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HomeMy WebLinkAboutA54-04MEMORANDUM OF UNDERSTANDIN G This Memorandum of Understanding ("MOU") is made this 1st day of June, 2004 by and between th e CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (the "City"), and SPRINT PC S ASSETS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, (the "Contractor"). RECITALS WHEREAS, Contractor desires to construct a wireless communications facility at Laguna Lak e Golf Course ; an d WHEREAS, the City is willing to lease a portion of Laguna Lake Golf Course to the Contracto r upon the terms and conditions set forth in Exhibit 1, provided that Contractor is able to obtain all discretionary approvals required by the City in its municipal and regulatory capacity ; an d WHEREAS, the MOU is non-binding in nature. Now, therefore, the parties have prepared the following MOU : 1 . PROJECT' DESCRIPTION The "project" consists of a wireless communications facility at the golf course as follows : a.It is envisioned that the cellular antennas for this project would be of a tree type design tha t will blend into the scenery, have little impact to the skyline, and meet the City's stealt h requirements . b.Construct a building or unit for cellular equipment to be located on the northwest side of th e Maintenance Shop – adjacent to the Maintenance Shop (Exhibit 2). c.Construct a structure (tree-type) to hold the antennas to be located on the southerly side of th e Maintenance Shop . d.Install landscaping on the east side of Maintenance Shop and in the front driveway entranc e (Exhibit 2.A & B) and replace chain link as suggested in Exhibit 2 . e.Install one 2-inch HDPE conduit for City services at the Maintenance Shop, intercept existin g City communication conduit, and place City standard pullbox with traffic cover . f.Making other minor improvements as may be necessary to successfully complete this project . 2. APPROVAL OF IMPROVEMENT S In its capacity as the owner of Laguna Lake Golf Course, and separate from its capacity a s regulator, the City shall have rights of specific approval and review of all designs and plans , initially at the concept and schematic plan level, and subsequently at the final plans as set fort h herein. Upon execution of the MOU the City shall review and approve the preliminary design . After approval of the preliminary design, Contractor shall submit to the City the final plans fo r the Project . Within 30 days of such submission, the City shall exercise its final right of revie w and approval of such plans . These rights shall be supplemental to and not concurrent with it s rights of inspection in connection with building permit, fire and other regulatory functions . 3 . CITY RIGHTS OF APPROVAL AND INSPECTIO N During the construction process, the City shall have the right, as an owner, to review all chang e orders, to require change orders which the City reasonably deems necessary only in order t o ,4s `/'o 7 ensure consistency or equivalency with the approved plans and specifications, and to inspect al l parts of construction at any time . These rights, like the rights of plan review and approval, ar e supplementary to and separate from the regulatory functions of the City . 4 . CONTINGENCIES TO LEASE SIGNING In its capacity as landowner, the City is under no obligation to enter into any lease until the development review process is concluded and all discretionary approvals are obtained and suc h other requirements as may pertain to final entitlement and approval of this project are fulfilled . 5 . PERFORMANCE BOND FOR PUBLIC IMPROVEMENTS The Contractor shall provide at no cost to the City a surety bond to guarantee completion of th e improvements that meet City standards for such bonds . 6 . CONTINGENCY FUNDS FOR UNANTICIPATED WOR K a.Prior to start of project construction, City will collect from Contractor and hold a sum o f $5,000 for any unanticipated work related to the project . b.Contractor will receive an itemized statement of expenditures spent from this fund, within 9 0 days of completion of project . Funds not expended will be returned to the Contractor , exclusive of claims pending against the City . 7 . RESPONSIBILITIES OF THE PARTIE S a.Contractor. It shall be the responsibility of Contractor to diligently pursue all aspects of th e application for the development of the project, including all environmental processing, al l zoning processing, any supporting technical studies, and any other supporting studies as ma y be necessary. All costs associated with the processing of entitlements and City approvals an d the production of studies, planning and design for the project shall be paid for by Contractor . b.City . The City, in its role as landowner, shall cooperate with and furnish information t o Contractor on the property . With regard to zoning approvals, the City's responsibility shal l be limited to providing that level of interaction, timely response, and review as provided fo r in regulations and ordinances of the City of San Luis Obispo . 8 . OTHER MUNICIPAL PROCESSIN G a.The Parties understand and agree that those approvals required of the City acting in it s governmental or regulatory capacity are separate and distinct from those approvals require d by the City under this MOU . Notwithstanding anything to the contrary in this MOU, nothin g herein shall be interpreted to mean that the City is any way waiving, limiting or weakenin g any regulatory or police power the City may have in any of its governmental capacities . It i s intended that Contractor shall be obligated to fulfill such requirements as may be imposed b y the City or any other governmental agency or authority having or exercising any jurisdictio n over the project or over any construction to be undertaken by Contractor in, on or about said project . b.Refusal or failure by the City in its governmental or regulatory capacity to take a legislativ e action, issue any permit, license or any other action or approval sought by Contractor fo r construction of improvements on, or development of, the project shall not constitute a breac h of this MOU. Memorandum of Understanding Page 2 of 32 APPROVED AS TO FORM : Jon an well, City Attorne y 9 . NON-BINDING NATURE OF THE AGREEMEN T a.Without obligating either of the parties, this MOU summarizes what Contractor and the Cit y perceive to be the major deal points with respect to the project . No binding obligation i s created by this MOU or can be created other than by