Item 6 - Lease of City-owned Propety at 13875 Kirkham Way with PTI Us Towers for construction and operation of a cell towerDecember 7, 2021, Item #6~~ AGENDA REPORT ~ City of Poway CITY COUNCIL DATE: TO: FROM: CONTACT: SUBJECT: Summary: December 7, 2021 Honorable Mayor and Members of the City Council Wendy Kaserman, Assistant City Manager 1.JL-L Craig Ruiz, Economic Development Administrator (1j2_---(858) 668-4509, cruiz@poway.org Lease of City-owned Property located at 13875 Kirkham Way with PTI US Towers II, LLC, for use of a portion of the property for the construction and operation of a cellular tower. PTI US Towers II, LLC ("PTI") is seeking to lease a portion of City-owned property located at 13875 Kirkham Way to build and operate a cellular tower. The site is currently leased to the Poway Auto Dealers Association to unload and store automobiles. The Lease Agreement ("Lease") is for ten years, and has five, five-year options for renewal. The cellular tower will be constructed in the landscape area of the site and will not impact auto dealer operations. The proposed terms of the lease, including the annual lease amount and annual inflationary adjustments, are consistent with the lease terms for cellular facilities on other City-owned properties and provide for the opportunity for the City to share in PTl's rent revenue if they lease to multiple carriers. Recommended Action: It is recommended that the City Council approve the Lease with PTI for a portion of City-owned property located at 13875 Kirkham Way to build and operate a cellular tower. Discussion: For the past 24 years, the City has been leasing portions of City-owned properties to cellular communications companies for the installation and operation of cellular antennas and related equipment. The first agreement the City entered was in 1997 with Cox Communications to locate equipment on the Pomerado Reservoir. To date, the City has 13 cellular leases on various City facilities including four reservoirs, the Public Works administration building and the Poway Center for the Performing Arts, and four leases for various City light poles throughout Poway. The average lease rate charged to cell carriers is currently $46,750, with an annual average rent increase of 3%. Current cellular leases generate approximately $607,000 in General Fund revenue. 1 of 44
December 7, 2021, Item #6PTI builds cellular towers and leases space on the towers to individual cellular companies. Due to the large number of employees and visitors to the South Poway Business Park using cell phones, PTI has identified a demand for additional cellular coverage in this area. In 2018, after unsuccessful attempts to lease space on private buildings, PTI approached the City about locating a stand-alone cellular tower on a portion of City-owned property located at 13875 Kirkham Way ("Leased Premises"). The subject property was purchased in 2002 by the Poway Redevelopment Agency and has been leased to the Poway Auto Dealers Association ("PADA") since 2005 for the unloading and storage of new automobiles. The proposal is for PTI to construct and operate a 90-foot cellular tower and lease space on the tower to up to three cellular carriers. The City's rental rate for the first carrier would be equal to the average rental rate the City charges other cell carriers and with the two subsequent carriers, the City would receive 30% of the total rent payment. When the second and third additional cell carriers locate on the tower, the rent received by the City will exceed all other cell lease agreements. The cellular tower and related equipment will be constructed in the landscape areas of the property as shown in "Attachment A -Site Plan" to this report. The construction of the cellular tower first required the approval of an amendment to the South Poway Specific Plan (SPA 19-002) and a Conditional Use Permit (CUP19-002). Both applications were approved by the City Council on October 5, 2021. The approval of SPA 19-002 was by ordinance, which became effective on November 18, 2021. The Lease would commence on the date of the approval of the Lease by the City Council (Effective Date). Upon the Effective Date of the Lease, PTI shall have one year to conduct all due diligence activities, as well as negotiate and enter into any subleases for the Leased Premises ("Due Diligence Period"). PTI shall have the right to terminate the Lease at any time before the expiration of the Due Diligence Period if they determine that the Leased Premises is not suitable for themselves or their subtenants. At any time during the Due Diligence Period, PTI may deliver a written notice (the "Commencement Notice") to the City stating that PTI wishes to commence the term of the Lease (the "Commencement Date"). The initial term of the Lease will be ten years from the Commencement Date, and PTI shall have five, five-year extension options. As shown in Attachment A, the cellular tower will be in the landscape area of the property that is currently leased to the PADA. The location was selected because it would not impact the delivery and unloading of new automobiles to the site. In the May 1, 2018 lease amendment with PADA, PADA agreed to the location and construction of the cellular tower. A requirement of the PTI Lease is that PTI will meet with PADA prior to starting construction, and to coordinate the construction schedule with the least impact the delivery of automobiles to the site. Environmental Review: The approval of a lease agreement for a wireless communication facility on City-owned property, which was the subject of a prior environmental determination for Specific Plan Amendment SP19-002 and Conditional Use Permit CUP19-002, is not subject to the California Environmental Quality Act. 2of44
December 7, 2021, Item #6Fiscal Impact: Within 30 days of the Effective Date, PTI will deliver a non-refundable payment of $10,000 to the City for the Due Diligence Period. Within 45 days of the Commencement Date, PTI will deliver a rent payment in the amount of $46,750. Rent will increase 3% per year. The non-refundable payment, lease amount and annual rent increases are equal to the average amount of the other 13 cellular lease rates in the City. For the first ten years of the Lease, the City will receive $535,936. If PTI exercises all five options, the City will receive a minimum of $2,836,602 over the life of the lease. This is unrestricted revenue to the General Fund which may be used for any purpose. PTI has the option of leasing space on the cellular tower to a total of three cellular providers. The lease amounts described in this section are reflective of PTI entering a lease with one provider. If PTI enters into additional lease agreements, the City will receive 30% of the annual rent. Because it is unknown at this time if or when PTI might enter additional leases and the associated rent amounts, the additional revenue cannot be estimated at this time. Public Notification: None. Attachments: A. Site Plan B. Lease Agreement Reviewed/ Approved By: Assistant City Manager 3of44 Reviewed By: Alan Fenstermacher City Attorney
December 7, 2021, Item #64of44 Attachment A Site Plan ATTACHMENT A
December 7, 2021, Item #6___________ -_-_-_-_------/ ____ / : I I I ,j EOYI.PME T LAN • A-1 5 of44
December 7, 2021, Item #6Attachment B LEASE AGREEMENT This Lease Agreement ("Lease") is entered into this_ day of _______ -2021 ("Effective Date"), by and between the City of Poway, a municipal corporation ("Landlord") and PTI US Towers II, LLC, having a mailing address of 999 Yamato Road, Suite 100, Boca Raton, Florida 33431 ("Tenant"). Background A. Landlord is the owner in fee simple of a parcel of land located in the City of Poway, San Diego County, State of California, legally described on the attached Exhibit A (the "Owned Premises"). The street address of the Owned Premises is 13875 Kirkham way, Poway, CA 92064. B. Tenant desires to lease space on a portion the Owned Premises for the uses set forth herein, more particularly and legally described on the attached Exhibit B (the "Leased Premises") C. Tenant acknowledges that the entire Owned Premises is leased to another entity ("Existing Tenant") for the purpose of automobile parking and storage, and Tenant agrees that its performance under this Lease must be conducted in a way that result in the least possible impacts upon the Existing Tenant, and does not interfere with the Existing Tenant's use or enjoyment of the Owned Premises. Landlord represents that its lease with the Existing Tenant allows this Lease of the Leased Premises to Tenant. D. Pursuant to Ordinance No. 848, for Specific Plan Amendment No. 19-002 and Resolution No. 21-080, Conditional Use Permit No. 19-002 (the "CUP"), for the Tower Facilities (as hereinafter defined) was approved by the Poway City Council on October 5, 2021. E. The parties, solely in an arrangement involving the lease of a portion of the Owned Premises from Landlord to Tenant, and not as a part of any land use decisions, including the CUP, desire to enter into this Lease on the terms and conditions set forth below F. Following the execution this Lease, the Tenant shall promptly cause a Memorandum of Lease to be recorded by the County of San Diego Recorder's Office in substantially the same form as attached hereto as Exhibit "D". Agreement In consideration of their mutual covenants, the parties agree as follows: 1. Leased Premises. 6 of44 ATTACHMENT B
December 7, 2021, Item #6Landlord leases to Tenant and Tenant leases from Landlord a portion of the Owned Premises, the portion of the Owned Premises as more particularly described on Exhibit B (the "Leased Premises" or "Premises" as the context may require). Tenant intends to locate the Tower Facilities on the Leased. The "Leased Premises" and the "Premises" shall include the right to install and maintain utility wires, poles, cables, conduits, and pipes (collectively, the "Appurtenant Facilities") over, under, or along a right of way extending between the Tower Facilities to the nearest appropriate utilities providers (collectively, "Utilities"); provided however, that the Appurtenant Facilities do not interfere with Landlord's use or the reasonable use of any tenant of any part of the Owned Premises existing as of the date Tenant commences construction of the Tower Facilities. Landlord reserves the right to require Tenant to permanently relocate ("Relocation") its facilities to another location on the Owned Premises. Any such Relocation shall be limited to one time only during the term of this Lease including any extension options, provided that the Relocation shall not be exercisable prior to the expiration of the initial term. Within fifteen (15) days after Tenant's receipt of Landlord's Relocation notice ("Relocation Notice"), the parties shall meet to identify and negotiate, in good faith, to agree upon a new location at the Owned Premises for the Leased Premises. The parties shall have a period of sixty (60) days after Tenant's receipt of the Relocation Notice within which to reach an agreement on the new location. Within thirty (30) days after such new location has been agreed upon Tenant shall commence obtaining all Governmental Approvals (as defined in Section 13 below) required for the Relocation. If no agreement is reached, Landlord shall in good faith designate the new location for the Leased Premises; provided however, that Tenant shall have the right to terminate this Lease if such location designated by Landlord is unacceptable to Tenant. Within thirty (30) days after such new location has been designated by Landlord, Tenant shall either give Landlord notice of its intent to terminate this Lease or commence obtaining all Governmental Approvals required for the Relocation. Tenant shall diligently pursue obtaining all such Governmental Approvals and Landlord, at no cost to Landlord, shall reasonably cooperate with Tenant in obtaining the same. In the event the Relocation is permitted pursuant to the terms hereof, Tenant shall complete the Relocation within one hundred eighty (180) days after Tenant's receipt of written notice from Landlord ("Relocation Period"). Landlord agrees to reasonably extend the Relocation Period so long as Tenant begins the Relocation as required hereunder and diligently prosecutes the Relocation to completion. Notwithstanding the foregoing, the Relocation Period shall be tolled for the period of time beginning when Landlord, in its jurisdictional capacity, accepts all of Tenant's required applications for permits as complete and concluding on the date that the Landlord, in its jurisdictional capacity, completes processing the permits Landlord requires for the Relocation (the "Tolling Period"). In calculating the Tolling Period no time shall be allowed for any periods of time that Tenant is required to modify, correct, and return the applications, due to Landlord's reasonable finding any of the re-submitted applications are incomplete or contain errors requiring correction. If Tenant requires use of the Premises before the Relocation is completed, Landlord shall allow Tenant to install temporary facilities sufficient to maintain Tenant's operations, which temporary facilities shall be located in a mutually agreeable location at the Owned Premises. Tenant must remove such temporary facilities from the Premises after Tenant's Relocation is complete. In no event will temporary facilities remain on the Premises for more than sixty (60) days without the written permission of Landlord; provided however, that Landlord shall not unreasonably withhold such permission if Tenant is diligently working to complete such Relocation as soon as practicable. Notwithstanding anything to the contrary contained in this Section 1, the Relocation shall not result in a lessening of Tenant's ability to use the Leased Premises for its intended purpose, or the quality of such use. Upon the commencement of the Relocation, all Rent payable hereunder shall abate and not be payable by Tenant for the succeeding five (5) year 7of44
