HomeMy WebLinkAbout22- Development Services - I
GINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director Subject: Resolution authorizing the
execution of a Lease Agreement with
Dept: Development Services Omnipoint Communications Inc. (T-
Mobile), for the placement of a cell
Date: August 14, 2008 antenna and appurtenant ground
equipment on City property located at
Anne Shirrells Park.
File No. 15.06-169 MCC Date: August 18, 2008
Synopsis of Previous Council Action:
None.
Recommended Motion:
Adopt Resolution.
V&�
Valerie C. Ross
Contact person: Ryan Sandoval Phone: 5226
Supporting data attached: Staff Report, Map, Reso,Agreement Ward: 6
FUNDING REQUIREMENTS: Amount: $107,940 in revenue for initial five (5) yr. term
Source: (Acct. No.) 001-000-4520
(Acct. Description) Lease Revenue
Finance:
Council Notes: Eso Zo�� 22-CP
Agenda Item No. 2�
Page 1 of 2
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Resolution authorizing the execution of a Lease Agreement with Omnipoint Communications
Inc. (T-Mobile), for the placement of a cell antenna and appurtenant ground equipment on City
property located at Anne Shirrells Park.
BACKGROUND:
In June, Omnipoint Communications, commonly known as T-Mobile, submitted a proposal to
lease 500 square feet of property in Anne Shirrells Park, located north of Base Line Street and
east of California Street, for the placement of a cell antenna on an existing light pole and
appurtenant ground equipment.
The lease agreement provides a five (5) year term with the option of five (5) successive five (5)
year renewal periods. The initial monthly rent is to be $1,799 per month with a 10% increase at
each renewal term. The term of the lease begins on the date both parties execute the lease and
payments commence upon issuance of building permits. Building permits are proposed to be
pulled by September 1, 2008, at which time the first payment will be due. Omnipoint
Communications will be responsible for payment of any utilities used by their equipment. The
Planning Section has indicated that this proposed cell tower is consistent with the development
code.
Upon termination of the lease agreement, Omnipoint Communications will be required to restore
the premises to its previous grade and condition including removal of all appurtenances installed,
to the satisfaction of the City of San Bernardino.
The attached resolution authorizes the execution of a Lease Agreement with Omnipoint
Communications Inc.
FINANCIAL IMPACT:
The total revenue for the initial five (5) year term is $107,940. The revenue for FY 2008/2009 is
estimated to be $17,990, based on the first payment being September 1, 2008.
RECOMMENDATION:
Adopt Resolution.
ATTACHMENTS:
- Vicinity Map
- Site Sketch
- Resolution
Page 2 of 2
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VICINITY MAP
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CITY OF SAN BERNARDINO Proposed Lease Agreement with Omnipoint
t DEVELOPMENT SERVICES DEPARTMENT
REAL PROPERTY SECTION Communications Inc., located north of Base Line
3anBernar inn Street and east of California Street (Ann
Shirrell's Park)
® indicates un-incorporated areas within City's
Sphere of Influence Created by: Ryan Sandoval Date:07/23/08
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Site Sketch
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11
1 RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
3 EXECUTION OF A LEASE AGREEMENT WITH OMNIPOINT COMMUNICATIONS
INC., RELATING TO CITY OWNED PROPERTY LOCATED NORTH OF BASE
4 LINE STREET AND EAST OF CALIFORNIA STREET (ANNE SHIRRELLS PARK).
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. That the City Manager of the City of San Bernardino is hereby authorized
8 and directed to execute on behalf of the City, a Lease Agreement with Omnipoint Communications
9
Inc., relating to City owned property located north of Base Line Street and east of California Street
10
11 (Anne Shirrells Park), more specifically described in the Lease Agreement, a copy of which is
12 attached hereto as Exhibit "1" and made a part hereof.
13 SECTION 2. The authorization to execute the above-referenced agreement is rescinded
14 if the parties to the agreement fail to execute it within sixty (60) days of the passage of this
15 resolution.