execution of a Telecommunication s Facilities Lease in the form attached hereto as Exhibit 1 . Notwithstanding the foregoing, th e parties agree that if a Telecommunications Facilities Lease is entered into between th e parties, it shall substantially include the terms of this MOU . b.This MOU is an outline for discussion purposes only, is not intended to be contractual o r binding for any purpose and is not an offer or representation by either party . It is designed t o reflect the ideas being formulated, to provide a framework to attempt to resolve issues an d concerns that have been raised, as well as for the resolution of issues and concerns which ma y arise . In some instances, a tentative but not binding, agreement on a matter is referred to, an d in other instances, material agreements are yet to be defined and specified . The fact that an y particular component or issue is not addressed in this MOU does not mean that it cannot b e the subject of future discussions and negotiations, and the fact that a component is addresse d does not mean that it cannot be rejected or modified by either party . Contractor furthe r acknowledges and agrees that the officers and employees of the City, do not have authority t o bind the City, and the final form of any proposed lease to be negotiated may have to contai n matters not contemplated by this MOU. The parties acknowledge that neither party will b e contractually bound to any agreement nor to any element of the proposed development unti l the final execution of a mutually acceptable lease approved and executed by authorize d representatives . Alternatively, either of the parties may determine that further negotiation s will not be fruitful and then terminate this MOU or allow this MOU to lapse without furthe r liability to the other . 10. ACCEPTANCE AND ACKNOWLEDGEMENT SPRINT PCS ASSETS, LLC A Delawar e Limited Compan y B Name : s Title :7s /s /24vasb-c -P.Q. Sprint Contracts and Peformance Hotline : 800 .357 .764 1 Exhibit 1 : Form of Telecommunications Facility Lease at Laguna Lake Golf Course . Exhibit 2: Aerial map of proposed project scope . Memorandum of Understanding Page 3 of 3 2 CITY OF SAN LUIS OBISP O By: Mayor David F . Romero TELECOMMUNICATIONS FACILITY LEASE AT LAGUNA LAKE GOLF COURSE This Lease is made and entered into this _ day of , 2004, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to a s "Lessor"), and SPRINT PCS A DELAWARE LIMITED LIABILITY COMPANY, ASSETS, LLC , (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 the property described in Exhibit A, located at 11175 Los Oso s Valley Road, San Luis Obispo, California, commonly known as Laguna Lake Golf Course . B.Lessee has requested permission to construct a wireless communications facility to b e located at Laguna Lake Golf Course and Lessee is willing to construct and dedicate certain publi c improvements to Lessor . Lessor is willing to lease a portion of Laguna Lake Golf Course to Lessee upo n the terms and conditions hereinafter set forth . C.Lessee warrants that the facility will not interfere with the Department of Parks and Recreation, Laguna Lake Golf Course operations or the public's use of the course . D.This Lease is conditioned upon Lessee obtaining all governmental permits and approval s enabling Lessee to construct and operate wireless communications facilities on the Premises, as define d below . E.Lessor and Lessee have heretofore entered into a Memorandum of Understanding date d June 1, 2004 concerning Laguna Lake Golf Course . NOW THEREFORE, the parties hereto agree as follows : 1 .Premises .Lessor is the owner of a parcel of land located in the City of San Luis Obispo , County of San Luis Obispo, State of California, located at 11175 Los Osos Valley Road, commonl y known as Laguna Lake Golf Course . The land is more particularly described in Exhibit A, attached hereto . Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lesso r Exhibit 1 of the Memorandum of Understanding Page 4 of 32 approximately 400 square feet of the land and all access and utility easements described in Exhibit B 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 an d condition of said Lease . During the term of this Lease, Lessor also grants to Lessee an irrevocable, nonexclusive right o f ingress and egress, seven days a week, twenty-four (24) hours a day, and the right to install and maintai n underground utility wires and cables and conduits and pipes (1) from the Premises to the nearest publi c right-of-way, and (2) from the radio equipment to the antennas . 2 . Improvements . A . Lessee shall design and perform, construct or erect or cause to be constructed o r erected at its sole cost the following minor improvements ("Improvements") as shown on Exhibit "B :" 1)Construct a building or unit for cellular equipment on the northwest sid e of the Maintenance Shop . 2)Construct a structure (tree-type) to hold the antennas to be located on th e southerly side of the Maintenance Shop . 3)Install landscaping and replace chain link on the east side o f Maintenance Shop and landscape the front driveway entrance . 4)Install one 2-inch HDPE conduit for City services at the Maintenanc e Shop, intercept existing City communication conduit, and place City standard pullbox with traffic cover . 5)Making other minor improvements as may be necessary to successfull y complete this project . B . Lessee shall also erect on the Premises communications facilities, which include , but are not limited to, equipment shelters, radio frequency transmitting and receiving equipment , batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas, an d supporting structures and improvements (hereinafter "Lessee's Facilities") as shown on Exhibit "B". The Exhibit I of the Memorandum of Understanding Page 5 of 32 plans for the Improvements and Lessee's Facilities (landscaping, irrigation, fencing, building, concrete , and all related improvements) as shown on Exhibit "B" shall have the prior written approval of Lessor i n its municipal capacity (not in its capacity as landlord). Lessee shall dedicate the Improvements to Lesso r upon completion thereof . C.The Improvements shall be performed by Lessee under the authority, d irection , supervision, and approval of Lessor . Lessee shall submit construction plans to the City's Director o f Parks and Recreation for approval prior to submitting the application and plans to the Community Development Department for building permit processing and approval . D.Lessee acknowledges and understands that the improvement is a publi c construction project subject to the competitive bidding requirement contained in California Publi c Contracts Code Section 20162 and the prevailing wage requirement contained in California Labor Cod e Section 1771 . 