Loading...
HomeMy WebLinkAbout15-Development Services ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: James Funk, Director Subject: Resolution authorizing the execution of a lease agreement between the City of San Bernardino and New Cingular Wireless (Nicholson Park 2750 West Second Street) Dept: Development Services Date: September 12, 2005 File No. 15.06-143 Synopsis of Previous Council Action: MCC Date: September 19,2005 11/3/97: Resolution authorizing the execution of a lease agreement with Pacific Bell was adopted Recommended Motion: Adopt Resolution. ~W- \J James Funk Contact person: Jeanne/marie Fitzpatrick Phone: 5328 Supporting data attached: Staff Report/Reso Lease/Map FUNDING REQUIREMENTS: Amount: None Ward: 6 Source: (Acct. No.) (A~~t npc::~rirti()n) Finance: Council Notes: ~. ~[J{JS- 32cJ- Agenda Item No. 15 'I/"{OS- CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution authorizing the execution of a lease agreement between the City of San Bernardino and New Cingular Wireless (Nicholson Park 2750 West Second Street). BACKGROUND: On November 3, 1997, Resolution No. 97-332 was adopted, authorizing the execution of a cell tower lease agreement between the City and Pacific Bell Mobile Services, relating to City-owned real property located at the northwest comer of Second Street and Meridian Avenue (a portion of Nicholson Park). On August 4, 2004, we received notification from Cingular Wireless stating that Cingular had taken over interest in Pacific Bell Mobile Services. In May 2005, we were notified by the Planning Division that Cingular had applied for a Development Permit to construct a new cell tower at Nicholson Park, incorporating a larger lease area. The new cell tower will be a stealthed monopine as opposed to the existing tower which is an unstealthed monopole. As one of the conditions of approval, a new lease agreement establishing the new leased area is required. In addition, Cingular will be removing the existing cell tower that is currently located on the property. Sprint and T -Mobile are both co-locators on the existing tower and have current lease agreements with the City of San Bernardino. They will be re-locating on the new tower once it is constructed. However, because the ground lease area for these two companies is not changing, these leases do not need to be renegotiated until the lease agreements expire. Currently the lease rate for this cell tower location is $800.00 per month. However, based upon surveying surrounding cities, a new lease rate of $1700.00 was established. Most cities including Riverside, Rialto, Fontana, Ontario and Rancho Cucamonga charge a lease rate of $1200.00 to $1500.00 per month whether the company is the owner of the cell tower or a co- locator on the tower. Colton charges a lease rate of $1000.00 per month while Redlands charges approximately $2000.00 per month since they have very few towers. FINANCIAL IMPACT: A $300.00 document preparation fee will be paid within thirty (30 days of the Commencement Date of the Lease. Lease revenue of $20,400.00 will be collected in monthly increments of $1700.00. RECOMMENDATION: Adopt Resolution. /,.' , ,~:/ 5th St. L{}~t1-ilon of A/it- h 0 / Soli Pl1..r k CITY OF SAN 8ERNARD~NO DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION VICINITY MAP No Scale RESOLUTION AUTHORIZING THE EXECUTION OF A LEASE AGREEMENT BETWEEN THE CITY AND NEW CINGULAR WIRELESS (NICHOLSON PARK., 2750 WEST SECOND STREET) ~ indicates un-incorporated areas ~ within City's Sphere of Influence FileNo.: /5.DItJ.JL/3 Date: ~l..Jol05 f;; f;; f;; f;; f;; f;; f;; f;; f;; f;; f!! ... ~ ~ ~ > > ~ ~ > > ~ ." 15 z z z z (j (j (j (j (j (j (j (j (j = ~ ~ ~ > > > ~ > > > a (') (j (j 00 00 00 ..... \0 \0 -..J 0'1 N 8 0 0 0 w 0'1 0'1 00 0'1 N \0 00 00 U1 w N IV U1 ..... .j>. 0 .j>. w 8f;;8f;;8f;;8 f;;8f;;8f;;8f;;f;; f;; f;; (') 1IO ~ ~ ~ ~ ~ ~ ~~ ~ ~ ::I Co (j (j (') (') (j (j (j (j (j ~ > > > > > > >> > > tl (j (') (') (j (j (j ~ 00 00 a .....\O\O-..JO'INO 0 0 w 0'1 C\ 00 0'1 N .....0 00 00 Va w tv N VI. _ ~I .j>. W , 6 I I I I I I 10 0 ..... ..... ..... ::z: ~ I:P IV e; ..... ~ Cf.l Cf.l 0 ~ ~ S ..... s<: (j "0 I>> l1\ ~ .. p,o ~ N trl 5' ~ 0 ~ ..... 0 I:P I>> ::I U1 Cf.l ... 5- -- ~. ~ > I>> ~ ~ > 0 p,o ::I S s:: ~ c ..... I>> 0 j;l 8 Cf.l \0 ~ p,o a' 9- ~ ~ CI:l ><: - I:P , I>> 0\ ..... '0 (") ::I ~ U1 w ~ \0 "" >< .... == I>> (j (j IJQ '< \0 s; U1 -= 00 0 s ~ '-' N U1 .j>. 0\ N .j>. tlwZ ..... N > ;'~ ..... \0 -..J 0\ ..... N ~-..J. 0'1 ..... Co Q.o .... 0'1 ..... -..J 0\ ..... U1 -..J_ U1 ..... Co "'l w trl trl ~ 0 ~ -..Jo \0 U1 .... ~ Cf.l ~ ~r (j ~ ~ == - ~ ~ ....~ ~ 5; '" =-~ ~ ~ Cf.l e; ~ ~ ~ ~ t-3 ~ ~ @ e; (j 0 0 (")~ ~ z ~ ....