HomeMy WebLinkAbout24-Parks & Recreation
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e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
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From: Kevin Hawkins, Director
Dept: Parks, Recreation, and Community
Servi ces
Date: May 24, 2007
Synopsis of Previous Council Action:
Subject: Resolutions authorizing the City
Manager to execute two lease agreements
between the City of San Bernardino and
Omnipoint Communications Inc. for the
lease of three hundred and ten (310) square feet
of land at Colony Park and one thousand (1000)
square feet ofland at Wildwood Park
MICC Meeting Date: June 5, 2006
6/05/2006 - Resolution No. 2006-168 authorizing the execution of a contract with Omnipoint
Communications was approved for cell tower placement at Nunez Park.
Recommended Motion:
Adopt Resolutions.
Contact person:
Kevin Hawkins
\
Signature
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Phone: 5030
Supporting data attached: ',"frR..,,,,, R"o & Amem,nl
FUNDING REQUIREMENTS:
Ward: 3 & 4
Amount: $40,000 in revenue in 2007/08
Source: (Acct. No.) 001-000-4520-0000
(revenue account).
(Acct. Description)
Finance:
Council Notes:
Agenda Item No.
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CITY OF SAN BERNARDINO. REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolutions of the Mayor and Common Council of the City of San Bernardino authorizing the
City Manager to execute two lease agreements between the City of San Bernardino and
Omnipoint Communications Inc. for the lease of three hundred and ten (310) square feet of
land at Colony Park, 153 E Harwick Drive and one thousand (1000) square feet of land at
Wildwood Park, 536 E. 40th Street.
Background:
Omnipoint Communications, commonly known as T-Mobile, submitted two proposals to lease
310 square feet of property at Colony Park and 1000 square feet of property at Wildwood Park
for placement of cellular towers. At Colony Park, Omnipoint Communications will replace an
existing light pole with a new pole that will accommodate panel antennas. At Wildwood Park,
Omnipoint Communications will place a Monopine pole that will accommodate panel antennas.
Omnipoint Communications will be responsible for any utilities consumed by their equipment.
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Both agreements provide five (5) year terms with the option of three (3) successive five (5)
year renewal periods. The initial monthly rent is $2,000 per month with a 3% increase each
annual anniversary of the commencement date. The term of the lease arrangements begin upon
the start of construction or eighteen months from the effective date (upon execution),
whichever occurs first.
Construction at Wildwood Park is expected to start in August 2007. Ominpoint has received
land use approval and filed an application for a building permit. Construction at Colony Park is
expected to start in October 2007. Omnipoint has filed the land use application but it has not
yet been approved. The building permit will be filed after the first round of planning comments.
Financial Impact:
The projected revenue in 2007/08 is $22,000 from the Wildwood Park lease (I I months) and
$18,000 from the Colony Park lease (9 months) for a total of $40.000 in 2007/08. The total
revenue over the five (5) year period for both leases is $255,000. If each of the three (3), five
(5) year terms are renewed (total of twenty years), total revenue for both leases will be
$1,291,000 (includes 3% increase each year).
Recommendation:
Adopt Resolutions.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE
4 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OMNIPOINT
COMMUNICATIONS INC. FOR THE LEASE OF THREE HUNDRED AND TEN (310)
5 SQUARE FEET OF LAND AT COLONY PARK, 153 E HARWICK DRIVE.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager is hereby authorized to execute on behalf of the City a
9 contractual agreement between the City of San Bernardino and Omnipoint Communications for
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the lease of three hundred and ten (310) square feet ofland at Colony Park, 153 E Harwick Drive,
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a copy of which is attached hereto, marked as Attachment "A", and incorporated herein by this
reference.
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SECTION 3. The authorization granted hereunder shall expire and be void and of no
15 further effect if the agreement is not executed by both parties and returned to the office of the
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City Clerk within one hundred twenty (120) days following the effective date of the resolution.
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III
fIl?J . J I
(p (f(Ol
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND OMNIPOINT
COMMUNICATIONS INC. FOR THE LEASE OF THREE HUNDRED (310) SQUARE
FEET OF LAND AT COLONY PARK, 153 E HARWICK DRIVE.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
6
7 meeting thereof, held on the day of
, 2007, by the following
15 KELLEY
16 JOHNSON
17 MCCAMMACK
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21 2007.
