10-089 T-Mobile West Corporation, Antenna Facilities, 21267 Stevens Creek Blvd (Memorial Park) SITE LEASE WITH OPTION
THIS SITE LEASE WITH OPTION (this "Lease ") is by and between City of Cupertino, a municipal corporation ( "Landlord ") and T-
Mobile West Corporation, a Delaware corporation ( "Tenant ").
1. Option to Lease.
(a) In consideration of the payment of Two Thousand One Hundred Fifty and no /100 dollars ($2,150.00) (the "Option Fee ") by Tenant to
Landlord, Landlord hereby grants to Tenant an option to lease the use of a portion of the real property described in the attached Exhibit A (the
"Property"), on the terms and conditions set forth herein (the "Option "). T. e Option shall be for an initial term of twelve (12) months, commencing
on the Effective Date (as defined below) (the "Option Period "). The Option Period may be extended by Tenant for an additional twelve (12) months
upon written notice to Landlord and payment of the sum of Two Thousani One Hundred Fifty and no /100 dollars ($2,150.00) ( "Additional Option
Fee ") at any time prior to the end of the Option Period.
(b) During the Option Period and any extension thereof, and during the term of this Lease, Landlord agrees to cooperate with Tenant in
obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises (as defined below) from all
applicable government and/or regulatory entities (including, without limitation, zoning and land use authorities, and the Federal Communications
Commission ( "FCC ") ( "Governmental Approvals "), including all land use and zoning permit applications, and Landlord agrees to cooperate with and
to allow Tenant, at no cost to Landlord, to obtain a title report, zoning approvals and variances, land -use permits, and Landlord expressly grants to
Tenant a right of access to the Property to perform surveys, soils tests, •,nd other engineering procedures or environmental investigations on the
Property necessary to determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system design,
operations and Governmental Approvals. Notwithstanding the foregoing, Tenant may not change the zoning classification of the Property without
first obtaining Landlord's written consent. During the Option Period and any extension thereof, Landlord agrees that it will not interfere with
Tenant's efforts to secure other licenses and permits or authorizations that relate to other property. During the Option Period and any extension
thereof, Tenant may exercise the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section 12 hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to Tenant the use of that
portion of the Property sufficient for placement of the Antenna Facilities (as defined below), together with all necessary space and easements for
access and utilities, as generally described and depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises "). The
Premises, located at 21267 Stevens Creek Blvd., Cupertino, CA 95014 corrprises approximately two hundred forty (240) square feet.
2. Term. The initial term of this Lease shall be five (5) years commencing on the date of the exercise of the Option (the "Commencement
Date "), and terminating at midnight on the last day of the month of the initial term (the "Initial Term ").
3. Renewal. Tenant shall have the right to extend this Lease for five (5) additional and successive five -year terms (each a "Renewal
Term ") on the same terms and conditions as set forth herein. This Lease shall automatically renew for each successive Renewal Term unless Tenant
notifies Landlord, in writing, of Tenant's intention not to renew this Lease, at least thirty (30) days prior to the expiration of the Initial Term or any
Renewal Term. If Tenant shall remain in possession of the Premises at the expiration of this Lease or any Renewal Term without a written
agreement, such tenancy shall be deemed a month -to -month tenancy under the same terms and conditions of this Lease.
4. Rent.
(a) From and after the Commencement Date, Tenant shall pay Landlord or designee, as rent, Two Thousand One Hundred Fifty and no /100
dollars ($2,150.00) per month ( "Rent "). The first payment of Rent shall le due within twenty (20) days following the Commencement Date and
shall be prorated based on the days remaining in the month following the Commencement Date, and thereafter Rent will be payable monthly in
advance by the fifth day of each month to Landlord at the address specified in Section 12 below. If this Lease is terminated for any reason (other
than a default by Tenant) at a time other than on the last day of a month, Rent shall be prorated as of the date of termination and all prepaid Rent
shall be immediately refunded to Tenant. Landlord, its successors, assigns and/or designee, if any, will submit to Tenant any documents required by
Tenant in connection with the payment of Rent, including, without limitation, an IRS Form W -9.