December 7, 2021, Item #6period. Upon request of Landlord, Tenant agrees to relocate its equipment on a temporary basis ("Temporary Relocation"), at Landlord's cost, to another location on the Owned Premises, hereinafter referred to as the "Temporary Premises," for the purpose of Landlord performing maintenance, repair or similar work at the Owned Premises, provided: i. The Temporary Premises is similar to Tenant's existing location in size and is compatible for Tenant's use, in Tenant's reasonable determination; ii. Landlord gives Tenant at least ninety (90) days' written notice prior to requiring Tenant to temporarily relocate; iv. Tenant's use at the Leased Premises is not interrupted or diminished during the Temporary Relocation and Tenant is allowed, if necessary, in Tenant's reasonable determination, to place a temporary installation on the Owned Premises during any such Temporary Relocation; and V. Upon the completion of any maintenance, repair or similar work by Landlord, Tenant is permitted to return to its original location from the Temporary Premises, which Tenant shall complete as soon as reasonably practicable. This Lease is not a franchise pursuant to Chapter 5.60 of the Poway Municipal Code nor is it a permit to use the rights-of-way under Chapter 12.04 of the Poway Municipal Code. Any such franchise or permit must be obtained separately from Landlord. This Lease shall not be interpreted as imposing, elevating validation, invalidating or in any way modifying any franchise license or permit requirement imposed, restricted, pre-empted or otherwise affected by local, state or federal law. 2. Due Diligence. The Parties agree that Tenant shall until the one (1) year anniversary of the Effective Date to conduct due diligence activities, as well as negotiate and enter into any subleases for the Leased Premises ("Due Diligence Period"). Tenant shall have the right to terminate the Lease at any time before the expiration of the Due Diligence Period if Tenant determines that the Leased Premises is not suitable for Tenant or its subtenants. Within thirty (30) days after Effective Date, Tenant shall pay Landlord a nonrefundable lump sum in the amount of Ten Thousand and 00/100 dollars ($10,000) in consideration for the Due Diligence Period. At any time during the Due Diligence Period, Tenant shall be permitted to deliver written notice (the "Commencement Notice") to Landlord stating that Tenant wishes to commence the term of this Lease on the date set forth in the Commencement Notice and provided that such date is within the Due Diligence Period, the term of the Lease shall commence on such date and shall be known herein as the "Commencement Date". In the event that Tenant fails to deliver the Commencement Notice within the Due Diligence Period, then Tenant shall be deemed to have delivered the Commencement Notice on the last day of the Due Diligence Period and the Commencement Date shall be deemed to be the day immediately succeeding the expiration of the Due Diligence Period. 3. Term. The initial term of this Lease shall be ten (10) years, commencing on the Commencement Date. So long as Tenant is in compliance with the terms and conditions contained herein and the terms and conditions of the CUP, Tenant shall have five (5) five-year options to extend this Lease on the same terms and conditions, excluding rent which shall be adjusted annually as set forth in Section 3.a. below. Each option shall be deemed automatically exercised unless Tenant 8of44
December 7, 2021, Item #6provides written notice of intent not to exercise the option at least ninety (90) days prior to the expiration of the then current five-year term. Notwithstanding such extension options, Tenant understands and acknowledges that conditions of approval of the CUP are subject to review and modification at any time by the City Council, after public hearing. a Tenant shall pay Landlord as annual initial rent for the Premises the sum of $46,750 ("Rent"). Tenant shall pay Landlord annual initial Rent within forty-five (45) days after the Commencement Date. Thereafter, tenant shall pay Landlord Rent annually in advance of each anniversary of the Commencement Date. Rent shall be increased three percent (3%) annually. By way of example, the Rent for Year 2 shall be $48,152.50, Year 3 $49597.08, Year 4 $51084.99 Year 5 $52617.54, and continuing to increase each year that this Lease is in effect in the same manner, by 3%. b. Tenant shall pay Landlord a late payment charge equal to five percent (5%) of the Rent for any Rent not paid within thirty (30) days after receipt of notice from Landlord to Tenant. Any amounts not paid within the previously mentioned thirty (30) day period shall bear interest until paid at the lesser of the rate of two percent (2%) per month or the highest rate permitted by law. c If this Lease is terminated at a time other than on the last day of the term, Rent shall be prorated as of the date of termination and, in the event of termination for any reason other than nonpayment of Rent, the balance of all prepaid Rent shall be refunded to Tenant within thirty (30) days of the date of termination. d In addition to the rent currently paid by Tenant to Landlord pursuant to this Lease, as further consideration for the right to exclusively use and lease the Leased Premises, if, after full execution of this Lease, Tenant subleases, licenses or grants a similar right of use or occupancy in the Leased Premises to a Future Subtenant (as hereinafter defined), then Tenant agrees to pay to Landlord thirty percent (30%) of the rental, license or similar payments actually received by Tenant from such Future Subtenant (the "Additional Rent") within thirty (30) days after receipt of said payments by Tenant. As used herein, the term "Future Subtenant" shall mean any person or entity which (i) is not occupying the Leased Premises as of the date of this Lease, and (ii) is not directly or indirectly controlling, controlled by, or under common control with Tenant or T-Mobile USA, Inc. (and solely in the event that any affiliate ofT-Mobile USA, Inc. and any affiliate of Sprint Corporation merge or one such affiliate acquires the other, then the resulting entity of such transaction, shall, in addition to any affiliate of Sprint Corporation shall not constitute a "Future Subtenant"). Tenant shall have no obligation for payment to Landlord of such share of rental, license or similar payments if not actually received by Tenant. Non-payment of such rental, license or other similar payment by a Future Subtenant shall not be an event of default under this Lease. Tenant shall have sole discretion as to whether, and on what terms, to sublease, license or otherwise allow occupancy of the Leased Premises and there shall be no express or implied obligation for Tenant to sublease, license or otherwise allow occupancy of the Leased Premises. Landlord acknowledges that Landlord shall have no recourse against Tenant as a result of the failure of payment or other obligation by a Future Subtenant. This Lease shall supersede any conflicting provisions in any sublease between the Tenant and any other party, and Tenant shall provide the City copies of all subleases prior to their execution. 9of44
December 7, 2021, Item #65. Taxes. This Lease may result in a taxable possessory interest as defined in California Revenue and Taxation Code section 107, and the Tenant may be responsible for the payment of property taxes for the use of the Premises. Tenant agrees to and shall pay before delinquency all taxes and assessments of any kind assessed or levied upon Tenant or the Premises by reason of this Lease or of any buildings, machines, or other improvements of any nature whatsoever erected, installed or maintained by Tenant or by reason of the business or other activities ofTenant upon or in connection with the Premises, except that Tenant shall not be required to pay any sales tax, rental tax or income tax assessed upon Landlord. Such taxes and assessments shall be in addition to Rent. 6. Use of Premises. a. Tenant shall use the Premises for the transmission and reception of radio communication signals and for the construction, installation, operation, maintenance, modification, repair, removal or replacement of improvements, personal property, and facilities necessary to operate its communications system, including, without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment shelters and/or cabinets, and related cables and utility lines, and a location based system, including, without limitation, antenna(s), coaxial cable, base units, location based systems, and other associated equipment (collectively, the "Tower Facilities"). An initial depiction and/or description of the Tower Facilities is more particularly set forth on Exhibit C attached hereto. Tenant may not add additional equipment and/or antennas from that shown on Exhibit C without the prior written approval of Landlord, which may include the requirement to amend the CUP. b. Tenant shall, at its expense, comply with all applicable present and future federal, state, and local laws, ordinances, rules and regulations (including laws and ordinances relating to health, radio frequency emissions, other radiation and safety) in connection with the use, operation, maintenance, construction and/or installation of the Tower Facilities and/or the Owned Premises. Landlord agrees to reasonably cooperate with Tenant in obtaining, at Tenant's expense (including reimbursement of Landlord's reasonable attorney and administrative fees), any federal, state and local licenses and permits required for or required by Tenant's use of the LeasedPremises. Nothing in this Lease requires the City to exercise its discretion in any particular way, including approval of any CUP or amendment thereto. Tenant shall exercise due diligence in utilizing the Owned Premises so as to not interfere with utilization of the Owned Premises by Landlord or the Existing Tenant, and Tenant agrees to comply with the terms and provisions of this Lease and the CUP. c. Tenant's installation, operation, and maintenance of the Tower Facilities shall not damage or interfere in any way with Landlord's or Exiting Tenant's operations, repair and maintenance, or other activities. Tenant hereby acknowledges that the Existing Tenant utilizes the Owned Premises for parking and storage of automobile inventory, and agrees to ensure that the Existing Tenant's operations are not impacted by any Tenant repair or maintenance work by providing written advance notice to Existing Tenant before undertaking any repair or maintenance work, except in the case of emergency where such written advance notice is not possible. 10 of 44
