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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Subject: Resolution authorizing the City
Manager to execute a lease agreement
between the City of San Bernardino and
Omnipoint Communications Inc. for the
lease of six hundred eighty-nine (689)
square feet of land at Northpark University
Park located at on the Southeast comer of
University Parkway and Northpark
Boulevard for a monopine cellular tower
(APN 0266-611-02).
Dept: Development Services
Date: September 29, 2008
File No.: 15.06-170
Synopsis of Previous Council Action:
MIce Meeting Date: October 6, 2008
5/7/2008 - Resolution No. 2007-145 was adopted approving an agreement with ATS
Communications for development and implementation of a Wireless Master Plan.
Recommended Motion:
1. Adopt Resolution; and
2. Authorize the Director of Finance to amend the 2008/09 adopted budget by increasing
revenue account number 001-000-4520 by $12,600 and General Government expenditure
account number 001-092-5502 by $3,500.
~(;J?~
Valerie C. Ross
Contact person:
Ryan Sandoval
Phone: 5226
Supporting data attached: Staff Report Map Re<o iii Agreement Ward: 5
FUNDING REQUIREMENTS:
Amount:
None
Source: (Acct. No.) N/A
(Acct. Description) N/A
Council Notes:
Finance:
.k'es 0 ZOc;R -3,93
Agenda Item No. -E
16,,(, -08
CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
City Manager to execute a lease agreement between the City of San Bernardino and Omnipoint
Communications Inc. for the lease of six hundred eighty-nine (689) square feet of land at
Northpark University Park for a monopine cellular tower (APN 0266-611-02).
BACKGROUND:
In May of 2007, the Mayor and Common Council approved an agreement with ATS
Communications for the development and implementation of a Wireless Master Plan. The plan
will identify current wireless facilities located within the city (on public and private land)
available for location of cell towers, and future needs of wireless communication. A TS has the
exclusive right to market all City owned sites to potential wireless providers and to facilitate the
placement of wireless communication cell towers and facilities.
A TS submitted a draft Wireless Master Plan Study in May of this year and requested input from
City staff. They expect to have the study finalized by the end of this year and it will be brought
forward for Council approval. Under the terms of the agreement, ATS receives 25% of the
revenue from each new lease. New leases are described as those that are approved by the Mayor
and Common Council during the term of the agreement for any portion of a City property
between the City and a third party. The initial term of the agreement is five years and will
terminate on May 31, 2012 if not renewed. A TS will continue to collect 25% of the revenue
from the lease agreements until such time that they expire or revenue ceases.
ATS has submitted the first lease agreement under the terms of their agreement. Omnipoint
Communications, commonly known as T-Mobile, submitted a proposal to lease 689 square feet
of property at Northpark University Park located at on the Southeast comer of University
Parkway and Northpark Boulevard (APN 0266-611-02), for placement of a Monopine pole that
will accommodate panel antennas (cellular tower). Omnipoint Communications will be
responsible for any utilities consumed by their equipment.
The agreement provides a five (5) year term with the option of three (3) successive five (5) year
renewal periods. The initial monthly rent is $1,999.00 per month with a 4% increase each annual
anniversary of the commencement date. The term of the lease arrangement begins upon
execution of the lease agreement.
Construction at Northpark University Park is expected to start in late 2008. Omnipoint has
received land use approval and filed an application for a building permit.
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.
Staff Report - Continued
FINANCIAL IMPACT:
The lease payments will begin upon the issuance of building permits which is expected to be no
later than December of this year. The projected gross revenue for 2008/09 is anticipated to be
approximately $14,000 (rounded - 7 months x $1,999). ATS will receive 25% of the revenue as
compensation, which is approximately $3,500. Additionally, the agreement requires T-Mobile
to pay to the City a document preparation fee of $2,100. Therefore the total net revenue for
2008/09 is anticipated to be $12,600. The total revenue over the five (5) year period is $129,900.