3.Term .The initial term of this Lease shall be for five (5) years ("Initial Term") commencing with the issuance of a City building permit to construct the Lessee's Facilities an d Improvements . 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 it s intention not to renew, at least sixty (60) days prior to the expiration of the Initial Term or any Renewa l Term . 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 Twenty-Five Thousand Dollars ($25,000 .00) ("Annual Rent") without deduction , setoff, notice or demand . B.Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease yea r without deduction, setoff, notice, or demand the previous year's Annual Rent multiplied by the CP I Adjuster, or multiplied by three percent (3%), whichever is greater . Exhibit I of the Memorandum of Understanding Page 6 of 32 C.The CPI Adjuster means a percent, which is calculated by dividing the Unite d States Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of th e U .S . Department of Labor three (3) months prior to the adjustment date by the base Index numbe r 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 th e 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 substantiall y 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 i s due, Lessee shall pay a late fee of one and one half percent (1 .5%) per month . This late charge does no t establish a grace period . Lessor and Lessee agree that the charge is presumed to be the damages sustaine d by Lessor for Lessee's late payment of rent and that it is impracticable or difficult to fix the actua l damages . 5.Termination for Convenience .Notwithstanding, the initial and renewal terms set forth i n Section 3, Sprint PCS may terminate this Lease without further liability by delivering 60 days prio r written notice. In this event, Lessee's improvements shall be removed in accordance with Section 18 o f this Lease, without refund of previously paid rent; a termination fee of one (1) year's current rent shall b e paid to Lessor . 6. Use . A. Lessee shall use the Premises for the sole purpose of constructing, maintaining , securing and operating wireless communications facilities including the construction of equipmen t buildings and installation of required antennas and related communications equipment upon the ne w stealth poles all as listed, depicted, and described in the "Lessee's Facilities" which is attached hereto a s Exhibit 1 of the Memorandum of Understanding Page 7 of 32 Exhibit "B" and hereby incorporated by reference . Any other use of the Premises or use of equipment no t 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 i n its municipal capacity . Installation of a new wireless telecommunication or modification of an existin g installation shall require use permit approval and architectural review . The applicant shall submi t application materials and fees as required by the Community Development Department . Wireles s communications facilities shall not be constructed, installed or modified prior to obtaining a City buildin g permit . It shall be the responsibility of the owner/operator of a telecommunications facility to provide th e City with a notice of intent to modify site equipment in any way . Lessor shall reasonably cooperate (at n o expense to Lessor) with Lessee in connection with Lessee's efforts to obtain all such permits an d approvals ; provided, however, Lessor shall not be obligated to apply for any permits or approvals wit h Lessee . Construction of Lessee's Facilities and the Park Improvements shall be at Lessee's sole expense . Further, Lessee shall maintain the Lessee's Facilities free from hazards or risk to the public health, safet y 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 fro m 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 operat e or construct the Park Improvements or Lessee's Facilities, Lessee may terminate this Lease as provide d herein, upon thirty (30) days prior written notice . E.Facility cannot be operational until final acceptance by the Lessor . 7 . Interference . Exhibit I of the Memorandum of Understanding Page 8 of 32 A.Lessee warrants that its construction, repair and operation of Lessee's Facilitie s will not interfere with Lessor's fire, police, public works and other public safety or city departmen t communication broadcasts or frequencies . All operations by Lessee shall be in compliance with al l Federal Communications Commission requirements and all applicable laws . B.If Lessor suspects or has reason to believe that Lessee's use of the Premise s creates radio or television interference for nearby residents or interference with Lessor's communicatio n systems, and if Lessee (i) does not proceed diligently to eliminate such interference, or (ii) provide evidence that Lessee and the sublease tenant are 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 givin g 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 tha t there is interference with Lessor's public safety frequencies, Lessee shall immediately cease th e operations creating the interference when directed to do so by the City's D irector of Finance an d Information Technology until such time that the interference can be eliminated to the satisfaction of th e Information Technology Division . Lessee's failure to immediately cease such operations shall b e considered a material breach of this Lease notwithstanding Paragraph 6 .B . above . 8 . 