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this
day of
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Patrick J. Morris, Mayor
City of San Bernardino
roved as to F~:
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es F. Penman, City Attorney
ATTACHMENT "A"
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
COMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement') is dated as of this
day of ,2007, by Omnipoint Communications Inc., a subsidiary
of T-Mobile USA Inc. (hereinafter referred to as "OC/" or "Tenant') and THE CITY OF SAN
BERNARDINO ("Owner" or "Landlord').
For One Dollar ($100) paid to Owner, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, 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 West side of
intersection of E. Harwick Drive and S. Weir Road, San Bernardino, California 92408, Assessor's
Parcel Number 0141-321-14. The Land is more particularly described in Exhibit A annexed
hereto. Subject to the provisions of Paragraph 2 below ("Effective DatelDue Diligence Period"),
Owner hereby leases to OCI and OClleases from Owner approximately three hundred ten (310)
square feet of the Land and all access and utility easements necessary or desirable therefor
("Premises"), as may be described generally in Exhibit B annexed hereto.
2. Effective DatelDue Diliaence 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'),
OCI 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 (collectively,
"Investigations and Tests") that OCI may deem necessary or desirable to determine the
physical condition, feasibility and suitability of the Premises In the event that OCI determines,
during the Due Diligence Period, that the Premises are not appropriate for OCI's intended use, or
if for any other reason, or no reason, OCI decides not to commence its tenancy of the Premises,
then OCI shall have the right 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 OCI expressly acknowledge and agree that OCl's access to the Land during this Due
Diligence Period shall be solely for the limited purpose of performing the Investigations and Tests,
and that OCI 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 OCI's tenancy hereunder shall commence upon the start of
construction of the Tenant Facilities (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 otherwise
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. This Agreement shall automatically be extended for each successive Renewal Term
unless Tenant notifies Landlord of its intention not to renew prior to commencement of the
succeeding Renewal Term. Tenant must advise Landlord in writing of such intent not 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 Tenant's 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.
Colony Park T.Mobile Lease(1)
1
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
4. Rent.
(a) Within fifteen (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 NINE-
HUNDRED NINETY-NINE and 001100 Dollars ($1,999.00) 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, Finance Department, 300 N. D
Street, San Bernardino, CA 92418; Attention: Accounting. All of Tenant's monetary obligations
set forth in this Agreement are conditioned upon Tenant's receipt of an accurate and executed W-
9 Form from Landlord.
(b) Rent shall be increased on each annual anniversary of the Commencement Date by
an amount equal to three percent (3%) of the Rent for the previous year.
5. Use. From and after the Term Commencement Date, the Premises may be used
by Tenant for any law1ul 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 desirabie. 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.
(a) 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 Tenant's 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 utilities 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 utility 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 utility company.
Colony Park T-Mobile Lease(1)
2
Market:
Site#:
Site Name:
Los Angeles
JE24766D
Colony Park
(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 invitees, 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) Tenant shall operate the Tenant Facilities in compliance with all Federal
Communications Commission ("FCC') requirements and in a manner that will not cause
interference to Landlord or other lessees or licensees of the Land, provided that any such
installations predate that of the Tenant Facilities.
(b) Lessee's Facilities shall not disturb the communications configurations,
equipment and frequency which exist on Lessor's property on the Commencement Date ("Pre-
existing Communications") and Lessee's Facilities shall comply with all non-interference rules of
the Federal Communications Commission ('FCC") and the conditions set forth in Development
Permit I 02-157, 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 Lessor's property in a way that interferes with the
communications operations of Lessee described in Section 6, 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 forgoing, Pre-existing Communications operating in the same manner as on
the Commencement Date shall not be deemed interference.
8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of
such taxes directly attributable to the Tenant Facilities. Landlord shall pay all reai property taxes,
assessments and deferred taxes on the Land.
9. Waiver of Landlord's Lien.
(a) Landlord waives any lien rights it may have concerning the Tenant
Facilities, all of which are deemed Tenant's 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 for 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, or 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 (ii) by Tenant if it does not obtain or maintain any license, permit or other approval
Colony Park T*Mobile Lease(1)
3
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
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 Material 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 fails 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 ($1,000,000.00)
per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of
Tenant, its employees and agents arising out of or in connection with Tenant's use of the
Premises, all as provided 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 Landlord with a
memorandum of insurance ("Mal") evidencing the coverage required by this Paragraph 12. In
the event Tenant elects to provide Landlord with a Mal, Tenant shall provide Landlord with a
uniform resource locator link to Tenant's Mal web site. Landlord, at Landlord's 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 ($1,000,000.00)
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 other's policy. Landlord shall provide a COI evidencing the coverage required by this
Paragraph 12 within thirty (30) days following the Effective Date. Alternatively, Landlord shall
have the option of providing Tenant with evidence of such coverage electronically. In such
event, Landlord shall provide Tenant with a uniform resource locator link to the appropriate web
site within thirty (30) days following the Effective Date.
