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HomeMy WebLinkAbout18-Parks & Recreation CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Lemuel P. Randolph, Director Subject: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR OF THE CITY OF SAN BERNARDINO OR HER DESIGNEE TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NEXTEL COMMUNICATIONS FOR THE LEASE OF TWELVE HUNDRED (1200) SQUARE FEET OF LAND AT THE SAN BERNARDINO SOCCER COMPLEX. MICC Meeting Date: November 1,2004 Dept: Parks, Recreation & Community Services Department Date: October 26, 2004 OR\G\NAL Synopsis of Previous Council Action: None Recommended Motion: Adopt Resolution. That the Director of Finance be authorized to amend the FY 20034-2005 Parks, Recreation and Community Services San Bernardino Soccer Complex budget to include revenue to account 134- 000-4520 (Land and Building Rental) and expenditure of $76,860 in accou t 134-462-5706 (Renovations). Contact person: Teresa Martin Phone: 384-5032 Supporting data attached: "'""Report Re.o ... Ao,eemen' Ward: FUNDING REQUIREMENTS: Amount: N/A Source: (Accl. No.) (Accl. Description) Finance: Council Notes: Agenda Item No. ---1Z Il/I!CV-j CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor of the City of San Bernardino or her designee to execute a lease agreement between the City of San Bernardino and Nextel Communications for the lease of twelve hundred (1200) square feet of land at the San Bernardino Soccer Complex. Background: Nextel Communications has submitted a proposal to the Parks, Recreation and Community Services Department to lease twelve hundred (1200) square feet of land at the San Bernardino Soccer Complex. Nextel will erect a new 60' Mono Palm (palm tree styled) cell tower structure to support their antennas and construct a 12' X 20' block enclosure for communication equipment. The location of the tower will be located in the northwest corner of the San Bernardino Soccer Complex, located at 2500 E. Pacific Ave., San Bernardino, CA. Nextel will be responsible for any utilities consumed by their equipment. The Mono Palm will blend in with the current landscaping. In lieu of a monthly lease payment, Nextel will fund a lighting project for one field at the San Bernardino Socccr Complex. The new lighting system will include four new poles with 48 fixtures. The new-lighted field will increase field availability and rental use. The total cost for the new lighting system is $76,860. The implementation of this lease agreement is contingent upon the advance payment to fund the soccer field lighting project. The terms of this agreement were accepted after the following proposals were rejected. a. First proposal: $1,000 per month for 5 years with 3% annual increases. b. Second proposal: Payment of field lighting ($76,860) for 76 months. c. Third proposal: Payment of field lighting ($76,860) for 60 months. d. Fourth proposal: Payment of ficld lighting ($76,860) plus $1290 a month starting at 6th month. This agreement is for five (5) years and Nextel can renew the term for three (3) successive five (5) year periods with an increase each annual anniversary of the commencement date by an amount equal to three (3%) of the rent for the previous year. Nextel will also include any rent increases that occurred during the fifty-one month lease agreement; therefore, the monthly payment would be $1,639.09 after the initial fifty-one months. The following rates were compiled by Development Services in November 2003: Lorna Linda Ontario Rancho Cucamonga Colton Riverside Redlands San Bernardino Sprint Carrier not specified several carriers Sprint several carriers none Verizon $1,000 per month $1,200 - $1,600 per month $1,000 - $2,000 per month $500 ranging from $1,000 - $1,700 per month currently in negotiations $1,700 per month Financial Impact: No impact to the General Fund with this action, Nextel will fully fund the field lighting project. The projected revenue from this agreement over the twenty (20) year period, if renewed each term, will be $483,658 (yearly amount + 3% increase each year) which will be deposited into the San Bernardino Soccer Complex capital improvement account for much needed improvements Recommendation: Adopt Resolution. That the Director of Finance be authorized to amend the FY 20034-2005 Parks, Recreation and Community Services San Bernardino Soccer Complex budget to include revenue to account 134- 000-4520 (Land and Building Rental) and expenditure of $76,860 in account 134-462-5706 (Renovations). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLU~~Y RESOLUTION OF THE l\L\YOR Al'iD COMMON COUNCIL OF THE CITY OF SAN BER'\ARDINO AUTHORIZING THE 1\1 A YOR OF THE CITY OF SAN BERNARDINO OR HER DESIG:\'EE TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NEXTEL COMMUNICATIONS FOR THE LEASE OF TWELVE HUNDRED (1200) SQUARE FEET OF LA!'ID AT THE SAN BERNARDINO SOCCER CO:\IPLEX. BE IT RESOLVED BY THE 'IA YOR Al'iD CO:\IMON COL:\CIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The \lavor of the City of San Bernardino or her designee is hereby authorized to execute a contractual agreement with Nextel Communications for twelve hundred (1200) square feet of land at the San Bernardino Soccer Complex located at 2500 E. Pacific Ave.. San Bernardino. C/\.. a copy of which is attached hereto, marked Attachment "A" and incorporated herein by reference as fully as though set forth at length. SECTIOl\' 2. That the Director of Finance be authorized to amend the FY 20034-2005 Parks, Recreation and Community Services San Bernardino Soccer Complex budget to include revenue to account 134-000-4520 (Land and Building Rental) and expenditure of 576.860 in account 134-462-5706 (Renovations). SECTION 3. The authorization granted hereunder shall expire and be ,'oid and of no further effect if the agreement is not executed by both parties and returned to the office of the City Clerk within one hundred twenty (120) days following the effective date of the resolution. I 710. (r (( (( /() jLJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLl'TION OF THE MAYOR AND COMMO!\' COl'NCIL OF THE CITY OF SAN BERl\ARDINO AUTHORIZING THE MAYOR OF THE CITY OF SA'i BERNARDI"iO OR HER DESIGNEE TO EXECt:TE A LEASE AGREE:\lENT BETWEEl\' THE CITY OF SA!\' BERNARDI!\'O Al\'D NEXTEL COMMl'NICA TIO'iS FOR THE LEASE OF TWELVE Hl!l'iDRED (1200) SQUARE FEET OF LAND AT THE SAl'i BER!\;ARDINO SOCCER COMPLEX I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the I\1ayor and C')l11mon Council of the City ()f San Bernardino at a meding thereof. held on the da\' of . 1004. b\ the following \ote. to wit: Council Members: AYES NAYS ABST AI~ ABSE:'\T ESTR..\DA LO:\GVILLE j\.IC GIT\:\"IS DERRY KELLEY JOH:\SO:\ \IC CAMMACK Rachel G. Clark. City Clerk The foregoing resolution is hereby appro\cd this day of 1004. Judith Valles. Mayor City of San Bernardino Approwd as to r orm and legal content: JAMES F. PEl\:;-"1AN. City Attorney ;' 'lt~ Attachment "A" Market Site # Site Name Los Angeles CA7257E Arden COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) This COMMUNISATIONS SITE LEASE AGREEMENT (Agreement) IS dated as of NEXTEL OF CALIFORNIA, INC a Delaware corporation, d/b/a Nextel Communications ("Nexte/" or CITY OF SAN BERNARDINO ("Owner" or' Landlord) 2004 by Tenant) and THE The parties hereto agree as follows 1. Premises. Owner owns a parcel of land ('Land') located In the City of San Bernardino County of San Bernardino State of California, commonly known as 2500 E, Pacific Ave (APN 1191-101-03) The Land IS more particularly deSCribed In Exhibit A annexed hereto, Subject to the provIsions of Para9raph 2 below ( Effective DateIDue Diligence Period") Owner hereby leases to Nextel and Nextel leases from Owner approXimately one thousand two hundred (1200) square feet of the Land and ail access and utility easements necessary or desirable therefor (' Premises'") as may be descrloed generally In Exhibit B annexed hereto 2. Effective DateIDue Diliqence Period. This Agreement shall be effective on the date of full execution hereof (""Effective Date') Beginning on the Effective Date and continuing until the Term Commencement Date as defined In Paragraph 3 below (Due Diligence Period") Nextel shall only be permitted to enter the Land for the limited purpose of making appropriate engineering and boundary surveys, Inspections and other reasonably necessary Investigations and Signal topographical geotechnical structural and enVIronmental tests (collectlvely,'lnvestigations and Tests") that Nextel may deem necessary or deSirable to determine the physical condition, feaSibility and SUitability of the Premises, In the event that Nextel determines, dUring the Due Diligence Period, that the Premises are not appropriate for Nextel's Intended use, or If for any other reason or no reason, Nextel deCides not to commence ItS tenancy of the Premises, then Nextel shall have the rl9ht to terminate this Agreement Without penalty upon written notice to Owner at any time during the Due Diligence Period and prior to the Term Commencement Date Owner and Nextel expressly acknowledge and agree that Nextel's access to the Land dUring this Due Diligence Period shall be solely for the limited puroose of performing the Investigations and Tests, and that Nextel shall not be conSidered an owner or operator of any portion of the Land, and shall have no ownership or control of any portion of the Land (except as expressly prOVided In thiS Paragraph 2), prior to the Term Commencement Date 3. Term. The term of Nextel s tenancy hereunder shall commence upon the start of construction