(b) Upon the commencement of any Renewal Term hereunder, Rent will be increased for each such Renewal Term over the monthly or
annual installment of Rent payable during the preceding Renewal Term by fifteen percent (15 %).
5. Permitted Use. The Premises may be used by Tenant for the transmission and reception of radio communication signals and for the
construction, installation, operation, maintenance, repair, removal or replacement of related facilities, including, without limitation, tower and base,
antennas, microwave dishes, equipment shelters and/or cabinets and related activities.
6. Interference. Tenant shall not use the Premises in any way which interferes with the use of the Property by Landlord, or lessees or
licensees of Landlord with equipment installed prior in time to Tenant's installation. Similarly, Landlord shall not use, nor shall Landlord permit its
lessees, licensees, employees, invitees or agents to use, any portion of the Property in any way which interferes with the operations of Tenant. Such
interference shall be deemed a material breach by the interfering party, who shall, upon written notice from the other, be responsible for terminating
said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference may cause
irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights that it may have at law or in equity, to bring a
court action to enjoin such interference or to terminate this Lease immediately upon written notice.
Site Number: SF15041 G CA Site Lease - version 9.21.07
Site Name: Memorial Park
Market: SF04
7. Improvements; Utilities; Access.
(a) Tenant shall have the right, at its expense, to erect and maintain on the Premises 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 asociated equipment (collectively, the "Antenna Facilities "). Tenant shall
have the right to alter, replace, expand, enhance and upgrade the Antenna Facilities at any time during the teen of this Lease. Tenant shall cause all
construction to occur lien -free and in compliance with all applicable laws and ordinances, and shall discharge or bond any mechanic's lien filed or
recorded. Landlord acknowledges that it shall not interfere with any aspects of construction, including, without limitation, attempting to direct
construction personnel as to the location of or method of installation of the Antenna Facilities and the Easements (as defined below) ( "Construction
Interference "). Landlord further acknowledges that it will be responsible for any costs and damages (including, fines and penalties) that are directly
attributable to Landlord's Construction Interference. The Antenna Facilities shall remain the exclusive property of Tenant and shall not be
considered fixtures. Tenant shall have the right to remove the Antenna Frcilities at any time during and upon the expiration or termination of this
Lease.
(b) Tenant, at its expense, may use any and all appropriate means of restricting access to the Antenna Facilities, including, without
limitation, the construction of a fence.
(c) Tenant shall, at Tenant's expense, keep and maintain the Antenna Facilities now or hereafter located on the Property in commercially
reasonable condition and repair during the term of this Lease, normal wear and tear and casualty excepted. Upon termination or expiration of this
Lease, the Premises shall be returned to Landlord in good, usable condition, normal wear and tear and casualty excepted.
(d) Tenant shall have the right to install utilities, at Tenant's expense, and to improve the present utilities on the Property (including, but
not limited to, the installation of emergency power generators). Landlorc agrees to use reasonable efforts in assisting Tenant to acquire necessary
utility service. Tenant shall, wherever practicable, install separate meters for utilities used on the Property by Tenant. Landlord shall diligently
correct any variation, interruption or failure of utility service.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant an easement in, under and across the Property
for ingress, egress, utilities and access (including access for the purposes described in Section 1) to the Premises adequate to install and maintain
utilities, which include, but are not limited to, the installation of power and telephone service cable, and to service the Premises and the Antenna
Facilities at all times during the Initial Term of this Lease and any Renewal Term (collectively, the "Easements "). The Easements provided
hereunder shall have the same term as this Lease.
(f) Tenant shall have 24- hours -a -day, 7- days -a -week access to the Premises ( "Access ") at all times during the Initial Term of this Lease
and any Renewal Term at no additional charge to the Tenant.
(g) Tenant, at its sole expense, shall have the right to remove and dispose of the existing light pole standard currently located in the
approximate area designated on the Exhibit B. Following removal, Tenant shall have the right to replace the former light pole standard with a
replacement light pole standard structurally capable of supporting Tenant' antennas and other ancillary equipment (the "Light Pole Replacement ").