13. Waiver of Subroaation. 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 carried 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. Liabilitv and Indemnitv. 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 this
Agreement or from the negligence or willful misconduct of the indemnifying party's agents,
Colony Park T-Mobile Lease(1)
4
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
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 Tenant's operations under this Agreement except for claims arising out
of the negligence or misconduct of Landlord, its agents, employees, representatives or
contractors. 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 '!o) or more of its stock or assets, subject to any financing
entity's interest, if any, in this Agreement as set forth in Paragraph 9 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
Landlord's 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 (iii) 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 Enjovment. 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. ReDairs. 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 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.
Colony Park T.Mobile Lease(1)
5
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
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 Material in, 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 requiring
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 Material 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; and/or (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 survive termination of this
Agreement.
(c) "Hazardous Mater/at' 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 entity 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 otherwise 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 authority.
Colony Park T-Mobile lease(1)
6
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
(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 permitted by law.
(d) This Agreement shall be binding on and inure to the benefit of the
successors and permitted assignees of the respective parties.
(e) Any notice or demand required to be given herein shall be made by
certified or registered mail, return receipt requested, or reliable overnight courier to the address of
the respective parties set forth below:
Landlord:
Tenant:
City of San Bernardino
300 N D Street
San Bernardino, CA 92410
T-Mobile USA, Inc
12920 SE 38th Street
Bellevue, WA 98006
Attn: PCS Lease Administrator, Site No. IE24766D
with a copy to: Attn: Legal Department
With a copy to:
Omnipoint Communications, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager, Site No. IE24766D
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 right, interest, or other demand to this Agreement
shall be brought in the courts with jurisdiction in 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 arising 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 and 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, including 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 this
Agreement.
Colony Park T-Mobile lease(1)
7
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
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 and authority to enter into and perform their respective obligations under
this Agreement.
(I) The captions and headings in this Agreement are for convenience oniy
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 original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the
last signature below.
LANDLORD:
TENANT:
CITY OF SAN BERNARDINO
Omnipoint Communications Inc.,
a subsidiary of T-Mobile USA Inc.
By:
By:
Name:
Fred Wilson
Name: Danny Bazerman
Title:
City Manager
Title: Director, Engineering & Operations
Date:
Date:
Tax I.D.:
Colony Pa~ T.Mobile Lease(1)
8
Market: Los Angeles
Site #: IE24766D
Site Name: Colony Park
EXHIBIT A
DESCRIPTION OF LAND
to the Agreement dated , 200_, by and between CITY OF SAN
BERNARDINO, as Landlord, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA
Inc., as Tenant.
The Land is described and/or depicted as follows (metes and bounds description):
APN: 0141-321-14
A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED
HERETO
Lot 9 of TRACT NO. 11414, in the City of san Bernardino,
CounLy of San Bernardino, Stat9 of California, as per
plat recorded in Book 157 of Maps, pages 41 through 44.
inclusi ve. records of said County.
Colony Pari< T.Mobile Lease(1)
9
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
EXHIBIT B
DESCRIPTION OF PREMISES
to the Agreement dated , 200_, by and between CITY OF SAN
BERNARDINO, as Landlord and Omnipoint Communications Inc., a subsidiary of T-Mobile USA
Inc., as Tenant.
The Premises are described and/or depicted as follows:
A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO
~
1. Tenant may replace this Exhibit with a sUlVey of the Premises once Tenant receives it.
2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental
authorities.
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 twelve (12) antennas and fifteen (15) coaxial cables. The type, number, mounting
positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers,
mounting positions and locations may vary from what is shown above.
5. The location of any utility easement is illustrative only. The actual location will be determined by the servicing
utility company in compliance with all local laws and regulations.
