HomeMy WebLinkAbout15-Development Services
ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James Funk, Director
Subject: Resolution authorizing the
execution of a lease agreement between the
City of San Bernardino and New Cingular
Wireless (Nicholson Park 2750 West
Second Street)
Dept: Development Services
Date: September 12, 2005
File No. 15.06-143
Synopsis of Previous Council Action:
MCC Date: September 19,2005
11/3/97: Resolution authorizing the execution of a lease agreement with Pacific Bell was
adopted
Recommended Motion:
Adopt Resolution.
~W-
\J James Funk
Contact person:
Jeanne/marie Fitzpatrick
Phone:
5328
Supporting data attached: Staff Report/Reso
Lease/Map
FUNDING REQUIREMENTS: Amount: None
Ward:
6
Source: (Acct. No.)
(A~~t npc::~rirti()n)
Finance:
Council Notes:
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Agenda Item No.
15
'I/"{OS-
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Resolution authorizing the execution of a lease agreement between the City of San Bernardino
and New Cingular Wireless (Nicholson Park 2750 West Second Street).
BACKGROUND:
On November 3, 1997, Resolution No. 97-332 was adopted, authorizing the execution of a cell
tower lease agreement between the City and Pacific Bell Mobile Services, relating to City-owned
real property located at the northwest comer of Second Street and Meridian Avenue (a portion of
Nicholson Park).
On August 4, 2004, we received notification from Cingular Wireless stating that Cingular had
taken over interest in Pacific Bell Mobile Services.
In May 2005, we were notified by the Planning Division that Cingular had applied for a
Development Permit to construct a new cell tower at Nicholson Park, incorporating a larger lease
area. The new cell tower will be a stealthed monopine as opposed to the existing tower which is
an unstealthed monopole. As one of the conditions of approval, a new lease agreement
establishing the new leased area is required. In addition, Cingular will be removing the existing
cell tower that is currently located on the property. Sprint and T -Mobile are both co-locators on
the existing tower and have current lease agreements with the City of San Bernardino. They will
be re-locating on the new tower once it is constructed. However, because the ground lease area
for these two companies is not changing, these leases do not need to be renegotiated until the
lease agreements expire.
Currently the lease rate for this cell tower location is $800.00 per month. However, based upon
surveying surrounding cities, a new lease rate of $1700.00 was established. Most cities
including Riverside, Rialto, Fontana, Ontario and Rancho Cucamonga charge a lease rate of
$1200.00 to $1500.00 per month whether the company is the owner of the cell tower or a co-
locator on the tower. Colton charges a lease rate of $1000.00 per month while Redlands charges
approximately $2000.00 per month since they have very few towers.
FINANCIAL IMPACT:
A $300.00 document preparation fee will be paid within thirty (30 days of the Commencement
Date of the Lease. Lease revenue of $20,400.00 will be collected in monthly increments of
$1700.00.
RECOMMENDATION:
Adopt Resolution.
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DEVELOPMENT SERVICES DEPARTMENT
REAL PROPERTY SECTION
VICINITY MAP
No Scale
RESOLUTION AUTHORIZING THE EXECUTION OF A
LEASE AGREEMENT BETWEEN THE CITY AND NEW
CINGULAR WIRELESS (NICHOLSON PARK., 2750 WEST
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RESOLUTION NO.t Ol fPV
1
2
3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A LEASE AGREEMENT BETWEEN THE CITY OF SAN
4 BERNARDINO, A MUNICIPAL CORPORATION AND NEW CINGULAR WIRELESS
5 PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY. (NICHOLSON PARK,
2750 WEST SECOND STREET)
6
7
8
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. That the Mayor of the City of San Bernardino is hereby authorized and
9
10
11 LLC relating to certain City-owned real property located at 2750 West Second Street, San
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15
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directed to execute, on behalf of said City, a Lease Agreement with New Cingular Wireless PCS,
Bernardino, California, a copy of which is attached hereto, marked Exhibit "1" and incorporated
herein.
SECTION 2. The authorization to execute the above-referenced agreement is rescinded
if the parties to the agreement fail to execute it within sixty (60) days of the passage of this
resolution.
/II
/II
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25
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IVO, /5
'l/njLlc;
09/14/05
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, A MUNICIPAL CORPORATION AND NEW
1 CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY. (NICHOLSON PARK, 2750
WEST SECOND STREET)
2
3
4
5
6 held on the
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof
day of
, 20_, by the following vote, to
7 wit:
18
19
City Clerk
The foregoing resolution is hereby approved this
20
21
22
day of
,20 .
