HomeMy WebLinkAbout2010-232
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RESOLUTION NO. 2010-232
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER
4 TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN
5 BERNARDINO AND T-MOBILE WEST CORPORATION FOR THE LEASE OF SIX
HUNDRED TWENTY (620) SQUARE FEET OF CITY OWNED PROPERTY AT TOM
6 MINOR PARK LOCATED ON THE NORTHEAST CORNER OF PALM AVENUE
AND IRVINGTON AVENUE FOR A CELLULAR TOWER DISGUISED AS THREE
7 FLAGPOLES AND APPURTENANT FACILITIES (APN 0261-691-48).
8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
9 CITY OF SAN BERNARDINO AS FOLLOWS:
10 SECTION 1. The City Manager is hereby authorized and directed to execute on behalf
11 of the City a Lease Agreement between the City of San Bernardino and T-Mobile West
12 Corporation for the lease of 620 square feet of City owned property at Tom Minor Park located
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on the northeast comer of Palm Avenue and lrvington Avenue (APN 0261-691-48), a copy of
which is attached hereto, marked as Exhibit "1", and incorporated herein by this reference.
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SECTION 2. The authorization to execute the above-referenced agreement is rescinded
if the parties to the agreement fail to execute it within ninety (90) days of the passage of this
resolution.
III
III
06/30110
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2010-232
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LEASE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND T-MOBILE WEST
CORPORATION FOR THE LEASE OF SIX HUNDRED NINETY (690) SQUARE FEET OF CITY
OWNED PROPERTY AT TOM MINOR PARK LOCATED ON THE NORTHEAST CORNER OF PALM
AVENUE AND IRVINGTON AVENUE FOR A CELLULAR TOWER DISGUISED AS THREE
FLAGPOLES AND APPURTENANT FACILITIES (APN 0261-691-48).
1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
joint regular
meeting
Common Council of the City of San Bernardino at a
, 20 ---1.(L, by the following vote,
thereof, held on the 6th day of July
to wit:
Council Members:
MARQUEZ
DESJARDINS
BRINKER
SHORETT
KELLEY
JOHNSON
MCCAMMACK
AYES
NAYS
ABSTAIN
ABSENT
x
x
x
x
x
x
x
(2~ );;. ~
RACHEL G. CLARK, City Clerk
The foregoing resolution is hereby approved this f771 day of
06/30/10
July
,2010.
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EXHIBIT "I"
LEASE
THIS LEASE ("Lease"), is made and entered into this
day of
, 2010 ("Effective Date"), by and between the CITY OF SAN
BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and T-MOBILE
WEST CORPORATION, a Delaware corporation, hereinafter referred to as "Lessee".
RECITALS
This Lease is made and entered into with respect to the following facts:
(a) Lessor is the owner ofthe Premises herein described.
(b) Lessee has requested permission to construct mobilelwireless communications
facilities to be located at Tom Minor Park ("Property") on the Northeast comer of Palm Avenue
and Irvington Avenue in the City of San Bernardino (APN 0261-691-48), which Property is
more particularly described in Exhibit "A" attached hereto, 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 facilities will not interfere with the Department of Parks
and Recreation's operations or the public's use of Tom Minor Park.
(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
mobilelwireless communications facilities on the Premises (as defined below).
NOW THEREFORE, the parties hereto agree as follows:
1. Prooertv Leased:
(a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor,
ground space at the Property approximately forty-five feet by eleven feet (45' x 11') and
containing approximately four hundred ninety five (495) square feet (the "Equipment Space"),
plus a second parcel of ground space measuring approximately five feet by twenty-five feet (5' x
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25') and containing approximately one hundred twenty five (125) square feet of (the "Tower
Space") for a total area of approximately six hundred twenty (620) square feet, as more
particularly described in Exhibit "B" attached hereto. Lessor also grants Lessee the right to
install utility connections between the Equipment Space and Tower Space and to the nearest
appropriate utilities providers. The Equipment Space and Tower Space are collectively defined
as the "Premises", including any appurtenant facilities and applicable easements for access and
utilities as described herein.
(b) In connection with the Lessee's construction ofthe Tower Space, Lessee and
Lessor acknowledge and agree that Lessee shall construct three communication antennas
camouflaged as flag poles ("Flag Poles"). During the term of this Lease, Lessor shall have the
right to use the Flag Poles solely for the purposes of hoisting and maintaining flags thereupon,
provided that Lessor does not interfere with the Lessee's operations or use of the Tower Space.
Lessor shall be responsible for repairing any damage Lessor or its agents, employees and
contractors cause to the Tower Space or the Flag Poles.
2. Term:
(a) The term of this Lease shall be five (5) years ("Initial Term"), commencing
with the date both Lessor and Lessee have executed this Lease ("Commencement Date").
(b) Lessee shall have the right to extend the term of this Lease for three (3)
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
Renewal Term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify
the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior
to the expiration of the Initial Term or then current Renewal Term.
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3 Lease Pavments:
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and
nol100 Dollars ($2,100.00) in addition to rent for a document preparation fee upon the
Commencement Date of said Lease. In the event the Lease is terminated as a result of testing
as set forth in Paragraph 5(a), Lessor shall retain the document preparation fee of Two
Thousand One Hundred and noli 00 Dollars ($2,100.00) for work performed.
(b) Within sixty (60) days following the Commencement Date, Lessee shall
pay Lessor a one time capital contribution in the sum of Seven Thousand and noll00 Dollars
($7,000.00) for park improvements, which shall be refundable to Lessee if it does not obtain or
maintain any license, permit or other approval necessary for the construction and operation of
the Lessee Facilities as defined below.
(c) Lessee shall pay Lessor as rent, the annual sum of Twenty-Five
Thousand, Two Hundred and 00/100 Dollars ($25,200.00) "Rent", payable in equal monthly
installments commencing upon the Commencement Date ("Rent Start Date"). The monthly
installments shall be in the amount of Two Thousand One Hundred and nol100 Dollars
($2,100.00) each month, due and payable on the Rent Start Date, and on the same date of each
month thereafter. Should the first and last payment of rent be for a partial month, then only the
pro-rata portion of the rent shall be paid to Lessor.
Payments shall be mailed or delivered to:
City of San Bernardino
Development Services Department/Real Property Section
300 North "D" Street, 3'd Floor
San Bernardino, CA 92418
(d) Rent shall be increased on each yearly anniversary of the Rent Start Date
by an amount equal to four percent (4%) of the rent then in effect for the previous year.
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4. Use Restrictions:
The Premises may be used by Lessee for any lawful activity in connection with
the provision of mobilelwireless communications services, including without limitation, the
transmission and the reception of radio communication signals on various frequencies, and the
testing, investigation, 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 approvals that may be
required for Lessee's intended use of the Premises.