Colony Park T-Mobile Lease(1)
10
Market: Los Angeles
Site #: IE24766D
Site Name: Colony Park
EXHIBIT C
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Omnipoint Communications, Inc.
a subsidiary of T -Mobile USA, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Site Number: IE24766D
Site Name: Colony Park
MEMORANDUM OF AGREEMENT
IE24766D I Colony Park
APN: 0141-321-14
This MEMORANDUM OF AGREEMENT is entered into on this day of
,200_, by CITY OF SAN BERNARDINO, with an address at 300 N D Street, San
Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Landlord') and Omnipoint
Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as "OCI" or
"Tenant').
1. Landlord and Tenant entered into a Communications Site Lease Agreement
("Agreement') dated as of , 200_, effective upon full execution of
the parties ("Effective Date") for the purpose OCI 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
Omnipoint Communications Inc., a subsidiary
ofT-Mobile USA Inc.
NOT FOR EXECUTION - EXHIBIT ONLY
By:
Name:
NOT FOR EXECUTION - EXHIBIT ONLY
By:
Name: Danny Bazerman
Title:
Title:
Director, Engineering &
Operations
Date:
Date:
Colony Park T-Mobile Lease(1)
11
Market:
Site#:
Site Name:
Los Angeles
IE24766D
Colony Park
STATE OF
COUNTY OF
On , before me, ' Notary Public, personally
appeared ' 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 Public
My commission expires:
STATE OF
COUNTY OF
On , before me, ' Notary Public, personally
appeared ' 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 authorized 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:
Colony Park T-Mobile Lease{1)
12
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Omnipoint Communications, Inc.
a Subsidiary of T -Mobile USA Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Altn: Lease Administration
Site Number: IE24766D
Site Name: Colony Park
MEMORANDUM OF AGREEMENT
IE24766D I Colony Park
APN: 0141-321-14
This MEMORANDUM OF AGREEMENT is entered into on this day of
,200_, by CITY OF SAN BERNARDINO, with an address at 300 N D
Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Landlord') and
Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as
"OC/" or" Tenant').
1. Landlord and Tenant entered into a Communications Site Lease Agreement
("Agreement') dated as of , 200_, effective upon full execution of
the parties ("Effective Date") for the purpose OCI 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
Omnipoint Communications Inc., a subsidiary
ofT-Mobile USA Inc.
By:
By:
Name: Fred Wilson
Name: Danny Bazerman
Title: City Manager
Title: Director, Engineering & Operations
Date:
Date:
APPROVED AS TO FORM:
James F. Penman,
City Attorney
BY~ f. k
STATE OF
COUNTY OF
On , before me, , Notary Public, personally
appeared , 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 Public
My commission expires:
STATE OF
COUNTY OF
On , before me, ' Notary Public, personally
appeared ' 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 authorized 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:
EXHIBIT A
Memorandum of Agreement
DESCRIPTION OF LAND
to the Agreement dated , 200_, by and between CITY OF SAN
BERNARDINO, as Landlord, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA
Inc., as Tenant.
The Land is described and/or depicted as follows (metes and bounds description):
APN: 0141-321-14
A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED
HERETO
Lot 9 of TRACT NO. 11414, in the City of San Bernardino,
count..y of San Bernardino. State of California, as per
plat recorded in aaak 157 of Maps, pages 41 through 44,
inclusive, records of said county_.
1
2
3
4
5
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
OMNIPOINT COMMUNICATIONS INC. FOR THE LEASE OF ONE THOUSAND
SQUARE FEET (1000) OF LAND AT WILDWOOD PARK, 536 E. 40th STREET.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7
8
9
the lease of one thousand (1000) square feet of land at Wildwood Park, 536 E. 40th Street, a
10
SECTION 1. The City Manager is hereby authorized to execute on behalf of the City a
contractual agreement between the City of San Bernardino and Omnipoint Communications for
11 copy of which is attached hereto, marked as Attachment "A", and incorporated herein by this
12 reference.
13
14
SECTION 3. The authorization granted hereunder shall expire and be void and of no
further effect if the agreement is not executed by both parties and returned to the office of the
15
City Clerk within one hundred twenty (120) days following the effective date of the resolution.
16
17
18 III
III
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
2 LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
3 OMNIPOINT COMMUNICATIONS INC. FOR THE LEASE OF ONE THOUSAND
SQUARE FEET (1000) OF LAND AT WILDWOOD PARK, 536 E. 40th STREET.