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 o r license . To that end no facility or combination of facilities shall produce at any time power densities i n any inhabited area that exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric an d magnetic field strength and power density for transmitters or any more restrictive legally enforceable an d applicable standard subsequently adopted or promulgated by the city, county, the state of California, o r the federal government . For purposes of radio frequency emissions, compliance with FCC exposur e Exhibit 1 of the Memorandum of Understanding Page 9 of 32 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 facilit y 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, throug h submission, at the time of application for the necessary permit or entitlement, calculations specifyin g MPE levels in the inhabited area where the levels produced are projected to be highest . If thes e calculated levels exceed eighty percent (80%) of the MPE limits, the applicant shall hire a qualifie d electrical engineer licensed by the State of California to measure exposure levels at the location after th e facility is in operation . A report of these measurements and the engineer's findings with respect t o compliance with MPE limits shall be submitted to the Community Development Director . Lessee's Facilities shall not commence normal operations until it complies with, or has been modified to compl y with this standard . Proof of compliance shall be a certification provided by the engineer who prepared th e 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 a n inhabited area and all broadcast radio and television facilities shall demonstrate continued complianc e with its FCC permit or license and MPE limits . Every five (5) years a report listing each transmitter an d 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 highes t 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 th e facility shall hire a qualified electrical engineer licensed by the State of California to measure the actua l exposure levels produced . A report of these calculations, required measurements, if any, and th e engineer's findings with respect to compliance with the current MPE limits shall be submitted to th e Exhibit I of the Memorandum of Understanding Page 10 of 32 Community Development Director within five (5) years of facility approval and every five (5) year s 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 wit h any FCC license, permit or MPE limits shall be considered a material breach of this Lease . 9.Visual Mitigation .Lessee will use a variety of visual mitigation strategies for all of it s facilities, as determined necessary by the Community Development D irector and as required through th e 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 t o accomplish the coverage objectives . Each installation shall be designed to blend into its surroundings s o that the antenna(s) and equipment are not apparent to the casual observer . The structure in which antennas are located shall not exceed fourteen (14) inches in diameter . No more than one carrier shal l install antennas in any given pole . Ground mounted support equipment shall be undergrounded o r otherwise screened from view so as to be effectively unnoticeable . All connections and conduits betwee n the base of the antenna(s) and support equipment shall be undergrounded . Electrical and telephon e service to the support equipment shall be undergrounded . 10.Noise.Each facility shall be operated in a manner that minimizes any possible disruptio n caused by noise to people working and living in the vicinity . At no time shall equipment noise from an y 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 constructio n 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 shal l be required to meet or exceed Air Pollution Control District Standards . All generators shall be fitted wit h approved air pollution control devices . The cellular site shall not be in operation prior to the issuance of a Exhibit I of the Memorandum of Understanding Page 11 of 32 Certificate of Occupancy from the Community Development Department . Projects that propose t o 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 2:00 pm . 11.Nondiscrimination .Subject to applicable laws, rules, and regulations, Lessee shall no t discriminate against any person or group on the basis of age, sex, sexual orientation, AIDS, ADS relate d condition, marital status, race, religion, creed, ancestry, national origin, disability, or handicap . 12.Subsurface Restrictions .The parties agree that this Lease covers only the surface of th e Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premise s as permitted in this Lease (including, without limitation, (i) the foundation for Lessee's monopole antenn a structure and building, and (ii) cables, conduits and pipes within the Premises to connect Lessee's communications equipment within such building to the antennas to be constructed and maintained b y Lessee within the Premises). 13.Liens . Lessee shall keep the premises free of mechanic's, material supplier's or othe r liens for any work done, labor performed or materials furnished therein by or for Lessee, and Lessee shal l 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 . 14.No Utilities .Lessor shall not provide any utilities to the Premises . Lessee shall b e permitted to install utility lines, meters for electricity, and shall arrange and pay for the installation an d use of all utilities of whatsoever kind to the Premises . 15. Maintenance . A . Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintai n Lessee's Facilities and all related improvements (except the Improvements as shown on Exhibit "B") i n good condition, free from rodents, weeds, noxious plants and wild growth, in substantial repair, in a safe Exhibit 1 of the Memorandum of Understanding Page 12 of 32 and sanitary condition, and in compliance with all applicable laws and regulations and shall promptl y repair any damage caused by Lessee . If Lessee fails to maintain the Lessee's Facilities as required herein , Lessor may notify Lessee of said failure . If Lessee fails to correct the situation within thirty (30) day s after notice or such longer period as may be established by Lessor, Lessor may make the necessar y correction and the cost thereof, including but not limited to the cost of administration, and labor , materials, equipment, shall be paid by Lessee within thirty (30) days after receipt of a statement of sai d cost from Lessor . If said statement is not timely paid, Lessor may, at its option, choose any remed y 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 lie u thereof as may be provided by law . B . Lessor shall have no duty to maintain or repair Lessee's Facilities or any o f Lessee's improvements . 16.Taxes .Lessee acknowledges that this Lease may create a possessory interest subject t o 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 b e lawfully levied against the Premises and any improvements or personal property located on the Premise s and on any possessory interest created by this Lease, and provide proof of payment to Lessor on demand . 