5. ImDrovements:
(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 mobilelwireless communications operations. During any Tests, Lessee shall obtain
and maintain insurance as set forth in Paragraph 10, and will notify Lessor at least forty-eight
(48) hours prior to any proposed Tests, and will coordinate the scheduling of same with Lessor.
If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee
shall notify Lessor and this Lease shall terminate. Lessee shall repair any damage to the
Premises caused by Lessee and shall restore the Premises to the condition existing prior to
conducting the Tests.
(b) Lessee shall have the right to construct, erect, maintain, operate and
remove mobilelwireless communications facilities on the Premises, including but not limited to
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
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generator and generator pad, and supporting equipment, structures and improvements ("Lessee
Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare,
maintain and alter the Premises for Lessee's business operations and to install transmission lines
connecting the antenna 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 all of the Lessee
Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove
the Lessee Facilities at its sole expense on or before the expiration or earlier termination of this
Lease as provided in this paragraph 5(b). Once the Lessee Facilities are installed, 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. Notwithstanding the foregoing, maintenance,
repairs, like-kind or similar replacements ofthe Lessee Facilities and modifications made within
the interior of any shelters or base station equipment shall not be considered "Material
Alterations". Any and all alterations and/or improvements made to the Premises pursuant to this
Lease, including but not limited to Lessee Facilities, shall, within ninety (90) days of expiration
or early termination of this Lease , be removed from the Premises, and the Premises shall be
returned to its previous state as of the Commencement Date, excepting normal wear and tear,
casualty, or damage caused by Lessor or Lessor's agents, employees, tenants, lessees, licensees
or invitees.
(c) Lessor shall provide to Lessee, Lessee's employees, agents and
contractors, access to the Premises without notice to Lessor 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, and Lessee's
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agents, employees, and contractors access from the nearest public roadway to the Premises at all
times, and hereby grants such non -exclusive ingress and egress rights to Lessee along a six foot
(6') wide right-of-way extending from the nearest public right-of-way to the Premises, as further
described in Exhibit "B", to the extent required to construct, erect, maintain, install, remove and
operate the Lessee Facilities on the Premises. Lessee shall repair any damages Lessee, its agents,
employees, officers, or contractors cause to the Property in accessing the Premises over the
above-described ingress and egress area.
6. Maintenance and Insoections:
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. 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), subject to Lessor's approval of the location, which approval shall
not be unreasonably withheld.
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 related to the Premises during the term of this Lease.
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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:
(a) Lessee shall pay all license fees, assessments, penalties or fines which may be
levied against Lessee by virtue of the installation of Lessee's leasehold improvements at the
Property.
(b) Lessor shall pay when due all real property taxes for the Property, including
the Premises. In the event that Lessor fails to pay any such real property taxes or other fees and
assessments, Lessee shall have the right, but not the obligation, to pay such owed amounts and
deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing, Lessee
shall pay any personal property tax, real property tax or any other tax and/or fee which are
directly attributable to the presence or installation of the Lessee's Antenna Facilities, only for so
long as this Lease has not expired of its own terms or is not terminated by either party. Lessor
hereby grants to Lessee the right to challenge, whether in a Court, Administrative Proceeding, or
other venue, on behalf of Lessor and/or Lessee, any personal property or real property tax
assessments that may affect Lessee. If Lessor receives notice of any personal property or real
property tax assessment against the Lessor, which may affect Lessee and is directly attributable
to Lessee's installation, Lessor shall provide timely notice of the assessment to Lessee sufficient
to allow Lessee to consent to or challenge such assessment. Further, Lessor shall provide to
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Lessee any and all documentation associated with the assessment and shall execute any and all
documents reasonably necessary to effectuate the intent ofthis Section 9.
10. Liabilitv Insurance:
Lessee agrees to procure and maintain in force during the term of this Lease and
any extension, at Lessee's sole cost and expense, the following insurance from companies with
an A.M. Best Rating of at least A-VII, and with such minimum limits as set forth below, which
shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and
contractors, arising out of or in connection with Lessee's use of the Premises as provided for
herein; (I) Commercial General Liability with limits of five million dollars ($5,000,000.00) per
occurrence, provided such limit may be satisfied by a combination of primary and umbrella
policies, Lessee may satisfy this requirement by obtaining the appropriate endorsement to any
master policy of liability insurance Lessee may maintain. (2) Automobile Liability with a
combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Workers'
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) Additional Insured: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insured with respect to this
contract with the City."
(b) The certificates shall include the insurance company name, policy number,
period of coverage, and the amount of insurance.
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(c) That the Real Property Section of the Development Services Department
of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to
cancellation or reduction of required limits of the policy.
(d) That Lessee's insurance shall be primary to any coverage the City of San
Bernardino may have in connection with Lessee's negligence.
11. Indemnification:
(a) Lessor and Lessee 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 or related to the indemnifying party's breach of any term or condition of this Lease or the
negligence or willful misconduct of the indemnifying party, or its agents, employees or
contractors in or about the Premises. Except as provided in the first sentence, Lessee shall defend
(if requested by Lessor), indemnify, and hold harmless Lessor, its agents, boards, officers,
employees, representatives or contractors against any and all claims, suits, damages for bodily
injury, including death, property damage, demands, loss or liability of any kind or nature
("Claims") arising from or related to Lessee's operations under this Lease except for claims
arising out of the negligence or misconduct of Lessor, its agents, officers, employees,
representatives or contractors.. The duties described in this Paragraph 11 shall apply as of the
Effective Date of this Lease and survive the termination of this Lease.
(b) Neither Party shall be liable to the other, or to any of their respective agents,
representatives, officers or employees for any lost revenue, lost profits, loss of technology, rights
or services, incidental, punitive, indirect, special or consequential damages, loss of data, or
interruption or loss of use of service, even if advised of the possibility of such damages, whether
under theory of contract, tort (including negligence), strict liability or otherwise.
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12. Taxes/Possessory Interest:
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 indemnify and hold harmless, Lessor
from any and all liability for any such taxes during the Lease term due pursuant to Paragraph 9,
Permits and Fees above.
13. Waiver of Lessor's Lien.
(a) Lessor waives any lien rights it may have concerning the Lessee Facilities,
all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to
remove the same at any time without Lessor's consent.
(b) Lessor acknowledges that Lessee has entered into a financing arrangement
including promissory notes and financial and security Leases for the financing of the Lessee
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, Lessor
(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.