December 7, 2021, Item #67. Termination. This Lease may be terminated, without liability to either party, by Tenant upon ninety (90} days' written notice if (a} Tenant is unable to obtain or maintain any license, permit, or other Governmental Approval (as defined below} necessary for the construction and/or operation of the Tower Facilities or Tenant's business; or (b} due to technological changes, Tenant determines that it is no longer practical to use the Premises for Tenant's intended purposes, provided Tenant has removed Tower Facilities from the Premises by that time. If the Owned Premises or Leased Premises, or any portion thereof, is altered, destroyed or damaged so as to materially hinder effective use of the Tower Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this Lease upon thirty (30} days' written notice to Landlord. Landlord shall have no obligation to undertake any repair to the Owned Premises. If this Lease is terminated by Landlord due to a material breach by Tenant of one of Tenant's obligations herein, the termination shall be effective thirty (30} calendar days from the date of delivery of written notice of termination. Upon termination of this Lease for any reason, Tenant shall remove its equipment, personal property, Tower Facilities, and leasehold improvements from the Premises within thirty (30} days after the date of termination, and shall restore the Leased Premises to the same condition as existed prior to this Lease, ordinary wear and tear and loss due to casualty and other causes beyond Tenant's control excepted; all at Tenant's sole cost and expense. Any such property, equipment or Tower Facilities not removed within thirty (30} days of Lease termination, may be removed by Landlord and stored on behalf of Tenant at Tenant's sole expense and Tenant may be charged for the reasonable, actual and documented cost of removal incurred by Landlord. Notice of termination of this Lease for any reason shall be given pursuant to Section 25 below. 8. Construction Standards. The Tower Facilities shall be installed on the Premises in a good and workmanlike manner, without the attachment of any construction liens, and in compliance with the terms and conditions of the CUP and this Lease. 9. Installation of Equipment. a Tenant shall have the right, at its sole cost and expense, to install, operate and maintain on the Premises, in accordance with good engineering practices and with all applicable Federal Communications Commission ("FCC"} and the California Public Utilities Commission ("CPUC"} rules and regulations, the Tower Facilities. b. Tenant's installation of the Tower Facilities shall be done according to plans approved by Landlord and in compliance with the conditions of approval for the CUP. Any damage done to the Owned Premises during installation by Tenant and/or during Tenant's operations shall be repaired or replaced promptly at Tenant's expense. The installation methods for the Tower Facilities must be done in a manner that will be compatible with all Landlord facilities and equipment located on the Owned Premises and in compliance with the terms and conditions of the CUP. 11 of 44
December 7, 2021, Item #6C Prior to conducting any work on the Premises, tenant agrees to conduct at least one pre-construction meeting with the Existing Tenant. Prior to that meeting, Tenant agrees to develop a construction plan to minimize impacts on the Existing Tenant's use of the Owned premises during the construction and installation of the Tower Facilities, which will be subject to approval by both the Landlord and the Existing Tenant, which shall not be unreasonably withheld. d Within thirty {30) days after final inspection of the Tower Facilities by Landlord, Tenant shall provide Landlord with as-built drawings of the Tower Facilities and the improvements installed on the Premises, which show the actual location of all equipment and improvements and upon such delivery, such drawings shall be deemed to be, and shall be attached hereto, as Exhibit C. e. Any change to Tenant's approved antenna type, number of antennas, antenna location and/or change in transmitter type and power output shall require the prior written approval of Landlord, which may include an amendment of the CUP, and shall, at the sole expense ofTenant, be made in accordance with applicable regulations issued by the FCC and/or the CPUC. 10. Equipment Upgrade. Tenant may update or replace the Tower Facilities from time to time with the prior written approval of Landlord, provided that in the event the replacement facilities are not greater in number or size than the then-existing facilities, such approval shall not be unreasonably withheld, conditioned, or delayed by Landlord, except in the case where such equipment upgrades require an amendment of the CUP. Tenant shall submit to Landlord a detailed proposal for any such replacement facilities and any supplemental materials as may be reasonably requested, for Landlord's evaluation and determination. Notwithstanding anything to the contrary above, Tenant shall have the right to perform routine maintenance, repairs, and replacement to the Tower Facilities within the Leased Premises, subject to the provisions of Section 11.b. below, and so long as such work complies with the CUP. 11. Maintenance and Operations. a Tenant shall, at its own expense, maintain the Premises and any equipment on or attached to the Premises in a safe condition, in good repair and in a manner suitable to Landlord so as not to conflict with the use of or other leasing of the Owned Premises by Landlord. b. Tenant shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, Tower Facilities, and leasehold improvements, and shall keep the same in good repair and condition during the Lease term. c Tenant shall keep the Premises free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or interference. 12. Premises Access. In the event Landlord or any other tenant undertakes painting, maintenance, construction or other alterations on the Owned Premises, Tenant shall take reasonable measures at Tenant's cost to cover Tenant's equipment, personal property or Tower Facilities and protect the same from paint and debris fallout which may occur during the painting, maintenance, construction or alteration process. Landlord and/or any tenant that is undertaking the work on the Owned Premises will give each of the other tenants at least fifteen (15) days written notice prior to commencing such work. 12 of 44
December 7, 2021, Item #6a Tenant shall have both pedestrian and vehicular access to the Premises by means reasonably designated by Landlord, subject to notice requirements to Landlord as noted in the approved CUP, and also in Section llb, below. b. Tenant shall have access to the Premises in order to install, operate, maintain and remove the Tower Facilities only with the prior approval of Landlord. Said approval shall not be unreasonably withheld. City business days are Monday-Thursday (7:30 a.m. - 5 p.m.), and open alternating Fridays (8 a.m. - 5 p.m.) Tenant shall request from Landlord access to the Premises by telephone at least five (5) business days in advance for work that is minor in nature (e.g., no heavy equipment required), except in the case of emergency. To receive approval and coordinate the date and time of access for minor work, Tenanfs representative or contractor must contact Landlord1s cell site coordinator ("Coordinator11) at (858) 668-1205, provided however, that leaving a message shall not constitute advance notice. lfTenant leaves a message with the Coordinator, the Coordinator shall return any such messages within two (2) business days. Construction or maintenance activities may be scheduled Monday through Thursday between the hours of 9 a.m. to 3 p.m., and 9 a.m. to 2 p.m. on alternating Fridays. Landlord shall grant Tenant such access unless such access will unreasonably interfere with any of Landlord1s activities or operations at the Owned Premises. In the event of an emergency that affects the health and safety of the public, Tenant shall notify Landlord1s cell site coordinator ("Coordinator11) for immediate access to the Premises. Routine repair or maintenance work is not considered an emergency. In the event an emergency occurs on a weekend, holiday, or after-hours, Tenant shall call Landlord1s after-hours number, (858) 668-4751, and a Landlord representative shall be available to answer such calls twenty-four (24) hours a day, seven (7) days a week. c. In the event Tenant requires access to the Premises outside of Landlord1s availability as noted above in Section llb., Tenant shall be billed for Landlord1s costs to provide such access, unless authorized by the Director of the Public Works Department. Costs shall include any overtime or call-out compensation to which an employee facilitating Tenant access may be entitled, the cost of the vehicle, as well as an overhead charge. Tenant shall reimburse Landlord for these costs within thirty (30) days of billing. d Upon twenty-four (24) hours prior notice to Tenant, Landlord shall be allowed and granted access to the Premises at reasonable times to examine and inspect the Premises for safety reasons or to ensure that Tenanf s covenants are being met, as long as Tenanf s equipment, technology and proprietary interests remain secure and the operation of the Tower Facilities is not adversely affected. 13. Utilities. Tenant shall, at its expense, separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall timely pay all costs associated therein. 14. Approvals: Compliance with Laws. This Lease, Tenanfs obligations under this Lease and Tenanf s use of the Premises is contingent upon Tenanf s ability to obtain and maintain all necessary governmental licenses, permits, and approvals and pay all fees in connection therewith that may be required by any federal, state or local authority ("Governmental Approvals11), including Landlord. Landlord makes no representation, commitment or obligation, as to Tenanf s success in obtaining the required Governmental Approvals. Tenant shall erect, maintain and operate the Tower Facilities 13 of 44
December 7, 2021, Item #6in accordance with statutes, ordinances, rules and regulations now in effect or that may be issued thereafter by the FCC or any other governing bodies. 15. Interference. Before approving the placement of the Tower Facilities, Landlord may obtain from Tenant, at Tenant's expense an interference study indicating whether Tenant's intended use will interfere with any existing communications facilities on the Owned Premises existing as of the date of commencement of construction of the Tower Facilities pursuant to this Lease. After review of Tenant's study, Landlord may, in its sole discretion, determine that a third party study is necessary and Landlord may obtain such study at Tenant's expense. Tenant shall be responsible for installing any equipment, at its own expense, reasonably required by Landlord to eliminate any interference that may be caused by the location of the radio transmitting or other equipment of all parties existing on the Owned Premises prior to the Commencement Date including. Tenant's use and operation of the Tower Facilities shall not interfere with the use and operation of other communication facilities on the Owned Premises, which pre-existed the Tower Facilities. If the Tower Facilities cause interference, Tenant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated in a reasonable time, Tenant shall immediately cease operating its facility (other than intermittent testing) until the interference has been eliminated. If the interference cannot be eliminated within thirty (30) days after Tenant receives written notice from Landlord of such interference, Landlord or Tenant may terminate this Lease pursuant to Section 6 herein. 16. Lease and Landlord's Remedies. It shall be a default if Tenant fails to pay Rent or any other sums to Landlord when due, and does not cure such default within thirty (30) business days after receipt of written notice from Landlord; or if Tenant fails to obtain or retain the necessary Governmental Approvals due to the fault of Tenant; or if Tenant defaults in the performance of any other covenant or condition of this Lease and does not cure such other default within thirty (30) days after receipt of written notice from Landlord specifying the default complained of; provided however, no such failure will be deemed to exist if Tenant has commenced to cure such default within such period and provided that such efforts are prosecuted to completion with reasonable diligence; or if Tenant is adjudicated bankrupt and the bankruptcy proceeding is not dismissed within ninety (90) days from its commencement or makes any assignment for the benefit of creditors; or if Tenant becomes insolvent. In the event of a default and following the applicable cure period if the default remains uncured, Landlord shall have the right, at its option, in addition to and not exclusive of, any other remedy Landlord may have by operation of law, without any further demand or notice, to reenter the Premises and eject all persons therefrom, and either (a) declare this Lease at an end, in which event Tenant shall immediately pay Landlord a sum of money equal to the total of (i) the amount of the unpaid Rent accrued through the date of termination; (ii) the amount by which the unpaid Rent reserved for the balance of the term exceeds the amount of such rental loss that Tenant proves could be reasonably avoided (net of the costs of such reletting); and (iii) any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its 14 of 44