17.Insurance .Concurrent with the execution of this Lease, Lessee shall procure an d maintain, at its cost, during the initial and any extended or Renewal Term of this Lease from an insure r admitted in California or having a minimum rating of or equivalent to A : VII in Best's Insurance Guide : A . Comprehensive General Liability insurance with a combined single limit of a t least Five Million Dollars ($5,000,000) for each occurrence . Lessor, its officials, employees and agents shall be covered as additional insured's with respect to liability arising from activities performed by or o n behalf of Lessee . Said insurance shall be primary insurance with respect to Lessor and shall contain a cross liability endorsement . Exhibit I of the Memorandum of Understanding Page 13 of 32 B."All Risk" property insurance in an amount sufficient to cover the ful l replacement value of Lessee's personal property, improvements and equipment on the Premises . C.Upon the execution of this Lease, Lessee shall deliver to Lessor certificates o f insurance with original endorsements evidencing the coverage required by this Lease . The certificate s and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf . D.Said insurance shall contain an endorsement requiring thirty (30) days prio r written notice from insurer to Lessor before cancellation or change of coverage . E.Said insurance may provide for such deductibles or self-insured retention as ma y be acceptable to the City's Risk Manager or designee . In the event such insurance does provide fo r deductibles or self-insured retention, Lessee agrees that it will fully protect Lessor its officials an d employees in the same manner as these interests would have been protected had a policy of commercia l insurance been in effect. With respect to damage to property, Lessor and Lessee hereby waive all right s of subrogation, one against the other, but only to the extent that collectible commercial insurance i s 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 indemnif y 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 mad e with the written approval of the Lessor's Risk Manager or designee . 18 .Removal of Improvements .On the expiration or sooner termination of this Lease, Lesse e at Lessee's sole cost shall have the right to remove Lessee's Facilities (with the exception of th e Improvements as shown on Exhibit B) erected on the Premises by Lessee by giving notice of its intentio n to do so to Lessor and by removing same within forty-five (45) days after expiration or soone r termination of this Lease . Lessor may treat any such buildings or improvements as abandoned if Lessee fails to timely remove them and, in such event, (a) Lessor shall be deemed owner of them without Exhibit 1 of the Memorandum of Understanding Page 14 of 32 accounting to Lessee, or (b) Lessor may cause their removal at Lessee's cost, with the exception of th e underground conduits which may be abandoned in place by Lessee . 19.Relocation .Lessee agrees that nothing contained in this Lease shall create any right i n Lessee for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapte r 16 of the California Government Code from Lessor on account of the expiration or sooner termination o f this Lease . 20.Notice .My notice required hereunder shall be in writing and personally delivered o r deposited in the U .S . Postal Service, registered or certified, return receipt, postage prepaid, to the addres s of the respective parties set forth below : LESSOR : LESSEE : Parks and Recreation D irector Authorized Representative of City of San Luis Obispo Sprint PCS, Assets, LLC . A Delaware Limited Liability Company , 1341 Nipomo Street 810 Gravilla Drive San Luis Obispo, CA 93401 Santa Barbara, CA 9310 9 Notice shall be deemed effective on the date shown on the return receipt or on the date personal deliver y is made, whichever first occurs . If delivery is refused, the date of deposit of the copy in the mail shall b e deemed the date of notice . Change of address shall be given as provided herein for notices . 21.Hazardous Materials and Waste . A.Lessee shall comply with all applicable laws regarding the use, storage an d disposal of hazardous materials on the Premises . Lessee shall comply with California Health and Safet y Code Section 25359 .7 or its successor regarding notice to Lessor on discovery by Lessee of the presenc e or suspected presence of any hazardous substance on the Premises . B.Lessee shall not bring any hazardous materials onto the Premises except for thos e 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 i n accordance with all federal, state and local laws and regulations . Exhibit 1 of the Memorandum of Understanding Page 15 of 32 C.Lessee shall specify any proposed generator usage and its proposed location . 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, o r any fraction or derivative thereof), or underground storage tanks are located on or near the Premises . 22.Indemnity .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 thos e 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 o r about the Premises arising from the condition of the Premises (other than conditions existing prior t o 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, th e 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 . 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 o n account of personal injuries or death or on account of property damages arising out of the use of th e Premises by Lessor hereunder and resulting from the sole negligence or willful misconduct of Lessor o r its officers, agents and employees . 23.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 o f Lessee's assets ("Permitted Assignment"), Lessee shall not assign or transfer this Lease or any interes t herein, without the prior written consent of Lessor which shall not be unreasonably withheld, provided , Exhibit 1 of the Memorandum of Understanding Page 16 of 32 however, that Lessee shall 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 a s "transfer"), Lessee shall meet the following requirements and Lessee's failure to meet any requiremen t shall allow Lessor to withhold consent : A.Lessee shall notify Lessor at least sixty (60) days prior to the date when Lesse e desires the transfer to take effect ("Transfer Date") which notice shall contain the name, address an d telephone number of the proposed transferee ; the nature of the proposed transferee's business and detail s 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 Leas e 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 suc h 