14. Assignment and Subletting:
Lessee may not assign all or any part of its interest in this Lease or in the
Premises without the prior written consent of Lessor; provided, however, that Lessee may assign
without notice to Lessor 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 Lease as set
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forth in Paragraph 13 above. Upon assignment, Lessee shall be relieved of all future
performance, liabilities, and obligations under this Lease, provided that the assignee assumes all
of Lessee's obligations herein. This Lease 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 Lease, Lessee may
assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest
in this Lease to any financing entity, or agent on behalf of any financing entity, to whom Lessee
(i) has obligations for borrowed money or with respect to 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 with respect to
guaranties thereof.
Sublease - Subject to all permits and approvals from all governmental agencies
having jurisdiction thereover, Lessee may lease or license space on the support structure forming
a part of the Lessee's Facilities, in its equipment cabinets or elsewhere on the Lessee's Facilities
to a third party for installation of transmission, receiving or other types of equipment or facilities,
whether similar or dissimilar to Lessee's installation, on such terms and conditions as Lessee, in
its sole discretion, desires (a 'Third Party Lease"); provided, however, that Lessor shall receive
as additional rent under this Agreement, fifty percent (50%) of such Third Party Lease rent
actually received by Lessee only after Lessee has been able to recover all direct and indirect
costs and expenses of obtaining the sublease. Any such sublessee shall be instructed to pay the
foregoing percentage amount directly to Lessor.
15. Termination:
This Lease may be terminated without further liability on thirty (30) days prior
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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 Lease 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
Lessee if it does not obtain or maintain any license, permit or other approval necessary for the
construction and operation of the Lessee Facilities; or (iii) by Lessee if Lessee 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 Lessee if any environmental report for the
Property reveals the presence of any Hazardous Material after the Commencement Date; or
(v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for
economic or technological reasons, including, without limitation, signal interference. In the
event that Lessee terminates this Lease prior to the expiration of the initial five (5)-year Term
pursuant to the terms of paragraph (v) above, Lessee shall pay to Lessor a sum equivalent to
three (3) months' then-current Rent as liquidated damages. Notwithstanding the foregoing, no
termination fee shall apply if Lessee terminates this Lease for signal interference by Lessor or its
lessees, licensees or invitees on the Property.
16. Hazardous Materials:
(a) As of the Commencement Date of this Lease: (I) Lessee 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 Premises in violation of any Environmental Law (as defined
below), and (2) Lessor 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 Premises in
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violation of any Environmental Law; (ii) no notice has been received by or on behalf of Lessor
from, and Lessor has no knowledge that notice has been given to any predecessor owner or
operator of the Premises 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 Property; 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 Property in violation of any Environmental Law.
(b) Without limitation of Paragraph II, Lessor and Lessee 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 16 by such party; and/or
(ii) environmental conditions or noncompliance with any Environmental Law (as defined below)
that result, in the case of Lessee, from operations in or about the Premises by Lessee or Lessee's
agents, employees or contractors, and in the case of Lessor, from the ownership or control of, or
operations in or about, the Property by Lessor or Lessor's predecessors in interest, and their
respective agents, employees, contractors, lessees, guests or other parties. The duties described in
this Paragraph 16 shall apply as of the Commencement Date of this Lease and survive
termination of this Lease.
(c) "Hazardous Material" 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
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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.
17. 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 Federal Communications Commission ("FCC"), and the conditions set forth in
Development Permit I, 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 and shall not permit its lessees or licensees to use of any portion of the Property
in a way that interferes with the communications operations of Lessee described in Section 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
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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.
18. Casualtv:
In the event of damage by fire or other casualty to the Premises that cannot
reasonably be expected to be repaired within forty-five (45) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt Lessee's operations at the Premises for more than forty-five (45) days, then Lessee may,
at any time following such fire or other casualty, provided Lessor has not completed the
restoration required to permit Lessee to resume its operation at the Premises, terminate this Lease
upon fifteen (15) days prior written notice to Lessor. Any such notice of termination shall cause
this Lease to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of this Lease and the parties shall make an
appropriate adjustment, as of such termination date, with respect to payments due to the other
under this Lease. Notwithstanding the foregoing, Rent shall abate during the period of repair
following such fire or other casualty in proportion to the degree to which Lessee's use of the
Premises is impaired.
19. Condemnation:
In the event of any condemnation of all or any portion of the Property, this Lease
shall terminate as to the part so taken as of the date the condemning authority takes title or
possession, whichever occurs first. If as a result of a partial condemnation of the Premises or
Property, Lessee, in Lessee's sole discretion, is unable to use the Premises for the purposes
intended hereunder, or if such condemnation may reasonably be expected to disrupt Lessee's
operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee's option, to
- 15 -
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/10
be exercised in writing within thirty (30) days after Lessor shall have given Lessee written notice
of such taking (or in the absence of such notice, within thirty (30) days after the condemning
authority shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. Lessee may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to the equipment, conduits,
fixtures, its relocation costs and its damages and losses (but not for the loss of its leasehold
interest). Any such notice of termination shall cause this Lease to expire with the same force and
effect as though the date set forth in such notice were the date originally set as the expiration date
of this Lease and the parties shall make an appropriate adjustment as of such termination date
with respect to payments due to the other under this Lease. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Rent shall be reduced in the same proportion
as the rentable area of the Premises taken bears to the total rentable area of the Premises.
20. Miscellaneous:
(a) This Lease constitutes the entire agreement and understanding between the
parties, and supersedes all offers, negotiations and other Leases concerning the subject matter
contained herein. Any amendments to this Lease must be in writing and executed by both
parties.
(b) Both parties represent and warrant that their use of the Premises and the
Property and their real and personal property located thereon shall be in compliance with all
applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent
government authority.
(c) If any provision of this Lease is invalid or unenforceable with respect to
any party, the remainder of this Lease or the application of such provision to persons other than
- 16 -
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/10
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.
(d) This Lease shall be binding on and inure to the benefit of the successors
and permitted assignees ofthe 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
ofthe respective parties set forth below:
Lessor:
Lessee:
City of San Bernardino
Development Services Department
Real Property Section
300 N D Street, 3'd Floor
San Bernardino, CA 92418
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, W A 98006
Attn: PCS Lease Administrator
Site No. IE24786B
with a copy to: Attn: Legal Department
With a co\lv to:
With a coov to:
A TS Communications
22642 Lambert Street, #402
Lake Forest, CA 92692
T-Mobile West Corporation
3 MacArthur Place, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager
Site No. IE24786B
Lessor or Lessee 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 or
refusal as shown on the receipt obtained pursuant to the foregoing.