December 7, 2021, Item #6obligations under this Lease, or (b) without terminating this Lease, relet the Premises, or any part thereof, for the account of Tenant upon such terms and conditions as Landlord may deem advisable, and any monies received from such reletting shall be applied first to the expenses of such reletting and collection, including reasonable attorneys' fees, and thereafter toward payment of all sums due or to become due Landlord hereunder, and if a sufficient sum shall not be thus realized to pay such sums and other charges, Tenant shall pay Landlord any deficiency monthly, notwithstanding that Landlord may have received rental in excess of the rental stipulated in this Lease in previous or subsequent months, and Landlord may bring an action therefor as such monthly deficiency shall arise. No reentry and taking of possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease, regardless of the extent of renovations and alterations by Landlord, unless a written notice of such intention is given to Tenant by Landlord. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. 17. Cure by Landlord. In the event of any default of this Lease by Tenant, Landlord may at any time, after delivering at least thirty (30) days' prior written notice to Tenant, cure the default for the account of and at the expense of Tenant. If Landlord incurs any expense to cure such default, Tenant shall reimburse Landlord for such expense within thirty (30) days after Tenant's receipt of Landlord's invoice and reasonably supporting documentation. 18. Condemnation. In the event the Premises are taken by eminent domain by the City of Poway or any other governmental agency, this Lease shall terminate as of the date possession of the Premises is taken by the condemning authority. In the event a portion of the Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of the date of transfer of possession, by giving thirty (30) days' written notice to the other party. In the event of any taking under the power of eminent domain, Tenant shall not be entitled to any portion of the award paid for the taking except for relocation expenses) and Landlord shall otherwise receive the full amount of such award. Except as herein provided, Tenant hereby expressly waives any right or claim to any portion thereof, including any claim for loss of business or goodwill, all such claims (except for relocation expenses) being hereby irrevocably assigned to the Landlord. All damages, whether awarded as compensation for diminution in value of the leasehold orto the fee of the Premises, shall belong to Landlord. 19. Indemnity and Insurance. a Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use, operation, condition or dismantling of the Premises or the Tower Facilities, except to the extent attributable to the sole negligent or sole intentional act of Landlord, its employees, agents or independent contractors. b. Indemnification: Except to the extent attributable to the sole negligent or sole intentional act of Landlord, its employees, agents or independent contractors, Tenant shall, at its sole cost and expense, indemnify, defend, and hold harmless Landlord and all associated, affiliated, allied and subsidiary entities of Landlord, now existing or hereinafter created, and their respective 15 of 44
December 7, 2021, Item #6elected and appointed officials, officers, boards, employees, agents, attorneys, and contractors (hereinafter collectively referred to as "lndemnitees"), from and against: L Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the lndemnitees by reason of any act or omission of Tenant, its personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance, use or condition of the Owned Premises, Leased Premises or Tower Facilities or the Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. i Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitations, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which are imposed upon, incurred by or asserted against the lndemnitees by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to Tenant, its contractors or subcontractors, for the installation, construction, operation, maintenance or use of the Premises or Tower Facilities, and, upon the written request of Landlord, Tenant shall cause such claim or lien covering Landlord's property to be discharged or bonded around within thirty (30) days following such request. i. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the lndemnitees by reason of any financing or securities offering by Tenant or its affiliates which results in any violations of the common law or any laws, statutes, or regulations of the State of California, or United States, including those of the Federal Securities and Exchange Commission. iv. Tenant's obligation to indemnify the lndemnitees under this Lease shall not extend to claims, losses, and other matters covered hereunder to the extent that they are caused by the sole negligence or sole intentional acts of one or more lndemnitees. v. Tenant's obligation to indemnify lndemnitees shall survive the termination of this Lease. C Assumption of Risk. Tenant undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors and employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions, if any, on or about the Premises, and Tenant hereby agrees to indemnify and hold harmless the Landlord against and from any claim asserted or liability imposed upon the lndemnitees for personal injury or property damage to any person (other than from an lndemnitee's sole negligence or sole intentional acts) arising out of the Tenant's installation, 16 of 44
December 7, 2021, Item #6operation, maintenance, condition or use of the Premises or Tenant's Tower Facilities or Tenant's failure to comply with any federal, state or local statute, ordinance or regulation. d Defense of Landlord. In the event any action or proceeding shall be brought against the Landlord by reason of any matter for which the Landlord is indemnified hereunder, Tenant shall, upon receipt of written notice from Landlord, at Tenant's sole cost and expense, resist and defend the same with legal counsel provided however, that Tenant shall not admit liability in any such matter on behalf of the Landlord without the prior written consent of Landlord and provided further that Landlord shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent ofTenant. e Notice. Cooperation and Expenses. Landlord shall give Tenant prompt written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the defense of any litigation by Landlord's own counsel. Tenant shall pay all reasonable expenses incurred by Landlord in response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorneys' fees and shall also include the reasonable value of any services rendered by the Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert witnesses and disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings but shall not include attorneys' fees for services that are unnecessarily duplicative of services provided Landlord by Tenant. If Tenant requests Landlord to assist it in such defense then Tenant shall pay all expenses incurred by Landlord in response thereto, including defending itself with regard to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as reasonable attorney fees and shall also include the reasonable costs of any services rendered by the Landlord's attorney, and the actual and documented expenses of Landlord's agents, employees or expert witnesses, and disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings, but shall not include attorneys' fees for services that are unnecessarily duplicative of services provided Landlord by Tenant. f Insurance. During the term of this Lease, Tenant shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance (which shall be permitted to be maintained by a blanket policy of insurance covering Tenant and its affiliates): 17 of 44 In the event Tenant maintains employees, workers' compensation insurance meeting applicable statutory requirements and employer's liability insurance with limits of One Million Dollars ($1,000,000) for each accident. i Commercial general liability insurance with limits of Three Million Dollars ($3,000,000) as the combined single limit for each occurrence and in the aggregate of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property
December 7, 2021, Item #6damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCUcoverage. i. Automobile liability insurance covering all owned, hired, and non-owned vehicles in use by Tenant, its employees and agents, to comply with the provisions of state law with limits of Two Million Dollars ($2,000,000} as the combined single limit for each occurrence for bodily injury and propertydamage. iv. At the start of and during the period of any construction, an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature whatsoever which are to be used in or incidental to the construction. Upon completion of the construction, Tenant shall substitute for the foregoing insurance policies of fire, extended coverage and vandalism and malicious mischief insurance. The amount of insurance at all times shall be representative of the insurable values installed or constructed. V. All policies other than those for Workers' Compensation shall be written on an occurrence and not on a claims made basis. \A The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. vi. Tenant shall furnish certificates of insurance to Landlord before commencement of any work on the Leased Premises or Owned Premises. g Additional Insureds. All required policies, except for worker's compensation and property insurance policies, shall include Landlord and all associated, affiliated, allied and subsidiary entities of Landlord, now existing or hereafter created, and their respective elected and appointed officials, officers, boards, commissions, employees, agents, as their respective interests may appear as additional insureds (herein referred to as the "Additional Insureds"). The policy will provide primary coverage and is not secondary or in any way subordinate to any other insurance or coverage maintained by Landlord. Each policy that is to include Additional Insureds hereunder shall contain cross-liability wording, to the effect of: In the event of a claim being made hereunder by one insured for which another insured is or may be liable, then this policy shall cover such insured against whom a claim is or may be made in the same manner as if separate policies had been issued to each insured hereunder. h. Evidence of Insurance. Certificates of insurance for each insurance policy required to be obtained by Tenant in compliance with this Section, shall be filed and maintained with Landlord annually during the term of this Lease. Tenant shall promptly advise Landlord in writing of any claim or litigation that may result in liability to Landlord. Cancellation of Policies of Insurance. With the exception of Tenant's property insurance policy, Tenant shall provide at least thirty (30) days' prior written notice to Landlord of any intention not to renew such policy or to cancel, and not replace. 18 of 44