of the Tenant Facll:tles (as defined In Paragraph 6 below) or eighteen (18) months follOWing the Effective Date, whichever first occurs ("Term Commencement Date") and shall terminate on the fifth anniversary of the Term Commencement Date ('Term') unless othervllse terminated as prOVided herein. Tenant shall have the right to extend the Term for three (3) successive five (5) year periods (Renewal Terms') on the same terms and conditions as set forth herein, Tenant must adVise Landlord In vmtlng of such Intent to renew no later than ninety (90) days prior to the expiration of the first five (5) year term or any renewal term In the event that Tenant deCides not to extend thiS Agreement beyond ItS original term or any renewal term, then Tenant shall notify Landlord In writing of Tenants Intention not to so extend thiS Agreement at least ninety (90) days prior to the expiration of the first five (5) year term or any renewal term 4. Rent. la) Within fifteen 1,15) bUSiness days following the Term Commencement Date and on the first day of each month thereafter Tenant shall pay to Landlord as rent ONE THOUSAND FIVE HUNDRED and 00/100 Dollars ($150000) per month ('Rent) Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated Rent shall be payable to Landlord at City of San Bernardino, Parks, Recreation, and Community Services Department. 547 N Sierra Way San Bernardino. California. 92410; Attention, Accounting All of Tenant's monetary obligations set forth In thiS Agreement are conditioned upon Tenants receipt of an accurate and executed W-9 Form from Landlord. Grcurd Lease t>,9reer:1e~,t CA7:5~ - Arc:e'1 Market Site # Site Name Los Angeles CA7257E Arden (b) Rent shall be Increased on each annual annlversacf of the Commencement Date by an amount equal to three percent (3%) of the Rent for the prevIous year (c) Upon commencing construction of the Tenant Facilities or eighteen (18) months following the Effective Date whichever first occurs. Tenant shall pay Landlord the sum of S76,860.00 and In consideration for Tenant paYing for the Installation of a new sports lighting system on the Land (pursuant to Musco lighting quote dated May 17. 2004. In the amount of S76,860 00) Landlord agrees that the Rent In Section 5(a) shall abate for a period of frfty-one (51) months from the Commencement Date. upon which no rent Will be payable from Tenant to Landlord. Upon conclusion of the Rent abatement period Tenant shall pay Rent pursuant to Section 5ia), including all Rent Increases that have occurred" 5, Use. From and after the Term Commencement Date. the Premises may be used by Tenant for any lawful activity In connection with the provIsion of communications services, and Tenant shall have the ongoing right to perform such Investigations and Tests as Tenant may deem necessary or deSirable. Landlord agrees to cooperate with Tenant at Tenant's expense, In making application for and obtaining all licenses permits and any and all other necessary approvals that may be required for Tenant's Intended use of the Premises 6. Facilities: Utilities: Access. (al Tenant has the right to construct erect maintain. replace remove, operate and upgrade on the Premises communications facilities. Including without limitation an antenna tower or pole and foundation, utility lines, transmission lines, air conditioned equipment shelter(s) electronic equipment transmitting and receiving antennas, a standby power generator and generator pad supporting equipment and structures therefor ("Tenant Facilities"). In connection therewith, Tenant has the right to do all work necessary to prepare maintain and alter the Premises for Tenants bUSiness operations and to Install transmission lines connecting the antennas to the transmitters and receivers All of Tenant's construction and Installation work shall be performed at Tenant's sole cost and expense and In a good and workmanlike manner Tenant shall hold title to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant's personal property and are not fixtures Tenant has the right to remove the Tenant Facilities at ItS sole expense on or before the expiration or earlier termination of thiS Agreement and Tenant shall repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement Tenant shall remove the Tenant Facilities from the Land. but IS not reqUired to remove any foundation more than three (3) feet below grade level Upon the expiration or earlier termination of thiS Agreement all alterations andlor Improvements (above ground and below) made to the real property which IS the subject of thiS Agreement shall be removed from the property by Tenant and the land shall be returned to ItS prevIous state excepting normal wear and tear. casualty or damage cause by Landlord (b) Tenant shall pay for the electriCity It consumes In ItS