4
5
and Common Council of the City of San Bernardino at a
6
7
8
9
10
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
meeting thereof, held on the
day of
, 2007, by the following
vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
11 BAXTER
12
13
BRINKER
14 DERRY
15 KELLEY
16 JOHNSON
17 MCCAMMACK
18
19
20
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this
21 2007.
22
23
24
25 ~p roved as to Form:
26 ~7-~
~nes F. Penman, City Attorney
27 V
day of
Patrick J. Morris, Mayor
City of San Bernardino
28
,--
ATTACHHENT "A"
Market:
Site #
Los Angeles
IE04897A
Site Name: Wildwood Park
COMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement') is dated as of this day of
,2007, by Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc.
(hereinafter referred to as "OCI" or "Tenant') and THE CITY OF SAN BERNARDINO ("Owner" or
"Landlord').
For One Dollar ($1.00) paid to Owner, and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, 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 NE Corner of Western and 40th
Street, Wildwood Park (0154-371-05). The Land is more particularly described in Exhibit A annexed
hereto. Subject to the provisions of Paragraph 2 below ("Effective DatelDue Diligence Period"), Owner
hereby leases to OCI and OClleases from Owner approximately One Thousand (1,000) square feet of
the Land and all access and utility easements necessary or desirable therefore ("Premises"), as may
be described generally in Exhibit B annexed hereto.
2. Effective DatelDue Dilillence 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'), OCI 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 (collectively, "Investigations and Tests") that OCI
may deem necessary or desirable to determine the physical condition, feasibility and suitability of the
Premises. In the event that OCI determines, during the Due Diligence Period, that the Premises are not
appropriate for OCl's intended use, or if for any other reason, or no reason, OCI decides not to
commence its tenancy of the Premises, then OCI shall have the right 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 OCI expressly acknowledge and agree that OCI's access
to the Land during this Due Diligence Period shall be solely for the limited purpose of performing the
Investigations and Tests, and that OCI 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 OCI's tenancy hereunder shall commence upon the start of
construction of the Tenant Facilities (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 otherwise 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. This Agreement
shall automatically be extended for each successive Renewal Term unless Tenant notifies Landlord of
its intention not to renew prior to commencement of the succeeding Renewal Term. Tenant must advise
Landlord in writing of such intent not 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
Tenant's 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 renewai term.
IE04897 A_Wildwood Park._ T -MobileJease_ EXECUTABLE_05_23_ 07
1
Market:
Site#:
Los Angeles
IE04897A
Site Name: Wildwood Park
4. Rent.
(a) Within fifteen (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 NINE-HUNDRED
NINETY-NINE and 00/100 Dollars ($1,999.00) per month ("Renf'). 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, Finance Department, 300 N. D Street, San Bernardino, CA 92418;
Attention: Accounting. All of Tenant's monetary obligations set forth in this Agreement are conditioned
upon Tenant's receipt of an accurate and executed W-9 Form from Landlord.
(b) Rent shall be increased on each annual anniversary of the Commencement Date by an
amount equal to three percent (3%) of the Rent for the previous year.
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.
(a) 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 Tenant's business
operations and to install transmission lines connecting the antennas to the transmitters and receivers.
Ali 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 titie 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 and/or 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 utilities 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 utility 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 utility 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
IE04897 A_Wildwood park_ T -MobileJease_EXEGUTABLE_ 05_23_07
2
Market:
Site#:
Los Angeles
I E04897A
Site Name: Wildwood Park
Landlord grants to Tenant, and Tenant's agents, employees, contractors, guests and invitees, 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) Tenant shall operate the Tenant Facilities in compliance with all Federal
Communications Commission ("FCC') requirements and in a manner that will not cause interference to
Landlord or other lessees or licensees of the Land, provided that any such installations predate that of
the Tenant Facilities.
(b) Lessee's Facilities shall not disturb the communications configurations,
equipment and frequency which exist on Lessor's property on the Commencement Date ("Pre-existing
Communications") and Lessee's Facilities shall comply with all non-interference rules of the Federal
Communications Commission ('FCC") and the conditions set forth in Development Permit I 02-157,
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 Lessor's property in a way that interferes with the communications operations of Lessee
described in Section 6, 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 forgoing, Pre-existing Communications operating in the same
manner as on the Commencement Date shall not be deemed interference.
8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of such
taxes directly attributable to the Tenant Facilities. Landlord shall pay all real property taxes,
assessments and deferred taxes on the Land.
