September 8, 20I0 may be amended by mutual consent between the Lessor and Lessee. Exhibit C MEMORANDUM OF LEASE RECORDING REOUESTED BY & WHEN RECORDED RETURN TO: New Cingular Wireless PCS, LLC Attn:NetworkReal Estate Administration 12555CingularWay,Suite 1300 Alpharetta, GA 30004 APN: 001-031-028 (Space Above This Line For Recorder's Use Only) Re: Market: Los Angeles Cell Site Number: SBL051 CellSite Name: SantaRosaPark Site Address: 190SantaRosaStreet,SanLuis Obispo, CA County: San Luis Obispo MEMORANDUM OF LEASE This MEMORANDUM OF LEASE ("Memorandum") dated as of the latter of the signature dates below (the "Effective Date"), is between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ("Lessor"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Lessee"). All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Lease (as defined below). RECITALS WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Lease At Santa Rosa Park ("Lease") dated as of , 201_, covering certain premises (the "Premises") situated on a portion of that certain real property located in the County of San Luis Obispo, State of California, and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official Records of San Luis Obispo County, California. NOW, THEREFORE, III consideration of the foregoing, Lessor and Lessee hereby declare as follows: 1. Lessor has leased the Premises to Lessee (together with access rights), and Lessee has hired the Premises from Lessor, subject to the terms, covenants and conditions contained in the Lease. 2. The Initial Term of the Lease will be five (5) years ("Initial Term") commencing on the Commencement Date, with three (3) successive five (5) years options to renew. 3. This Memorandum is solely for the purpose of giving constructive notice of the Lease. This Memorandum is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions and provisions of the Lease, all of which are hereby ratified and affirmed. In the event of conflict between the terms of the Lease and this Memorandum, the terms of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease. [SIGNATURES APPEAR ON THE FOLLOWING PAGEl IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum as of the Effective Date. LESSOR: CITY OF SAN LUIS OBISPO, a Municipal Corporation By: --"--­ By:__-.1-+;F-_-""-------==---4-_ Jan ((p~a ,Mayor Date: t;"!/3('J-0-+---'-----I-=-----'--_-'----1 ( _ I I ATTEST: By: .E'kZ.-c2 Elaina Cano, City Clerk APPROVED AS TO FORM: _ J. Christine Dietrick, City Attorney LESSEE: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation ~:Mmagcr /L~ Print Name: $ttRKZl5'iZA Its: ~I'J-C. 6m~ ~I\JS1l!Jtd1&A1 5 -/0-11Date: [ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING PAGEl CALIFORNIA ALL·PURPOSE ACKNOWLEDGMENT• State of California }County of LO~ ~LES On N¥t'1 ~~I ~ , before me,~ST\t::::A H~e~':and ~uc.... , NAi.X.. u.. \le'l!A­personally appeared ----!._---=---=-.2=------"~---"--''''''''''~~~=:;__------------ Name(s) of Signer(s) CHRISTINA M. WAGER -Commission # 1842203 ~ ,~ -Notary Public· California ~ J "'" ." Orange County ~ ••••••MI ~oT"1' [x~r:s ~:r ~r}e1;1 Place Notary Seal Above Though the information below is not required by law, it may prove valuable to persons relying on th document and could prevent fraudulent removal and reattachment of this form to another docu nt. Description of Attached Document Title or Type of Document: -------------------,r---------------­ Document Date: ------------------r---Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ------------,;L---­ D Individual D Corporate Officer - Title(s): D Partner -D Limited D Gener D Attorney in Fact D Trustee D Guardian or Conserva r D Other: +-_ • who provedto me on the basis of satisfactoryevidenceto be the person~ whose name(~ is/~ subscribed to the within instrument and acknowledged to me that he/s~/tt}eY executed the same in his/h¢t~ authorized capacity(i~, and that by his/I~"/th~ signatur~ on the instrument the person(st,' or the entity upon behalf of which the perso~ acted, executedthe instrument. I certify under PENALTY OF of the State of Californi a true and correct. RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer - Title(s): D Partner -D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: _ Signer Is Representing: _ _ _ _ RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Assoclation-9350 De Solo Ave., PO_Box 2402 • Chatsworth, CA 91313-2402· www.NationaINotary.org Item #5907 Reorder: Call Toll-Free1-800-876-6827 LESSOR ACKNOWLEDGMENT State of California County of ---') On before me, _ (insert name and title of the officer) personally appeared -----,-------,--_:----::-----:----::-:-::-__--::-----:-----:-_,----,----,----__ who proved to me on the basis of satisfactory evidence to be the person( s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _ (Seal) LESSEE ACKNOWLEDGMENT State of California County of ---') On before me, _ (insert name and title of the officer) personally appeared _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _ (Seal) Exhibit D WIRELESS TELECOMMUNICATION DEVELOPMENT STANDARDS a -owe oneT bl e 9 Uses All db>y Z TRANSPORTATION & COMMUNICATIONS Permit Requirement by Zoning District Specific use Land Use AG CtOS R1 R2 R3 R4 PF 0(1) C-N C-C C-D C-R C-T C-S M BP Regulations Antennas and telecommunications facilities D D D D D D D D D D D 17.16.120 Key: D = Director's approval required 17.16.120 Wireless telecommunication facilities. A. Purpose To establish standards for the development, siting and installation of wireless telecommunications facilities; to protect and promote public health, safety, and welfare; and to preserve view corridors and avoiding adverse visual and environmental impacts. These standards are not intended to be all-inclusive. Projects may be subject to additional standards deemed appropriate through architectural review and use permit processing to address site-specific conditions. B. Definitions. 