(1) This Lease 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 Lease shall be
brought in the courts with jurisdiction in the County of San Bernardino, State of California. The
prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to
- 17-
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/10
recover from the losing party reasonable attorney's fees and court costs, including appeals, if
any, in connection with that action. The costs, salary, and expenses of the City Attorney and
members of its office in connection with that action shall be considered as "attorney's fees" for
the purposes of this Lease.
(g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in
the form annexed hereto as Exhibit "C" and acknowledges that such Memorandum of Lease will
be recorded by Lessee in the official records of the County where the Property is located.
(h) In the event the Property is encumbered by a mortgage or deed of trust,
Lessor agrees to provide reasonable cooperation in obtaining and delivering to Lessee 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) Lessor agrees to fully cooperate, including executing necessary
documentation, with Lessee to obtain information and documentation clearing any outstanding
title issues that could adversely affect Lessee's interest in the Premises created by this Lease.
G) In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Lease, 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 Lease.
(I) The captions and headings in this Lease are for convenience only and in
no way define, limit or describe the scope or intent of any provision of this Lease.
(m) All Exhibits annexed hereto form material parts of this Lease.
- 18 -
Site No.: IE24786B
FileNo.: 15.06-175 Tom Minor Park
06/03/10
(n) The captions contained in this Lease are inserted for convenience only and
are not intended to be part of this Lease. They shall not affect or be utilized in the construction or
interpretation of this Lease.
(0) Lessor covenants that Lessee, on paying Rent and performing the covenants
herein, shall peaceably and quietly have, hold and enjoy the Premises.
(P) Lessor represents and warrants to Lessee as of the execution date of this
Lease, and covenants during the term hereof that Lessor is seized of good and sufficient title and
interest to the Property.
(q) The failure of either party to insist upon strict performance of any of the terms
or conditions of this Lease or to exercise any of its rights under this Lease shall not waive such
rights and such party shall have the right to enforce such rights at any time and take such action
as may be lawful and authorized under this Lease, in law or in equity.
21. Risk to Public Safetv or Health:
In the event the FCC, or any successor federal agency thereto, makes a
determination which is final and non-appealable or which is affirmed and becomes final after the
exhaustion of all available appeals concluding that the Lessee's use as set forth in this Lease
presents a material risk to public health or safety, including, but limited to radio frequency
emissions, and if Lessee fails to correct such material risk within sixty (60) days, either Lessor or
Lessee may terminate this Lease upon ten (10) days prior written notice to the other party.
[Signatures begin on next page)
- 19 -
Site No.: IE24786B
FileNo.: 15.06-175 Tom Minor Park
06/03/10
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND T-
MOBILE WEST CORPORATION.
IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set
forth at the beginning of this Lease.
LESSOR:
LESSEE:
CITY OF SAN BERNARDINO,
a Municipal corporation
T-MOBILE WEST CORPORATION
COpy
By: CHARLES E. MCNEELY,
City Manager
COpy
By: CHRIS ELDRIDGE,
Regional Director of Development
ATTEST:
RACHEL CLARK, City Clerk
Approved as to form:
JAMES F. PENMAN, City Attorney
- 20-
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/10
EXHIBIT" A"
DESCRIPTION OF LAND
LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS,
OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA.
APN: 0261-691-48
- 21 -
Site No., IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/2010
EXHIBIT "B"
DESCRIPTION OF PREMISES
The Premises are described and/or depicted as follows:
A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED
HERETO
See the attached drawinl!s
Notes:
I. Lessee may replace this Exhibit with a survey of the Premises once Lessee 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. Lessee may install up to twelve (12) antennas and twenty four (24) coaxial cables subject to
City Development Permit approval. 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.
- 22-
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/2010
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EXHIBIT "C"
RECORDED AT REQUEST OF. AND
WHEN RECORDED RETURN TO:
CITY OF SAN BERNARDINO
CITY CLERK
300 N. "D" STREET
SAN BERNARDINO, CA 92418
APN: 0261-691-48
FEE EXEMPT PURSUANT TO
GOV. CODE SECTION 27383
SITE NO. 1E24786B
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE is entered into on this day of ,2010, by and
between the CITY OF SAN BERNARDINO, a municipal corporation, with an address at 300 N. D Street, San
Bernardino, CA 92418 (hereinafter referred to as "Owner" or "Lessor") and T-MOBILE WEST CORPORATION, a
Delaware corporation, with an address at 12920 SE 38'h Street, Bellevue, W A 98006 (hereinafter referred to as
HTMO" or "Lessee").
1 . Lessor and Lessee entered into a Lease Agreement ("Lease") dated on the day of
,2010, for the purpose of installing, operating and maintaining a communications facility
and other improvements with respect to a portion of that certain property located on the Northeast corner of Palm
Avenue and Irvington Avenue, known as Tom Minor Park, legally described on Exhibit "I" attached hereto and made
a part hereof. All of the foregoing is set forth in the Lease.
2. The initial lease term will be for five (5) years ("Initial Term") commencing on the date both Lessor and
Lessee have executed the Lease above ("Commencement Date"), with three (3) successive five (5) year options to
renew.
3. 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 Lease, 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
Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the
parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first written
above.
LESSOR:
LESSEE:
CITY OF SAN BERNARDINO
T-MOBILE WEST CORPORATION
COpy
By:
COpy
By:
Name: Charles E. McNeely
Name:
Chris Eldridge
Title: City Manager
Title:
Regional Director of Development
Date:
Date:
- 23 -
Site No.: IE247868
File No.: 15.06-175 Tom Minor Park
06/03/2010
EXHIBIT "1"
LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS,
OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA.
APN: 0261-691-48
- 24-
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/2010
. ..'
2010-232
LEASE
THIS LEASE ("Lease"), is made and entered into this
6th
day of
July
, 2010 ("Effective Date"), by and between the CITY OF SAN
BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and T-MOBILE
WEST CORPORATION, a Delaware corporation, 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 mobilelwireless communications
facilities to be located at Tom Minor Park ("Property") on the Northeast comer of Palm Avenue
and Irvington Avenue in the City of San Bernardino (APN 0261-691-48), which Property is
more particularly described in Exhibit "A" attached hereto, 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 facilities will not interfere with the Department of Parks
and Recreation's operations or the public's use of Tom Minor Park.
(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
mobilelwireless communications facilities on the Premises (as defined below).
NOW THEREFORE, the parties hereto agree as follows:
I. Prooertv Leased:
(a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor,
ground space at the Property approximately forty-five feet by eleven feet (45' x II ') and
containing approximately four hundred ninety five (495) square feet (the "Equipment Space"),
plus a second parcel of ground space measuring approximately five feet by twenty-five feet (5' x
- I -
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/10
2010-232
25') and containing approximately one hundred twenty five (125) square feet of (the "Tower
Space") for a total area of approximately six hundred twenty (620) square feet, as more
particularly described in Exhibit "B" attached hereto. Lessor also grants Lessee the right to
install utility connections between the Equipment Space and Tower Space and to the nearest
appropriate utilities providers. The Equipment Space and Tower Space are collectively defined
as the "Premises", including any appurtenant facilities and applicable easements for access and
utilities as described herein.