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08/14/08 1
1 : ,
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A
LEASE AGREEMENT WITH OMNIPOINT COMMUNICATIONS INC.,RELATING TO CITY OWNED
2 PROPERTY LOCATED NORTH OF BASE LINE STREET AND EAST OF CALIFORNIA STREET
(ANNE SHIRRELLS PARK).
3
4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof
6 held on the day of . 20 by the following vote, to wit:
7
Council Members: AYES NAYS ABSTAIN ABSENT
8
ESTRADA
9
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
14
JOHNSON
15
16 MCCAMMACK
17
18
City Clerk
19
20 The foregoing resolution is hereby approved this day of , 20
21
22 PATRICK J. MORRIS, Mayor
City of San Bernardino
23 Approved as to form:
24
25 �
J AphS F. PENMAN
26 Attorney
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08/14/08 2
Exhibit 1
LEASE
THIS LEASE (Lease), is made and entered into this day of
2008, by and between the CITY OF SAN BERNARDINO, a municipal corporation,
hereinafter referred to as "Lessor", and Omnipoint Communications Inc., a Delaware
corporation, a subsidiary of T-Mobile USA Inc., 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 mobile/wireless communications
facilities to be located at Anne Shirrells Park ("Property") on the North East corner of the
intersection of N. California Street and W. Base i
L ne Street in the City of San Bernardino (APN
0143-211-04, 11), 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 Anne Shirrells 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
mobile/wireless communications facilities on the Premises.
NOW THEREFORE, the parties hereto agree as follows:
1. Property Leased:
Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately
IF-24775 B Anne Sherrills Park 1
five hundred ten (510) square feet of land, more particularly described in Exhibit "B" attached
hereto (the "Premises"). Said Premises includes any appurtenant facilities and applicable
easements for access and utilities as described herein.
2. Term:
The term of this Lease shall be five (5) years, commencing with the date both Lessor and
Lessee have executed this Lease ("Commencement Date"). Lessee shall have the right to extend
the term of this Lease for five (5) additional terms of five (5) years each. Each renewal term
shall be on the terms and conditions set forth herein. This Lease shall automatically be extended
for each successive five (5) year renewal term. 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 first five (5) year term or any
renewal term.
3. Lease Payments:
Lessee shall pay Lessor as rent, the annual sum of Twenty- One Thousand, Five
Hundred and Eighty-Eight and 00/100 Dollars ($ 21,588), payable in monthly installments
commencing upon the date the building permit is issued ("Rent Start Date"). The monthly
installments shall be in the amount of One Thousand and Seven Hundred and Ninety-Nine and
00/100 Dollars ($1,799.00) 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
EE24775 B Anne Sherrills Park
300 North "D" Street
San Bernardino, CA 92418
Rent shall be increased on each five (5) year anniversary of the Rent Start Date by an amount
equal to ten percent (10%) of the rent then in effect for the previous term or renewal term.
4. Use Restrictions:
The Premises may be used by Lessee for any lawful activity in connection with the provision of
mobile/wireless communications services, including without limitation, the transmission and the
reception of radio communication signals on various frequencies, and the 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 mobile/wireless 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.
EE24775 B Anne Sherrills Park 3
(b) Lessee shall have the right to construct, erect, maintain, operate and
remove mobile/wireless 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 /
emergency power 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. 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, upon termination of this Lease, be removed from the Premises, and the land
returned to its previous state, excepting normal wear and tear.
(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
IE24775 B Anne Sherrills Park 4
(7) days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of
ingress to and egress from said Premises over the Property, and shall allow Lessee access from
the nearest public roadway to the Premises at all times, and hereby grants such non-exclusive
ingress and egress rights to Lessee, and to Lessee's agents, employees, and contractors, across
the Property as described in Exhibit A, 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 written
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
IE24775 B Anne Sherrills Park 5
Lessee related to the Premises during the term of this Lease.
8. Liens and/or Encumbrances:
Lessee shall pay or cause to be paid, all costs of construction and/or installation of
all improvements. Lessee shall keep the Premises free and clear of any and all claims arising out
of performance of work on Lessee's behalf, furnishing of materials on Lessee's behalf, and upon
use of utilities by Lessee. This Lease shall be subordinate to any lien, mortgage or deed of trust
currently on record against said Property.