- ~ 8 ....~ ~ I:P ~ n Cf.l Cf.l ~ ~ s.~ ~ Cf.l ~ ~ ~ ~ tl OOEl >< > ~ tl ~ ~ <: ~ = tI1 = ~ t::I:l .... 0 rn ~ S ~ ~ ., .... == .... ~ 8 Q.o tI> . ....~ I:PCI:lI:PCI:lI:P~I:PCf.lI:PCf.lI:PCI:lI:PCf.lI:PCf.lI:PCI:lI:PCf.l(') = Ql ~~~~~~~~~~~~~~~~~~~~~ Q n .... - .... .... ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ .... Il 222 Z 222 Z 2 2 000 000 0 000 ~~ \0 \0 \0 \0 \0 \0 \0 \0 \0 \0 N ~ N N IV ~ ~ N tv N N -6' .j>. .j>. ~ ~ w .j>. .j>. ~~~~. ~ ..... 0 0 0 -..J 0 S 0 00 00 -..J -..J w w w w w w w w w w ~ .j>. .j>. .j>. ~ .j>. .j>. .j>. .j>. .j>. .j>. " . ~ ~~ , , 6 0 6 ~ , 0 , 6 ... 0 0 0 0 ..... ..... ~ 00 0'1 w 0\ 00 \0 0 0'1 00 ~~{~ 0 v. 0 J,. 0 , .:., 0 , 6 0 tv ..... w U1 U1 -..J .j>. .j>. 0 .j>. ..... ~ :-.J -..J 0 0 8 8 8 8 :po. '" QC ..... ..... (N ..... 0 N ..... \0 00 '\ ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ~ ..... ..... ..... - ..... ..... ..... ..... ..... ..... -..J -..J -..J -..J -;-I -;-I -;-I -..J -..J -..J = , 0 0 , N 0 N ..... ..... ..... - ..... ..... ..... N (JQ -..J 0'1 0'1 -..J .j>. -..J 00 0\ -..J 0 ~ 6 , , J,. , .:., U. 6 , 6 N N ~ ~ w VI 0\ \0 0 ..... w \0 '" 8 8 8 8 8 8 00 8 '" QC 00 0 0\ (N RESOLUTION NO.t Ol fPV 1 2 3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE AGREEMENT BETWEEN THE CITY OF SAN 4 BERNARDINO, A MUNICIPAL CORPORATION AND NEW CINGULAR WIRELESS 5 PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY. (NICHOLSON PARK, 2750 WEST SECOND STREET) 6 7 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Mayor of the City of San Bernardino is hereby authorized and 9 10 11 LLC relating to certain City-owned real property located at 2750 West Second Street, San 12 13 14 15 16 17 18 19 20 21 22 23 directed to execute, on behalf of said City, a Lease Agreement with New Cingular Wireless PCS, Bernardino, California, a copy of which is attached hereto, marked Exhibit "1" and incorporated herein. SECTION 2. The authorization to execute the above-referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. /II /II 24 25 26 27 28 rf, j . '- IVO, /5 'l/njLlc; 09/14/05 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, A MUNICIPAL CORPORATION AND NEW 1 CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY. (NICHOLSON PARK, 2750 WEST SECOND STREET) 2 3 4 5 6 held on the I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof day of , 20_, by the following vote, to 7 wit: 18 19 City Clerk The foregoing resolution is hereby approved this 20 21 22 day of ,20 . - 23 Approved as to form 24 and legal content: JUDITH V ALLES, Mayor City of San Bernardino 25 JAMES F. PENMAN City Attorney :~ By: (\a~ 1. rJ .'"\ / "c:;:.,,~_ 28 09/09/05 2 Site: Nicholson Park APN: 0142-051-14-0000 Exhibit 1 LAND LEASE AGREEMENT THIS LAND LEASE AGREEMENT ("Lease"), IS made and entered into this day of , 2005, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, hereinafter referred to as "Lessee". RECITALS This Lease is made and entered into with respect to the following facts: (a) Lessor is the owner of the Premises herein described. (b) Lessee has requested permission to construct a mobile/wireless communications facility to be located in the Northwesterly portion of Nicholson Park, 2750 W. 2nd Street, San Bernardino, California, 92410 (the "Property"), which Property is more particularly described in Exhibit "A" attached and incorporated herein, and Lessor is willing to lease a portion of the property to Lessee upon the terms and conditions hereinafter set forth. (c) Lessee believes that the facility will not interfere with the City of San Bernardino Department of Parks and Recreation's operations or the public's use of the Property. (d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all governmental permits and approvals enabling Lessee, or its assigns to construct and operate mobile/wireless communications facilities on the Premises. NOW THEREFORE, the parties hereto agree as follows: 1. Property Leased: Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, a forty- five feet by seventeen feet (45' x 17') area of the Property plus an additional ten feet by seventeen feet (10' x 17') area of the Property for a total area of approximately nine hundred and 09/15/053:06 PM 1 15.06-143 twenty-nine square feet (929 sq. ft.), as more particularly described in Exhibit "A" attached hereto (the "Premises"). Said Premises includes any appurtenant facilities and applicable easements for access and utilities. 