Upon installation of the Light Pole Replacement, Tenant shall maintain the Light Pole Replacement during the term of this Lease provided that
Landlord shall be solely responsible for changing out any light fixtures located thereon as necessary. Upon the expiration or earlier termination of
this Lease, title and ownership of the Light Pole Replacement shall automatically, without need for execution of further documentation transfer to
Landlord in its "AS IS" and "WHERE IS" condition without warranty cr representation of any kind. Following such transfer, Landlord will be
solely responsible for the ongoing maintenance and upkeep of the Light Pole Replacement and Tenant shall have no further responsibility in relation
thereto.
(h) Tenant shall comply with the conditions of approval set forth in City of Cupertino Planning Commission Resolution No. 6581 adopted
February 9, 2010, attached hereto as Exhibit C.
8. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further liability as follows:
(a) upon thirty (30) days' written notice by Landlord if Tenant fails to cure a default for payment of amounts due under this Lease within
that thirty (30) day period;
(b) immediately if Tenant notifies Landlord of unacceptable results of any title report, environmental or soil tests prior to Tenant's
installation of the Antenna Facilities on the Premises, or if Tenant is .enable to obtain, maintain, or otherwise forfeits or cancels any license
(including, without limitation, an FCC license), permit or any Governmental Approval necessary to the installation and/or operation of the Antenna
Facilities or Tenant's business;
(c) upon thirty (30) days' written notice by Tenant if the Property or the Antenna Facilities are, or become unacceptable under Tenant's
design or engineering specifications for its Antenna Facilities or the communications system to which the Antenna Facilities belong;
(d) immediately upon written notice by Tenant if the Premises or the Antenna Facilities are destroyed or damaged so as in Tenant's
reasonable judgment to substantially and adversely affect the effective use of the Antenna Facilities. In such event, all rights and obligations of the
parties shall cease as of the date of the damage or destruction, and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. If
Tenant elects to continue this Lease, then all Rent shall abate until the Premises and/or the Antenna Facilities are restored to the condition existing
immediately prior to such damage or destruction; or
(e) at the time title to the Property transfers to a condemning authority, pursuant to a taking of all or a portion of the Property sufficient in
Tenant's determination to render the Premises unsuitable for Tenant's use Landlord and Tenant shall each be entitled to pursue their own separate
awards with respect to such taking. Sale of all or part of the Property to a purchaser with the power of eminent domain in the face of the exercise of
the power shall be treated as a taking by condemnation; or
(f) upon thirty (30) days written notice by Tenant if Tenant ietermines that the Property or Antenna Facilities are inappropriate or
unnecessary for Tenant's operations due to economic reasons.
9. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other rights granted to
it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on written notice pursuant to Section 12 hereof, to
take effect immediately, if the other party (i) fails to perform any covenant for a period of thirty (30) days after receipt of written notice thereof to
cure.
10. Taxes. Landlord shall pay when due all real property taxes for the Property, including the Premises. In the event that Landlord fails
to pay any such real property taxes or other fees and assessments, Tenant shall have the right, but not the obligation, to pay such owed amounts and
deduct them from Rent amounts due under this Lease. Notwithstanding tfe foregoing, Tenant shall pay any personal property tax, real property tax
or any other tax or fee which are directly attributable to the presence or installation of the Tenant's Antenna Facilities, only for so long as this Lease
has not expired of its own terms or is not terminated by either party. Landlord hereby grants to Tenant the right to challenge, whether in a Court,
Administrative Proceeding, or other venue, on behalf of Landlord and/or Tenant, any personal property or real property tax assessments that may
affect Tenant. If Landlord receives notice of any personal property or real property tax assessment against the Landlord, which may affect Tenant
and is directly attributable to Tenant's installation, Landlord shall provide timely notice of the assessment to Tenant sufficient to allow Tenant to
consent to or challenge such assessment. Further, Landlord shall provide to Tenant any and all documentation associated with the assessment and
shall execute any and all documents reasonably necessary to effectuate the intent of this Section 10.
11. Insurance and Subrogation and Indemnification.
(a) Tenant shall provide Commercial General Liability Insurance in an aggregate amount of One Million and no /100 dollars
($1,000,000.00). Tenant may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Tenant
may maintain.