operations at the rate charged by the servIcing utility company Tenant shall have the right to draw electriCity and other utilities from the eXisting ulilitles on the Land or obtain separate utility service from any utility company that Will proVide service to the Land Landlord agrees to sign such documents or easements as may be reqUired by said utiiity companies to provide such service to the Premises, including the grant to Tenant or to the servicing utility company at no cost to the Tenant. of an easement In, over across or through the Land as required by such servIcing utility company to prOVide utility services as provided herein Any easement necessary for such power or other utilities Will be at a location acceptable to Landlord and the servicing ulility company (c) Tenant Tenant's employees. agents and contractors shall have access to the Premises Without notice to Landlord twenty-four (24) hours a day, seven (7) days a week, at no charge Landlord grants to Tenant. and Tenant's agents, employees, contractors, guests and InVltees. a non-exclusive right and easement for pedestrian and vehicular Ingress and egress across the Land as may be described generally In Exhibit B 7. Interference. (a) Commission ("FCC) licensees of the Land. Tenant shall operate the Tenant FaCilities In compliance With all Federal requirements and In a manner that Will not cause Interference to Landlord or prOVided that any such installations predate that of the Tenant FaCilities Communications other lessees or (b) Ti;?IlJnt's Facilities shJl1 not disturb the communicJtinns configurations. equipment Jnd frequency which t:'\ist on Landlord's property \)11 the Commencement Datt? ("'Pre-existing Communications'"l and Tenant's Facilities shall comply with GrC'f:::l Lease p.,g:eement CA7::'S-;- - Araer 2 Market Site # Site Name Los Angeles CA7257E A.rden all 11011-inl.:rltTCllc,: ruks or the h::d.:ral Cnmmunicatiu!1s Commission (TCC') anJ th.: conJitiol1s set forth in Dcvl.']opmcnt PerrT1!t J 0:2-] ':>7, r.:gardll1g tll.: Cit: 's ruh]ic saIL'!: trJllsmisc,lons (prmidcd th.: conditions ar.: not within the exclusive jurisdIction of th~ FCC llr other Federal agcllc: or department) LanJlorJ shall not pen11it the: llse of ~\Il: portion of Landlord's property in ;1 \\;1: that inkrkres with the CUIlll1l1l11icHillllS up.:r3.t]()JlS ll( Tenant descrihcd in Section 0, abme. Such interference \\'ith Tenant'.., communications l)peiJtiolls shall be deemed a matnizll breach by Landlord, and Land]urd shall han: the rcspt)Jlsibility to prompt]: lerminate said interkrcnc~ In thL' e\cnt 311: \Llch interference dnes not cease promptly, the parties ackno\\ledgc that Clllltinuing interlcrellcc will cat:"e irreparable iniur: to Ten,:l!lt. and therefore. Tenant shall have the right to bring action to enjoin such intcrf::rence or to terrninJte this Lcasl' illlm~diat~ly upon \\fitten notice to LanJlord. 'otwithstanding the forgoing, Pre-existing Cnllllllunications opC:-ilting in the sam.: manner ,1:) (ll1 the: COlllmencement Date shJll no! be dt'clllt'U interference. 8. Taxes. If personal attributable to the Tenant FaCilities Land property taxes are assessed. Tenant shall pay any portion of such taxes directly Laodlord shall pay all real property taxes. assessments and deferred taxes on the 9. Waiver of Landlord's Lien. (a) Landlord waives any lien rights It may have concerning the Tenant Facilities. all of which are deemed Tenants personal property and not fixtures. and Tenant has the right to remove the same at any time without Landlord's consent (b) Landlord acknowledges that Tenant has entered Into a finanCing arrangement including promissory notes and finanCial and security agreements foe the finanCing of the Tenant FaCilities ('Collateraf') With a third party finanCing entity (and may In the future enter Into additional finanCing arrangements With other finanCing entities). In connection thereWith Landlord (I) consents to the Installation of the Collateral: (Ii) disclaims any Interest In the Collateral. as fixtures or otherwise and (III) agrees that the Collateral shall be exempt from execution. foreclosure. sale, levy. attachment. oc distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings 10. Termination. ThiS Agreement may be terminated Without further liability on thirty (30) days prior written notice as follows (I) by either party upon a default of any covenant or term hereof by the other party, which default IS not cured Within sixty (60) days of receipt of written notice of default. except that the Agreement shall not be terminated If the default cannot reasonably be cured Within such sixty (60) day period and the defaulting party has commenced to cure the default Within such sixty (60) day period and diligently pursues the cure to completion: proVided