2. Term: The term of this Lease shall be five (5) years ("Initial Term"), commencing with (i) the issuance of a building permit by the City of San Bernardino, allowing Lessee to construct its mobile/wireless communications facilities on the Premises, or (ii) the date both Lessor and Lessee have executed and delivered said Lease ("Commencement Date"), whichever is later. Lessee shall have the right to extend the term of the Lease for five (5) additional terms of five (5) years each ("Renewal Term(s)"). Each Renewal Term shall be on the terms and conditions set forth herein. This Lease shall automatically be extended for each successive five (5) year Renewal Term unless Lessor shall have received Lessee's written notification of intention not to renew no later than ninety (90) days prior to the expiration of the first five (5) year term or any Renewal Term. The Initial Term and the Renewal Term shall be collectively referred to as the "Term". 09/15/05 2 15.06-143 the same date of each month, thereafter. The initial Rent payment will be forwarded by Lessee to Lessor within thirty (30) days after the Commencement Date. Should the last payment of Rent be for a partial month, then only the pro-rata portion of the Rent shall be paid. Payments shall be directed to: City of San Bernardino Development Services Department/Real Property Section 300 North "D" Street, 3rd Floor San Bernardino, California 92418 (c) Rent shall be increased at the beginning of each Renewal Term by the amount equal to Fifteen Percent (15%) of the Rent for the previous term or applicable Renewal Term. 4. Use Restrictions: The Premises may be used by Lessee for any lawful activity in connection with the provision of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies, and the construction, maintenance and operation of related communications facilities. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses, permits and any and all other necessary governmental approvals that may be required for Lessee's intended use of the Premises. 5. Imorovements: (a) Lessee shall have the right (but not the obligation) at any time prior to the Commencement Date, to enter the Premises for the purpose of making necessary engineering surveys and inspections (and soil tests where applicable) and other reasonably necessary tests ("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined herein) for mobile/wireless communications operations. During any Tests, Lessee shall have insurance as set forth in Paragraph 10, and will notify Lessor of any proposed tests, and will 09/15/05 3 15.06-143 coordinate the scheduling of same with Lessor. If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee will notify Lessor and this Lease shall terminate. Lessee shall return the Premises to the condition it was in prior to conducting the Tests. (b) Lessee shall have the right to erect, maintain and operate on the Premises, radio communications facilities, including but not limited to radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements ("Lessee Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare, add, maintain and alter the Premises for Lessee's business operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of Lessee's construction and installation work shall be performed at Lessee's sole cost and expense and in a good workmanlike manner. Lessee shall hold title to the Lessee Facilities and any equipment placed on the Premises by Lessee. All of Lessee Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove all Lessee Facilities at its sole expense on or before the expiration or earlier termination of this Lease. Lessee shall not make any material alterations to the Premises, or any part thereof, other than as set forth in Paragraph 5 herein, without the prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed. Any and all alterations and/or improvements made to the Premises pursuant to this paragraph, including but not limited to Lessee Facilities, shall, within sixty (60) days of the expiration or earlier termination of this Lease, be removed from the Premises, and the Premises shall be returned to its previous state on the Commencement Date, excepting normal wear and tear, casualty, or damage caused by Lessor or Lessor's agents, employees, tenants, lessees, licensees or invitees. 