-
23 Approved as to form
24 and legal content:
JUDITH V ALLES, Mayor
City of San Bernardino
25 JAMES F. PENMAN
City Attorney
:~ By: (\a~ 1.
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28
09/09/05
2
Site: Nicholson Park
APN: 0142-051-14-0000
Exhibit 1
LAND LEASE AGREEMENT
THIS LAND LEASE AGREEMENT ("Lease"), IS made and entered into this
day of
, 2005, by and between the CITY
OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and
NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company,
hereinafter referred to as "Lessee".
RECITALS
This Lease is made and entered into with respect to the following facts:
(a) Lessor is the owner of the Premises herein described.
(b) Lessee has requested permission to construct a mobile/wireless communications
facility to be located in the Northwesterly portion of Nicholson Park, 2750 W. 2nd Street, San
Bernardino, California, 92410 (the "Property"), which Property is more particularly described in
Exhibit "A" attached and incorporated herein, and Lessor is willing to lease a portion of the
property to Lessee upon the terms and conditions hereinafter set forth.
(c) Lessee believes that the facility will not interfere with the City of San Bernardino
Department of Parks and Recreation's operations or the public's use of the Property.
(d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all
governmental permits and approvals enabling Lessee, or its assigns to construct and operate
mobile/wireless communications facilities on the Premises.
NOW THEREFORE, the parties hereto agree as follows:
1. Property Leased:
Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, a forty-
five feet by seventeen feet (45' x 17') area of the Property plus an additional ten feet by
seventeen feet (10' x 17') area of the Property for a total area of approximately nine hundred and
09/15/053:06 PM
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15.06-143
twenty-nine square feet (929 sq. ft.), as more particularly described in Exhibit "A" attached
hereto (the "Premises"). Said Premises includes any appurtenant facilities and applicable
easements for access and utilities.
2. Term:
The term of this Lease shall be five (5) years ("Initial Term"), commencing with
(i) the issuance of a building permit by the City of San Bernardino, allowing Lessee to construct
its mobile/wireless communications facilities on the Premises, or (ii) the date both Lessor and
Lessee have executed and delivered said Lease ("Commencement Date"), whichever is later.
Lessee shall have the right to extend the term of the Lease for five (5) additional terms of five (5)
years each ("Renewal Term(s)"). Each Renewal Term shall be on the terms and conditions set
forth herein. This Lease shall automatically be extended for each successive five (5) year
Renewal Term unless Lessor shall have received Lessee's written notification of intention not to
renew no later than ninety (90) days prior to the expiration of the first five (5) year term or any
Renewal Term. The Initial Term and the Renewal Term shall be collectively referred to as the
"Term".
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the same date of each month, thereafter. The initial Rent payment will be forwarded by Lessee
to Lessor within thirty (30) days after the Commencement Date. Should the last payment of
Rent be for a partial month, then only the pro-rata portion of the Rent shall be paid.
Payments shall be directed to:
City of San Bernardino
Development Services Department/Real Property Section
300 North "D" Street, 3rd Floor
San Bernardino, California 92418
(c) Rent shall be increased at the beginning of each Renewal Term by the
amount equal to Fifteen Percent (15%) of the Rent for the previous term or applicable Renewal
Term.
4. Use Restrictions:
The Premises may be used by Lessee for any lawful activity in connection with
the provision of mobile/wireless communications services, including without limitation, the
transmission and the reception of radio communication signals on various frequencies, and the
construction, maintenance and operation of related communications facilities. Lessor agrees to
cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses,
permits and any and all other necessary governmental approvals that may be required for
Lessee's intended use of the Premises.
5. Imorovements:
(a) Lessee shall have the right (but not the obligation) at any time prior to the
Commencement Date, to enter the Premises for the purpose of making necessary engineering
surveys and inspections (and soil tests where applicable) and other reasonably necessary tests
("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined
herein) for mobile/wireless communications operations. During any Tests, Lessee shall have
insurance as set forth in Paragraph 10, and will notify Lessor of any proposed tests, and will
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coordinate the scheduling of same with Lessor. If Lessee determines that the Premises are
unsuitable for Lessee's contemplated use, then Lessee will notify Lessor and this Lease shall
terminate. Lessee shall return the Premises to the condition it was in prior to conducting the
Tests.