December 7, 2021, Item #6J Deductibles. Tenant agrees to indemnify and save harmless Landlord, the lndemnitees and Additional Insureds from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished by Tenant under this Lease. Tenant may, in its sole discretion, self-insure any of the required insurance under the same terms as required by this Lease. In the event Tenant elects to self-insure its obligation under this Lease to include Landlord as an additional insured, the following conditions apply: Additional insured shall be limited to bodily injury, property damage or personal and advertising injury caused, in whole or in part, by Tenant, its employees, agents or independent contractors. i Additional insured shall not exceed Tenant's indemnification obligation under this Lease, if any. i. Additional insured shall not extend to claims for punitive or exemplary damages arising out of the acts or omissions of Landlord, its employees, agents or independent contractors or where such coverage is prohibited by law or to claims arising out of the sole gross negligence of Landlord, its employees, agents or independent contractors. iv. Landlord shall promptly and no later than thirty (30) days after notice thereof provide Tenant with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Section and provide Tenant with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like. v. Landlord shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of Tenant. \A Landlord shall fully cooperate with Tenant in the defense of the claim, demand, lawsuit, or the like, however this does not obligate or extend financial liability to Landlord. k Contractors. Tenant and Landlord shall each require that each and every one of its contractors and their subcontractors who perform work on the Owned Premises or Leased Premises to carry, in full force and effect, workers' compensation, commercial general liability and automobile liability insurance coverages of the type which the insured is required to obtain under the terms of this Section with reasonable and appropriate limits of insurance. 20. Hazardous Substance Indemnification. Tenant represents and warrants that its use of the Premises herein will not generate any hazardous substance, and it will not store or dispose on the Premises nor transport to or over the Premises any hazardous substance in violation of any applicable local, state or federal law or regulation. Tenant shall be allowed to store on the Premises the number of batteries as shown in Exhibit C of this Lease (the batteries shown on the Exhibit are 19 of 44
December 7, 2021, Item #6to be used for emergency backup power), as well as fuel for Tenant's emergency generator, an HVAC system, and a halon/FM200 fire suppression system. No additional batteries or fuel may be stored on the Premises without the prior written approval of Landlord. Tenant further agrees to hold Landlord harmless from and indemnify Landlord against any release by Tenant of any such hazardous substance and any damage, loss, or expense or liability resulting from such release by Tenant including reasonable attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the sole negligence or sole intentional acts or omissions of Landlord, its employees, agents or contractors. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 21. Radio Frequency (RF) Indemnification. Tenant shall comply with all present and future applicable laws, orders, and regulations relating to Radio Frequency ("RFs") to the extent required by current or future FCC regulations. 22. Holding Over. Any holding over after the expiration of the term hereof with the consent of Landlord shall be construed to be a tenancy from month to month at two times the Rents herein specified (prorated on a monthly basis) and shall otherwise be for the term and on the conditions herein specified, so far as applicable. 23. Subordination to Mortgage. Any mortgage now or subsequently placed upon any property of which the Premises are a part shall be deemed to be prior in time and senior to the rights ofTenant under this Lease. Tenant subordinates all of its interest in the leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall, upon receipt of Landlord's written request, execute any mutually agreeable additional documents reasonably necessary to effectuate this subordination provided that any such mortgagee agrees to recognize and not disturb Tenant's rights under the Lease. 24. Aggregate Payment. Tenant shall pay Landlord the sum of Five Thousand and No/100 Dollars ($5,000.00) to reimburse Landlord for its costs in negotiating and administering this Lease ("Aggregate Payment"). This Aggregate Payment is a one-time payment. The Aggregate Payment shall not be considered "Rent" and is due forty-five (45) days after the Commencement Date. 25. Acceptance of Premises. By taking possession of the Premises, Tenant accepts the Premises in the condition existing as of the Commencement Date. Landlord makes no representation or warranty with respect to the condition of the Premises and, except as provided by applicable law, Landlord shall not be liable for any latent or patent defect in the Premises. 26. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given as of the date of such service or mailing if personally delivered, mailed, certified mail, return receipt requested or sent by a nationally recognized overnight courier; to the following addresses: 20 of 44
December 7, 2021, Item #6If to Landlord, to: City of Poway If to Tenant, to: City Manager's Office Attn: Economic Development Administrator P.O. Box 789 Poway, California 92074-0789 Phone No. 858-668-4509 c/o Phoenix Tower International Investments, LLC 999 Yamato Road, Suite 100 Boca Raton, Florida 33431 Attention: General Counsel RE: US-CA-1381 Phone No: If to Existing Tenant Representative, to: Mary Cross, Property Manager Cross Business Services 13 514 Mora Circle Poway, CA, 92064 Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 27. Assignment. Tenant may assign this Lease and all or any rights, benefits, liabilities and obligations hereunder, to: (i) any person or entity which is a parent, subsidiary or affiliate ofTenant; (ii) any person or business entity that controls or is controlled by or under common control with Tenant; or (iii) any person or business entity that is merged or consolidated with Tenant or purchases a majority or controlling interest in the ownership or assets of Tenant in the market defined by the FCC in which the Owned Premises is located. Upon notification to Landlord by Tenant of any such assignment, Tenant will be relieved of all future performance, liabilities and obligations under this Lease to the extent of such assignment. Tenant may not otherwise assign this Lease without Landlord's written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Tenant shall be permitted to sublet the premises to any person directly or indirectly controlled by T-Mobile USA, Inc. without the consent of Landlord. 28. Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 21 of 44
December 7, 2021, Item #629. Miscellaneous. a Authority. Landlord and Tenant represent and warrant to each other that each, respectively, has the full right, power, and authority to execute this Lease. b. Integration. This Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind, whether oral or written. There are no representations or understandings of any kind not set forth herein. Any modifications of or amendment to this Lease must be in writing and executed by both parties. C. Venue. This Lease shall be construed in accordance with the laws of the State of California. Any action to enforce or interpret this Lease shall be brought in the Superior Court for San Diego County, California, Central or East County Divisions. Tenant hereby expressly waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. d Validity. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. e Covenants. Landlord represents and warrants to Tenant that: (i) it solely owns the Owned Premises as a lot in fee simple, unencumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, agreements, of record or not of record, which would adversely affect Tenant's intended use and enjoyment of the Premises under this Lease; and (ii) as long as Tenant is not in default, Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the Premises. f Construction. The provisions contained in this Lease shall not be construed in favor of or against either party, but shall be construed as if both parties contributed equally to its preparation. g. Interpretation. Unless otherwise specified, the following rules of construction and interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the construction of the terms and conditions hereof; (ii) use of the term "including" will be interpreted to mean "including but not limited to"; (iii) whenever a party's consent is required under this Lease, except as otherwise stated in the Lease or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of this Lease and are incorporated by reference into this Lease; (v) use of the terms "termination" or "expiration" are interchangeable; (vi) reference to a default will take into consideration any applicable notice, grace and cure periods; (vii) to the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Lease, the ambiguity shall not be resolved on the basis of who drafted the Lease; (viii) the singular use of words includes the plural where appropriate and (ix) if any provision of this Lease is held invalid, illegal or unenforceable, the remaining provisions of this Lease shall remain in full force if the overall purpose of the Lease is not rendered impossible and the original purpose, intent or consideration is not materially impaired. 22 of 44
December 7, 2021, Item #6h. Limitation of Liability. Except for the indemnity obligations set forth in this Lease, and otherwise notwithstanding anything to the contrary in this Lease, Tenant and Landlord each waives any claims that each may have against the other with respect to consequential, incidental or special damages, however caused, based on any theory of liability. Compliance with Law. Tenant agrees to comply with all federal, state and local laws, orders, rules and regulations {"Laws") applicable to Tenant's use of the Antenna Facility on the Owned Premises. Landlord agrees to comply with all Laws relating to Landlord's ownership and use of the Owned Premises and any improvements on the Owned Premises. j W-9. Landlord agrees to provide Tenant with a completed IRS Form W-9 and Form 590, or their equivalents, upon execution of this Lease and at such other times as may be reasonably requested by Tenant, including any change in Landlord's name or address. k Execution/No Option. The submission of this Lease to any party for examination or consideration does not constitute an offer, reservation of or option for the Leased Premises based on the terms set forth herein. This Lease will become effective as a binding agreement only upon the handwritten legal execution, acknowledgment and delivery hereof by Landlord and Tenant. This Lease may be executed in two (2) or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties. All parties need not sign the same counterpart. Waiver of Jury Trial. Each party, to the extent permitted by law, knowingly, voluntarily and intentionally waives its right to a trial by jury in any action or proceeding under any theory of liability arising out of or in any way connected with this Lease or the transactions it contemplates. 30. Limitation on Applicability. Notwithstanding any language in this Lease, the terms and conditions herein shall apply only to the Premises described above. Nothing in this Lease shall be interpreted to affect the parties' right and obligations regarding other properties, sites, facilities or proposed projects of Tenant. [Signatures appear on next page] 23 of 44
December 7, 2021, Item #6This Lease was executed as of the date first set forth above. LANDLORD: City of Poway, a municipal corporation By: Chris Hazeltine, City Manager Date: ----------------ATTEST: By: _______________ _ Carrie Gallagher, CMC, City Clerk APPROVED AS TO FORM: By: ______________ _ Alan Fenstermacher, City Attorney 24 of 44 TENANT: PTI US Towers II, LLC, a Delaware limited liability company By: Name: Dagan Kasavana, CEO Its: Date: -----------