1. Wireless telecommunications facilities consist of commercial wireless communications systems, including but not limited to: cellular, PCS, paging, broadband, data transfer, and any other type of technology that fosters wireless communication through the use of portable electronic devices. A facility includes all supporting structures and associated equipment. 2. Co-location is the practice of two or more wireless telecommunication service providers sharing one support structure or building for the location of their antennas and equipment. 3. Stealthing means improvements or treatments added to a wireless telecommunications facility which mask or blend the proposed facility into the existing structure or visual backdrop in such a manner as to render it effectively unnoticeable to the casual observer. C. Exempt facilities. The following wireless telecommunication facilities are exempt from the requirements of this section: I. Government-owned communications facilities used primarily to protect public health, welfare, and safety. 2. Facilities operated by providers of emergency medical services, including hospital, ambulance, and medical air transportation services, for use in the provision of those services. 3. Satellite dish antennas for residential and commercial use, solely for the use of the occupants of the site, subject to compliance with development standards set forth in Section 17.16.100 et al of the zoning ordinance. 4. Any facility specifically exempted under federal or state law. D. Planning Applications and approvals required. 1. Installation of a new wireless telecommunication or modification of an existing installation shall require administrative use permit approval and architectural review. 2. The co-location of a new wireless telecommunication with an existing approved installation shall only require architectural review. 3. The applicant shall submit application materials and fees as required by the Community Development Department. E. Building permit required. Wireless communications facilities shall not be constructed, installed or modified prior to obtaining a City building permit. F. Site development and performance standards. 1. Setbacks. All facility towers and accessory structures shall comply with the setback requirements of the applicable zoning district. 2. Height. The height of any antenna or support equipment shall be determined as part of the use permit on a case by case basis. All facilities shall be designed to the minimum necessary functional height. 3. Site Access. Telecommunication facilities should use existing roads and parking whenever possible. New and existing access roads and parking shall be improved and surfaced where necessary to the satisfaction of the Community Development Director. 4. Aesthetics and Visibility. Facilities shall be creatively designed to minimize the visual impact to the greatest extent possible by means of placement, screening and camouflage. The applicant shall use the smallest and least visible antennas possible to accomplish the coverage objectives. Each installation shall be designed to blend into its surroundings so that the antenna(s) and equipment are not apparent to the casual observer. a. Building mounted facilities shall appear as an integral part of the structure. Equipment and antennas shall be compatible and in scale with existing architectural elements, building materials and site characteristics. Wall mounted antennas shall be integrated architecturally with the style and character of the structure. If possible, antennas and equipment shall be located entirely within an existing or newly created architectural feature so as to be effectively unnoticeable. b. Ground mounted support equipment shall be undergrounded or otherwise screened from view so as to be effectively unnoticeable. c. All connections and conduits between the base of the antenna(s) and support equipment shall be undergrounded. Connections and conduit above ground shall be fully enclosed to the satisfaction of the Community Development Director. Electrical and telephone service to the support equipment shall be undergrounded. d. Ground mounted antennas, poles, structures, equipment, or other parts of a telecommunications facility, which would extend above a ridgeline so as to silhouette against the sky shall be discouraged. Where allowed, they shall be designed to be indistinguishable from the natural surroundings. 5. Lighting. All telecommunication facilities, not otherwise required to have lighting pursuant to Federal Aviation Administration rules, shall be unlit, except when authorized personnel are actually present at night, and except for exempt facilities. 6. Historic Buildings. Any wireless facility located on or adjacent to a historic building or site shall be designed to ensure consistency with the Secretary of Interior standards for remodeling and rehabilitation. 7. Equipment Upgrades. It shall be the responsibility of the owner/operator of a telecommunications facility to provide the City with a notice of intent to modify site equipment in any way. At the time of modification, co-location, or upgrade of facilities, existing equipment shall be replaced with equipment of equal or greater technical capacity and modified to reduce aesthetic impacts by reducing the size of the facility or introducing camouflaging techniques to the satisfaction of the Community Development Director. Unused or obsolete equipment or towers shall be removed from the site within 90 days after their use has ceased. 