09/15/05 4 15.06-143 (c) Lessor shall provide to Lessee, Lessee's employees, agents and subcontractors, access to the Premises across the Property twenty-four (24) hours a day, seven (7) days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of ingress to and egress from said Premises over the Property, and shall allow Lessee access from the nearest public roadway to the Premises at all times, and hereby grants such ingress and egress rights to Lessee along a twelve foot (12') wide right-of-way extending from the nearest public right-of-way to the Premises, to the extent required to maintain, install and operate the Lessee Facilities on the Premises. Lessee shall repair any damages Lessee, its agents, employees, officers, or contractors cause to said above ingress and egress area. 6. Maintenance and Inspections: Lessee shall, at Lessee's own cost and expense, keep and maintain all improvements hereinafter constructed on the Premises in good condition and repair, and shall use all reasonable precaution to prevent waste, damage or injury to the Premises caused by Lessee's use of the Premises. Lessor shall, at any reasonable time, have the right to go upon the Premises upon seventy-two (72) hour prior notice to Lessee, and inspect and examine the same relative to such maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an employee or authorized representative of Lessee. 7. Utilities: Lessee shall have the right to install utilities, at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency power generators). Lessee shall have the right to place utilities on (or to bring utilities across) Lessor's Property in order to service the Premises and Lessee's Facilities, subject to Lessor's approval of the location, which approval shall not be unreasonably withheld. 09/15/05 5 15.06-143 Lessee shall pay for all electricity, gas, water, telephone service, and all other services and utilities, including service installation fees and charges for such utilities used by Lessee during the Term of this Lease. 8. Liens and/or Encumbrances: Lessee shall payor cause to be paid, all costs of construction and/or installation of all improvements. Lessee shall keep the Premises free and clear of any and all claims arising out of performance of work on Lessee's behalf, furnishing of materials on Lessee's behalf, and upon use of utilities by Lessee. This Lease shall be subordinate to any lien, mortgage or deed of trust currently on record against said Property. 9. Permits and Fees: Lessee shall pay all license fees, assessments, taxes, penalties or fines which may be levied against Lessee by virtue of the installation of Lessee's leasehold improvements. 10. Liability Insurance: Lessee agrees to procure and maintain in force during the term of this Lease and any extension, at its own expense, the following insurance from companies with an A.M. Best Rating of at least A-:VII, and with such minimum limits set forth below; (1) Commercial General Liability with limits of five million dollars ($5,000,000.00) per occurrence, (2) Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Worker's Compensation Insurance as required by law and Employers' Liability with limits of one million dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor a certificate of insurance and name Lessor as an additional insured for the general liability policy, which certificate provides: (a) On the Commercial General Liability policy that the City of San Bernardino is named as an additional insured for the acts or omissions of Lessee. 09/15/05 6 15.06-143 (b) The certificates will include the insurance company name, policy number, period of coverage, and the amount of insurance. (c) That the Real Property Section of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation or modification of the policy. (d) That Lessee's insurance will be primary to any coverage the City of San Bernardino may have in effect in connection with the acts or omissions of Lessee. 11. Indemnification: Except to the extent of the negligence or willful misconduct of Lessor or its agents, boards, officers, employees, representatives or contractors, Lessee shall defend, indemnify, and hold harmless Lessor, its agents, boards, officers, employees, representatives, or contractors against any and all claims, suits, damages for personal injury, including death, property damage, demands, loss or liability of any kind or nature arising from Lessee's operations under this Lease. Except to the extent of the negligence or willful misconduct of Lessee or its agents, boards, officers, employees, representatives or contractors, Lessor shall defend, indemnify, and hold harmless Lessee, its agents, boards, officers, employees, representatives, or contractors against any and all claims, suits, damages for personal injury, including death, property damage, demands, loss or liability of any kind or nature arising from Lessor's negligent and/or willful acts or omissions on the Property. The foregoing indemnities shall survIVe the expiration or earlier termination of this Lease. 