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 releas e transferee from its liability as stated herein . D.The consent of Lessor to any transfer shall not relieve Lessee of the obligation t o obtain such consent to any further transfer . Further, neither this Lease nor any interest herein shall b e subject to transfer by attachment, execution, proceedings in insolvency or bankruptcy (either voluntary o r involuntary), or receivership . In the event of the transfer without the prior written consent of Lessor, suc h transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest . An y transfer without Lessor's consent shall constitute a default of this Lease . E.To obtain Lessor's consent to a sublease, Lessee shall meet the followin g 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 th e sublease tenant's behalf as the Lessee ("Additional Annual Rent"). For example, if there were tw o Exhibit I of the Memorandum of Understanding Page 17 of 32 sublease tenants by the beginning of the third year of this Agreement, the total rent due from the Lesse e would be $79,567 .50 : the Annual Rent for the Lessee ($26,522 .50, which is the first year's rent o f $25,000 increased by 3% for two years) and the Additional Annual Rent for the two sublease tenant s ($26,522 .50 each). While the Lessee may require the sublease tenant to pay this amount as part of thei r sublease agreement with the Lessee, payment of the Additional Annual Rent is the sole responsibility o f 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 whe n Lessee desires the sublease the transfer 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 subleas e tenant's business and details of its business experience . The first year of Additional Annual Rent shall b e 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) tha t 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 Premise s stated herein ; the Lessee is in default under this Lease at the time the request for sublease is made and ha s 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 the same terms and conditions of thi s Agreement as the Lessee . 5) Lessor shall notify Lessee at least fifteen (15) days prior to the subleas e date whether Lessor approves or disapproves of the proposed sublease . 24. No Permits .Lessee shall not grant any rights-of-way, easements, franchises or permits in, on or across the Premises . 25. Encumbrances .Lessee shall take the Premises subject to any and all existing easement s and other encumbrances . Exhibit 1 of the Memorandum of Understanding Page 18 of 32 26. Reservations .Lessor reserves the right to grant franchises, easements, rights-of-way o r permits for pipeline purposes which will not interfere with Lessee's use of the Premises . 27. Default .The occurrence of any of the following acts shall constitute a default by Lessee : A.Failure to pay Annual Rent or Additional Annual Rent when due where suc h failure shall continue for a period of ten (10) 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 sai d failure . If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lesse e shall not be in default if Lessee begins to cure within the thirty-day period and diligently proceeds to cur e to completion. Lessor's notice shall describe the default and shall demand that Lessor perform or quit th e Premises . No such notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elect s in the notice . C.Any attempted assignment, transfer or sublease except as permitted in Section 2 2 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 Cit y when due ; E.Failure to report or pay to the City all applicable sales taxes, transient occupanc y 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, covenan t and condition of this Lease or if a default occurs, then Lessor may terminate this Lease and Lessor ma y then enter the Premises and take possession thereof provided, however, that these remedies are no t 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 o f additional or different remedies for the same or any other default by Lessee . Exhibit 1 of the Memorandum of Understanding Page 19 of 32 F . Failure to perform any of the terms, covenants or conditions of this Lease if sai d failure is not cured within thirty (30) days after Lessee notifies Lessor of said failure shall constitute a default by Lessor of this Lease . If the default cannot reasonably be cured in thirty (30) days after receip t of such notice, Lessor shall not be in default if Lessor begins to cure within the thirty (30) day period an d diligently proceeds to cure to completion . 28 . Right of Entrv . A.In the event of an emergency which poses an immediate threat of harm o r damage to persons or property, Lessor may enter the Premises and take such actions as are required t o protect persons or property from such immediate threat of harm or damage, provided that promptly afte r such emergency entry into the Premises (and in no event later than twenty-four (24) hours) Lessor give s telephonic and written notice to Lessee of Lessor's entry into the Premises . In addition to Lessor's right s under the immediately preceding sentence, Lessor shall have the right, upon forty-eight (48) hours prio r telephonic notification to Lessee (which notification shall specify the date and time at which Lessor seek s to enter the Premises), to enter the Premises to determine whether or not Lessee is complying with thi s Lease and to serve, post or keep posted any notice . Except in the event of an emergency, Lessor agree s that it shall not enter the Premises without a representative of Lessee being present, and Lessee agrees t o make its representative promptly and readily available to accompany Lessor on the date and at the tim e given in Lessor's telephonic notice . If Lessee fails to make its representative available on the date and a t the time given in Lessor's telephonic notice or at a mutually agreeable time, then Lessor may enter th e Premises accompanied by a peace officer . B.Lessee shall install a lock box system on the Premises and give the City access t o the lock box in order to allow the City to inspect the Premises pursuant to Paragraph A above . 29 .Signs .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 prio r written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at al l Exhibit 1 of the Memorandum of Understanding Page 20 of 32 times . Lessor may remove any sign not approved by Lessor at Lessee's cost . The cost of removal shal l be additional rent . 