December 7, 2021, Item #6EXHIBIT A-Legal Description of Owned Premises THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL 4 OF CERTIFICATE OF COMPLIANCE BOUNDARY ADJUSTMENT NO. 99-10, IN A DOCUMENT RECORDED NOVEMBER 3, 1999 AS FILE NO. 1999--0735323 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THAT PORTION OF LOTS 1 AND 2 OF SECTION 30, TOWNSHIP 14 SOUTH, RANGE 1 WEST, OF THE SAN BERNARDINO BASE AND MERIDIAN, TOGETHER WITH PARCEL 2 OF PARCEL MAP NO. 16103, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER MAY 31, 1990 AS FILENO. 90-296630 OF OFFICIAL RECORDS, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PORTION OF LOT 1 OF SECTION 30, COMMON WITH SECTION 25 OF TOWNSHIP 14, SOUTH, RANGE 1 WEST OF THE SAN BERNARDINO MERIDIAN; THENCE ALONG THE NORTHERLY LINE OF SAID PORTION OF LOT 1 OF SECTION 30 AND THEN ALONG THE SOUTHERLY LINE OF PARCEL "B" OF CERTIFICATE OF COMPLIANCE AND BOUNDARY ADJUSTMENT NO. 96-02 RECORDED SEPTEMBER 20, 1996 AS DOC.# 1996-0480626 OF OFFICIAL RECORDS, SOUTH 88°1512111 EAST (RECORD: NORTH 88°15'21" WEST, PER PARCEL MAP NO. 5750, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER MARCH 31, 1977 AS FILE NO. 77-118268 OF OFFICIAL RECORDS, NORTIH 88°1514311 WEST PER SAID MAP NO. 16103} 6.00 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL "B"; THENCE CONTINUING ALONG SAID LINE, SOUTH 88°15;31" EAST 1187.71 FEET TO THE NORTHWESTERLY CORNER OF SAID PARCEL 2 OF PARCEL MAP NO.16103; THENCE CONTINUING ALONG SAID LINE, SOUTH 88°15'3111 EAST 300.19 FEET TO THE NORTHEASTERLY CORNER OF SAID PARCEL 2; THENCE LEAVING SAID LINE, ALONG THE EASTERLY LINE OF SAID PARCEL 2, COMMON WITH PARCEL 1 OF SAID PARCEL MAP NO. 5750, NORTH 00°17'20" EAST, (RECORD NORTH 00°16'28" WEST PER SAID PARCEL MAP NO. 5750; NORTH 00°17133" WEST, PER SAID PARCEL MAP NO. 16103} 667.75 FEET TO THE SOUTHEASTERLY CORNER OF SAID PARCEL 2, COMMON WITH PARCEL 1 OF SAID PARCEL MAP NO: 16103; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 2 COMMON Wllll SAID PARCEL 1; SOUTH 59°47'48" WEST (RECORD NORTH 59°47'36" EAST PER SAID PARCEL MAP NO. 16103} 346.11 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 2, COMMON WITH SAID PARCEL 1; THENCE ALONG THE WESTERLY LINEOF SAID PARCEL 1 OF PARCEL MAP NO. 16103 AND ALONG THE EASTERLY LINE OF SAID PORTION OF LOTS 1 AND 2 OF SECTION 30, SOUTH 00°117'20" EAST (RECORD NORTH 00°17'33" WEST PER SAID PARCEL MAP NO. 16103} 485.00 FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE RIGHT-OF-WAY OF BEELER CANYON ROAD PER CITY RESOLUTION NO. 203562 RECORDED SEPTEMBER 14, 1971, AS DOC. NO. 207577, BOOK 1971 OF OFFICIAL RECORDS; THENCE ALONG SAID LINE SOUTH 78°13'5711 WEST 540.29 FEET (RECORD NORTH 78°13'45" EAST, PER SAID PARCEL MAP NO. 16103}, THENCE SOUTH 63°46'0411 WEST (RECORD NORTH 63°45'52" EAST PER SAID PARCEL MAP NO. 16103} 786.75 FEET TO A POINT ON THE WESTERLY LINE OF SAID PORTION OF LOT 2 OF SECTION 30; THENCE LEAVING SAID RIGHT OF WAY OF BEELER CANYON ROAD, ALONG TIIE WESTERLY LINE OF SAID PORTION OF LOT 2 AND THEN ALONG THE WESTERLY LINE OF SAID PORTION OF LOT 1 OF SECTION 30, COMMON WITH SAID SECTION 25, NORTH 01 °05'1 T' EAST (RECORD NORTH 01 °0510511 EAST PER SAID PARCEL MAP NO.16103; NORTH 00°0415411 EAST PER SAID PARCEL MAP NO. 5750} 1830.52 FEET TO TIIE POINT OF BEGINNING. 25 of 44
December 7, 2021, Item #6EXHIBIT B -Legal Description of Leased Premises 26 of 44
December 7, 2021, Item #6EXHIBIT "A" LEASED PREMISES THOSE CERTAIN PARCELS OF LAND LYING N LO-2 OF CITY OF POWAY TRAC NO. 00-01, IN -HE CITY OF POWAY, COUNTY OF SAN DIEGO, STA-E OF CALIFORNIA, AS PER MAP THEREOF NO. 14230, FILED N T--IE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JUNE 19, 2001. BEING -HE SAME PROPERTY CONVEYED TO C TY OF POWAY, A MUNICIPAL CORPORATION, GRANTEE, FROM SUCCESSOR AGENCY TO THE POWAY REDEVELOPMENT, A PUBLIC BODY, GRAN-OR, BY DEED RECORDED 12/08/2016, AS INSTRUMENT # 2016-0674888 OF THE COUNTY RECORDS, AND SAID PARCELS ARE MORE PARTICULARLY DESCRIBED AS FOLLOWS. PARCEL1 BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 2, THENCE ALONG THE WESTERLY LINE THEREOF SOUTH 03'57'54" EAST 89.57 FEET; THENCE LEAVING THE SAID WESTERLY LINE EAST 225.15 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "A"; THENCE SOUTH 7.11 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 39·55'57" EAST 26.37 FEET TO A POINT ON A NON TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 23.41 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 2'14'19" WEST THENCE SOUTHEASTERLY ALONG THE SAID CURVE THROUGH A CENTRAL ANGLE 84'03'35", AN ARC DISTANCE OF 34.35 FEET; THENCE SOUTH 88'58'08" WEST 71.33 FEET; TO A POINT ON A NON TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 23.05 FEET, A RADIAL LINE TO SAID CURVE BEARS NORTH 89'47'1 O" EAST THENCE NORTHEASTERLY ALONG THE SAID CURVE THROUGH A CENTRAL ANGLE 88'50'34", AN ARC DISTANCE OF 35.75 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 2 BEGINNING AT THE AFOREMENTIONED POINT "A", THENCE WEST 74.58 FEET; THENCE SOUTH 18.06 FEET TO THE TRUE POINT OF BEGINNING AND A POINT ON A NON TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 16.15 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 76'30'30" EAST THENCE NORTHEASTERLY ALONG THE SAID CURVE THROUGH A CENTRAL ANGLE 126'42'06", AN ARC DISTANCE OF 35.72 FEET; THENCE SOUTH 44'26'55" WEST 15.78 FEET; THENCE SOUTH 52'11 '43" WEST 4.34 FEET; THENCE SOUTH 63'21 '45" WEST 7.83 FEET; SOUTH 81'56'51" WEST 6.96 FEET; THENCE NORTH 1'16'03" EAST 11.85 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "B": ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. ANJ I .. EXPIRATION DATE: 3/31/2022 ENGINEERING 23072 LAKE CENTER DR., SUITE 211 LAKE FOREST, CA 92630 714.624.9027 27 of 44 SHEET 1 OF 2
December 7, 2021, Item #6( U) C I co (J1 to 225.15' EAST I Icv L ---LINE NO. LENGTH L1 7.11 L2 26.37 L3 71.33 L4 74.58 LS 18.06 NO. C1 C2 C3 28 of 44 EXHIBIT "B" LEASED PREMISES POC KIRKHAM W A Y LOT 2 TRACT NO. 00-01 323-501-02-00 SEE DETAIL "A" 225.15' EAST--PLAN POINT "A" L4 --7 ~--L2 ---TPOB ""'C1 Ti PARCEL 1 \ _j L3 DETAIL "A" DATA LINE DATA BEARING NO. LENGTH BEARING SOUTH L6 15.78 S 44'26'55" W N 89'55'57" E L7 4.34 S 52'11'43" W S 88'58'08" W LS 7.83 S 63'21 '45" W WEST L9 6.96 S 81'56'51" W SOUTH L10 11.85 N 1'16'03" E CURVE DATA DELTA RADIUS LENGTH 84'03'35" 23.41 34.35 88'50'34" 23.05 35.75 126'42'06" 16.15 35.72 NORTI ) C3 L51 ---···> PARCEL 2 L10 L6 / L7 L9 LS
December 7, 2021, Item #6EXHIBIT "A" UTILITY EASEMEW THOSE CERTAIN PARCELS OF LAND LYING N LO-2 OF CITY OF POWAY TRAC NO. 00-01, IN -HE CITY OF POWAY, COUNTY OF SAN DIEGO, STA-E OF CALIFORNIA, AS PER MAP THEREOF NO. 14230, FILED NT-ff OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JUNE 19, 2001. BEING -HE SAME PROPERTY CONVEYED TO C TY OF POWAY, A MUNICIPAL CORPORATION, GRANTEE, FROM SUCCESSOR AGENCY TO THE POWAY REDEVELOPMENT, A PUBLIC BODY, GRAWOR, BY DEED RECORDED 12/08/2016, AS INSTRUMENT # 2016-0674888 OF THE COUNTY RECORDS, AND SAID PARCELS ARE MORE PARTICULARLY DESCRIBED AS FOLLOWS. PARCEL 1 A STRIP OF LAND 5.00 FEET WIDE, LYING 2.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 2, THENCE ALONG THE NORTHERLY LINE THEREOF SOUTH 88'15'43" EAST 216.47 FEET; THENCE LEAVING THE SAID NORTHERLY LINE SOUTH 7.88 FEET TO THE TRUE POINT OF BEGINNING; THENCE WEST 6.99 FEET; THENCE SOUTH 9.49 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "A"; THENCE SOUTH 65.49 FEET; THENCE EAST 43.02 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "B"; THENCE EAST 52.46 FEET; THENCE SOUTH 45'00'00" EAST 11.75 FEET TO THE POINT OF TERMINATION, THE SIDELINE OF SAID STRIP SHALL BE PROLONGED OR SHORTENED TO TERMINATE AT THE SAID LEASED AREA. PARCEL 2 A STRIP OF LAND 5.00 FEET WIDE, LYING 2.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: BEGINNING AT THE AFOREMENTIONED POINT "A"; THENCE WEST 6.07 FEET TO THE POINT OF TERMINATION. PARCEL 3 A STRIP OF LAND 5.00 FEET WIDE, LYING 2.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: BEGINNING AT THE AFOREMENTIONED POINT "B"; THENCE SOUTH 7.08 FEET TO THE POINT OF TERMINATION, THE SIDELINE OF SAID STRIP SHALL BE PROLONGED OR SHORTENED TO TERMINATE AT THE SAID LEASED AREA EXHIBIT "B": A TT ACHED HERETO AND BY THIS REFERENCE MADE A PART HFRFQF AN■" I II 4-"14 .... ~ R.C.E NO. 26571 EXPIRATION DATE: 3/31/2022 29 of 44 No. 26571 Exp. 03/31/22 ENGINEERING 23072 LAKE CENTER DR., SUITE 211 LAKE FOREST, CA 92630 714.624.9027 SHEET 1 OF 2
December 7, 2021, Item #6KIRKHAM S 88'15'43" E LOT 2 TRACT NO. 00-01 323-501-02-00 EXHIBIT "B" UTILITY EASEMEW WAY ----------------------( l L8 TPOB 5.00' KIRKHAM LOT 2 TRACT NO. 00-01 323-501-02-00 WAY I I ---········----1 11½4 11~~;~~-~L6 -¼L? __ _ ,,--------, f '"'~ ',, LEASED PREMISES L_ --· ---------------'"" I c...S\) c... ) , ( "'s~~s'x:.) / I i ~~s // I [__ ___ ./ I I I J _____________________ _.,, NO. L1 L2 L3 L4 LS L6 L7 LS L9 DETAIL "A" NOR H 30 of 44 ATTACHMENT B LINE DATA LENGTH BEARING 7.88 SOUTH 6.99 WEST 9.49 SOUTH 65.49 SOUTH 43.02 EAST 52.46 EAST 11.75 s4s·oo·oo"E 6.07 WEST 7.08 SOUTH
December 7, 2021, Item #6EXHIBIT "A" ACCESS EASEMEW A STRIP OF LAND TEN (10) FEET WIDE, LY NG N LOT 2 OF CITY OF POWAY -RACT NO. 00-01, N THE CITY OF POWAY, COUNTY OF SAN DIEGO, S-ATE OF CALIFORNIA, AS PER MAP THEREOF NO. 14230, FLED N THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JUNE 19, 2001. BE NG THE SAME PROPERTY CONVEYED -0 CITY OF POWAY, A MUNICIPAL CORPORATION, GRANTEE, FROM SUCCESSOR AGENCY TO THE POWAY REDEVELOPMENT, A PUBL C BODY, GRANTOR, BY DEED RECORDED 12/08/2016, AS INSTRUMENT # 2016-0674888 OF THE COUNTY RECORDS, THE CENTERLINE IS MORE PARTICULARLY DESCRIBED AS FOLLOWS. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 2, THENCE ALONG THE NORTHERLY LINE THEREOF SOUTH 88'15'43" EAST 123.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING THE SAID NORTHERLY LINE SOUTH 1'44'29" WEST 33.74 FEET TO A POINT ON A TANGENT CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 15.00 FEET THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 36'37'35". AN ARC DISTANCE OF 9.59 FEET; THENCE SOUTH 34'53'06" EAST 20.47 FEET TO A POINT ON A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 15.00 FEET THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27'30'34". AN ARC DISTANCE OF 7.20 FEET; THENCE SOUTH 62'23'41" EAST 42.32 FEET TO A POINT ON A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 15.00 FEET THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27'36'19". AN ARC DISTANCE OF 7.23 FEET; THENCE EAST 117.77 FEET; THENCE SOUTH 45'00'00" EAST 11.75 FEET TO THE POINT OF TERMINATION, THE SIDELINE OF SAID STRIP SHALL BE PROLONGED OR SHORTENED TO TERMINATE AT THE SAID LEASED AREA. EXHIBIT 11B11: ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. ANd: ----lt.6.2 ltG. 2631 I 6,\ EXPIRATION DATE: 3/31/2022 31 of 44 No. 26571 Exp. 03/31/22 ENGINEERING 23072 LAKE CENTER DR., SUITE 211 LAKE FOREST, CA 92630 714.624.9027 SHEET 1 OF 2
December 7, 2021, Item #6EXHIBIT "B" ACCESS EASEMEN-KIRKHAM --------- i-WAY POC ______ ~-_. 1 2 3 97 • (--------------------------------------7 S 88-·-·-5'43t E f I I I I I I I ~ I 71 L LOT2----, TRACT NO. 00-01 323-501-02-00 PLAN ___ J ""---sEE DETAIL "A" r -------------------------------s 88'15'43" E TPOB .12.l.9.I' ~ I B K H A M 'ti. 8 y 'L3. LOT 2 TRACT NO. 00-01 323-501-02-00 ___________ 4..-=-_-_--_-_---..:.:.:.:.::.-.:.:.:.:..:..-:.:.:..:.:..: · __ ----[ I 'r-soS: :> DETAIL "A" L LEASED PREMISES J 1.-<:J".-v S -x , L---------------------------------LINE DATA LINE DATA NO. LENGTH BEARING liQ. . LENGTH . BEARING L1 33.74 S 1'44'29" E ~ .I ~ .I ~ 45-oo·oo" E L2 20.47 S 34'53'06" E L3 42.32 S 62'23'41" E L4 117.77 EAST CURVE DATA NO. DELTA RADIUS LENGTH C1 84'03'35" 15.00 9.59 C2 88'50'34" 15.00 7.20 C3 126'42'06" 15.00 7.23 NORTI 32 of 44
December 7, 2021, Item #6EXHIBIT C-Description of Tower Facilities 33 of 44
December 7, 2021, Item #6;
~ :AP :::c
~ m z -I
ICD
/_
ION
-.-QENIX
WER
KIRKHAM
T-MOBILE S007954
13875 KIRKHAM WAY
POWAY, CA 92064
SAN DIEGO COUNTY
PROJECT SUMMARY
.
I ' I
::i----:::i-
6PPI ICANJ'
PHOENIX TONER INTERN0.110NAI.
99'l YAMATO ROAD. SUITE 10/
BOCA RATON.10343 I
CONTACT
OFFICE:(561] 25li/Y51
6PP\JGANrs Bf PBf$fNI6IIYf·
PL.ANCOM. [NC
31'12STATE PLACE
ESCONOIOO. CAI.IFOR1IIA 911112'1
CONTACT DUFl'Y DAUGHERTY
TELEPHONE: ,971)54&'H>5«
PROEERIY QWNER
CITY OF POWAY• ECONOMIC DEVELOPMENT
133'5 CIVIC CENTER DRIVE POWAY,CA-
CCJ'lffACT:CR,\IG RUEZ:
TELEPHONE: (Bo8JGHlM8119
TOWER OWNER
PHOENIX TOWER INTERN0.110NAI.
999YAMATO ROAD,SUITEJ 00
BOC.ii RATON.IUJ.J.1I
CONT'ICT
OFFICE: (561) J51.(f<J51
A$$f$$OR'$ PARCEi N\/MRfB l\l'N: >501-02-00
1 EG81 DESCRIEJIQN·
LOT20FCnY OF POWAYr.tACTNO.
1)1) • .(]J. IN THE cnv OF POWAY' COUNTY
OF SAN DIEGO, STATE OF C!\I.IFORNI !\ AS
PER MAP THEREOF N0.14230. FILED IN
lliEOFFICE OFlliECOUNTY RECORDER
OF SAN DIEGO CO"-'ffl'. JUNI~ 19, 2001
CATION pROpfRJY INFORMATION
:TIONS
TO 13875KIRKHAMWAY
?aNAY,C,\I.IFORlili\ •121~'4 of 4
3LVO.nJRNLEFT ONTOLUSK ""1'11011.10 U'"I"'"""'•• ei·a.r,r.•i"•
SITE NAME KIRKHI\M
SITE ADDRESS 13875KIRKHAMVIAY
POWAY, CA92064
JURISDICTION: CITY OF PC/NAY
CONSJR\JCIION INFORMATION
AREA OF CONSTRUCTIOOt
OCCUPANCY
TYPE OFCONSTRUC I ION
ZDNNG a.ASSIF1 CA 11 CJN
PROPOSED LEASEME> ..
PARENTPARC9 .. :
ADA COMPLIANCE·
ll, SQ.FT.
u
v.a
GC • GENERAL COMMERCIAL
I'9060.FT
2311.82529 SQ FT
FACIJTY IS UJ,NANNED AND NOTFOR HUMAN HASIT A 110N.