(b) Landlord and Tenant hereby mutually release each other (and their successors or assigns) from liability and waive all right of recovery
against the other for any loss or damage covered by their respective first party property insurance policies for all perils insured thereunder. In the
event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. To the extent loss or damage is not
covered by their first party property insurance policies, Landlord and Tenant each agree to indemnify and hold harmless the other party from and
against any and all claims, damages, cost and expenses, including reasonable attorney fees, to the extent caused by or arising out of (a) the negligent
acts or omissions or willful misconduct in the operations or activities on the Property by the indemnifying party or the employees, agents,
contractors, licensees, tenants and/or subtenants of the indemnifying party, or (b) a breach of any obligation of the indemnifying party under this
Lease. Notwithstanding the foregoing, this indemnification shall not ex:end to indirect, special, incidental or consequential damages, including,
without limitation, loss of profits, income or business opportunities to the indemnified party or anyone claiming through the indemnified party. The
indemnifying party's obligations under this section are contingent upon (i) its receiving prompt written notice of any event giving rise to an
obligation to indemnifying the other party and (ii) the indemnified party s granting it the right to control the defense and settlement of the same.
Notwithstanding anything to the contrary in this Lease, the parties hereby confirm that the provisions of this section shall survive the expiration or
termination of this Lease. Tenant shall not be responsible to Landlord, or any third -party, for any claims, costs or damages (including, fines and
penalties) attributable to any pre- existing violations of applicable codes, statutes or other regulations governing the Property, including the Premises.
12. Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days after deposit in
the U.S. mail, certified and postage paid, or upon receipt if personally delivered or sent by next - business -day delivery via a nationally recognized
overnight courier to the addresses set forth below. Landlord or Tenant may from time to time designate any other address for this purpose by
providing written notice to the other party.
If to Tenant, to: With a copy to:
T- Mobile USA, Inc. Attn: Legal Dept.
12920 SE 38 Street I
Bellevue, WA 98006
Attn: PCS Lease Administrator If to Landlord, to:
City of Cupertino
With a copy to: Attn: Rick Kitson
Attn: Legal Dept. 10300 Torre Avenue
Cupertino, CA 95014
And with a copy to:
T- Mobile West Corporation Send Rent payments to:
2380 -A Bisso Lane City of Cupertino
Concord, CA 94520 10300 Torre Avenue
Attn: Lease Administration Manager Cupertino, CA 95014
13. Quiet Enjoyment, Title and Authority. Landlord covenants <.nd warrants to Tenant that (i) Landlord has full right, power and authority
to execute this Lease; (ii) it has good and unencumbered title to the Property free and clear of any liens or mortgages, except those disclosed to
Tenant and which will not interfere with Tenant's rights to or use of the Premises; and (iii) execution and performance of this Lease will not violate
any laws, ordinances, covenants, or the provisions of any mortgage, lease or other agreement binding on Landlord. Landlord covenants that at all
times during the term of this Lease, Tenant's quiet enjoyment of the Prerrises or any part thereof shall not be disturbed as long as Tenant is not in
default beyond any applicable grace or cure period.
14. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively, "Hazardous
Substance ") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Landlord
and Tenant shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law. Landlord shall be responsible for,
and shall promptly conduct any investigation and remediation as required by any applicable environmental laws, all spills or other releases of any
Hazardous Substance not caused solely by Tenant, that have occurred or which may occur on the Property. Each party agrees to defend, indemnify
and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and
liability (collectively, "Claims ") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and
reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property or
the migration of any Hazardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively,
"Actions "), that relate to or arise from the indemnitor's activities on the Property. Landlord agrees to defend, indemnify and hold Tenant harmless
from Claims resulting from Actions on the Property not caused by Landlord or Tenant prior to and during the Initial Term and any Renewal Term of
this Lease. The indemnifications in this section specifically include, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. This Section 14 shall survive the
termination or expiration of this Lease.