8. Number of facilities per site. The City shall retain the authority to limit the number of antennas with related equipment and providers to be located at any site and adjacent sites in order to prevent negative visual impacts associated with multiple facilities. 9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption caused by noise to people working and living in the vicinity. At no time shall equipment noise from any source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such equipment, whichever is less. This requirement may be modified at the discretion of the Community Development Director where typical ambient noise levels exceed 55 dB. Outdoor noise producing construction activities shall take place only on weekdays between the hours of 8:00 am and 5:00 pm unless a different schedule is approved as part of the use permit. 10. Backup Generators. Any facility utilizing temporary backup generators shall be required to meet or exceed Air Pollution Control District Standards. All generators shall be fitted with approved air pollution control devices. Projects that propose to include backup generators shall require review and approval from the Air Pollution Control district. Project plans shall indicate location, size, horsepower, and type of fuel used for any proposed generator. Generators shall only be operated during power outages and for testing and maintenance purposes. Testing and maintenance shall only take place on weekdays between the hours of 8:00 am and 5:00 pm. 11. Biological Impacts. Wireless telecommunication facility shall minimize potential impacts to biological resources to the greatest extent possible. 12. Radio Interference. Interference with municipal radio communication is prohibited. Any telecommunication facility that the City has reason to believe is interfering with municipal radio communication shall cease operation immediately upon notice from the City, and shall be subject to use permit review and possible revocation. Testing shall be done prior to any permanent installation and frequencies shall be monitored at regular intervals after installation established by the use permit, at the expense of the facility owner/operator. 13. Airport Operations. Wireless communications facilities shall not be sited in locations where they will interfere with the operation of the San Luis Obispo Airport. Wireless towers and related facilities within the Airport Planning Area shall be referred to the Airport Manager or the Airport Land Use Commission for a determination of consistency with airport area standards. 14. Radio Frequencies and Electromagnetic Exposure. a. Wireless telecommunications facilities operating alone or in conjunction with other telecommunications facilities shall not produce radio frequency radiation in excess of the standards for permissible human exposure as adopted by the Federal Communications Commission (FCC). Applications for facilities shall include a radio frequency radiation (RFR) report that measures the predicted levels ofRF radiation emitted by the proposed facility. The radio frequency radiation report shall compare proposed project levels to levels allowed by the FCC and shall show output of the proposed facility in combination with other facilities located or proposed in the vicinity. b. The City may require one or more post-construction RFR reports as a condition of project approval, to verify that the actual levels of RFR emitted by the approved facilities, operating alone or in combination with other approved facilities, substantially conform to the pre­ approval RFR report and do not exceed current standards for permissible human exposure to RFR as adopted by the FCC. 15. Signs. Explanatory warning signs shall be posted at all access points to cellular telecommunication facilities in compliance with the American National Standards Institute (ANSI) C95.2 color, symbol, and content conventions. 16. Nuisance. Facility generators, mechanical equipment, construction, testing and maintenance shall be operated or performed in such a manner that no nuisance results. At the discretion of the Director, upon receipt of written complaints, the use permit allowing a telecommunications facility may be scheduled for public review. At the hearing, conditions of approval may be added, deleted, or modified, or the use permit may be revoked. 17. Interference with Public Services and Facilities. Telecommunication facilities within public parks shall not interfere with park operations or limit public use of park facilities. Installations in conjunction with other public facilities shall be held to a similar standard. 18. City inspection. The City shall have the right to access facilities after 24 hours written or verbal notice. G. Abandonment. It shall be the responsibility of the owner/operator of a telecommunications facility to provide the City with a notice of intent to vacate the site a minimum of thirty (30) days prior to ceasing operation. Any wireless telecommunication facility that is not operated for a continuous period of ninety (90) days shall be removed within ninety (90) days of the date upon which the operation ceased. H. Revocation of a Permit. Wireless telecommunication service providers shall fully comply with all conditions related to any permit or approval granted under this section. Failure to comply with any condition shall constitute grounds for revocation. If a condition is not remedied within a reasonable period, the Community Development Director may schedule a public hearing before the Hearing Officer to consider revocation of the permit. (Ord. 1409 - 2001 Series) Exhibit E ARCHITECTURAL REVIEW STANDARDS AND CONDITIONS Provided for background information only -these conditions have been met and must continue to be met or the project must undergo architectural review again. Findings (from the letter to the original applicant, dated October 8, 2002): 1. The project complies with the site development and performance standards of the City's wireless telecommunication facilities ordinance. 