9. Waiver of Landlord's Lien.
(a) Landlord waives any lien rights it may have concerning the Tenant Facilities, all
of which are deemed Tenant's 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 for the financing of the Tenant
Facilities ("Collateral') 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, or
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 (ii) 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 Material
IE04897 A_Wildwood park_ T -MobileJease_EXECUTABLE_05_23_07
3
Market:
Site#:
Site Name:
Los Angeles
IE04897A
Wildwood Park
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 fails 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 ($1,000,000.00) per occurrence. Such
insurance shall insure, on an occurrence basis, against all liability of Tenant, its employees and agents
arising out of or in connection with Tenant's use of the Premises, all as provided 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
Landlord with a memorandum of insurance ("MOl") 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 Landlord's 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 ($1,000,000.00) 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 other's policy. Landlord shall provide a COI
evidencing the coverage required by this Paragraph 12 within thirty (30) days following the Effective
Date. Alternatively, Landlord shall have the option of providing Tenant with evidence of such coverage
electronically. In such event, Landlord shall provide Tenant with a uniform resource locator link to the
appropriate web site within thirty (30) days following the Effective Date.
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 carried 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. Liabilitv and Indemnitv. 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 this 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 Tenant's
operations under this Agreement except for claims arising out of the negligence or misconduct of
Landlord, its agents, employees, representatives or contractors.. The duties described in this
Paragraph 14 shall apply as of the Effective Date of this Agreement and survive the termination of this
Agreement.
IE04897 A_Wildwood park_ T _MobileJease_EXECUTABLE_05_23_ 07
4
Market:
Site#:
Los Angeles
IE04897A
Site Name: Wildwood Park
15. Assicmment 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 entity's interest, if any, in this Agreement as set
forth in Paragraph 9 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 Landlord's 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 (iii) 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 Eniovment. 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 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 Material in, 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 requiring 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 Material 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; and/or (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,
lE04897 A_Wildwood Park_ T _MobileJease_EXECUTABLE_05_23_07
5
Market:
Site#:
Los Angeles
IE04897A
Site Name: Wildwood Park
guests or other parties. The duties described in this Paragraph 18 shall apply as of the Effective Date of
this Agreement and survive 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 petroieum 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 entity 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 otherwise 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 authority.
(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 permitted by law.
(d) This Agreement shall be binding on and inure to the benefit of the successors
and permitted assignees of the respective parties.
(e) Any notice or demand required to be given herein shall be made by certified or
registered mail, return receipt requested, or reliable overnight courier to the address of the respective
parties set forth beiow:
IE04897 A_Wildwood Park_ T_MobileJease_EXECUTABLE_05_23_ 07
6
Market:
Site#:
Los Angeles
IE04897A
Site Name: Wildwood Park
Landlord:
Tenant:
City of San Bernardino
City Manager's Office
300 N D Street
San Bernardino, CA 9241 0
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, WA 98006
Attn: PCS Lease Administrator
Site No. IE04897A
with a copy to: Attn: Legal Department
With a copy to:
Omnipoint Communications, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager
Site No. IE04897A
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.
(I) This Agreement shall be governed by the laws of the State of California. Any
legal proceeding brought to enforce any right, interest, or other demand to this Agreement shall be
brought in the courts with jurisdiction in 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 arising 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 and 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, including 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 this 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 and 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.
IE04897 A_Wildwood park_ T _MobileJease_EXECUTABLE_05_23_ 07
7
Market:
Site#:
Los Angeles
I E04897 A
Site Name: Wildwood Park
(n) This Agreement may be executed in duplicate counterparts, each of which shall
be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last
signature below.
LANDLORD:
TENANT:
CITY OF SAN BERNARDINO
Omnipoint Communications Inc., a
subsidiary ofT -Mobile USA Inc.
By:
By:
Name:
Fred Wilson
Name:
Danny Bazerman
Title:
City Manager
Title:
Director, Engineering & Operations
Date:
Date:
Tax 1.0.:
IE04897 A_Wildwood Park_ T -MobileJease_EXECUT ABLE_05_23_07
8
Market: Los Angeles
Site #: I E04897 A
Site Name: Wildwood Park
EXHIBIT A
DESCRIPTION OF LAND
to the Agreement dated , 200_, by and between CITY OF SAN
BERNARDINO, as Landlord, and Omnipoint Communications Inc., a subsidiary ofT-Mobile USA Inc. as
Tenant.