15. Assignment and Subleasing. Tenant may, upon written nctice to Landlord, assign or transfer (by sublease or otherwise) its rights
arising under this Lease to any corporation, partnership or other entity which (i) is controlled by, controlling or under common control with Tenant,
(ii) shall merge or consolidate with or into Tenant, (iii) shall succeed to all or substantially all the assets, property and business of Tenant, or (iv) is
an affiliate or subsidiary or other party as may be required in connectior with any offering, merger, acquisition, recognized security exchange or
financing. Under all other circumstances, such assignment or transfer shall require Landlord's written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Upon assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord
shall look solely to the assignee for performance under this Lease and all obligations hereunder. Tenant may not sublease the Premises, without
Landlord's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
Additionally, Tenant may, upon notice to Landlord, collaterally Assign or grant a security interest in this Lease and the Antenna Facilities,
and may assign this Lease and the Antenna Facilities to any mortgages or holders of security interests, including their successors or assigns
(collectively "Secured Parties "). In such event, Landlord shall execute such consent to leasehold financing as may reasonably be required by such
Secured Parties.
16. Successors and Assigns. This Lease and the Easements granted herein shall run with the land, and shall be binding upon and inure to
the benefit of the parties, their respective successors, personal representatives and assigns.
17. Waiver of Landlord's Lien. Landlord hereby waives an and all lien rights it may have, statutory or otherwise, concerning the
Antenna Facilities or any portion thereof, which shall be deemed personal property for the purposes of this Lease, whether or not the same is deemed
real or personal property under applicable laws, and Landlord gives Tenant and Secured Parties the right to remove all or any portion of the same
from time to time, whether before or after a default under this Lease, in Tenant's and/or Secured Parties' sole discretion and without Landlord's
consent.
18. Miscellaneous.
(a) The prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including
appeals, if any.
(b) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel information as the other may
reasonably request.
(c) This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other
agreements. There are no representations or understandings of any kind r of set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
(d) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of Lease in substantially the form
attached hereto as Exhibit C) necessary to protect its rights or use of the Premises. The Memorandum of Lease may be recorded in place of this
Lease by either party. In the event the Property is encumbered by a mortgage or deed of trust, Landlord agrees, upon request of Tenant, to obtain
and furnish to Tenant a non - disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to
Tenant. Tenant may obtain title insurance on its interest in the Premisei. Landlord agrees to execute such documents as the title company may
require in connection therewith.
(e) This Lease shall be construed in accordance with the laws of the state in which the Property is located.
Site Number: SFI5041 CA Site Lease - version 9.21.07
Site Name: Memorial Park
Market: SF04
(f) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of this Lease, which shall
continue in full force and effect. The parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent
necessary to make them enforceable. Any questions of particular interpretation shall not be interpreted against the draftsman, but rather in
accordance with the fair meaning thereof. No provision of this Lease will be deemed waived by either party unless expressly waived in writing
signed by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any
provision of this Lease shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision.
(g) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their individual
or representative capacity as indicated.
(h) This Lease may be executed in any number of counterpart ccpies, each of which shall be deemed an original, but all of which together
shall constitute a single instrument.
(i) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties understand and acknowledge that
Exhibit A (the legal description of the Property) and Exhibit B (the Premises location within the Property), may be attached to this Lease and the
Memorandum of Lease, in preliminary form. Accordingly, the parties agree that upon the preparation of final, more complete exhibits, Exhibits A,
and/or B, as the case may be, which may have been attached hereto in preliminary form, may be replaced by Tenant with such final, more complete
exhibit(s). The terms of all Exhibits are incorporated herein for all purposes.
(j) If Landlord is represented by any broker or any other leasing agent, Landlord is responsible for all commission fee or other payment to
such agent, and agrees to indemnify and hold Tenant harmless from all claims by such broker or anyone claiming through such broker. If Tenant is
represented by any broker or any other leasing agent, Tenant is responsible for all commission fee or other payment to such agent, and agrees to
indemnify and hold Landlord harmless from all claims by such broker or anyone claiming through such broker
The effective date of this Lease is the date of execution by the last party to sign (the "Effective Date ").
LANDLORD: -. of Cupe ino, a municipal • •rporation
By: ce_ — l W — —
Printed Name: ,. ,e • AI
Title:
Date: (s . 9 (
Approved as to form.