2. The antennas can be considered camouflaged. 3. Although the project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made or mitigation measures added and agreed to by the project proponent. Conditions (from the letter to the original applicant, dated October 8, 2002): 1. Option A, light pole with lights on top and exposed antennas below, shall be utilized. 2. The project shall be developed in substantial compliance with the plans approved by the ARC. All ARC conditions shall be listed on a sheet in the building plans. Any changes to lighting or parking lot designs shall be subject to the review and approval of the Community Development Director. 3. All existing public utilities shall be showing in detail on these plans. All existing private park facilities shall be detailed on these plans. Underground utilities, including but not limited to, gas piping, phone lines, electrical service, irrigation controller circuits, remote sending circuits, landscape irrigation, domestic waster services, sewer laterals, water mains, and sewer mains shall be shown in detail to the approval of the Parks Maintenance Supervisor. 4. All-weather access shall be maintained to all sanitary sewer manholes. No permanent structures shall be constructed within three meters of the existing sewer main. If conduit will be installed with directional drilling techniques, contractor shall be responsible for video inspecting all sewer mains and laterals in the vicinity and immediately repair any damaged pipes and manholes. All underground conduits shall maintain two meter minimum horizontal separation from the sewer. Conduit crossing any sewer main shall maintain 0.5 meter minimum separation. 5. An accessible path of travel shall be provided to the existing facilities that are now served by the parking lot being removed. A new four foot wide path with an all-weather surface such as concrete or asphalt shall be installed between the ball field facilities (restrooms, baseball play field, bleachers), the skate park / skate rink, the existing path to Murray Street, the new buildings and the remaining existing parking lot. Path shall comply with requirements for surface material, cross slope, slope in the direction of travel and any other applicable sections for walkways (see UBC ll33B.7.) 6. Improvement plans shall include detailed lighting specifications for the new light poles. These fixtures may need to be shielded to minimize spill and glare while at the same time achieving the lighting needs of the ball field. A note shall be included on t he improvements plans that "After installation, the new ball field lights may need to be modified or shielded if the Community Development Director determines that they emit excessive glare. 7. Trees shall be added between Santa Rosa Street and the main parking lot, adjacent to the parking lot closest to the ball fields where possible, and behind the new antenna, light pole closest to the skate park. Acceptable tree varieties shall be those from the City's street tree list and shall exclude eucalyptus and pine varieties. Exhibit F PLANNING COMMISSION USE PERMIT Provided for background information only -these are the conditions set for Application No. U 11-02 allowing installation of a wireless telecommunication facility at 190 Santa Rosa Street, dated October 23, 2002. These conditions have been met and must continue to be met or the project must obtain a revised use permit. Findings: 1. The project complies with the site development and performance standards of the City's wireless telecommunication facilities ordinance. 2. The proposal could be established and maintained without jeopardy to persons or property within or adjacent to the proposed site and without damage to the resources of the site and its surroundings subject to the conditions of the Architectural Review Commission in that the proposed antennas can be considered camouflaged, as the casual observer would not usually suspect a ball field light to be a cell tower. In addition, the telecommunications site will comply with FCC regulations regarding radio frequency transmissions and potential light impacts to the neighborhood would not be in excess of existing conditions. 3. Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because mitigation measures have been added and agreed to by the project proponent. Aesthetics 1. Screen outdoor mechanical equipment from on-site and off-site views to the satisfaction of the Architectural Review Commission. Monitoring Program: The Architectural Review Commission will ensure that any outdoor and roof-mounted mechanical equipment will be screened from on-site and off­ site views. Building plans shall be in substantial compliance with plans approved by the Architectural Review Commission. 2. The new ball field lights shall be directed downward as indicated in the project plans to minimize light and glare into the adjacent neighborhood. Lighting of the skate park and roller rink shall have maximum illumination levels of 30 foot-candles within those respective activity areas. Park policy shall be that lights are off at 10:00 P.M. Monitoring Program: The Architectural Review Commission will ensure compliance through the Architectural Review process and Building plans shall be in substantial compliance with plans approved by the Architectural Review Commission.