that the grace period for any monetary default IS ten (10) days from receipt of written notice: or (il) by Tenant if It does not obtain or maintain any license. permit or other approval necessary for the construction and operation of the Tenant FaCilities: or (Iii) by Tenant If Tenant IS unable to occupy and utilize the Premises due to an action of the FCC Including Without limitation. a take back of channels or change In frequencies or (IV) by Tenant if any environmental report for the Land reveals the presence of any Hazardous Matenal after the Term Commencement Date: or (v) by Tenant If Tenant determines that the Premises are not appropriate for ItS operations for economiC or technological reasons. including. Without limitation. Signal interference, or (VI) by Tenant If the Landlord falls to deliver to Tenant an executed memorandum of agreement or non-disturbance and attornment agreement pursuant to Paragraphs 19(9) and (h) below 11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed. condemned or transferred In lieu of condemnation. Tenant may elect to terminate thiS Agreement as of the date of the damage. destruction condemnation or transfer In lieu of condemnation by giVing notice to Landlord no more than forty- five (45) days follOWing the date of such damage. destruction. condemnation or transfer In lieu of condemnation. If Tenant chooses not to terminate thiS Agreement future Rent to be paid shall be reduced In proportion to the actual reduction or abatement of use of the Premises. 12. Insurance Tenant. at Tenant's sole cost and expense. shall procure and maintain on the Premises and on the Tenant Facilities. bodily Injury and property damage Insurance With a combined Single limit of at least One Million and 00/100 Dollars ($1 000.00000) per occurrence Such Insurance shall insure. on an occurrence baSIS, against all liability of Tenant. ItS employees and agents ansing out of or in connection With Tenant's use of the Premises. all as Jrovided for herein Within thirty (30) days follOWing the Effective Date. Tenant may. at ItS option. (I) prOVide Landlord With a certificate of Insurance ('COI) eVidenCing the coverage required by thiS Paragraph 12. or (Ii) electronically provide G'o~nd Lease A;jreemerl CA72:.7, Arde~ 3 Market Site # Site Name Los Angeles CA7257E Arden Landlord with a memorandum of Insurance CMOI) eVidencing the coverage required by this Paragraph 12. In the event Tenant elects to provide Landlord with a MOl. Tenant shall provide Landlord With a uniform resource locator link to Tenant s MOl web site Landlord. at Landlords sole cost and expense, shall procure and maintain on the Property bodily Injury and property damage Insurance With a combined Single limit of at least One Million and 00/100 Dollars ($1.000.00000) per occurrence Such insurance shall Insure, on an occurrence basIs. against all liability of Landlord. ItS employees and agents arising out of or In connection With Landlord's use, occupancy and maintenance of the Property Each party shall be named as an additional Insured on the others policy Landlord shall provide a COI eVidenCing the coverage required by thiS Paragraph 12 Within thirty (30) days follOWing the Effective Date Proof of a bona fide self- Insurance program of S1.000.000 shall satisfy the Insurance coverage requirement of thiS section 13, Waiver of Subroqation. Landlord and Tenant release each other and their respective principals, employees. representatives and agents. from any claims for damage to any person or to the Land or the Premises or to the Tenant Facilities or any other property thereon caused by, or that result from, risks Insured against under any Insurance poliCies carned by the parties and In force at the time of any such damage. Landlord and Tenant shall cause each Insurance poliCY obtained by them to proVide that the Insurance company waives all right of recovery by way of subrogation against the other In connection With any damage covered by any poliCY 14. Liability and Indemnity. Landlord and Tenant shall each Indemnify. defend and hold the other harmless from and against all claims. losses. liabilities, damages. costs. and expenses (including reasonable attorneys' and consultants' fees. costs and expenses) (collectively "Losses") arising from the Indemnifying party's breach of any term or condition of tnls Agreement or from the negligence or willful misconduct of the indemnifying party's agents, employees or contractors In or about the Land Except as proVided in the first sentence. Tenant shall defend (If requested by Landlord), Indemnify, and hold harmless Landlord. ItS agents, boards, officers. employees. representatives or contractors against any and all claims. SUitS. damages for personal InJury Including death, property damage. demands. loss or liability