09/15/05 7 15.06-143 12. Taxes/Possessorv Interest: (a) Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of property taxes levied on such interest. Lessee agrees to, and shall hold harmless, Lessor from any and all liability for any such taxes related to Lessee's Facilities. (b) Lessor warrants that (i) Lessor solely owns the Property as a legal lot in fee simple; (ii) Lessor has full right, power and authority to execute this Lease, (iii) the Property is not encumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which would adversely affect Lessee's use and enjoyment of the Premises under this Lease, and (iv) if the Property subsequently becomes encumbered by a lien, mortgage or deed of trust, Lessor will use reasonable efforts to provide promptly to Lessee a commercially reasonable non-disturbance agreement executed by the holder of any such lien, mortgage or deed of trust. Lessor further warrants that Lessee shall have quiet enjoyment of the Premises during the term of this Lease or any renewal thereof. 13. Compliance with Laws: Lessee shall not violate any applicable law of the City, State or Federal governments in conducting its operations under this Lease. 14. No Sublease or Assignment: Lessee shall not sublet the Premises, or any part thereof, or assign this Lease, without Lessor's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Lessee may assign or sublet this Lease to any subsidiaries, corporate affiliate or successor legal entities of Lessee, or any purchaser of all, or substantially all, of Lessee's stock or assets in the market defined by the Federal Communications Commission ("FCC") in which the Premises is located, or to any entity which 09/15/05 8 15.06-143 acquires or receives an interest in the majority of communication towers of the Lessee in the market defined by the FCC in which the Premises is located; provided, however, (i) within thirty (30) days of such assignment or sublet, Lessee shall provide written notification to Lessor stating the name, address, contact person and any other pertinent information regarding said corporate affiliate or purchaser, and (ii) upon notification to Lessor, Lessee will be relieved of all future performance, liabilities and obligations under this Lease. 15. Default: Either party shall have the right to terminate this Lease upon thirty (30) days notice to the other, and upon the effective date of such termination, Lessor shall have the right of immediate occupancy of the Premises, in the event the other party violates any of this Lease's terms or conditions, and such violation is not corrected within thirty (30) days after receipt of written notice to the breaching party, provided that each party shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and said party commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. Such termination shall not relieve either party from liability for damages for breach of this Lease or for injury to the Premises. Lessor may not maintain any action or effect any remedies for default against the Lessee unless and until the Lessee has failed to cure the same within the time periods provided in this Paragraph. 16. Environmental: Lessor represents that the Premises have not been used for the generation, storage, treatment or disposal of hazardous substances, hazardous materials or hazardous wastes. In addition, Lessor represents that no hazardous materials, hazardous substances, hazardous wastes, 09/15/05 9 15.06-143 pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil or any fraction or derivative thereof) or underground storage tanks are located on or near the Premises. Notwithstanding any other provision of this Lease, Lessee relies upon the representations stated herein as material inducement for entering into this Lease. Lessee shall not bring any hazardous materials onto the Premises except for those contained in its back-up power batteries (lead-acid batteries) and common materials used in telecommunications operations, e.g., cleaning solvents. Lessee shall treat all hazardous materials brought onto the Premises by Lessee in accordance with all federal, state and local laws and regulations. 17. Amendment: (a) This Lease may be amended or modified only by written agreement signed by both parties. Failure on the part of either party to enforce any provision of this Lease shall not be construed as a waiver of the right to compel enforcement of such provision or provisions. (b) If any provision of the Lease agreement is invalid or unenforceable with respect to any party, the remainder of this Lease or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. 