30.Condemnation .If the whole of the Premises shall be taken by any public or quasi-publi c authority under the power of eminent domain, then this Lease shall terminate . If any part of the Premise s shall be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, a s of the day possession (of that part) is required for any public purpose, and on or before that day Lesse e shall elect in writing either to terminate this Lease or to continue in possession of the remainder of th e Premises provided, however, that rent shall only be reduced in proportion to the amount of the Premise s 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 a s compensation for diminution in value to the leasehold or to the fee provided, however, that Lessor shal l not be entitled to any portion of the award made for loss of Lessee's business or relocation expenses . 31.Nuisance .Lessee shall not do or permit to be done in or on the Premises any act, whic h may be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or occupants of adjoining property, or to the neighborhood . 32.Exculpation .Except as expressly provided herein, Lessor shall not be liable to Lessee fo r any damages to Lessee's property from any cause. To the extent permitted by law, Lessee waives al l claims against Lessor for damage or injury to persons or property arising or alleged to have arisen fro m any cause whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's breach of it s obligations hereunder. 33.Waiver of Rights .The failure or delay of either party to insist on strict enforcement o f any term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that suc h 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 no t constitute a waiver of any other default but shall only constitute a waiver of timely payment for th e particular rent payment involved . Any waiver by either party of any default or breach shall be in writing . Exhibit I of the Memorandum of Understanding Page 21 of 32 Either party's consent to or approval of any act by the other party requiring a party's consent or approva l shall not be deemed to waive such party's consent or approval of any subsequent act of the other party . 34.Partial Invalidity .If any term, covenant or condition of this Lease is held by a court o f competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shal l remain in full force and effect . 35.Successors in Interest .This Lease shall be binding on and inure to the benefit of th e parties and their successors, heirs, personal representatives, approved transferees and assignees, and all o f the parties hereto shall be jointly and severally liable hereunder . 36.Right to Re-Enter .Lessor acknowledges that Lessee's use of the Premises include s proprietary trade secrets . Lessor shall have no right whatsoever to enter the Premises except as provide d in Paragraph 27 .A . above, without Lessee's written consent which Lessee shall not unreasonabl y withhold . Lessee shall peaceably deliver possession of the Premises to Lessor on the effective date o f termination or expiration of this Lease . On giving notice of termination to Lessee, Lessor shall have th e right to re-enter and take possession of the Premises on the termination or expiration date without furthe r notice of any kind and without institution of summary or regular legal proceedings . Termination of th e Lease and re-entry of the Premises by Lessor shall in no way alter or diminish any obligation of Lesse e under the Lease and shall not constitute an acceptance or surrender . Lessee waives any and all right o f redemption under any existing or future law, in the event of eviction from the Premises and in the even t Lessor re-enters and takes possession . Lessee agrees that should the manner and method used by Lesso r in re-entering or taking possession after breach by Lessee gives Lessee a cause of action for damages or i n forcible entry and detainer, the total amount of damages to which Lessee shall be entitled due to th e re-entering shall be One Dollar ($1 .00). Lessee agrees that this Section may be filed in any such actio n and that when filed it shall be a stipulation by Lessee fixing the total damages to which Lessee is entitle d in such action . 37. 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 th e Exhibit 1 of the Memorandum of Understanding Page 22 of 32 same terms, covenants, and conditions herein, except that monthly rent shall be one-twelfth (1/12) of on e hundred twenty-five percent (125%) of the annual rent then in effect . Nothing in this Section shall b e construed as a consent by Lessor to any holding over by Lessee . 38. Time. Time is of the essence in this Lease and every provision hereof . 39. Attorney's Fees .In any action or proceeding relating to this Lease, the prevailing part y shall be entitled to its costs, including reasonable attorney's fees and court costs . 40.Integration and Amendments .This Lease represents and constitutes the entir e understanding between the parties and supercedes all other agreements and communication between th e parties, oral or written, concerning the subject matter herein . This Lease shall not be modified except i n writing duly signed by the parties and referring to this Lease . 41.Recordation .Concurrently with the execution of this Lease, Lessor shall execute befor e a notary and deliver to Lessee for recording a "Memorandum of Lease" substantially in the form o f Exhibit "C" attached hereto and by this reference incorporated herein (the "Memorandum"). Lessee ma y 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 . 42. Governing Law.This Lease shall be governed by and construed in accordance with th e laws of the State of California . 43.Captions .The various headings and numbers herein and the grouping of the terms hereo f into separate sections, paragraphs and clauses are for convenience only and shall not be considered a par t hereof, and shall have no effect on the construction or interpretation of this Lease . 44.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 persona l property belonging to Lessee and left on the Premises forty-five (45) days after such abandonment shal l be deemed to have been transferred to Lessor . Lessor shall thereafter have the right to remove and t o Exhibit 1 of the Memorandum of Understanding Page 23 of 32 dispose of said property without liability to lessee or to any person claiming under Lessee, and shall hav e no duty to account therefore . 