(b) Lessee shall have the right to erect, maintain and operate on the Premises,
radio communications facilities, including but not limited to radio frequency transmitting and
receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and
receiving antennas and supporting structures and improvements ("Lessee Facilities"). In
connection therewith, Lessee has the right to do all work necessary to prepare, add, maintain and
alter the Premises for Lessee's business operations and to install utility lines and transmission
lines connecting antennas to transmitters and receivers. All of Lessee's construction and
installation work shall be performed at Lessee's sole cost and expense and in a good
workmanlike manner. Lessee shall hold title to the Lessee Facilities and any equipment placed
on the Premises by Lessee. All of Lessee Facilities shall remain the property of Lessee and are
not fixtures. Lessee has the right to remove all Lessee Facilities at its sole expense on or before
the expiration or earlier termination of this Lease. Lessee shall not make any material alterations
to the Premises, or any part thereof, other than as set forth in Paragraph 5 herein, without the
prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned
or delayed. Any and all alterations and/or improvements made to the Premises pursuant to this
paragraph, including but not limited to Lessee Facilities, shall, within sixty (60) days of the
expiration or earlier termination of this Lease, be removed from the Premises, and the Premises
shall be returned to its previous state on the Commencement Date, excepting normal wear and
tear, casualty, or damage caused by Lessor or Lessor's agents, employees, tenants, lessees,
licensees or invitees.
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(c) Lessor shall provide to Lessee, Lessee's employees, agents and
subcontractors, access to the Premises across the Property twenty-four (24) hours a day, seven
(7) days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of
ingress to and egress from said Premises over the Property, and shall allow Lessee access from
the nearest public roadway to the Premises at all times, and hereby grants such ingress and egress
rights to Lessee along a twelve foot (12') wide right-of-way extending from the nearest public
right-of-way to the Premises, to the extent required to maintain, install and operate the Lessee
Facilities on the Premises. Lessee shall repair any damages Lessee, its agents, employees,
officers, or contractors cause to said above ingress and egress area.
6. Maintenance and Inspections:
Lessee shall, at Lessee's own cost and expense, keep and maintain all
improvements hereinafter constructed on the Premises in good condition and repair, and shall use
all reasonable precaution to prevent waste, damage or injury to the Premises caused by Lessee's
use of the Premises. Lessor shall, at any reasonable time, have the right to go upon the Premises
upon seventy-two (72) hour prior notice to Lessee, and inspect and examine the same relative to
such maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an
employee or authorized representative of Lessee.
7. Utilities:
Lessee shall have the right to install utilities, at Lessee's expense, and to improve
the present utilities on or near the Premises (including, but not limited to the installation of
emergency power generators). Lessee shall have the right to place utilities on (or to bring
utilities across) Lessor's Property in order to service the Premises and Lessee's Facilities, subject
to Lessor's approval of the location, which approval shall not be unreasonably withheld.
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Lessee shall pay for all electricity, gas, water, telephone service, and all other
services and utilities, including service installation fees and charges for such utilities used by
Lessee during the Term of this Lease.
8. Liens and/or Encumbrances:
Lessee shall payor cause to be paid, all costs of construction and/or installation of
all improvements. Lessee shall keep the Premises free and clear of any and all claims arising out
of performance of work on Lessee's behalf, furnishing of materials on Lessee's behalf, and upon
use of utilities by Lessee. This Lease shall be subordinate to any lien, mortgage or deed of trust
currently on record against said Property.
9. Permits and Fees:
Lessee shall pay all license fees, assessments, taxes, penalties or fines which may
be levied against Lessee by virtue of the installation of Lessee's leasehold improvements.
10. Liability Insurance:
Lessee agrees to procure and maintain in force during the term of this Lease and
any extension, at its own expense, the following insurance from companies with an A.M. Best
Rating of at least A-:VII, and with such minimum limits set forth below; (1) Commercial
General Liability with limits of five million dollars ($5,000,000.00) per occurrence, (2)
Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per
accident, and (3) Worker's Compensation Insurance as required by law and Employers' Liability
with limits of one million dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor
a certificate of insurance and name Lessor as an additional insured for the general liability
policy, which certificate provides:
(a) On the Commercial General Liability policy that the City of San
Bernardino is named as an additional insured for the acts or omissions of Lessee.