By: /�^
Printed Name: 1. v \. `W
Title: Nor
Date: Cc I ( O
TENANT: T- Mobile West Corporation, a Delaware corporation
By:
Printed Name: Martin Vernon
Area Director Northern CA
Title:
Date: - t Z i 1 C4
Z" et; 4'4
T -Mobi Legal Approv
EXHIBIT A
Legal Description
The Property is legally described as follows:
LEGAL DESCRIPTION
REAL PROPERTY LOCATED IN THE CITY OF CUPEF?TINO, COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA BEING AN EIGHT AND ONE —HALF FOOT BY 30
FOOT (8.50' X 30.00') RECTANGULAR LEASE AREA SITUATED ENTIRELY WITHIN
THAT CERTAIN 14.5± ACRE (NET) PARCEL OF LAND DESCRIBED IN GRANT
DEED TO THE CITY OF CUPERTINO RECORDED AUGUST 4, 1965 IN BOOK 7057,
AT PAGE 660, AND AS SAID PARCEL IS SHOWN ON THAT CERTAIN RECORD
OF SURVEY MAP FILED FOR RECORD 3/01/1968, IN BOOK 234 AT PAGE 8,
RECORDS OF SAID COUNTY, SAID PARCEL BEING A PORTION OF CUPERTINO
MEMORIAL PARK AND SAID LEASE AREA BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID 14.5± ACRE PARCEL AS
SAID PARCEL IS SHOWN ON SAID MAP, SAID POINT ALSO BEING A POINT ON
THE SOUTHERLY RIGHT OF WAY LINE OF CHRISTENSEN DRIVE; THENCE ALONG
THE EAST LINE OF SAID PARCEL, SOUTH 00'02'03" EAST, 343.89 FEET;
THENCE LEAVING SAID LINE AT A RIGHT ANGLE, SOUTH 89'57'57" EAST,
133.88 FEET TO THE NORTHEAST CORNER OF AND POINT OF BEGINNING FOR
THE LEASE AREA HEREIN DESCRIBED; THENCE IN A CLOCKWISE DIRECTION
AROUND THE PERIMETER OF SAID LEASE THE FO_LOWING FOUR (4) COURSES
AND DISTANCES:
1.) SOUTH 26'32'18" WEST, 30.00 FEET; THENCE,
2.) NORTH 63'27'42" WEST, 8.50 FEET; THENCE,
3.) NORTH 26'32'18" EAST, 30.00 FEET; THENCE,
4.) SOUTH 63'27'42" EAST, 8.50 FEET TO THE POINT OF BEGINNING AND
CONTAINING 255 SQUARE FEET.
TOGETHER WITH ACCESS AND UTILITY EASEMENTS AS SHOWN OR AS NEEDED
TO SERVICE THE LEASE AREA.
EXHIBIT B
The location of the Premises within the Property (together with access and utilities) is more particularly described and depicted as follows:
[Enter Premises description here or on attachment(s).]
However, it is expressly agreed and understood by and between the Landlord and Tenant that the exact and precise location of the Tenant's Antenna
Facilities are subject to review and approval by the planning and/or zoning Boards having jurisdiction over the "Premises ".
Therefore, it is expressly agreed and understood by and between Landlord and Tenant that the precise location of the Premises as shown on Exhibit
"B" may be modified by the Tenant in order to comply with and obtain necessary planning and /or zoning approvals, and any and all other approvals
necessary for Tenant's intended use of the property. The Premises as described herein may therefore be modified by the Tenant to reflect the final
engineering design. An amended Exhibit `B" (if necessary) will be provided by the Tenant and attached to the lease in place of the existing Exhibit
"B ", a copy of which will be provided to the Landlord for review prior to being incorporated into the lease.