(b) In connection with the Lessee's construction of the Tower Space, Lessee and
Lessor acknowledge and agree that Lessee shall construct three communication antennas
camouflaged as flag poles ("Flag Poles"). During the term of this Lease, Lessor shall have the
right to use the Flag Poles solely for the purposes of hoisting and maintaining flags thereupon,
provided that Lessor does not interfere with the Lessee's operations or use of the Tower Space.
Lessor shall be responsible for repairing any damage Lessor or its agents, employees and
contractors cause to the Tower Space or the Flag Poles.
2. Term:
(a) The term of this Lease shall be five (5) years ("Initial Term"), commencing
with the date both Lessor and Lessee have executed this Lease ("Commencement Date").
(b) Lessee shall have the right to extend the term of this Lease for three (3)
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
Renewal Term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify
the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior
to the expiration of the Initial Term or then current Renewal Term.
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3 Lease Pavments:
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and
nollOO Dollars ($2,100.00) in addition to rent for a document preparation fee upon the
Commencement Date of said Lease. In the event the Lease is terminated as a result of testing
as set forth in Paragraph 5(a), Lessor shall retain the document preparation fee of Two
Thousand One Hundred and nollOO Dollars ($2,100.00) for work performed.
(b) Within sixty (60) days following the Commencement Date, Lessee shall
pay Lessor a one time capital contribution in the sum of Seven Thousand and noli 00 Dollars
($7,000.00) for park improvements, which shall be refundable to Lessee if it does not obtain or
maintain any license, permit or other approval necessary for the construction and operation of
the Lessee Facilities as defined below.
(c) Lessee shall pay Lessor as rent, the annual sum of Twenty-Five
Thousand, Two Hundred and 00/100 Dollars ($25,200.00) "Rent", payable in equal monthly
installments commencing upon the Commencement Date ("Rent Start Date"). The monthly
installments shall be in the amount of Two Thousand One Hundred and nollOO Dollars
($2, I 00.00) each month, due and payable on the Rent Start Date, and on the same date of each
month thereafter. Should the first and last payment of rent be for a partial month, then only the
pro-rata portion of the rent shall be paid to Lessor.
Payments shall be mailed or delivered to:
City of San Bernardino
Development Services Department/Real Property Section
300 North "D" Street, 3rd Floor
San Bernardino, CA 92418
(d) Rent shall be increased on each yearly anniversary of the Rent Start Date
by an amount cqual to four perccnt (4%) of the rent then in effect for the previous year.
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4. Use Restrictions:
The Premises may be used by Lessee for any lawful activity in connection with
the provIsIOn of mobilelwireless communications services, including without limitation, the
transmission and the reception of radio communication signals on various frequencies, and the
testing, investigation, 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 approvals that may be
required for Lessee's intended use of the Premises.
5. Improvements:
(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 mobilelwireless communications operations. During any Tests, Lessee shall obtain
and maintain insurance as set forth in Paragraph 10, and will notify Lessor at least forty-eight
(48) hours prior to any proposed Tests, and will coordinate the scheduling of same with Lessor.
If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee
shall notify Lessor and this Lease shall terminate. Lcssee shall repair any damage to the
Premises caused by Lessee and shall restore the Premises to the condition existing prior to
conducting the Tests.
(b) Lessee shall have the right to construct, erect, maintain, operate and
remove mobilelwireless communications facilities on the Premises, including but not limited to
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
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generator and generator pad, and supporting equipment, structures and improvements ("Lessee
Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare,
maintain and alter the Premises for Lessee's business operations and to install transmission lines
connecting the antenna 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 all of the "Lessee
Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove
the Lessee Facilities at its sole expense on or before the expiration or earlier termination of this
Lease as provided in this paragraph 5(b). Once the Lessee Facilities are installed, 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. Notwithstanding the foregoing, maintenance,
repairs, like-kind or similar replacements of the Lessee Facilities and modifications made within
the interior of any shelters or base station equipment shall not be considered "Material
Alterations". Any and all alterations and/or improvements made to the Premises pursuant to this
Lease, including but not limited to Lessee Facilities, shall, within ninety (90) days of expiration
or early termination of this Lease, be removed from the Premises, and the Premises shall be
returned to its previous state as of the Commencement Date, excepting normal wear and tear,
casualty, or damage caused by Lessor or Lessor's agents, employees, tenants, lessees, licensees
or invitees.
( c) Lessor shall provide to Lessee, Lessee's employees, agents and
contractors, access to the Premises without notice to Lessor 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, and Lessee's
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agents, employees, and contractors access from the nearest public roadway to the Premises at all
times, and hereby grants such non-exclusive ingress and egress rights to Lessee along a six foot
(6') wide right-of-way extending from the nearest public right-of-way to the Premises, as further
described in Exhibit "B", to the extent required to construct, erect, maintain, install, remove and
operate the Lessee Facilities on the Premises. Lessee shall repair any damages Lessee, its agents,
employees, officers, or contractors cause to the Property in accessing the Premises over the
above-described 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. 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), subject to Lessor's approval of the location, which approval shall
not be unreasonably withheld.
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 related to the Premises during the term of this Lease.
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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:
(a) Lessee shall pay all license fees, assessments, penalties or fines which may be
levied against Lessee by virtue of the installation of Lessee's leasehold improvements at the
Property.
(b) Lessor shall pay when due all real property taxes for the Property, including
the Premises. In the event that Lessor fails to pay any such real property taxes or other fees and
assessments, Lessee shall have the right, but not the obligation, to pay such owed amounts and
deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing, Lessee
shall pay any personal property tax, real property tax or any other tax and/or fee which are
directly attributable to the presence or installation of the Lessee's Antenna Facilities, only for so
long as this Lease has not expired of its own terms or is not terminated by either party. Lessor
hereby grants to Lessee the right to challenge, whether in a Court, Administrative Proceeding, or
other venue, on behalf of Lessor and/or Lessee, any personal property or real property tax
assessments that may affect Lessee. If Lessor receives notice of any personal property or real
property tax assessment against the Lessor, which may affect Lessee and is directly attributable
to Lessee's installation, Lessor shall provide timely notice of the assessment to Lessee sufficient
to allow Lessee to consent to or challenge such assessment. Further, Lessor shall provide to
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Lessee any and all documentation associated with the assessment and shall execute any and all
documents reasonably necessary to effectuate the intent of this Section 9.