of any kind or nature arising from Tenants operations under thiS Agreement The duties described In thiS Paragraph 14 shall apply as of the Effective Date of thiS Agreement and survive the termination of thiS Agreement 15. Assiqnment and Sublettinq. Tenant may not assign. or otherwise transfer all or any part of its Interest In thiS Agreement or In the Premises Without the prior written consent of Landlord: provided, however. that Tenant may assign ItS Interest to ItS parent company any subsidiary or affiliate of It or ItS parent company or to any successor-In- Interest or entity acquiring fifty-one percent (51%) or more of ItS stock or assets. subject to any finanCing entitys interest, If any. in thiS Agreement as set forth In Paragraph g above Upon assignment Tenant shall be relieved of all future performance, liabilities. and obligations under thiS Agreement provided that the assignee assumes all of Tenant's obligations herein Landlord may assign thiS Agreement which assignment may be eVidenced by written notice to Tenant Within a reasonable period of time thereafter. prOVided that the assignee assumes all of Landlord's obligations herein, Including but not limited to. those set forth In Paragraph 9 ("Waiver of Landlords Lien') above. This Agreement shall run With the Property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirS and assigns NotWithstanding anything to the contrary contained In thiS Agreement, Tenant may assign. mortgage, pledge, hypothecate or otherwise transfer Without notice or consent ItS Interest In thiS Agreement to any finanCing entity, or agent on behalf of any finanCing entity to whom Tenant (I) has obligations for borrowed money or In respect of guaranties thereof, (II) has obligations eVidenced by bonds, debentures. notes or Similar Instruments, or (iil) has obligations under or With respect to letters of credit bankers acceptances and Similar facilities or In respect of guaranties thereof 16. Warranty of Title and Quiet Enioyment. Landlord warrants that (I) Landlord owns the Land In fee Simple and has rights of access thereto and the Land IS free and clear of all liens. encumbrances and restrictions except those of record as of the Effective Date and (II) Landlord covenants and agrees With Tenant that Tenant may peacefully and qUietly enJoy the Premises provided that Tenant IS not In default hereunder after notice and expiration of all cure periods 17. Repairs. Tenant shall repair any damage to the Premises or Land caused by the negligence or willful misconduct of Tenant Except as set forth In Paragraph 6(a) above, upon expiration or termination hereof, Tenant shall Giouno Lease Ag'eeme'l: CA'=57 - Alder 4 Market: Slte#: Site Name: Los Angeles CA7257E Arden repair the Premises to substantially the condition in which It eXisted upon start of construction, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. 18, Hazardous Materials, (a) As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Matenalln, on, under, upon or affecting the Land in violation of any EnVIronmental Law (as defined below), and (2) Landlord hereby represents and warrants that (I) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Land In violation of any EnVIronmental Law; (ii) no notice has been received by or on behalf of Landlord from, and Landlord has no knowledge that notice has been given to any predecessor owner or operator of the Land by, any governmental entity or any person or entity claiming any violation of, or requinng compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Land: and (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Matenal in, on, under, upon, or affecting the Land In violation of any Environmental Law. (b) Without limitation of Paragraph 14, Landlord and Tenant shall each indemnify, defend and hold the other harmless from and against all Losses arising from (I) any breach of any representation or warranty made in this Paragraph 18 by such party; andlor (ii) environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Tenant, from operations in or about the Land by Tenant or Tenant's agents, employees or contractors, and in the case of Landlord, from the ownership or control of, or operations in or about, the Land by Landlord or Landlord's predecessors In interest, and their respective agents, employees, contractors, tenants, guests or other parties. The duties described in thiS Paragraph 18 shall apply as of the Effective Date of this Agreement and sunvive termination of this Agreement: (c) "Hazardous Materia" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, Without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental enlity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Law" means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, Including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities With respect to: (i) human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the eXistence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or othenwlse regulating or providing for the protection of the environment 19. Miscellaneous, (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Land and their real and personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authonty. (c) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of thiS Agreement or the application of such proviSion to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent perm itted by law. (d) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. r~EXTEl.. Leese Agreer.lent 58 Soccer Com;)lex 1 i -1-04 5 Market Site #: Site Name: Los Angeles CA7257E Arcen (e) Any notice or demand required to be given herein shall be made by certified or registered Ira!', return receipt requested, or reliable overnight cOUller to the address of the respective parties set forth below: Landlord: Tenant: City of San Bernardino Nextel of California, Inc 310 Commerce Irvine, CA 92602 Attn: Property Manager Phone (714) 368-3500 With a copy to: Nextel Communications, Inc. 2001 Edmund Halley Olive Reston, VA 20191-3436 Second Floor, Mail Stop 2E225 Attn: Site Leasing Services, Contracts Manager Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt. (f) This Agreement shall be governed by the laws of the State of California. Any legal proceeding brought to enforce any light, Interest, or other demand to this Agreement shall be brought in the Superior Court of the County of San Bernardino, San Bernardino District, State of California. The prevailing party in any legal proceeding to enforce any prOVIsion of this Agreement shall be entitled to recover from the losing party all attorney's fees and court costs, including appeals, if any, In connection with that action. The portion of the costs, salary, and expenses of the City Attorney and members of his office directly allsing from that action shall be considered as "attorney's fees" for the purpose of this paragraph. (g) Landlord agrees to execute and deliver to Tenant a Memorandum of Agreement in the form annexed hereto as Exhibit C and acknowledges that such Memorandum of Agreement will be recorded by Tenant in the official records of the County where the Land IS located. (h) In the event the Land IS encumbered by a mortgage or deed of trust, Landlord agrees to obtain acd deliver to Tenant an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust In a recordable form reasonably acceptable to both parties. (i) Landlord agrees to fully cooperate, includrng executing necessary documentation, with Tenant to obtain Information and documentation clearing any outstanding title issues that could adversely affect Tenant's interest in the Premises created by tillS Agreement U) In any case where the approval or consent of one party hereto is reqUired, requested or otherwise to be given under thiS Agreement, such party shall not unreasonably delay or withhold its approval or consent (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity 2nd authority to enter into and perform their respective obligations under this Agreement (I) The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or Intent of any provision of this Agreement (m) All Riders and Exhibits annexed hereto form material parts of this Agreement (n) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an ollginal. "'SIGNATURES ON FOLLOWING PAGE'" !\Jc~,TEL Lease",g~e'Om~nt SB So:cer Co~r,plcx ~ 1-1.04 6 Market: 8Ite#: Site Name: Los Ar,geles CA7257E Arden IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last signature below. LANDLORD: TENANT: CITY OF SAN BERNARDINO Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications By By Name: Name: Title Title: Date: Date: Tax 1.0.: NEYTE:~ Lease Agreement SB S.:)Ccer Corn:Jlex 11-1-04 7 Market: Site # Site Name: Los Angeies CA7257E Arden EXHIBIT A DESCRIPTION OF LAND to the Agreement dated ,200_, by and between CITY OF SAN BERNARDINO, as Landlord, and NEXTEL OF CALIFORNIA, INC, a Delaware corporation, d/b/a Nextel Communications, as Tenant: The Land IS described and/or depicted as follows (metes and bounds description): APN: 1191-101-03 A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO N:::\TEL Lease "::',greemenl 58 S;)ccer Complex 11-1-D4 8 I;;: ~ ., II . ~ i~ $ii; " " . " c ~ I' I~ , , ,. ~ ; ~ ~ I! 11 " ~ g~ ! Il C1 ~ " Ii .. , 0 c, . ~ ~ ~ ii ! ~ :;:::) n ~ "'" ! '" ;; .' ~ ..., is z :::-!. ~ il H , --, . 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'I U1 i , !. ~ i ~ , I m , ! 