18. Termination: This Lease may be terminated on thirty (30) days written notice as follows: (i) by Lessee, if it does not obtain or maintain licenses, permits or other governmental approvals necessary to the construction or operation of Lessee's Facilities; or (ii) by Lessee, if Lessee is unable to use the site because of economic, technological or environmental reasons or utilize the Premises due to a ruling or directive of the FCC or other governmental or regulatory agency. If after the Commencement Date, Lessee provides thirty (30) days written notice to Lessor of 09/15/05 10 15.06-143 termination of this Lease due to the reasons set forth in (ii), above, Lessee shall pay Lessor an amount equal to six (6) months Rent at the amount stated in Paragraph 3 of this Lease as "monthly installments" which shall be due and payable from the termination date as payment for such early termination. 19. Miscellaneous: (a) This Lease shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (b) This Lease shall be governed under the laws of the State of California. (c) The prevailing party in any legal action to enforce any provision of this Lease shall be entitled to recover from the losing party all attorneys' fees and court costs, including appeals if any, in connection with that action. The portion of the costs, salary, and expenses of the City Attorney and members of his office directly arising from that action (provided reasonable supporting documentation is provided to Lessee), shall be considered as attorney's fees for the purpose of this Lease. (d) Upon request, either party may require that a Memorandum of Lease be recorded in the form of Exhibit "B". (e) This Lease constitutes the entire Lease and understanding between the parties and supersedes all offers, negotiations and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and executed by both parties. 20. Interference with Communications: Lessee's Facilities shall not disturb the communications configurations, equipment and frequency which exist on the Property on the Commencement Date ("Pre-existing Communications"), and Lessee's Facilities shall comply with all non-interference rules of the 09/15/05 11 15.06-143 FCC, and the conditions set forth in Development Permit I 05-026, regarding the City's public safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC or other Federal agency or department). Lessor shall not permit the use of any portion of the Property in a way that interferes with the communications operations of Lessee described in Paragraph 4, above. Such interference with Lessee's communications operations shall be deemed a material breach by Lessor, and Lessor shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference will cause irreparable injury to Lessee, and therefore, Lessee shall have the right to bring action to enjoin such interference or to terminate this Lease immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre- existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 21. Title and Quiet Enioyment: (a) Lessor warrants that it has full right, power and authority to execute this Lease; Lessor further \varrants that Lessee shall have quiet enjoyment of the Premises during the term of this Lease or any Renewal Term. (b) Lessee shall have the right at any time up to the full execution of this Lease, and prior to the Commencement Date to obtain a preliminary title report or commitment for a leasehold title policy from a title insurance company of its choice. If, in the opinion of Lessee, such title report shows any defects of title or any liens or encumbrances which may adversely affect Lessee's use of the Premises, Lessee shall have the right to terminate this Lease (prior to the Commencement Date), immediately upon written notice to Lessor. 09/15/05 12 15.06-143 22. Notices: All notices given in connection with this Lease shall be in writing and delivered in person or sent by overnight carrier or certified mail, postage prepaid, addressed as follows: LESSOR City of San Bernardino Development Services Department Real Property Section 300 North "D" Street San Bernardino, CA 92418 (909) 384-5328 LESSEE Cingular Wireless Attention: Network Real Estate Administration Re: Cingular Cell Site # ESOI4-01; Cell Site Name: Nicholson Park 6100 Atlantic Boulevard Norcross, Georgia 30071 with a copv concurrentlv to: Cingular Wireless Attention: Legal Department Re: Cingular Cell Site # ESOI4-01; Cell Site Name: Nicholson Park 15 East Midland Avenue Paramus, New Jersey 07652 23. Covenants: There are no covenants or warranties other than those expressed in this Lease. [SIGNATURES APPEAR ON THE NEXT PAGE] 09/15/05 13 15.06-143 IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set forth at the beginning of this Lease. LESSOR: CITY OF SAN BERNARDINO, a Municipal corporation Exhibit Only Judith Valles, Mayor ATTEST: Rachel Clark, City Clerk LESSEE: NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY By: Print Name: Its: Date: Print Name: Approved as to form And legal content JAMES F. PENMAN, City Attorney By: 09/15/05 14 15.06-143 EXHIBIT "B" Recording Requested By and When Recorded Return to: John D. Newman Attorney at Law 182 Second Street, Suite 210 San Francisco, CA 94105 APN: 0142-051-14-0000 Re: Cell Site #ESOI4-01 (CM-188); Cell Site Name: Nicholson Park 15.06-143 State: California County: San Bernardino MEMORANDUM OF LEASE This Memorandum of Lease is entered into on this _ day of ,2005, by and between THE CITY OF SAN BERNARDINO, a municipal corporation, having a mailing address of 300 North "D" Street, San Bernardino, CA 92418 (hereinafter referred to as "Lessor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, having a mailing address of 6100 Atlantic Boulevard, Norcross, Georgia 30071 (hereinafter referred to as "Lessee"). I. Lessor and Lessee entered into a certain Land Lease Agreement (" Agreeme nt") on the day of , 2005, for the purpose of installing, operating and maintaining a communications facility and oilier improvements. All of the foregoing are set forth in the Agreement. 2. The initial lease term will be five (5) years ("Initial Term") commencing with (i) the issuance of a building permit by the City of San Bernardino, allowing Lessee to construct its mobile/wireless communications facilities on the Premises, or (ii) the date both Lessor and Lessee have executed and delivered said Lease, with five (5) successive five (5) year options to renew. 3. The portion of the land being leased to Lessee (the "Premises") is described in Exhibit "A" annexed hereto. 4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of 09/15/05 15 15.06-143 the parties and their respective heirs, successors, and assigns, subject to the provisions of the Agreement. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. WITNESSES: "LESSOR" THE CITY OF SAN BERNARDINO, a municipal corporation Print Name: By: Print Name: Its: Date: Print Name: Address: 300 North "D" Street San Bernardino, CA 92418 (909) 384-5328 Phone: "LESSEE" NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company Print Name: Print Name: By: Print Name: Its: Date: [ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE] 09/15/05 16 15.06-143 LESSEE ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF ) ) On before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Name (typed or printed) (Seal) LESSOR ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) COUNTY OF San Bernardino ) On before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Name (typed or printed) (Seal) 09/15/05 17 15.06-143 . Page: 2 [NG1]Approved by Cingular management ("BTA Ap proved"). Automatic renewals of the term are recommended to facilitate ease of property management administration. We believe that the City should be understanding of this, and be willing to accommodate the request. Page: 5 [NG2]Generally. to bring in necessary equipment for the installation of the Facilities, Cingular will require a 20' wide access road. Please verify if a wider road will be necessary for this site, and if so, if a 20' access road is available. Page: 7 [NG3]Lessor should provide a reciprocal indemnity. Page: 10 [NG4]paragraph 15 already provides similar text regarding termination for default. Page: 15 [NG5] Page: 15 [NG6]please insert an accurate drawing of the Premises including dimensions. EXHIBIT "A" LEASE AREA THE LAND SHOWN HEREON IS SITUATED IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, THE UNDERLYING PROPERTY IS DESCRIBED AS FOLLOWS: THAT PORTION OF THE EAST ONE-HALF OF LOT 78, EXCEPT THE SOUTH 5 ACRES, OF THE MAP OF THE TOWN OF RIAL TO AND ADJOINING SUBDIVISIONS, ACCORDING TO THE PLAT THEREOF AS RECORDED IN BOOK 4, PAGE 11 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. COMMENCING AT THE CENTERLINE INTERSECTION OF WEST SECOND STREET AND NORTH MERIDIAN AVENUE AS SHOWN ON PARCEL MAP No. 5665, RECORDED IN BOOK 52, PAGES 49 AND 50 OF PARCEL MAPS, RECORDS OF SAN BERNARDINO COUNTY; THENCE ALONG THE CENTERLINE OF SAID WEST SECOND STREET SOUTH 89'47'00" WEST, 660.33 FEET TO THE POINT OF INTERSECTION OF THE WEST LINE OF THE EAST ONE-HALF OF SAID LOT 78; THENCE AI,..ONG SAID WEST LINE, NORTH 00'02'40" EAST 555.22 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID WEST LINE, NORTH 00'02'40" EAST, 44.67 FEET; THENCE LEAVING SAID WEST LINE, AT A RIGHT ANGLE, SOUTH 89'57'20" EAST, 17.00 FEET; THENCE SOUTH 00'02' 40. WEST, 44.67 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A; THENCE NORTH 89'57'20" WEST, 17.00 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS: 759 SQ. FT. + /- = 0.017 ACRES MONOPOLE AREA BEGINNING AT POINT A REFERRED TO ABOVE; THENCE SOUTH 89'57'20. EAST, 17.00 FEET; THENCE SOUTH 00'02'40. WEST, 10.00 FEET; THENCE NORTH 89'57'20" WEST. 17.00 FEET; THENCE NORTH 00'02'40" EAST, 10.00 FEET TO THE POINT OF BEGINNING; CONTAINS: 170 SQ. FT. +/- = 0.004 ACRES THIS DOCUMENT, CONSISTING OF 2 SHEETS, WAS PREPARED BY ME OR UNDER MY DIRECTION. ~ EXP. 6-30-06 B~o~~ DA E REVISIONS BY DATE EVlSED LECAL DESC. PER CITY RElAARKS LEASE AREA :.c: cingular ~~~~~~~703 WIRELESS MP SURVEYORS 17982 SKY PARK CIRCLE SUITE B IRVINE, CA 92614 (949) 250-0272 SHEET 1 LEGAL DESCRIPTION PREPARED FOR: PREPARED BY: OF 2 SHEETS DRAWN. 