10. Liabilitv Insurance:
Lessee agrees to procure and maintain in force during the term of this Lease and
any extension, at Lessee's sole cost and expense, the following insurance from companies with
an A.M. Best Rating of at least A-VII, and with such minimum limits as set forth below; which
shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and
contractors, arising out of or in connection with Lessee's use of the Premises as provided for
herein; (I) Commercial General Liability with limits of five million dollars ($5,000,000.00) per
occurrence, provided such limit may be satisfied by a combination of primary and umbrella
policies, Lessee may satisfy this requirement by obtaining the appropriate endorsement to any
master policy of liability insurance Lessee may maintain. (2) Automobile Liability with a
combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Workers'
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) Additional Insured; "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insured with respect to this
contract with the City."
(b) The certificates shall include the insurance company name, policy number,
period of coverage, and the amount of insurance.
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(c) That the Real Property Section of the Development Services Department
of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to
cancellation or reduction of required limits of the policy.
(d) That Lessee's insurance shall be primary to any coverage the City of San
Bernardino may have in connection with Lessee's negligence.
II. Indemnification:
(a) Lessor and Lessee 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 or related to the indemnifying party's breach of any term or condition of this Lease or the
negligence or willful misconduct of the indemnifying party, or its agents, employees or
contractors in or about the Premises. Except as provided in the first sentence, Lessee shall defend
(if requested by Lessor), indemnify, and hold harmless Lessor, its agents, boards, officers,
employees, representatives or contractors against any and all claims, suits, damages for bodily
injury, including death, property damage, demands, loss or liability of any kind or nature
("Claims") arising from or related to Lessee's operations under this Lease except for claims
arising out of the negligence or misconduct of Lessor, its agents, officers, employees,
representatives or contractors.. The duties described in this Paragraph II shall apply as of the
Effective Date of this Lease and survive the tcrmination of this Lease.
(b) Neither Party shall be liable to the other, or to any of their respective agents,
representatives, officers or employees for any lost revenue, lost profits, loss of technology, rights
or services, incidental, punitive, indirect, special or consequential damages, loss of data, or
interruption or loss of use of service, even if advised of the possibility of such damages, whether
under theory of contract, tort (including negligence), strict liability or otherwise.
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12. Taxes/Possessorv Interest:
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 indemnify and hold harmless, Lessor
from any and all liability for any such taxes during the Lease term due pursuant to Paragraph 9,
Permits and Fees above.
13. Waiver of Lessor's Lien.
(a) Lessor waives any lien rights it may have concerning the Lessee Facilities,
all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to
remove the same at any time without Lessor's consent.
(b) Lessor acknowledges that Lessee has entered into a financing arrangement
including promissory notes and financial and security Leases for the financing of the Lessee
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, Lessor
(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.
14. Assignment and Subletting::
Lessee may not assign all or any part of its interest in this Lease or in the
Premises without the prior written consent of Lessor; provided, however, that Lessee may assign
without notice to Lessor 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 Lease as set
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forth in Paragraph 13 above. Upon assignment, Lessee shall be relieved of all future
performance, liabilities, and obligations under this Lease, provided that the assignee assumes all
of Lessee's obligations herein. This Lease 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 Lease, Lessee may
assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest
in this Lease to any financing entity, or agent on behalf of any financing entity, to whom Lessee
(i) has obligations for borrowed money or with respect to 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 with respect to
guaranties thereof.
Sublease - Subject to all permits and approvals from all governmental agencies
having jurisdiction thereover, Lessee may lease or license space on the support structure forming
a part of the Lessee's Facilities, in its equipment cabinets or elsewhere on the Lessee's Facilities
to a third party for installation of transmission, receiving or other types of equipment or facilities,
whether similar or dissimilar to Lessee's installation, on such terms and conditions as Lessee, in
its sole discretion, desires (a "Third Party Lease"); provided, however, that Lessor shall receive
as additional rent under this Agreement, fifty percent (50%) of such Third Party Lease rent
actually received by Lessee only after Lessee has been able to recover all direct and indirect
costs and expenses of obtaining the sublease. Any such sublessee shall be instructed to Pi;lY the
foregoing percentage amount directly to Lessor.
15. Termination:
This Lease may be terminated without further liability on thirty (30) days prior
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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 Lease 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
Lessee if it does not obtain or maintain any license, permit or other approval necessary for the
construction and operation of the Lessee Facilities; or (iii) by Lessee if Lessee 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 Lessee if any environmental report for the
Property reveals the presence of any Hazardous Material after the Commencement Date; or
(v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for
economic or technological reasons, including, without limitation, signal interference. In the
event that Lessee terminates this Lease prior to the expiration of the initial five (5)-year Term
pursuant to the terms of paragraph (v) above, Lessee shall pay to Lessor a sum equivalent to
three (3) months' then-current Rent as liquidated damages. Notwithstanding the foregoing, no
termination fee shall apply if Lessee terminates this Lease for signal interference by Lessor or its
lessees, licensees or invitees on the Property.
16. Hazardous Materials:
(a) As of the Commcncement Date of this Lease: (I) Lessee 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 Premises in violation of any Environmental Law (as defined
below), and (2) Lessor 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 Prcmises in
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violation of any Environmental Law; (ii) no notice has been received by or on behalf of Lessor
from, and Lessor has no knowledge that notice has been given to any predecessor owner or
operator of the Premises 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 Property; 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 Property in violation of any Environmental Law.
(b) Without limitation of Paragraph 11, Lessor and Lessee 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 16 by such party; and/or
(ii) environmental conditions or noncompliance with any Environmental Law (as defined below)
that result, in the case of Lessee, from operations in or about the Premises by Lessee or Lessee's
agents, employees or contractors, and in the case of Lessor, from the ownership or control of, or
operations in or about, the Property by Lessor or Lessor's predecessors in interest, and their
respective agents, employees, contractors, lessees, guests or other parties. The duties described in
this Paragraph 16 shall apply as of the Commencement Date of this Lease and survive
termination ofthis Lease.
(c) "Hazardous Material" 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, ~ithout
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
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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 loeallaws, 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.
17. 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 Federal Communications Commission ("FCC"), and the conditions set forth in
Development Permit I, 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 and shall not permit its lessees or licensees to use of any portion of the Property
in a way that interferes with the communications operations of Lessee described in Section 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
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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.