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(b) The certificates will include the insurance company name, policy number,
period of coverage, and the amount of insurance.
(c) That the Real Property Section of the City of San Bernardino must be
given notice in writing at least thirty (30) days prior to cancellation or modification of the policy.
(d) That Lessee's insurance will be primary to any coverage the City of San
Bernardino may have in effect in connection with the acts or omissions of Lessee.
11. Indemnification:
Except to the extent of the negligence or willful misconduct of Lessor or its
agents, boards, officers, employees, representatives or contractors, Lessee shall defend,
indemnify, and hold harmless Lessor, 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 Lessee's
operations under this Lease.
Except to the extent of the negligence or willful misconduct of Lessee or its agents,
boards, officers, employees, representatives or contractors, Lessor shall defend, indemnify, and
hold harmless Lessee, 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 Lessor's negligent and/or willful acts
or omissions on the Property.
The foregoing indemnities shall survIVe the expiration or earlier termination of this
Lease.
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12. Taxes/Possessorv Interest:
(a) Lessee recognizes and understands that this Lease may create a possessory
interest subject to property taxation, and that Lessee may be subject to the payment of property
taxes levied on such interest. Lessee agrees to, and shall hold harmless, Lessor from any and all
liability for any such taxes related to Lessee's Facilities.
(b) Lessor warrants that (i) Lessor solely owns the Property as a legal lot in
fee simple; (ii) Lessor has full right, power and authority to execute this Lease, (iii) the Property
is not encumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases,
or any other agreements of record or not of record, which would adversely affect Lessee's use
and enjoyment of the Premises under this Lease, and (iv) if the Property subsequently becomes
encumbered by a lien, mortgage or deed of trust, Lessor will use reasonable efforts to provide
promptly to Lessee a commercially reasonable non-disturbance agreement executed by the
holder of any such lien, mortgage or deed of trust. Lessor further warrants that Lessee shall have
quiet enjoyment of the Premises during the term of this Lease or any renewal thereof.
13. Compliance with Laws:
Lessee shall not violate any applicable law of the City, State or Federal
governments in conducting its operations under this Lease.
14. No Sublease or Assignment:
Lessee shall not sublet the Premises, or any part thereof, or assign this Lease,
without Lessor's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Lessee may assign or sublet this Lease
to any subsidiaries, corporate affiliate or successor legal entities of Lessee, or any purchaser of
all, or substantially all, of Lessee's stock or assets in the market defined by the Federal
Communications Commission ("FCC") in which the Premises is located, or to any entity which
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acquires or receives an interest in the majority of communication towers of the Lessee in the
market defined by the FCC in which the Premises is located; provided, however, (i) within thirty
(30) days of such assignment or sublet, Lessee shall provide written notification to Lessor stating
the name, address, contact person and any other pertinent information regarding said corporate
affiliate or purchaser, and (ii) upon notification to Lessor, Lessee will be relieved of all future
performance, liabilities and obligations under this Lease.
15. Default:
Either party shall have the right to terminate this Lease upon thirty (30) days
notice to the other, and upon the effective date of such termination, Lessor shall have the right of
immediate occupancy of the Premises, in the event the other party violates any of this Lease's
terms or conditions, and such violation is not corrected within thirty (30) days after receipt of
written notice to the breaching party, provided that each party shall have such extended period as
may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably
requires more than thirty (30) days and said party commences the cure within the thirty (30) day
period and thereafter continuously and diligently pursues the cure to completion. Such
termination shall not relieve either party from liability for damages for breach of this Lease or for
injury to the Premises. Lessor may not maintain any action or effect any remedies for default
against the Lessee unless and until the Lessee has failed to cure the same within the time periods
provided in this Paragraph.
16. Environmental:
Lessor represents that the Premises have not been used for the generation, storage,
treatment or disposal of hazardous substances, hazardous materials or hazardous wastes. In
addition, Lessor represents that no hazardous materials, hazardous substances, hazardous wastes,
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pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude
oil or any fraction or derivative thereof) or underground storage tanks are located on or near the
Premises. Notwithstanding any other provision of this Lease, Lessee relies upon the
representations stated herein as material inducement for entering into this Lease.