MACHINERY SPACES ARE EXEMPT FROMACCESSBIJTY
SHEET
T-1
A-'I
A1
A-'1
A-3
A ◄
Ml
L-1
LS-1
LS
DESCRIPTION
TTTI.ESHEET
SITE PLAN
EQUIPMENT PLAN
AN TE-PLAN aMCNIPOLE ELEVAIICJN
EXTERIOR ELEVATIONS
SITESECIIDN
DETALS
CONCEPTU\NDSCAPE PL'\N
SITE SURVEY
SURVEY DETAL
ISSUE STATUS
REV. DATE D.EBCRMION I !BY
0 Ol'/211118 ZONING REVIEW
081111'18 1 ZDNNG REVIEW
08/3W18 ANTE1'1'1A CONFIGF1EV
ot/Oe/18 1on.rnfMFCR A1
02/111'19 I on. m~-C •i TYa-arn
IM/111'19 10011 m-CffY CXMIIIIT6 ,_
IM/I1(,/2I I 0011 m-CrrY CXIM!lans ,_
O-l/2Sill I 00'iim-crn jd11
IOIHl?J,. CHG TOl!Ol<OPOLE 1
PLANcow;
"TELECOMMUNICATIONS MOJECTIMNAGEM:NT
302 STATE PL.ACE,
ESCONDIDO. CALIFORNIA 92029
PROPRJET ARYINFORMATION
tMEi INFONMTtoN CONIAINtD tfltntllTOFOAIININGS
IS Nl"f&COHf'"UUTIAL,O ..... .
ANTUl!R CM Dl!ICI. onUIIEOTH8'1MINMtlSAJ!S10 VENZON WIQl,0919tfflle11.Tl"'!ICN5B>
01
2LL) f
~n -·c9-c:u. ■ -C) z
g. -! «
>-m
>-
<C 8
"T' <
December 7, 2021, Item #620
w u,
0 ....
t
'\._ (E) BUILDING
==;,e-
i (N) LIVE PINE TREES & SHRUBS IN(E) LANDSCAPE ,.,/7 PLANTERS. SEE CONCEPT LANDSCAPE PLAN SHEET L-1
SECTOR2
AZIMUTH50° •
·-----~.:----------KIRKHAM WAY
'-----... I
'W'"·
,,,,,,, .. ,··
\\
.INE,
ROPERTY
NE. TYP .
\ i I I I I
-··t-----------
~-
I :.,P ~ , ,\ '-. q J /
\.._ '-..,.... I ......... ........ r··~······--······ ...... ,,,:',...__:~; '· / -'L=--~ ! :3?=.· ,. , ~J-S =~ i ~ , lt-
_/----------·--t
t
(E) CONCRETE CURS,
GUTTER & SIDEWALK,
TYP.
~ ·--------FUTURE EQUIPMENT AREA
I ,........,_
--+--+---+--'
:1:179'-0'
'·
"'-
,,_ A1 ---------~
'\._ (E) VEHICLE---.. _
STORAGE AREA '
-SECTOR3
AZIMUTH 130"
APN: 323-501-02
")-,
; " . 35~
'
(N)PHOENIX TOWER INTERNATIONAL 10'-0'' x 15'-0' x
8'-0' HIGH CONCRETE BLOCK EQUIPMENT ENCLOSURE
AT GRADE LEVEL. SEE EQUIPMENT PLAN ON SHEET A-1
(N) PHOENIX TOWER INTERNATIONAL (9) ANTENNAS
& (8) RRU RADIO UNITS MOUNTEl;I ON A (N) 84'-0"
HIGH MONOPOLE. SEE ANTENNA PLAN & MONOPOLE
ELEVATION ON SHEET A-2
ISSUE STATUS
REV. Ol\"IE DESCRP110N
BY -1
0611W18 100"II. ZDl'ING REVIEW -08130118 I\Nra-CONFIO REV
091111//18 -ZD•-•Ol < .. -n 11 l
02/1W19 101'1 ZD •CITY CX>MWEHT'I
04l1W19 1011
ZB CITY CX/IIWEM'S
\)4/()(1/21 ilii'', ZD. ClTI' COIIWB<TS -IMl2X/2I 1011
Z!l CITIOOV\,BITS
-0 ()5/21'.t/21 100112D·CIIGIONONOPOLE '-
PLANcOHI
11 :LECOMMUNICATIONSPROJECTMPHAGEMEN'
302 STATE PLACE,
ESCONDIDO, CALIFORNIA 92029
PROPRIETARY INFORMATION
1\1~'. 1:-.:1;(,IC',lTIO/'iCO:"iUl~flll'." "1 '"SRf "OI'
lll'RCPRIErAA.fGCONl"IDDmllll,10WRIDt!IWl&.DS
Mr I.J.1011 OIICLOMI Dnt!!IITtW•lldHl8,10D'IO WIIIELE!ISISAIIICR.fl'"llCM9TIID
><
vJ:.:!--1
0 :
r: i. t-
<(
'T
8
rn .. J
0
08
>-ID
I
ch
::i:
$<
December 7, 2021, Item #6FIRE DEPARTMENT NOTE
en
-.RCEI 18 Ci)CATED INIHEVERY HGH FIRE HAZARD l'IREAOFIHECITYDFPOWA Y ....
--, ~ AP ~N) ~H~~~I~Ab9~0~1rJ~~uAJ-\-i1t}b~9A ~NJ~~O~'AS
HI~~ MONOPOLE. SEE ANTENNA PLAN I JoNoPOLE
I > .. n
:::c s:: m z -I
m
i I l
l
l .. ~
,,(-~
ELEVATION ON SHEET A-2
i •{.
-'. -:;,~_ i ·_ ----:::--_r-.;r:r--.' -,-:;w",:;::_~-=:::------
)
1,-v c/)_t ~ ,-> t, :, l .,.!'~::-----.::--'-._ k r /.·. i ~-C-:9 ·l_. ;, · ,~ · ,-~r Q \ --..... ...... __ ......... _____ __ ,_ --~
<i./../1: -~ ) i.,,_---;ry~ ·~---r~ . ; . ~-_<<--_· ~ ,.,..__,-.J I / /~ ,,.,. __ r.f r-----ir---...' _ I I ,, , -
.
/I _.A. I -' __ · _A.,~-_..;-.1 •--.... ' -y r~h' ·· ~, :-::--~ 1
-~1 __ _g_g_□1---~-.. -i ;{\· ,--..:.'/. . f \. '•,>,.
!JI I uw)( './:,tq ~-"'\
I -I "--""'I,-'\\\
\ \
~-----E ----_---,_,... ,-1 .•
,_./
/' / ·._ / 1:,.
~/
~
3~ of 44
--~
•
___ :;:.:
,,.,.
I ---./ I<&_;
l
'C
EQUIPMENT PLAN KE Y NOTES: 0 (N) PHOENIX TOWER INTERNATIONAL 10'-0" x 15'-0" x 6'-0" IIGH
CONCRETE BLOCK EQUIPMENT ENCLOSURE FORT-MOBILE
(150 SQ. FT. LEASE AREA) WITH PRECISION FINISH <\,AN) 5'-4" WIDE OPENING WITH 5'-0" x 8'-0" STEFj V ACCESS GATE AND T-MOBILE SIGNAGE. ---,l-.\--.AS
* 0
* * l
•
l
I
t
(N) 5'-0" x 5'-0" CONCRETE LANDING
(N) SCREENING SHRUB, TYPICAL OF 13. SEE CONCEPT
LANDSCAPE PLAN SHEET L-1
~J1MS?@M:~ettj~dfo!=8~~~8~t~Wd~LPM~l
(N) T-MOBILE 4'-0" x 6'-0" CONCRETE PAD <2)TOTAL (N) PPC CABINET MOUNTED TO UNtSTRUT ON WALL
CABINET INCLUDES 200A DISCONNECT AND ATS
(N) CIENA CABINET MOUNTED TO UNISTRUT ON WALL
(N) TELCO BOX MOUNTED TO UNISTRITT ON WALL
(N) CONCRETE FOOTING FOR MONOPOLE (SHOWN SHADED)
_ffj_
(N) FIRE EXTINGUISHER. CLASS '2A-10BC', MOUNTED TO WALLIN
ACCORDANCE WITH FIRE DEPARTMENT REQUIREMENTS
(N) WALL MOUNTED LIGHT FIXTURE CfYPIC'.-\L OF 2)
(N'i TERMINATION H-FRAME WITH MASTER GROUND BUSS BAR
(N) (3) 8"0 CONDUIT SWEEPS TO MONOPOLE
(N) FIRE DEPARTMENT KNOX BOX MOUNTED TO (N} H-FRAME
(N) GENERATOR RECEPTACLE MOUNTED TO WALL
(N} 400 AMP PHOENIX TOWER INTERNATIONAL
MUL Tl-GANG METER BASE ON (N) H-FRAME
NOTUSED
(N) PHOENIX TOWER INTERNATIONAL 10'-0'' WIDE NON-EXCLUSIVE
ACCESS ROITTE THROUGH (EJ DRIVEWAY. (SHOWN DASHED) SEE
SITE PLAN ON SHEET A-0 FOR ENTIRE ROU'fE. APPLICANT IS NOT
SEEKING AN EASEMENT DEDICATION FOR THIS ACCESS ROUTE
(E) CONCRETE CURB
(N) 5'-0" WIDE ROUTE FOR PHOENIX TOWER INTERNATIONAL
POWER & TEL.CO TRENCH (SHOWN DASHED). CONTRACTOR SHALL
LOCATE ALL EXISTING UNDERGROUND IMPROVEMENTS PRIOR TO
THE START OF CONSTRUCTION
(N) GPS ANTENNA MOUNTED TO (N) WALL
(E) WROUGHT IRON GATE TO REMAIN
(E) TREE, TYP.
(N) COAXIAL CABLE CONDUIT TRENCH
(N) 314" CRUSHED STONE GRAVEL OVER WEED BARRIER
INSIDE EQUIPMENT ENCLOSURE
(N) 8'-0" HIGH WROUGHT IRON FENCE & GATE WITH
SCREENING VINE LANDSCAPING. SEE CONCEPT
tifit~l?§,~13~ c~T ~cbcK WALL TO REMAIN
(El GATE CONTROL KEYPAD TO REMAIN
ISSUE STATUS
REV Dl'ITE OE8CRFl10N
o 07t2il'l8 • ZONNGREVlE\V
118/10/18 lllll,ll,ZONING REVIE\li
OS/301 IK C:T>:I-lflC> REV
09!1Jc;11.-; 1'm,ll)FINAL FOR:!lalTTAI
112/10/19 !(lnlDCff'ICO!lf!t::H'"I
li4/lilil'' IOl1'1ID-C!TlCOl!IIFll'TS
6 04/06i2 I !()Ul7.D· CITYCOMil!PiTS
(14/26121 \IHi,,JD•CiTICO!lllE.l<TS e I ! l511i.-1•21
PLANcow;
TELECOMM !CATIONS PROJECTMANIGEMENT
302 STATE PL.ACE.
ESCONDIDO, CALIFORNIA92029
PROPRIETARY INFORMATION
'l(nt<l·(,"'JMll'(•~'(•,:a::•;:;i;, i:,r I r.:1Trr l·"::'J ",,.
TS'"''·"'·I :.Jl'f ·crn<!{UEPl'\-lf. !()\\"Ri'.!-•l
ANTUl!f. ll\i Dtl!ICIOIVHeO'Ptl.JttwwUdilT~l~AIE-:11 TO VE IIIZOHWll:::£LE&S ·1 S., .. CTI.TI' AON SI ED
~ ...... ~
zLU
Ofi ; ~"-"',
0. '
8
\\-_~1 ·1.v.