45.Compliance with the Law .Lessee shall comply with all laws, ordinances, rules an d regulations of all federal, state and local governmental authorities having jurisdiction over the Premise s and business thereon . 46. Quiet Enjoyment .Lessor covenants that, if Lessee performs the terms, covenants an d conditions of this Lease, Lessee shall peaceably and quietly hold and enjoy the Premises . 47.Lessor's Representation of Authority .Lessor represents that it has title to the Premise s 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 th e Premises that would affect this Lease . 48.Non-Interference Provision .Lessor will use its best efforts to provide Lessee with notic e of any applications received from any other communications companies wishing to utilize any part of Laguna Lake Golf Course . Further, Lessor will use its best efforts to not lease property in Laguna Lak e Golf Course to other communication companies, nor to use Laguna Lake Golf Course fo r communications purposes, that might interfere with Lessee's use of the Premises . In the event Lessor o r any other communication company on Laguna Lake Golf Course does, in fact, interfere with Lessee's us e of the Premises, Lessor shall eliminate, or cause to be eliminated, such interference within seventy-tw o (72) hours of written notice by Lessee . If such interference is not eliminated in such time period, Lesse e may exercise any right or remedy at law or in equity to eliminate the interference or may terminate thi s Lease . IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalitie s required by law as of the date first above written . LESSOR : LESSEE: SPRINT PCS ASSETS, LLC A DELAWAR E LIMITED LIABILITY COMPANY , Exhibit 1 of the Memorandum of Understanding Page 24 of 32 By . By : Mayor David F. Romero Name : Title : Sprint Contracts and Peformance Hotline : 800.357 .764 1 ATTEST : By : Diane Reynolds, City Cler k APPROVED AS TO FORM : By : Jonath P. ll, City Attorne y Exhibit 1 of the Memorandum of Understanding Page 25 of 32 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERT Y All real property located in the State of California, County of San Luis Obispo, described a s follows : The legal description will be prepared at a later date prior to execution of the leas e Exhibit I of the Memorandum of Understanding Page 26 of 32 EXHIBIT B DESCRIPTION OF THE PROJEC T The detailed project description will be prepared at a later date prior to execution of the lease . Exhibit 1 of the Memorandum of Understanding Page 27 of 32 EXHIBIT C MEMORANDUM OF LEAS E RECORDING REOUESTED BY : WHEN RECORDED, RETURN TO : MEMORANDUM OF LEASE This MEMORANDUM OF LEASE ("Memorandum") dated as of , 2004, is between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ("Lessor") an d a Delaware limited liability company, on behalf of ("Lessee"). RECITAL S WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Lease a t Laguna Lake Golf Course "Lease") dated as of , 2004, covering certain premises (th e "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 incorporate d herein by this reference ; and WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official Records of Sa n Luis Obispo County, California ; follows : NOW, THEREFORE, in consideration of the foregoing, Lessor and Lessee hereby declare a s 1.Demise . Lessor has leased the Premises to Lessee (together with access rights), an d Lessee has hired the Premises from Lessor, subject to the terms, covenants and conditions contained i n the Lease . 2. Expiration Date . The term of the Lease ("Term") is scheduled to commence on or befor e and shall expire five (5) years thereafter, subject to Lessee's optio n to extend the Term pursuant to Section 3 of the Lease for three (3) additional terms of five (5) years each. 3.Lease Controlling . This Memorandum is solely for the purpose of giving constructiv e notice of the Lease . In the event of conflict between the terms of the Lease and this Memorandum, th e terms of the Lease shall control . Exhibit I of the Memorandum of Understanding page 28 of 32 IN WITNESS WHEREOF,Lessor and Lessee have executed this Memorandum of Lease as of the date and year first written above . LESSOR LESSEE By : By : Name : Name : Title : Title : NOTARIZED SIGNATURE S STATE OF CALIFORNIA ) ) ss . COUNTY OF ) On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whos e name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed th e same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument th e person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . WITNESS my hand and official seal . (Signature of Notary Public ) STATE OF CALIFORNI A COUNTY OF On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whos e name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed th e same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument th e person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . WITNESS my hand and official seal . Exhibit 1 of the Memorandum of Understanding Page 29 of 32 EXHIBIT 2 AERIAL MAP OF PROPOSED PROJECT SCOP E Exhibit 2 ofthe Memorandum of Understanding Page 30 of32 EXHIBIT 2 .A LANDSCAPING SCHEMATICS OF PROPOSED PROJEC T Exhibit 2 of the Memorandum of Understanding Page 31 of 32 EXHIBIT 2.B LANDSCAPING SCHEMATICS OF PROPOSED PROJECT Exhibit 2 of the Memorandum of Understanding Page 32 of 32 Ca AFL Telecommunication s 2022 Cliff Drive, #10 5 Santa Barbara, CA 9310 9 Tel :805 .452-2484 Fax : 206-203-4132 August 27, 200 4 Cindy McDonal d Administrative Superviso r San Luis Obispo Parks and Rec Department . 1341 Nipomo St . San Luis Obispo, CA 9340 1 Cindy , Attached please find the signed MOU for the Sprint site at Laguna Lakes Golf Course . I f ve any questions, please do not hesitate to contact me at (805) 452-2484 . David Mebane AFL Telecommunication s (805) 452-248 4 ALCOA BLACK & VEATC H 11401 Lamar Avenue Black & Veatch Corporatio n Overland Park, Kansas 66211 USA Outsource Channel Project Administration Tel: (913) 458-2000 Letter of Transmitta l Sprin t Project Administration B&V Project 13508 4 B&V File 14 .0102 August 26, 2004 Derek Hardin g Alcoa, AFL Telecommunication s 810 Gravilla Driv e Santa Barbara, CA 93109 Subject : SN45XC08 9 Dear Derek : Enclosed please find : Qty I Reference #I Description 1 item SN45XC089 (2) "Memorandum of Understanding" I xIReview all documents IFor your information I IFor Approval I IAsrequested Remarks : Sincerely , BLACK & VEATCH CORPORATIO N Patricia L . Merril l Project Administrator, West Regio n B&VTelecom/Project Keeble r Enclosure building a world of difference,.