Lessee shall not bring any hazardous materials onto the Premises except for those
contained in its back-up power batteries (lead-acid batteries) and common materials used in
telecommunications operations, e.g., cleaning solvents. Lessee shall treat all hazardous materials
brought onto the Premises by Lessee in accordance with all federal, state and local laws and
regulations.
17. Amendment:
(a) This Lease may be amended or modified only by written agreement signed
by both parties. Failure on the part of either party to enforce any provision of this Lease shall not
be construed as a waiver of the right to compel enforcement of such provision or provisions.
(b) If any provision of the Lease agreement is invalid or unenforceable with
respect to any party, the remainder of this Lease 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 Lease shall be valid and enforceable to the fullest extent permitted by law.
18. Termination:
This Lease may be terminated on thirty (30) days written notice as follows: (i) by
Lessee, if it does not obtain or maintain licenses, permits or other governmental approvals
necessary to the construction or operation of Lessee's Facilities; or (ii) by Lessee, if Lessee is
unable to use the site because of economic, technological or environmental reasons or utilize the
Premises due to a ruling or directive of the FCC or other governmental or regulatory agency. If
after the Commencement Date, Lessee provides thirty (30) days written notice to Lessor of
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termination of this Lease due to the reasons set forth in (ii), above, Lessee shall pay Lessor an
amount equal to six (6) months Rent at the amount stated in Paragraph 3 of this Lease as
"monthly installments" which shall be due and payable from the termination date as payment for
such early termination.
19. Miscellaneous:
(a) This Lease shall be binding on and inure to the benefit of the successors
and permitted assignees of the respective parties.
(b) This Lease shall be governed under the laws of the State of California.
(c) The prevailing party in any legal action to enforce any provision of this
Lease shall be entitled to recover from the losing party all attorneys' 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 arising from that action
(provided reasonable supporting documentation is provided to Lessee), shall be considered as
attorney's fees for the purpose of this Lease.
(d) Upon request, either party may require that a Memorandum of Lease be
recorded in the form of Exhibit "B".
(e) This Lease constitutes the entire Lease and understanding between the
parties and supersedes all offers, negotiations and other leases concerning the subject matter
contained herein. There are no representations or understandings of any kind not set forth
herein. Any amendments to this Lease must be in writing and executed by both parties.
20. Interference with Communications:
Lessee's Facilities shall not disturb the communications configurations,
equipment and frequency which exist on the Property on the Commencement Date ("Pre-existing
Communications"), and Lessee's Facilities shall comply with all non-interference rules of the
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FCC, and the conditions set forth in Development Permit I 05-026, regarding the City's public
safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC
or other Federal agency or department). Lessor shall not permit the use of any portion of the
Property in a way that interferes with the communications operations of Lessee described in
Paragraph 4, above. Such interference with Lessee's communications operations shall be
deemed a material breach by Lessor, and Lessor shall have the responsibility to promptly
terminate said interference. In the event any such interference does not cease promptly, the
parties acknowledge that continuing interference will cause irreparable injury to Lessee, and
therefore, Lessee shall have the right to bring action to enjoin such interference or to terminate
this Lease immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre-
existing Communications operating in the same manner as on the Commencement Date shall not
be deemed interference.
21. Title and Quiet Enioyment:
(a) Lessor warrants that it has full right, power and authority to execute this
Lease; Lessor further \varrants that Lessee shall have quiet enjoyment of the Premises during the
term of this Lease or any Renewal Term.
(b) Lessee shall have the right at any time up to the full execution of this
Lease, and prior to the Commencement Date to obtain a preliminary title report or commitment
for a leasehold title policy from a title insurance company of its choice. If, in the opinion of
Lessee, such title report shows any defects of title or any liens or encumbrances which may
adversely affect Lessee's use of the Premises, Lessee shall have the right to terminate this Lease
(prior to the Commencement Date), immediately upon written notice to Lessor.
09/15/05
12
15.06-143
22. Notices:
All notices given in connection with this Lease shall be in writing and delivered in
person or sent by overnight carrier or certified mail, postage prepaid, addressed as follows:
LESSOR
City of San Bernardino
Development Services Department
Real Property Section
300 North "D" Street
San Bernardino, CA 92418
(909) 384-5328
LESSEE
Cingular Wireless
Attention: Network Real Estate Administration
Re: Cingular Cell Site # ESOI4-01;
Cell Site Name: Nicholson Park
6100 Atlantic Boulevard
Norcross, Georgia 30071
with a copv concurrentlv to:
Cingular Wireless
Attention: Legal Department
Re: Cingular Cell Site # ESOI4-01;
Cell Site Name: Nicholson Park
15 East Midland Avenue
Paramus, New Jersey 07652
23. Covenants:
There are no covenants or warranties other than those expressed in this Lease.