%
a~
!I\;;
I .c3
ag
ii§
·-( --I -$-<
December 7, 2021, Item #6FIRE DEPARTMENT NOTE
w
.,.IS PARCELis LOCATED N THE VERY HIGH FIRE HAZARD AREA OFTHE CITY OFPOWAY
0 ....
:t
•ENIX TOWER INTERNATIONAL (9) ANTENNAS
of SHADED) & (6) RRU RADIO UNITS (SHOWN
}) MOUNTED ON A (N) 84'-0' HIGH MONOPOLE
;
):-n :c s:: m z -t m
•ENIX TOWER INTERNATIONAL I 0'-0" x I 5'-0" x
,H SPLIT-FACE CONCRETE BLOCK EQUIPMENT
.URE FORT-MOBILE AT GRADE.
(E)WROUGHTIRON
GATE (TYPlCAL)
31icofi..M
ll
Ill I
I 111
I
.I
I
.I
!'!'.tJr'!'!t;f". +
I I I I I
J LI L.J
(N) PHOENIX TOWER INTERNATIONAL (9) ANTENNAS
(SHOWN SHADED) & (6) RRU RADIO UNITS (SHOWN
DASHED) MOUNTED ON A (N) 84'-0" HIGH MONOPOLE
FUTURE CARRIER
ANTENNA ARRAY
FUTURE CARRIER
ANTENNA ARRAY
(E)GRADE
I
O 11L I 3 o.:..i'L w 0
Z 11
I 0 a: r-•
1
11Cb11
0 a. 0
ISSUE STATUS
REV DATE DESCRIP11 ON BY
o I 01,20,1 s <)IJ%ZCNNG REVIEW I
08/10/18 1 ZONING REVIEW
08,130/18 ANTc!'l li\CONFIUREV
09/08/'18 00 .. Dlf'WLFOI' Al. 1
02/10/19 IOO!iZD·CITYCOMMENTS
04/10/19 IOOliZO-CITY COMWENTS
04/08/21 IOOliZO-CITY COMMENTS 1111
04/28/21 100liZD• CITY COMMENTS jdn
0&28121 IOIJ'IIZO-CHIJ10NONOP01E 1
PLANcow;
TELECOMMUNICATIONSPROJECTMMAGEMENT
302 STATE PLACE,
ESCONDIDO. CALIFORNIA 92029
PROPRIETARY INFORMATION
rMEINl"ORJ..,(TIONCONJNNEOINtllUIEfOF II
l'RO.-\llffNIT I c"Nl'l~lkTW .IOWIIIZDIW.-\liiliD
AN'f UISOR DUCLO;:iJNl onlml.1wtl#!Jlff&IOEl10 Vv11Ull.l!H1 asnuc,u· Pt.cti91m
>-r) 8 -U z ... 0 r~ ...
o'4at i~! · c _ _, <z
o.F-:= t~
3/ 8 >-al
m
<(
>-I
-,~-'<(
December 7, 2021, Item #69" I 8.6"
~
;1 I 1-I ,
J
rVlEW SIDE VIEW
SCALE: 2
N.T.S.
::1 )> n :c s::
'1 m .,-------z
~
m
---. .r l '~ ..... , .-~ ---.. 1,,,,,.
SCALE: .6.
1
r r M ICA~£~~UND
VVITH WHITE LETTERS
~---:.L.1 CAUTION ::J -HELVETICA
BATTERY ROOM LETTERING
! ;Q.wtm. -~\ A """'"'1cffl""";':: j I _[ , 112 .. HELVETIC
IEiMGIZED tET't,E~I~-~ t
EHERGIZEC Er.Et-:ilJCI.I
MOUNTING SCREWS
BATTERY CAUTION SIGN SCALE:
N.T.S
"']/
(N)ANTENN8 SEE DET AILS!l!"--A ... 4....--_ .... M--A ...... 4
, ,--(N) 2"0 SCHEDULE 40
GALVANIZED STANDARD
(ASTM 53 GRADE B) STEEL
ANTENNA PIPE MOUNT
s•--f , I I _,..,,--PROPOSED COMMSCOPE r ·----~Mt,-~NTILT ~-_,, _I\.~. } · · ANTENNA BRACKET . . H' It I I ·1 . I I
' I ! I 1 j l_ £ 1. _
PROPOSED 3/8" THICK
STEEL PLATE & 112"0
U-BOLTS
/~ MVNVt'ULt: 1-\NM
/ . ASSEMBLY
<--:-"..::;,,
w:]' .. r
' -PROPOSED RRUS UNIT
MOUNTED TO PIPE. SEE
C>E"T,,C,....ILS
3 NOT USED
J. ;t,, ~ (;j
BLUE
(HEALTH 1-!iZAAO)
'::J::J.HilE=
(SPECIALJ
" "
2.
/---RED (FLAMMABILllY)
-YELLOW ''[
(REACTIVITY) ,
~-,NUMBERS&
'LETTERS
SHALL BE
REFLECTIVE FOR BATTERIES
SCALE:
N.T.S.
4
8
ISSUE STATUS
REV. DAIE DESCRIP11 ON • V
C I 01120/_1
6 I OW&'21
7 I 11412111211 1011·1111.cm COM•eNTS
s I 051111111
PLANcOHI
IELECOMMl.flllCATIONS P RC>J EC T
302 ST ATE PL.ACE,
ESCONDIDO, CALIFORNIA 92029
PROPRIETARY INFORMATION
TMl{l:.tPCY.Ut,!TI(;!/HCflJL .,. ::i .. l'31ETor1.1Rlllll'IIG~ ll~ '. !\ I C<•Nt",i/)<-""TW lo\\·Rl,;.:lfl\\'l/',_~:iSS
;\NT u1~~~i1;~)/.l~~r~;~:1_1118( ~:!;~1~::~. }~~~1111~; ,\~:kl: 1 o
><D!
-UJ
~
00!
·Cr-·' . . .
1 <(
8 w .... ... M 3 en ... ,
S! LI ..
oz
o·· ,ot . <:.
< 0
>-
a,
<
December 7, 2021, Item #6FIRE DEPARTMENT NOTE
~PARCEL IS LOCATED ti THE VERY HIGH FIRE HAZARD AREAOFTHE CITV OFP<HIAY
0
:t
KIRK.BAM Yf._AY
(N) PINUS HALEPINEIS (ALEPPO PINE!
SCREENING TREE, (TYPICAL. OF SI
48-INCH BOX ATPLAN11NG.
/11 ~ D 1 --~...,□-1--q---~--l t
\ I
·,~-~·
(N) LON IC ERA JAPONICA (HONEYSUCKLE)
SCREENING VINE AT (N) WROUGHT IRON FENCE, TYPICAL.OF?
(N) RAPHIOLEPIS INDICA (INDIAN
VVTHORN) SCREENING SHRUB.
n" => ALOF13
~,G
~-1 ----~~ '-...,
Ceooo
C b•2j
1
• -1 E vlEHICLE
-STORA~'()t 44
\\
'
D/W /go
,====;----,="· ~---=""
~-
,///
·, >.
0
; ill1 ,I '
, ··/
' '" , i t •.~r ~ I (N) PHOENI~ TOWERN™Tl NAL►,10'-0" x 15'-0" x
8':0
AT
(N)
~a) RRU ~•a UN11S MOUNT~O ON A (N} HI
E
(E) CONCRETE CURB,
GUTTER & SIDEWALK,
TYP.
ISSUE STATUS
08/111(18 100'1.ZONINGREVIEW
oer.I0,'18 AN 11 !-CONFIG REV
09/08/18 tOO,.ZDF-FOII-'"
4 02/11W19 1 ZD-Cl'l'YCCWMBflS re
5 1141111(19 1QOIIZD,CITY1XlfllllENIII re
e 04/08/21 10l1Ull•CITYCOMMEN111 ._
<.14/W21 100112O-CITYCOMMENIII Jd
05/28/21 1001121>-CHGTOIIOIOO.E "'"
PLANcowl
TELECOMMUIIICATtONS PROJECT
302 STATE PLACE,
ESCONDIDO, CALIFORNIA 92029
PROPRIETARY INFORMATION
111t b"lfOft~ll'IO:"i c:n;\' L"iSID IS 11SSlll()fl.JRnl.\lJGS
1srRott11ErMT&CONr10EUfJM.(t>-. .. z:oN''M"2.0
\,"°l' l!Sf-:01\ Ot1CI..Otul'(llll-l.t:IBl'ft.\llT'll-:.A'IDTO ,·1JllZON\\"IREtl''1m:1HICll.Tl'f10lo1llmlf)
>< 8
zw; , ,v
~~z O:c . z
t 1-I <(8 (
>-
ID
>-
< (
., .. c(
December 7, 2021, Item #6EXHIBIT D-Form of Memorandum of Lease 40 of 44
December 7, 2021, Item #6For recording, please forward to; Fidelity National Title Insurance Corp.\CLSS 7130 Glen Forest Drive. Ste 300 Richmond, VA 23 226 Prepared by; PTI US Towers ll, LLC 999 Yamato Road, Suite 100 Boca Raton, FL 33431 MEMORANDUM OF LEASE This Memorandum of Lease evidences a Lease Agreement, dated ("Lease'') between the City of Poway, a municipal corporation ("la,u/lord''), and PTI US Towers II, LLC, a Delaware limited liability company, whose mailing address is 999 Yamato Road, Suite 100, Boca Raton, Florida 33431 ("Tenm~f'), commencing on [DATE]. for certain real property (the "Premises"), as described in Exhibit I attached hereto. Landlord ratifies, restates and confirms the Lease and currently leases the Premises to Tenant, subject to the terms and conditions of the Lease. The Lease provides for the lease by the Landlord to Tenant of the Premises for an initial term of ten ( IO) years with five (5) successive five (5) year renewal terms, which permit the term of the Lease to extend through [DATE]. 41 of 44 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK, SIGNATURES BEGIN ON NEXT PAGE]
December 7, 2021, Item #6IN WITNESS WHEREOF, the parties hereto have executed this MEMORANDUM OF LEASE as of the date last signed by a party hereto. STATE OF COUNTY OF -------~ : ss LANDLORD: City of Poway, a municipal corporation By: ____________ _ Name: Chris Hazeltine Title: City Manager Date: On--------20 ___ . before me, --------------~'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 his/her/their authorized capacity(ies), and that by his/her/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 ______ that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 42 of 44 Notary Public My Commission Expires: (Notary Seal)
December 7, 2021, Item #6STATE OF COUNTY OF 1 W {1 ~ instrument was _ .L.. J:: C/ pvi '.I J'. YltLas acknowledged CG-1 :) ----G) -.f,pa f • tflU .. UIL. .. , --aplrl .Al Pulllrc--P,_;_--TENANT: SS. {L this 12.JL day _o __ l'_n_i._J:A_a.1...20. ?1._, by before me of PTIUS c::31. , ~ lm,:1 ed liability company. A ±19 <SEAL) Print bfl:~0 . . , ~ Notary r LIii e, .fl z/ 0 (County) State of vr_,,-,P, 14--q)J_.--<1;:-----My commission: Personally Known OR Produced Identification Type ofldcntification Produced 43 of 44
December 7, 2021, Item #6EXHIBIT 1 Leased Premises is depicted as follows and shall be replaced with a surveyed legal description when available. [INSERT LEASE AREA LEGAL DESCRIPTION] 44 of 44