9. Permits and Fees:
Lessee shall pay all license fees, assessments, penalties or fines which may be
levied against Lessee by virtue of the installation of Lessee's Facilities.
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 Lessee any and all
IE24775 B Anne Sherrills Park 6
documentation associated with the assessment and shall execute any and all documents
reasonably necessary to effectuate the intent of this Section 9.
10. Liability 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; (1) 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) Worker's Compensation Insurance as
required by law and Employers' Liability with limits of one million dollars ($1,000,000.00) per
occurrence. Lessee shall provide to Lessor a certificate of insurance and name Lessor as an
additional insured for the general liability policy, which certificate provides:
(a) On the Commercial General Liability policy that the City of San
Bernardino is named as an additional insured for the acts or omissions of Lessee.
(b) The certificates shall include the insurance company name, policy number,
period of coverage, and the amount of insurance.
(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 on the Lease of the policy.
IE24775 B Anne Sherrills Park 7
(d) That Lessee's insurance shall be primary to any coverage the City of San
Bernardino may have in connection with the acts or omissions of Lessee.
11. Indemnification:
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.
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.
IE24775 B Anne Sherrills Park 8
(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
1
(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
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. Lessor may assign this Lease, which assignment may be
evidenced by written notice to Lessee within a reasonable period of time thereafter, provided that
the assignee assumes all of Lessor's obligations herein, including but not limited to, those set
forth in Paragraph 13 ("Waiver of Lessor's Lien") above. This Lease shall run with the Property
EE24775 B Anne Sherrills Park 9
E ,
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.
15. Termination:
This Lease 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 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; or (vi) by
1 IE24775 B Anne Sherrills Park 10
WYfiNl 111
CW Lessee if the Lessor fails to deliver to Lessee an executed memorandum of Lease or
non-disturbance and attornment pursuant to Paragraphs 18(g) and (h) below.
16. Hazardous Materials:
(a) As of the Commencement Date of this Lease: (1) 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 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
IE24775 B Anne Sherrills Park 11
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 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
EE24775 B Anne Sherrills Park 12
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 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. 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 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 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
those as to whom it is held invalid or unenforceable, shall not be affected and each provision of
IE24775 B Anne Sherrills Park 13
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 T-Mobile USA, Inc.
Development Services Department 12920 SE 38th Street
Real Property Section Bellevue, WA 98006
300 N D Street Attn: PCS Lease Administrator
San Bernardino, CA 92410 Site No. IE24775B Anne Shirrells Park
with a copy to: Attn: City Attorney
With a copy to:
Omnipoint Communications, Inc.
3 MacArthur Place, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager
Site No. IE24775B Anne Shirrells Park
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.
(f) 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
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
IE24775 B Anne Sherrells Park 14
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 Land is located.
(h) In the event the Land is encumbered by a mortgage or deed of trust.
Lessor agrees to obtain and deliver 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.
(j) 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.
(1) 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 Riders and Exhibits annexed hereto form material parts of this Lease.
(n) This Lease may be executed in duplicate counterparts, each of which shall
be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set
forth at the beginning of this Lease.
IE24775 B Anne Sherrills Park 15
LESSOR: LESSEE:
CITY OF SAN BERNARDINO OMNIPOINT COMMUNICATIONS, INC.
Fred Wilson, City Manager 4�torEn
ura,
Di gine e
Engineering & Operations- Inland
Empire Market
ATTEST:
Approved as to form
Tania 8. D o
Corporate Counsel
Rachel Clark, City Clerk
Approved as to form:
a es F. Penman. City Attorney
IE24775 B Anne Sherrills Park 16
EXHIBIT A
DESCRIPTION OF LAND
to the Lease Agreement dated 200 , by and between CITY OF
SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary of T-Mobile
USA Inc. as Lessee.
The Land is described and/or depicted as follows
Lot 7 and the South 170 feet of Lot 6, H.H Linville's Subdivision, as per plat thereof recorded in
Book 8 of Maps, Page 47, records of the County Recorder of San Bernardino County, State of
California.