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Exhibit C — Conditions of Approval
ASA- 2009 -04
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6581
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVNG AN ARCHITECTURAL AND SITE APPROVAL TO ALLOW THE
REPLACEMENT OF AN EXISTING 60 -FOOT TALL BASEBALL FIELD LIGHT POLE
WITH A PERSONAL WIRELESS SERVICE FACILITY, CONSISTING OF A BASE
EQUIPMENT ENCLOSURE AND A 75 -FOOT TALL MONOPOLE THAT WILL
CARRY SIX PANEL ANTENNAS, A TEMPORARY MICROWAVE DISH AND THE
BASEBALL FIELD LIGHTS AT AN EXISTING PARK LOCATED AT 21267 STEVENS
CREEK BOULEVARD (MEMORIAL PARK)
SECTION I: FINDINGS
WHEREAS, the Planning Commission of the City of Cupertino received an application for an
Architectural and Site Approval, as described in Section II of this Resolution; and
WHEREAS, the necessary public notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held one or more public
hearings on this matter; anti
WHEREAS, the applicant has met the burden of proof required to support said application; and
has satisfied the following requirements:
1) The proposed use, at the proposed Iocaiion, will not be detrimental or injurious to
property or improvements in the vicinity, and will not be detrimental to the public
health, safety, general welfare, or convenience; and
2) The proposed use will be located and conducted in a manner in accord with the
Cupertino Comprehensive General Plan; the purpose of the Architectural and Site
Review Chapter of the Cupertino Municipal Code; the Cupertino Wireless Facilities
Master Plan; and the Wireless Communications Facilities Ordinance, Chapter 19.108 of
the Cupertino Municipal Code.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exiibits, testimony and other evidence submitted
in this matter, the application for Architectural ard Site Approval is hereby approved, subject to
the conditions which are enumerated in this Resolution beginning on Page 2 thereof; and
Resolution No. 6581 ASA- 2C09-04 February 9, 2010
Page 2
That the subconclusions upon which the findings and conditions specified in this resolution are
based and contained in the public hearing record concerning Application No. ASA- 2009 -04 as
set forth in the Minutes of the Planning Comrnission Meeting of February 9, 2010, and are
incorporated by reference as though fully set forth herein.
SECTION II: PROTECT DESCRIPTION
Application No.: ASA- 2009 -04
Applicant: Dayna Aguirre (for T- Mobile)
Property Owner: City of Cupertino
Location: 21267 Stevens Creek Boulevard (Memorial Park)
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on Exhibits titled: "SF15041 Memorial Park /Stevens Creek
Boulevard /Cupertino, CA 95014 /County of Santa Clara" dated 01/29/10 and
consisting of six sheets labeled T -1, C1, A -1 through A4, except as may be amended
by the conditions contained in this resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice of
a statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90 -day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government: Code Section 66020(a), has begun. If you
fail to file a protest within this 90-day period complying with all of the requirements
of Section 66020, you will be legally barred from later challenging such exactions.
3. CO- LOCATION OF ANTENNAE
The monopole shall be structurally designed to accommodate the co- location of
additional antennae from other wireless carriers. The co- location agreement shall be
at market rates with reasonable compensation to the mast owner.
4. ABANDONMENT
If after installation, the aerial is not used for its permitted purpose for a continuous
period of 18 months, said aerial and associated facilities shall be removed. The
applicant shall bear the entire cost of demolition.
Resolution No. 6581 ASA- 2009 -04 February 9, 2010
Page 3
5, EXPIRATION DATE
This use permit shall expire ten (10) years after the effective date of the permit. The
applicant may apply for a renewal of the use permit at which time the Planning
Commission may review the state of wireless communication technologies,
camouflage techniques and maintenance to determine if the visual impact of the
aerial facility can be reduced.
6. PERSONAL WIRELESS SERVICE FACILITY MAINTENANCE
The applicant shall be responsible for the operation and maintenance of the new
personal wireless service facility, including the base equipment, monopole and
baseball field lights. The applicant shall provide the City with company contact
information for the purposes of notification for maintenance and repair work.
7. EQUIPMENT ENCLOSURE SCREENING
The base equipment shall be screened from public view as determined by the
Director of Community Development prior to issuance of building permits.
8. MONOPOLE ARTWORK
The artwork (sculpture) final details, including size, materials, color and placement
location on the monopole shall be approved by the Director of Community
Development after consultation with the Fine Arts Conunission.