[SIGNATURES APPEAR ON THE NEXT PAGE]
09/15/05
13
15.06-143
IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set
forth at the beginning of this Lease.
LESSOR:
CITY OF SAN BERNARDINO,
a Municipal corporation
Exhibit
Only
Judith Valles, Mayor
ATTEST:
Rachel Clark, City Clerk
LESSEE:
NEW CINGULAR WIRELESS PCS, LLC,
A DELAWARE LIMITED LIABILITY
By:
Print Name:
Its:
Date:
Print Name:
Approved as to form
And legal content
JAMES F. PENMAN,
City Attorney
By:
09/15/05
14
15.06-143
EXHIBIT "B"
Recording Requested By and When
Recorded Return to:
John D. Newman
Attorney at Law
182 Second Street, Suite 210
San Francisco, CA 94105
APN: 0142-051-14-0000
Re: Cell Site #ESOI4-01 (CM-188);
Cell Site Name: Nicholson Park 15.06-143
State: California
County: San Bernardino
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this _ day of ,2005, by
and between THE CITY OF SAN BERNARDINO, a municipal corporation, having a
mailing address of 300 North "D" Street, San Bernardino, CA 92418 (hereinafter referred to as
"Lessor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability
company, having a mailing address of 6100 Atlantic Boulevard, Norcross, Georgia 30071
(hereinafter referred to as "Lessee").
I. Lessor and Lessee entered into a certain Land Lease Agreement (" Agreeme nt") on
the day of , 2005, for the purpose of installing, operating and
maintaining a communications facility and oilier improvements. All of the foregoing are set
forth in the Agreement.
2. The initial lease term will be five (5) years ("Initial Term") commencing with (i)
the issuance of a building permit by the City of San Bernardino, allowing Lessee to construct its
mobile/wireless communications facilities on the Premises, or (ii) the date both Lessor and
Lessee have executed and delivered said Lease, with five (5) successive five (5) year options to
renew.
3. The portion of the land being leased to Lessee (the "Premises") is described in Exhibit
"A" annexed hereto.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed
or construed as amending or modifying, any of the terms, conditions or provisions of the
Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the
provisions of this Memorandum of Lease and the provisions of the Agreement, the provisions of
the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of
09/15/05
15
15.06-143
the parties and their respective heirs, successors, and assigns, subject to the provisions of the
Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day
and year first above written.
WITNESSES:
"LESSOR"
THE CITY OF SAN BERNARDINO,
a municipal corporation
Print Name:
By:
Print Name:
Its:
Date:
Print Name:
Address:
300 North "D" Street
San Bernardino, CA 92418
(909) 384-5328
Phone:
"LESSEE"
NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company
Print Name:
Print Name:
By:
Print Name:
Its:
Date:
[ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE]
09/15/05
16
15.06-143
LESSEE ACKNOWLEDGMENT
STATE OF CALIFORNIA
)
COUNTY OF
)
)
On before me,
the undersigned, a Notary Public in and for said State, personally appeared
, personally known to me (or 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.
WITNESS my hand and official seal.
Signature
Name
(typed or printed)
(Seal)
LESSOR ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF San Bernardino )
On before me,
the undersigned, a Notary Public in and for said State, personally appeared
, personally known to me (or 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.
WITNESS my hand and official seal.
Signature
Name
(typed or printed)
(Seal)
09/15/05
17
15.06-143 .
Page: 2
[NG1]Approved by Cingular management ("BTA Ap proved"). Automatic renewals of the term are recommended
to facilitate ease of property management administration. We believe that the City should be understanding of this,
and be willing to accommodate the request.
Page: 5
[NG2]Generally. to bring in necessary equipment for the installation of the Facilities, Cingular will require a 20'
wide access road. Please verify if a wider road will be necessary for this site, and if so, if a 20' access road is
available.
Page: 7
[NG3]Lessor should provide a reciprocal indemnity.
Page: 10
[NG4]paragraph 15 already provides similar text regarding termination for default.