The Land is described and/or depicted as follows (metes and bounds description):
APN: 0154-371-05
A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO
PTN SEC 14 TP 1N R 4W COM AT A PT ON ELI WATERMAN AVE 82.5 FT WIDE WHICH IS N ODEG
20MIN
IE04897 A_Wildwood Parl<_ T _MobileJease_EXECUTABLE_05_23_07
9
Markel:
Site#:
Site Name:
Los Angeles
I E04897A
Wildwood Park
EXHIBIT B
DESCRIPTION OF PREMISES
to the Agreement dated , 200_, by and between CITY OF SAN
BERNARDINO, as Landlord and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., as
Tenant.
The Premises are described and/or depicted as follows:
A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO
See Attached
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 authorities.
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 twelve (12) antennas and fifteen (15) coaxial cables. The type, number, mounting positions and
locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions and locations may
vary from what is shown above.
5. The location of any utility easement is illustrative only. The actual location will be determined by the servicing utility company in
compliance with all local laws and regulations.
IE04897 A_Wildwood park_ T -MobileJease_EXECUT ABLE_05_23_ 07
10
1-
Market:
Site#:
Site Name:
Los Angeles
IE04897A
Wildwood Park
EXHIBIT C
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Omnipoint Communications, Inc.
a Subsidiary of T -Mobile USA Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Alln: Lease Administration
Site No. 1E04897 A
Site Name: Wildwood Park
MEMORANDUM OF AGREEMENT
IE04897 A I Wildwood Park
APN: 0154-371-05
This MEMORANDUM OF AGREEMENT is entered into on this day of
, 2007 by CITY OF SAN BERNARDINO, with an address at 300 N.
D Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Landlord') and
Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as
"DCI" or " Tenant').
1. Landlord and Tenant entered into a Communications Site Lease Agreement ("Agreemenf')
dated as of this day of , 2007 effective upon full execution of
the parties ("Effective Date") for the purpose OCI 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:
NOT FOR EXECUTION - EXHIBIT ONLY
By:
Omnipoint Communications Inc., a subsidiary of
T-Mobile USA Inc.,
NOT FOR EXECUTION - EXHIBIT ONLY
By:
CITY OF SAN BERNARDINO,
Name:
Name: Danny Bazerman
Title:
Title: Director, Engineering & Operations
lE04897 A_Wildwood park_ T-MobileJease_EXECUTABLE_05_23_07
11
Market:
Site#:
Site Name:
Los Angeles
IE04897A
Wildwood Park
Date:
Date:
STATE OF
COUNTY OF
On , before me, , Notary Public,
personally appeared , 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 Public
My commission expires:
STATE OF
COUNTY OF
On , before me, Notary Public,
personally appeared , 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 authorized 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:
IE04897 A_Wildwood Park_ T -MobileJease_EXECUT ABLE_05_23_ 07
12
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Omnipoint Communications, Inc.
a Subsidiary ofT-Mobile USA, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration
Site Number: IE04897 A
Site Name: Wildwood Park
MEMORANDUM OF AGREEMENT
IE04897 A I Wildwood Park
APN: 0154-371-05
THIS MEMORANDUM OF AGREEMENT is entered on this day of
,200_, by CITY OF SAN BERNARDINO, with an address at 300 N. D
Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner" or "Landlord') and
Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., (hereinafter referred to as
"OCI" or " Tenant').
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 OCI 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
Omnipoint Communications Inc., a subsidiary
ofT-Mobile USA Inc.
By:
By:
Name: Fred Wilson
Name: Danny Bazerman
Title: City Manager
Title: Director, Engineering & Operations
Date:
APPROVED AS TO FORMI
Date:
James F. Penman,
City Attorney
By: L -;2 _ ,-/ '-"'~---c....
o
STATE OF
COUNTY OF
On , before me, Notary Public, personally
appeared 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 Public
My commission expires:
STATE OF
COUNTY OF
On , before me, Notary Public, personally
appeared , 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 authorized 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:
EXHIBIT A
Memorandum of Agreement
DESCRIPTION OF LAND
to the Agreement dated , 200_, by and between CITY OF SAN
BERNARDINO, as Landlord, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA
Inc., as Tenant.
The Land is described and/or depicted as follows (metes and bounds description):
APN: 0154-371-05
A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED
HERETO
PTN SEC 14 TP iN R 4W COM AT A PT ON E LI WATERMAN AVE 82.5 FT WIDE WHICH IS
N ODEG 20 MIN