9. POST- CONSTRUCTION RADIO FREQUENCY ENERGY EXPOSURE TESTING
Prior to the commercial operation of this facility, the applicant shall submit a field
test report on the radio frequency energy emissions to the Director of Community
Development confirming that public exposures to generated radio frequency energy
(measured at full power) complies with federal safety standards at ground level and
nearest residential .ro.erty line (measured at second floor level).
PASSED AND ADOPTED this 9th day of February 2010, at a Regular Meeting of the
Planning Commission of the City of Cupertino by the following roll call vote:
AYES: COMMISSIONERS: Chairperson Brophy, Vice Chair Lee, Kaneda, Miller
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none —
ABSENT: COMMISSIONERS: Giefer
ATTEST: APPROVED:
/s/ Aarti Shrivastava is /Paul Brophy
Aarti Shrivastava Paul Brophy, Chair
Community Development Director Planning Commission
g:/p1wming/pdreport/n.s/2009WASA- 2009 -44 res.
EXC- 2009 -02
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6582
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING A HEIGHT EXCEPTION TO ALLOW SIX ANTENNAS TO BE
MOUNTED AT A HEIGHT OF 60 - 75 FE ET ON A REPLACEMENT LIGHT POLE
WHERE 55 FEET IS ALLOWED AT 21267 STEVENS CREEK BOULEVARD
(MEMORIAL PARK)
SECTION I: PROJECT DESCRIPTION
Application No.: EXC - 2009 -02
Applicant: Dayna Aguirre (for T- Mobile)
Location: 21267 Stevens Creek Boulevard (Memorial Park)
SECTION II: FINDINGS FOR EXCEPTION
WHEREAS, in order to provide height flexibility in situations where practical
difficulties, unnecessary hardships or results inconsistent with the purpose and intent of
Chapter 19.108 occurs, an applicant for development may file an exception request to
seek approval to deviate from the standards; and
WHEREAS, the Planning Commission finds the following with regards to the Height
Exception for this application:
1. That the literal enforcement of the provisions of this title will result in restrictions
inconsistent with the spirit and intent of this title in that the extra antenna height
above the ordinance maximum of 55 feet is needed to provide a safe work
environment for personnel who must maintain the field lights;
2. That the proposed project will not be injurious to property or improvements in
the area nor be materially detrimenta. to the public health, safety, or welfare in
that, visually, the antennas will be mounted in -line with the rest of the monopole
and the diameter of the radome approximates the diameter of the pole.
3. The proposed development will not create a hazardous condition for pedestrian
or vehicular traffic because it is not sited within the travel ways or sight lines of
pedestrian or vehicular traffic.
Resolution No. 6582 EXC- 2009 -02 February 9, 2010
Page 2
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, application no. EXC- 2009 -02 is hereby approved; and
That the subconclusions upon which the : indings and conditions specified in this
Resolution are based and contained in the Public Hearing record concerning
Application EXC- 2009 -02, as set forth in fie Minutes of the Planning Comrission
Meeting of February 9, 2010, and are incorporated by reference herein.
SECTION III: CONDITIONS ADMINISl`FRED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on Exhibits titled: "SF15041 Memorial Park /Stevens Creek
Boulevard /Cupertino, CA 95014 /County of Santa Clara" dated 01/29/10 and
consisting of six sheets labeled T - 1, C1, A. - 1 through A - 4, except as may he amended
by the conditions contained in this resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant
to Government Code Section 66020(d) (1), these Conditions constitute written notice
of a statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90 -day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you
fail to file a protest within this 90 -day period complying with all of the requirements
of Section 66020, you will be legally barred from later challenging such exactions.
PASSED AND ADOPTED this 9th day of February 2010, at a regular meeting of the
Planning Commission of the City of Cupertino by the following roll call vote:
AYES: COMMISSIONERS: Chairperson Brophy, Vice Chair Lee, Kaneda, Miller
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: Giefer
AT l"EST: APPROVED:
/s /Aarti Shrivastava /s /Paul Brophy
Aarti Shrivastava Paul Brophy, Chair
Director of Community Development Planning Commission