EXCEPTING THEREFROM, the west 300 feet and the south 190 feet of said Lot 7.
APN: 0143-211-04, 11
I
IE24775 B Anne Sherrills Park 17
i
EXHIBIT B
DESCRIPTION OF PREMISES
to the Lease Agreement dated , 200 , by and between CITY OF
SAN BERNARDINO, as Lessor and Omnipoint Communications Inc., a subsidiary of T-Mobile
USA Inc., as Lessee.
The Premises are described and/or depicted as follows:
See Attached
Notes:
1. 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.
IE24775 B Anne Sherrills Park
TOTAL PROPOSED T—MOBILE ALL EQUIPMENT LOCATIONS ARE APPROXIMATE AND ARE
LEASE AREA 441 S.F. SUBJECT TO APPROVAL BY T—MOBILE, STRUCTURAL
AND RF ENGINEERS. LOCATIONS OF POWER do
CMU ENCLOSURE — 21'-1'x13'-5' - 297 S.F. TELEPHONE FACILITIES ARE SUBJECT TO APPROVAL BY
LIGHT POLE— 12'-0'x12'-0' = 144 S.F. UTILITY COMPANIES.
�J APN: - PROPOSED T—MOBILE
G` - - - 0143-211-004- -••--
- LEASE AREA (22'-1'x
-:•:-:-:- �` PROPOSED T—MOBILE' 13'-5' 297 SOFT)
V LEASE AREA (12'-0'x
12'-0' = 144 SQ.FT7 PROPOSED POWER/TELCO
G - - RUN (*175')
X X x —
WEST 1_3TtL STREET
0143-211-011 x
_•,•,•,•_�_ _ � 4•.::(E) BASEBALL, I —
G j. FIELD. . x
. (E) POWER POC
PROPOSED POWER
APN: \ SOURCE
0143-211-003 G,f- x
\.'. (E) POWER POLE NO.
< +- APN: :.I I 4028591E PROPOSED
01.43 2.11-0.12 '_ _ x- j TELCO SOURCE
G < x Z
L(E) RESIDENTIAL
XG a G < x N
AREA PLA SCALE: 1- = too•—o'
U PROPOSED T—MOBILE 3' 21— 1. PROPOSED T—MOBILE B 5
WIDE METAL ACCESS GATE CABINETS (6 TOTAL)
LO
i
i
PROPOSED T—MOBLt'77 ————_
PPC CABINET, COMBO r
CABINET k DISCONNECT
MOUNTED TO CMU WALL
\.� ��' �./ �./ �/� �'✓ fit/
PROPOSED T—MOBILE
PROPOSED TMOBILIL E UNDERGROUND COAX
75y—O'O LIGHT PO CAB4,RUN APROX
PROPOSED T—MOBILE
PANEL ANTENNA
(TOTAL 0"2)
M
PROPOSED��"f—M081LE
GPS ANTENNA -
x x x x x x x x x
LEASE PLAN SCALE: 1/16' = 1'-0-
PUNS PREPARED Y. SITE INFORMATION:
T ' Mobile'' NOVACOm ANNE SHIRRELLS BHT POLE 7/25/08
stick together' ".``°mm" °`"".°"'
PARK RAW 'AND
"•'" :"�`"„ ^••• IE24775B DRAWN ew TGW WAI NTS
41DO OLYRDUN STREET.SUITE tai 9T
1699 D919�1Q .19R 0
SI MI VALLEY,G 93063 090014A G 91590-17U 1295 N.PENNSYLVANIA AVE.
mmmm_(1151)505-am FM(981)55FM55 SAN BERNARDINO,CA 92411 LANDLORD may: DATE
TOTAL PROPOSED T-MOBILE
LEASE AREA 411 S.F.
ALL EQUIPMENT LOCATIONS ARE APPROXIMATE AND ARE
SUBJECT TO APPROVAL BY T-MOBILE, STRUCTURAL CMU ENCLOSURE - 12'-1'x13'-5' = 297 S.F.
AND RF ENGINEERS. LOCATIONS OF POWER k UGHT POLE - 12'-0'x12'-0' - 144 S.F.