08/15/05 BY, JA CHECKED: rc/loIp ra.L 51J1.dw C \CvrrentProJe':t!i\ _NEW_DRAWINGS~S1J2.dw9. 08lJOl2005 10:57:11 AM, Fe EXHIBIT "A1" SEE DETAIL r ':".;-'" I i I I i I I .+.~ I .I ~.._J l! ~:::'.J I \.P O.B. LEASE AREA I CD I"- Nt; "! -' I/") I/") LA.. I/") 0 WN . "- ~ - Nt; P < gw ZLA.. o W Z :J .... . en ~ ) \ : .~ "- '- MAP OF TO'lYN OF RJALTO AND ADJOiNiNG SUBDiViSiONS lvlB.4/11 PORTiON LOT 78 I L2 liNE TARI E L1 NOO'02'4Q-E 44.67' L2 SB9'S7'20"E 17.00' L3 SOO'02'4Q"W 44.67' L4 NB9'S7'ZO"W 17.00' LS SB9'S7'ZO"E 17.00' L6 SOO'OZ'4Q"W 10.00' L7 NB9"57'ZO"W 17.00' LB NOO'OZ'4Q-E 10.00' --~""1 :; LaJ :..., V1 :-' ~ i MONOPOLE 1/. !\'''C.4'' ;ci:i~.7{ARE&A J.&.J :-':-1 ~ N ...Ll.... N"!I p :g I 1f..QJ3.. ~ I/") LEASE AREA __ DETAIL SCAlE 1 lDch - 40 It. POINT A P.O.B. MONOPOLE AREA Irz:l I~ rz:l > < ~ Q - ~ rz:l ......'Vi' ~ 1/")" "!z _ 01- - I/")Q: E-lQ~ ~ :um o ~LA.. Z,O Nen p- een 0< zm '-' iu-~ I 30' b ,., -;'O.C. LEGAL ~ DES,,"PTION ~ .- SCALE 1 Inch - 100 ft. ~~~'4~~~WO~~33,STREET BASIS OF BEARINGS THE CENTERLINE OF MERIDIAN A VENUE. BEING NORTH 00'02'40" EAST PER PARCEL MAP No. 5665, RECORDED IN BOOK 52, PAGES 49 AND 50 OF PARCEL MAPS. RECORDS OF SAN BERNARDINO COUNTY. PREPARED FOR: PREPARED BY: LEGAL DESCRIPTION LEASE AREA :-: cingular ~-~~ WIRELESS MP SURVEYORS 17982 SKY PARK CIRCLE SUITE B IRVlNE. CA 92614 (949) 2S0-0272 E.\5132.dw9. 0813012005 10:55 38 AM, Fe SHEET 2 OF 2 SHEETS DRAWN Dl!/2~/D~ BY. JA CHECKED, rc/",p FilE 5132 0_0 EXHIBIT "B" Recording Requested By and When Recorded Return to: John D. Newman Attorney at Law 182 Second Street, Suite 210 San Francisco, CA 94105 I APN: 0142-051-14-0000 Re: Cell Site #ES014-01 (CM-188); Cell Site Name: Nicholson Park 15.06-143 State: California County: San Bernardino MEMORANDUM . OF LEASE This Memorandum of Lease is entered into on this day of , 2005, by and between THE CITY OF SAN BERNARDINO, a municipal corporation, having a mailing address of 300 North "0" Street, San Bernardino, CA 92418 (hereinafter referred to as "Lessor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, having a mailing address of 6100 Atlantic Boulevard, Norcross, Georgia 30071 (her~inafter referred to as "Lessee"). 1. Lessor and Lessee entered into a certain Land Lease Agreement ("Agree ment") on the day of , 2005, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing are set forth in the Agreement. 2. The initial lease term will be five (5) years ("Initial Term") commencing with (i) the issuance of a building permit by the City of San Bernardino, allowing Lessee to construct its mobile/wireless communications facilities on the Premises, or (ii) the date both Lessor and Lessee have executed and delivered said Lease, with five (5) successive five (5) year options to renew. 3. The portion of the land being leased to Lessee (the "Premises") is described in Exhibit "A" annexed hereto. 4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms. conditions or provisions of the Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the pro\.isions of this Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of 09/07/05 15.06-143 the parties and their respective heirs, successors, and assigns, subject to the provisions of the Agreement. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. WITNESSES: "LESSOR" THE CITY OF SAN BERNARDINO, a municipal corporation Print Name: By: Print Name: Its: Date: Print Name: Address: 300 North "0" Street San Bernardino, CA 92418 (909) 384-5328 Phone: "LESSEE" NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company Print Name: By: Print Name: Its: Date: Print Name: [ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE] 09/07/05 15.06-143 LESSEE ACK.l\'OWLEDGMENT STATE OF CALIFORNIA COUNTY OF ) ) On _ before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (01 proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Name (typed or printed) (Seal) LESSOR ACK1'\OWLEDGME:\"T STATE OF CALIFORNIA ) ) COUNTY OF San Bernardino ) On before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entit)' upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Name (typed or printed) (Seal) 09/07/05 15.06-143