Page: 15
[NG5]
Page: 15
[NG6]please insert an accurate drawing of the Premises including dimensions.
EXHIBIT "A"
LEASE AREA
THE LAND SHOWN HEREON IS SITUATED IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, THE UNDERLYING PROPERTY IS DESCRIBED AS FOLLOWS:
THAT PORTION OF THE EAST ONE-HALF OF LOT 78, EXCEPT THE SOUTH 5 ACRES, OF THE MAP OF
THE TOWN OF RIAL TO AND ADJOINING SUBDIVISIONS, ACCORDING TO THE PLAT THEREOF AS
RECORDED IN BOOK 4, PAGE 11 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
COMMENCING AT THE CENTERLINE INTERSECTION OF WEST SECOND STREET AND NORTH MERIDIAN
AVENUE AS SHOWN ON PARCEL MAP No. 5665, RECORDED IN BOOK 52, PAGES 49 AND 50 OF
PARCEL MAPS, RECORDS OF SAN BERNARDINO COUNTY;
THENCE ALONG THE CENTERLINE OF SAID WEST SECOND STREET SOUTH 89'47'00" WEST, 660.33 FEET
TO THE POINT OF INTERSECTION OF THE WEST LINE OF THE EAST ONE-HALF OF SAID LOT 78;
THENCE AI,..ONG SAID WEST LINE, NORTH 00'02'40" EAST 555.22 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE CONTINUING ALONG SAID WEST LINE, NORTH 00'02'40" EAST, 44.67 FEET;
THENCE LEAVING SAID WEST LINE, AT A RIGHT ANGLE, SOUTH 89'57'20" EAST, 17.00 FEET;
THENCE SOUTH 00'02' 40. WEST, 44.67 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A;
THENCE NORTH 89'57'20" WEST, 17.00 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINS: 759 SQ. FT. + /- = 0.017 ACRES
MONOPOLE AREA
BEGINNING AT POINT A REFERRED TO ABOVE;
THENCE SOUTH 89'57'20. EAST, 17.00 FEET;
THENCE SOUTH 00'02'40. WEST, 10.00 FEET;
THENCE NORTH 89'57'20" WEST. 17.00 FEET;
THENCE NORTH 00'02'40" EAST, 10.00 FEET TO THE POINT OF BEGINNING;
CONTAINS: 170 SQ. FT. +/- = 0.004 ACRES
THIS DOCUMENT, CONSISTING OF 2 SHEETS, WAS PREPARED BY
ME OR UNDER MY DIRECTION.
~
EXP. 6-30-06
B~o~~
DA E
REVISIONS
BY DATE
EVlSED LECAL DESC. PER CITY RElAARKS
LEASE AREA
:.c: cingular
~~~~~~~703 WIRELESS
MP SURVEYORS
17982 SKY PARK CIRCLE
SUITE B
IRVINE, CA 92614
(949) 250-0272
SHEET
1
LEGAL DESCRIPTION
PREPARED FOR:
PREPARED BY:
OF 2 SHEETS
DRAWN. 08/15/05
BY, JA
CHECKED: rc/loIp
ra.L 51J1.dw
C \CvrrentProJe':t!i\ _NEW_DRAWINGS~S1J2.dw9. 08lJOl2005 10:57:11 AM, Fe
EXHIBIT "A1"
SEE DETAIL
r ':".;-'"
I i I
I i I
I .+.~ I
.I ~.._J
l! ~:::'.J
I \.P O.B. LEASE AREA
I
CD
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Nt;
"! -'
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I/") LA..
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WN
. "-
~ -
Nt;
P <
gw
ZLA..
o
W
Z
:J
.... .
en
~
)
\ :
.~
"-
'-
MAP OF TO'lYN OF RJALTO
AND ADJOiNiNG SUBDiViSiONS
lvlB.4/11
PORTiON LOT 78
I L2
liNE TARI E
L1 NOO'02'4Q-E 44.67'
L2 SB9'S7'20"E 17.00'
L3 SOO'02'4Q"W 44.67'
L4 NB9'S7'ZO"W 17.00'
LS SB9'S7'ZO"E 17.00'
L6 SOO'OZ'4Q"W 10.00'
L7 NB9"57'ZO"W 17.00'
LB NOO'OZ'4Q-E 10.00'
--~""1
:; LaJ :...,
V1 :-'
~ i MONOPOLE
1/. !\'''C.4'' ;ci:i~.7{ARE&A
J.&.J :-':-1
~ N ...Ll....