18. Casualtv:
In the event of damage by fire or other casualty to the Premises that cannot
reasonably be expected to be repaired within forty-five (45) days following same or; if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt Lessee's operations at the Premises for more than forty-five (45) days, then Lessee may,
at any time following such fire or other casualty, provided Lessor has not completed the
restoration required to permit Lessee to resume its operation at the Premises, terminate this Lease
upon fifteen (15) days prior written notice to Lessor. Any such notice of termination shall cause
this Lease to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of this Lease and the parties shall make an
appropriate adjustment, as of such termination date, with respect to payments due to the other
under this Lease. Notwithstanding the foregoing, Rent shall abate during the period of repair
following such fire or other casualty in proportion to the degree to which Lessee's use of the
Premises is impaired.
19. Condemnation:
In the event of any condemnation of all or any portion of the Property, this Lease
shall terminate as to the part so taken as of the date the condemning authority takes title or
possession, whichever occurs first. If as a result of a partial condemnation of the Premises or
Property, Lessee, in Lessee's sole discretion, is unable to use the Premises for the purposes
intended hereunder, or if such condemnation may reasonably be expected to disrupt Lessee's
operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee's option, to
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be exercised in writing within thirty (30) days after Lessor shall have given Lessee written notice
of such taking (or in the absence of such notice, within thirty (30) days after the condemning
authority shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. Lessee may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to the equipment, conduits,
fixtures, its relocation costs and its damages and losses (but not for the loss of its le~sehold
interest). Any such notice of termination shall cause this Lease to expire with the same force and
effect as though the date set forth in such notice were the date originally set as the expiration date
of this Lease and the parties shall make an appropriate adjustment as of such termination date
with respect to payments due to the other under this Lease. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Rent shall be reduced in the same proportion
as the rentable area of the Premises taken bears to the total rentable area of the Premises.
20. Miscellaneous:
(a) This Lease constitutes the entire agreement and understanding between the
parties, and supersedes all offers, negotiations and other Leases concerning the subject matter
contained herein. Any amendments to this Lease must be in writing and executed by both
parties.
(b) Both parties represent and warrant that their use of the Premises and the
Property and their real and personal property located thereon shall be in compliance with all
applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent
government authority.
( c) If any provision of this Lease is invalid or unenforceable with respect to
any party, the remainder of this Lease or the application of such provision to persons other than
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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.
(d) This Lease 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:
Lessor:
Lessee:
City of San Bernardino
Development Services Department
Real Property Section
300 N D Street, 3'd Floor
San Bernardino, CA 92418
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, W A 98006
Attn: PCS Lease Administrator
Site No. IE24786B
with a copy to: Attn: Legal Department
With a coov to:
With a coov to:
A TS Communications
22642 Lambert Street, #402
Lake Forest, CA 92692
T-Mobile West Corporation
3 MacArthur Place, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager
Site No. IE24786B
Lessor or Lessee 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 or
refusal as shown on the receipt obtained pursuant to the foregoing.
(f) This Lcase 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 Lease shall be
brought in the courts with jurisdiction in the County of San Bernardino, State of California. The
prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to
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recover from the losing party reasonable attorney's fees and court costs, including appeals, if
any, in connection with that action. The costs, salary, and expenses of the City Attorney and
members of its office in connection with that action shall be considered as "attorney's fees" for
the purposes of this Lease.
(g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in
.
the form annexed hereto as Exhibit "c" and acknowledges that such Memorandum of Lease will
be recorded by Lessee in the official records of the County where the Property is located.
(h) In the event the Property is encumbered by a mortgage or deed of trust,
Lessor agrees to provide reasonable cooperation in obtaining and delivering to Lessee 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) Lessor agrees to fully cooperate, including executing necessary
documentation, with Lessee to obtain information and documentation clearing any outstanding
title issues that could adversely affect Lessee's interest in the Premises created by this Lease.
0) In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Lease, 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 Lease.
(I) The captions and headings in this Lease are for convenience only and in
no way define, limit or describe the scope or intent of any provision of this Lease.
(m) All Exhibits annexed hereto form material parts of this Lease.
- 18-
Site No.: 1E24786B
File No.: 15.06-175 Tom Minor Park
06/03/10
2010-232
(n) The captions contained in this Lease are inserted for convenience only and
are not intended to be part of this Lease. They shall not affect or be utilized in the construction or
interpretation of this Lease.
(0) Lessor covenants that Lessee, on paying Rent and performing the covenants
herein, shall peaceably and quietly have, hold and enjoy the Premises.
(p) Lessor represents and warrants to Lessee as of the execution date of this
Lease, and covenants during the term hereof that Lessor is seized of good and sufficient title and
interest to the Property.
(q) The failure of either party to insist upon strict performance of any of the terms
or conditions of this Lease or to exercise any of its rights under this Lease shall not waive such
rights and such party shall have the right to enforce such rights at any time and take such action
as may be lawful and authorized under this Lease, in law or in equity.
21. Risk to Public Safetv or Health:
In the event the FCC, or any successor federal agency thereto, makes a
determination which is final and non-appealable or which is affirmed and becomes final after the
exhaustion of all available appeals concluding that the Lessee's use as set forth in this Lease
presents a material risk to public health or safety, including, but limited to radio frequency
emissions, and if Lessee fails to correct such material risk within sixty (60) days, either Lessor or
Lessee may terminate this Lease upon ten (10) days prior written notice to the other party.
[Signatures begin on next page]
- 19 -
Site No.: IE24786B
FileNo.: 15.06-175 Tom Minor Park
06/03/10
2010-232
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND T-
MOBILE WEST CORPORATION,
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 Muni Ipal corporation
ATTEST:
Approved as to form:
J
- 20-
06/03/10
LESSEE:
T-MOBILE WEST CORPORATION
I?/J~~/
6
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
2010-232
EXHIBIT "A"
DESCRIPTION OF LAND
LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS,
OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA.
APN: 0261-691-48
- 21 -
Site No.: IE247868
File No.: 15.06-175 Tom Minor Park
06/03/10
2010-232
EXHIBIT "B"
DESCRIPTION OF PREMISES
The Premises are described and/or depicted as follows:
A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR A TT ACHED
HERETO
See the attached drawines
Notes:
I. Lessee may replace this Exhibit with a survey of the Premises once Lessee 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. Lessee may install up to twelve (12) antennas and twenty four (24) coaxial cables subject to
City Development Permit approval. 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.
- 22-
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/l0
2010-232
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2010-232
EXHIBIT "e"
RECORDED AT REQUEST OF. AND
WHEN RECORDED RETURN TO:
CITY OF SAN BERNARDINO
CITY CLERK
300 N. "0" STREET
SAN BERNARDINO, CA 92418
APN: 0261-691-48
FEE EXEMPT PURSUANT TO
GOV. CODE SECTION 27383
SITE NO. IE24786B
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE is entered into on this day of .2010, by and
between the CITY OF SAN BERNARDINO, a municipal corporation, with an address at 300 N. D Street, San
Bernardino, CA 92418 (hereinafter referred to as "Owner" or "Lessor") and T-MOBILE WEST CORPORATION, a
Delaware corporation, with an address at 12920 SE 38th Street, Bellevue, W A 98006 (hereinafter referred to as
(ITMO" or "Lessee").