10 Q~~ =1" m:IJ nZ ...,m OJ" PDF created with FinePrint pdfFactory Pro trial version \.'JWI.v,cdffactorvcom Market: Site # Site Name: Los Angeles CA7257E Arden EXHIBIT B DESCRIPTION OF PREMISES to the Agreement dated ,200_, by and between CITY OF SAN BERNARDINO, as landlord and NEXTEl OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, as Tenant. The Premises are described and/or depicted as follows A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO Notes: 1. Tenant may replace this Exhibit with a survey of the Premises once Tenant receives It. 2. The Premises shall be setback from the Land"s boundaries as required by the applicable governmental authonties. 3 The access road's width will be the width required by the applicable governmental authorities, including police and fire departments. 4. Tenant may install up to tvvelve (12) antennas and fifteen (15) coaxial cables. 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X ::r 0- rt = co '"' rt rt 0; n ::r '3 ro ::l rt :z o w Market Site#: Site Name: Los Angeles CA7257E Arden EXHIBIT C RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Nextel of California, Inc. 310 Commerce Irvine, CA 92602 Altn Property Manager MEMORANDUM OF AGREEMENT CA8818/ Mountain View APN: 0143-201-25 This MEMORANDUM OF AGREEMENT is entered into on this day of , 200 , by CITY OF SAN BERNARDINO, with an address at San Bernardino, CA, 92404 (hereinafter referred to as "Owner" or "Landlord') and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, with an office at 310 Commerce, Irvine, California, 92602 (hereinafter referred to as 'Wexter' or "Tenanf'). 1. Landlord and Tenant entered into a Communications Site Lease Agreement ("Agreemenf') dated as of ,200_, effective upon full execution of the parties ("Effective Date") for the purpose Nextel undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of Installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of the Agreement is for five (5) years commencing on the start of construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs ('Term Commencement Date"), and terminating on the fifth anniversary of the Commencement Date with three (3) successive five (5) year options to renew. 3. The Land that is the subject of the Agreement IS described In Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the "Premises") are set forth In the Agreement. In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: TENANT: CITY OF SAN BERNARDINO, NOT FOR EXECUTION - EXHIBIT ONLY By Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications NOT FOR EXECUTION - EXHIBIT ONLY By: Name: Name: Title: Title: Date: Date: ~iextei Lease Agreemen~ 56 Scc:::er Complex 11-1-04 11 Market: Site#: Site Name: Los Angeles CA7257E Arden STATE OF COUNTY OF On , before me, , Notary Public, personally appeared (Landlord) , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name IS subscribed to the within Instrument and acknowledged to me that they executed the same In their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the Instrument. WITNESS my hand and official seal, (SEAL) Notary Pubilc My commission expires: STATE OF COUNTY OF On , before me, , Notary Public, personally appeared (Nextel) , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorrzed capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal, (SEAL) Notary Public My commission expires: NEXTE,- :"'ease AgreeMent $8 Soccer COMo,e:< 1'-1-0-1. 12 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: November 4, 2004 TO: Debbie Piantadosi, Senior Secretary FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2004-348 At the Mayor and Common Council meeting of November I, 2004, the City of San Bernardino adopted Resolution 2004-348 - Resolution authorizing the Mayor or her designee to execute a lease agreement between the City of San Bernardino and Nextel Communications for the lease of 1200 square feet of land at the San Bernardino Soccer Complex. Attached are three (3) original agreements. Please obtain signatures in the appropriate location and return one original agreement to the City Clerk's Office as soon as possible, to my attention. Please be advised that the resolution and agreement will be null and void if not executed within 120 days, or by March 1, 2005. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Michelle Taylor Senior Secretary I hereby ackn<;>wledge receipt of the above mentioned documents. ~7 _..,. ') ,- S. d P / . ,J d 19ne ~ . &i-'~:"_ ,/~_.L:"-,/. Date: /;/0',v Please sign and return CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: December 14,2004 TO: Veronica Martinez, Senior Secretary FROM: Michelle Taylor, Senior Secretary RE: Resolution 2004-348 - Nextel Communications CC: Attached is a fully executed copy of the lease agreement with Nextel Communications for the lease of 1200 square feet ofland at the San Bernardino Soccer Complex. The original agreement is on file in the City Clerk's Office. If you have any questions, please call me at ex!. 3206.