N"!I
p :g I 1f..QJ3..
~ I/") LEASE AREA __
DETAIL SCAlE
1 lDch - 40 It.
POINT A
P.O.B.
MONOPOLE
AREA
Irz:l
I~
rz:l
>
<
~
Q
-
~
rz:l
......'Vi'
~ 1/")"
"!z
_ 01-
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o ~LA..
Z,O
Nen
p-
een
0<
zm
'-'
iu-~
I
30'
b
,.,
-;'O.C. LEGAL ~
DES,,"PTION ~
.-
SCALE
1 Inch - 100 ft.
~~~'4~~~WO~~33,STREET
BASIS OF BEARINGS
THE CENTERLINE OF MERIDIAN A VENUE. BEING
NORTH 00'02'40" EAST PER PARCEL MAP No.
5665, RECORDED IN BOOK 52, PAGES 49 AND 50
OF PARCEL MAPS. RECORDS OF SAN BERNARDINO
COUNTY.
PREPARED FOR:
PREPARED BY:
LEGAL DESCRIPTION
LEASE AREA
:-: cingular
~-~~ WIRELESS
MP SURVEYORS
17982 SKY PARK CIRCLE
SUITE B
IRVlNE. CA 92614
(949) 2S0-0272
E.\5132.dw9. 0813012005 10:55 38 AM, Fe
SHEET
2
OF 2 SHEETS
DRAWN Dl!/2~/D~
BY. JA
CHECKED, rc/",p
FilE 5132 0_0
EXHIBIT "B"
Recording Requested By and When
Recorded Return to:
John D. Newman
Attorney at Law
182 Second Street, Suite 210
San Francisco, CA 94105
I APN: 0142-051-14-0000
Re: Cell Site #ES014-01 (CM-188);
Cell Site Name: Nicholson Park 15.06-143
State: California
County: San Bernardino
MEMORANDUM
. OF
LEASE
This Memorandum of Lease is entered into on this day of , 2005, by
and between THE CITY OF SAN BERNARDINO, a municipal corporation, having a
mailing address of 300 North "0" Street, San Bernardino, CA 92418 (hereinafter referred to as
"Lessor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability
company, having a mailing address of 6100 Atlantic Boulevard, Norcross, Georgia 30071
(her~inafter referred to as "Lessee").
1. Lessor and Lessee entered into a certain Land Lease Agreement ("Agree ment") on
the day of , 2005, for the purpose of installing, operating and
maintaining a communications facility and other improvements. All of the foregoing are set
forth in the Agreement.
2. The initial lease term will be five (5) years ("Initial Term") commencing with (i)
the issuance of a building permit by the City of San Bernardino, allowing Lessee to construct its
mobile/wireless communications facilities on the Premises, or (ii) the date both Lessor and
Lessee have executed and delivered said Lease, with five (5) successive five (5) year options to
renew.
3. The portion of the land being leased to Lessee (the "Premises") is described in Exhibit
"A" annexed hereto.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed
or construed as amending or modifying, any of the terms. conditions or provisions of the
Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the
pro\.isions of this Memorandum of Lease and the provisions of the Agreement, the provisions of
the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of
09/07/05
15.06-143
the parties and their respective heirs, successors, and assigns, subject to the provisions of the
Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day
and year first above written.
WITNESSES:
"LESSOR"
THE CITY OF SAN BERNARDINO,
a municipal corporation
Print Name:
By:
Print Name:
Its:
Date:
Print Name:
Address:
300 North "0" Street
San Bernardino, CA 92418
(909) 384-5328
Phone:
"LESSEE"
NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company
Print Name:
By:
Print Name:
Its:
Date:
Print Name:
[ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE]
09/07/05
15.06-143
LESSEE ACK.l\'OWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF
)
)
On _ before me,
the undersigned, a Notary Public in and for said State, personally appeared
, personally known to me (01 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.
WITNESS my hand and official seal.
Signature
Name
(typed or printed)
(Seal)
LESSOR ACK1'\OWLEDGME:\"T
STATE OF CALIFORNIA )
)
COUNTY OF San Bernardino )
On before me,
the undersigned, a Notary Public in and for said State, personally appeared
, personally known to me (or 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 entit)' upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Name
(typed or printed)
(Seal)
09/07/05
15.06-143