I. Lessor and Lessee entered into a Lease Agreement ("Lease") dated on the day of
, 20 I 0, for the purpose of installing, operating and maintaining a communications facility
and other improvements with respect to a portion of that certain property located on the Northeast comer of Palm
Avenue and Irvington Avenue, known as Tom Minor Park, legally described on Exhibit "I" attached hereto and made
a part hereof. All of the foregoing is set forth in the Lease.
2. The initial lease term will be for five (5) years ("Initial Term") commencing on the date both Lessor and
Lessee have executed the Lease above ("Commencement Date"), with three (3) successive five (5) year options to
renew.
3. 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 Lease, 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
Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the
parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease.
IN WITNESS WHEREOF. the parties have executed this Memorandum of Lease as of the day and year first written
above.
LESSOR:
LESSEE:
CITY OF SAN BERNARDINO
T-MOBILE WEST CORPORATION
By:
By:
Name: Charles E. McNeely
Name:
Chris Eldridge
Title: City Manager
Title:
Regional Director of Development
Date:
Date:
- 23-
Site No.: IE24786B
File No.: 15.06-175 Tom Minor Park
06/03/1 0
2010-232
EXHIBIT "1"
LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS,
OFFICIAL RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA.
APN: 0261-691-48
.
- 24-
Site No.: 1E247868
File No.: 15.06.175 Tom Minor Park
06/03/10
CITY OF SAN BERNARDINO
CITY CLERK
300 N. "D" STREET
SAN BERNARDINO, CA 924' 8
Recorded In OUtGlaI Recorda, COUllV' 01 San B"..;dllo 8126/2010
\t LARRY WALKER 3:12 PM
ss
.......:--.. Auditor/Contraller.- Recorder
_/1 P Counter
.,....
OucH: 2010-0349152 TRIIS: 1 ""'es: 3
IIIII~IIIIIIIIIIIIIIIII Fees 0.00
TlJX_B 0.90
Other- 0.90
~FlIO 5e."
RECORDED AT REQUEST OF. AND
WHEN RECORDED REnlRN TO:
APN: 0261-691-48
SITE NO. IE24786B
FEE EXEMPT PURSUANT TO
GOV. CODE SECTION 17383
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE is enlered into on this 6th day of Julv ,2010, by and
belWeen the CITY OF SAN BERNARDINO, a municipal corporation, with an address at 300 N. D Street, San
Bernardino, CA 92418 (hereinafter referred to as "Owno" or "Lessor") and T -MOBILE WEST CORPORA nON, a
Delaware corporation, with an address at 12920 SE 38th Street, Bellevue, W A 98006 (hereinafter referred to as
uTMO" or "Lessee").
l. Lessor and Lessee entered into a Lease Agreement ("Lease") dated on the 6th day of
July .2010, for the purpose of installing, operating and maintaining a communications facility
and other improvements wiih respect to a portion of that certain property located on the Northeast comer of Palm
Avenue and Irvington Avenue, known as Tom Minor Park, legally described on Exhibit "I" attached hereto and made
a part hereof, All of the foregoing is set forth in the Lease.
2. The initial lease teno will he for five (5) years (UInltial Term") commencing on the date both Lessor and
Lessee have executed the Lease above (UComnu!Rcement Date"), with three (3) successive five (5) year options to
renew.
3. 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 tenos, conditions or provisions ofthe Lease, all of which are hereby ratified and
affinoed. In the event of a conflict belWeen the provisions of this Memorandum of Lease and the provisions of the
Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of the
parties and their respective heirs, successors, and assigns, subject to the provisions ofthe Lease.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first written
above.
LESSOR:
LESSEE:
BERNARDINO
T-MOBILE WEST CORPORATION
:~.e~f
By:
Name: Charles E. McNeel
Title:
Ci77i;ej! D
I
Title:
Regional Director of Development
Date:
Date:
8.'1. \0
~"'4
'.
StateofCaliforn~ ~ /
County of '11 ':4<1'r.o4</
00 :;;;; /~ .l"/tlbeforeme,
personally appeared f7 A,r .#.5
2010-232
ACKNOWLEDGMENT
)
)
f;kn~ R )/,/1~~
c: /JJt';%t' ~
./
. Notarv Public.
who
proved to me on the basis of satisfactmy evidence to be the person~hose nam"""isl.,nubscribed to the within
instrument and acknowledged to me lhat he/sbdibey executed the same in hislber/theif authorized capacity(iesl; and
that by his/!J8t'1theif signature(Jf"on tbe instrument the person!*"or the entity upon behalf of which the person<*'
acted. executed the instrument.
I certify under PENAL TV OF PERJURY under the laws of the State of California thallhe foregoing paragraph is
true and correct.
t~. VALERIE R. MONTo~Al
i . COMM. # 1808252 Z
:!: 'l!llMJY PUBLIC - CALIfOI!HIAI:
I . SAN BERHAIlDlNO COUNTY ~
My Comm. Expires Aug. 2, 2012'
WITNESSmYhan~c:a.':. 1,+
Signature: ~ L-&~
State ofCali~ia /1
County of L..c....rrt1-A Lo s. r A-
00 I') g, 0 q ,l.<J J L) before me,
personally appeared
e (.J I2-t s
0-
)
)!-u~ Lea.s
EL^f<-1 D ~e.
.6-
. Notarv Public.
who
proved to me on the basis of satisfactory evidence to be the perso~ whose namc;ECl is/art subse,;bed 10 Ihe within
instrument and acknowledged to me that he/1lileI1IIey executed the same in his'llor/'lwir authorized capacity~ and
Ihat by hisIIMrAheiI' signawre<Jr on the instrument tbe person~, or the entity upon behalf of which the person~
acted, executed the instrument.
I certilY under PENALTY OF PERJURY under the laws ofthe State of California Ihat the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: ~~
(Seal)
r - . . - - - - . rUlCYLuCA* . . . - t
. CommlNIon 11175507.
I Nolaly Puble . CalIlo.nla I
J .;==~o;,:l1 -
___________________1
2010-2.32
.'
'-
EXHIBIT "I"
LOT "A" OF TRACT NO. 16457 AS RECORDED IN BOOK 308, PAGE(S) 19-22 OF MAPS, OFFICIAL
RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA.
APN: 0261-691-48