TELEPHONE FACILITIES ARE SUBJECT TO APPROVAL BY
UTILITY COMPANIES.
PROPOSED E MOBILE (STING LIGHT POLE PROPOSED T-MOBILE
TO REPLACE EXISTING LIGHT POLE GPS ANTENNA
PROPOSED T-MOBILE PANEL
ANTENNA (TOTAL OF 12)
(o �
� U
PROPOSED T—MOBILE 2'0
PARABOLIC ANTENNA
LIJ
J
O
LJ V) n
Z Z E-
J Z 2
Of LJ C7
Q LLJ Z J
H
Z W < LJ
U LLJ
J
Iw— Q J m0
Q Z 0
U F- H
O Q
DO ~ 0
LJ
w -J N o
a_ o° of
Ld_J m 0 d
m a LL.
° o a
0
a o ~
o O (-
PROPOSED T-MOBILE N
22'-1'x13'-5' CMU CL 0 1
EQUIPMENT ENCLOSURE al I n
WITH CHAIN UNK TOPPER 0 O
O.. �
PROPOSED 8T5 CABINET
(TOTAL OF 5) p
I
PROPOSED T-MOBILE
POWER/TELCO H-FRAME LO
PROPOSED T-MOBILE
CV U.G. COAX RUN
PROPOSED T-MOBILE
U.G. UTILITY RUN
TLE TLE-TLE-TLE E TLE'
ELEVATION SCALE: 3/32• = 1'
mi PLANS PREPARED BY. SITE INFORMATION:
'1' ' •Mobile'' NOVACOm ANNE SHIRRELLS ' HT POLE 7/25/08
stick together` """""``°mm°°"°"°°`°°`°"'°'
PARK �"W LAND
".-A.,W""1.0" 11—.... IE24775B DRAWN BY--TGW SCALE NITS
4100 GUARG STREET,SURE 101 faro comQa n.un D
SIMI VALLEY,U 93063 ppgyk CA AMP-1788 1298 N.PENNSYLVANIA AVE.
PHONE:(1181)898-SM FAX.(281)901-9108 SAN BERNARDINO,CA 92111 LANDLORD RIRIAL. DA7E
EXHIBIT C
RECORDED AT REQUEST OF,AND
WHEN RECORDED RETURN TO:
Omnipoint Communications, Inc.
a Subsidiary of T-Mobile USA Inc.
3 MacArthur Place, Suite 1100
Santa Ana,CA 92707
Attn: Lease Administration
Site No. IE24775B
Site Name: Anne Shirrells Park
MEMORANDUM OF LEASE
IE24775B/Anne Shirrells Park
APN: 0143-211-04; -11
This MEMORANDUM OF LEASE is entered into on this day of ,
2008 by CITY OF SAN BERNARDINO, with an address at 300 N. D Street, San Bernardino, CA 92410
(hereinafter referred to as "Owner' or "Lessor") and Omnipoint Communications Inc., a Delaware
corporation, a subsidiary of T-Mobile USA Inc., a Delaware corporation (hereinafter referred to as "OCI"
or"Lessee").
1. Lessor and Lessee entered into a Lease Agreement ("Lease") dated as of this day
of , 2008 effective upon full execution of the parties ("Effective Date") for the
purpose of 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 Lease.
2. The term of the Lease is for five (5) years commencing on the date of full execution of
the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Date with
five(5) successive five (5) year options to renew.
3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The
portion of the Land being leased to Lessee and all necessary access and utility easements (the "Premises")
are set forth in the Lease.
In witness whereof, the parties have executed this Memorandum of Lease as of the day and year
first written above.
LESSOR: City of San Bernardino, LESSEE: Omnipoint Communications, Inc.
A Municipal corporation a subsidiary of T-Mobile USA, Inc.
NOT FOR EXECUTION -EXHIBIT ONLY NOT FOR EXECUTION—EXHIBIT ONLY
Wilson Martha Ventura
Title: City Manager Title: Area ctor
Date: Date:
IE24775 B Anne Sherrills Park 19
STATE OF )
COUNTY OF )
On this day of 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 this day of 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:
IE24775 B Anne Sherrills Park 20