If each of the three (3), five (5) year terms are renewed (total of twenty years), total revenue will
be $714,300 (includes 4% increase each year).
RECOMMENDATION:
I. Adopt Resolution; and
2. Authorize the Director of Finance to amend the 2008/09 adopted budget by increasing
revenue account number 001-000-4520 by $12,600 and General Government expenditure
account number 001-092-5502 by $3,500.
ATTACHMENTS:
Vicinity Map
Site Plan
Resolution
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SthSt.
Orange how Rd.
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VICINITY MAP
CITY OF SAN BERNARDINO
DEVELOPMENT SERVICES DEPARTMENT
REAL PROPERTY SECTION
Proposed Lease Agreement with Omnipoint
Communications Inc., located at the southeast
corner of University Parkway and
Northpark Boulevard
~ indicates un-incorporated areas within City's
~ Sphere of Influence
Created by: L. Fogassy
Date: 1 % 1 /08
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
OMNIPOINT COMMUNICATIONS INC. FOR THE LEASE OF SIX HUNDRED
EIGHTY NINE (689) SQUARE FEET OF CITY OWNED PROPERTY AT
NORTHPARK UNIVERSITY PARK LOCATED ON THE SOUTHEAST CORNER OF
UNIVERSITY PARKWAY AND NORTHPARK BOULEVARD FOR A MONOPINE
CELLULAR TOWER (APN 0266-611-02).
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager is hereby authorized and directed to execute on behalf
of the City a Lease Agreement between the City of San Bernardino and Omnipoint
Communications Inc. for the lease of 689 square feet of City owned property at Northpark
University Park located on the southeast corner of University Parkway and Northpark
Boulevard (APN 0266-611-02), a copy of which is attached hereto, marked as Exhibit "1", and
incorporated herein by this reference.
SECTION 3. 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.
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/0 - 6-09
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09/30/08
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE
CITY OF SAN BERNARDINO AND OMNIPOINT COMMUNICATIONS INC. FOR THE LEASE OF
SIX HUNDRED EIGHTY NINE (689) SQUARE FEET OF CITY OWNED PROPERTY AT
NORTHP ARK UNIVERSITY PARK LOCATED ON THE SOUTHEAST CORNER OF UNIVERSITY
PARKWAY AND NORTHPARK BOULEVARD FOR A MONOPINE CELLULAR TOWER(APN 0266-
611-02).
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
, 20_, by the following vote,
day of
thereof, held on the
to wit:
ABSTAIN ABSENT
NAYS
AYES
Council Members:
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
MCCAMMACK
RACHEL G. CLARK, City Clerk
day of
,2008.
The foregoing resolution is hereby approved this
PATRICK J. MORRIS, Mayor
City of San Bernardino
Approved as to Form:
2
EXHIBIT "1"
LEASE
THIS LEASE (Lease), is made and entered into this day of October 2008, by
and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to
as "Lessor", and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc.,
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 Northpark University Park ("Property") on the Southeast comer of
University Parkway and Northpark Boulevard in the City of San Bernardino (APN 0266-611-
02), 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 Northpark University 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:
I. PropertY Leased:
Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately six
hundred eighty-nine (689) square feet of land, more particularly described in Exhibit "B"
I
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 three (3) 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 Pavments:
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and
00/100 dollars ($2,100.00) 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$2,100.00 for work performed.
(b) Lessee shall pay Lessor as rent, the annual sum of Twenty-Three
Thousand, Nine Hundred and Eighty-Eight and 00/100 Dollars ($23,988.00), 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 Nine Hundred
and Ninety-Nine and 00/100 Dollars ($1,999.00) 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.
2
Payments shall be mailed or delivered to:
City of San Bernardino
Development Services Department/Real Property Section
300 North "D" Street
San Bernardino, CA 92418
Or as may otherwise directed by lessor. Rent shall be increased on each anniversary of the Rent
Start Date by an amount equal to four percent (4%) of the rent then in effect for the previous
year.
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 defmed
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
3
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 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 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) Access for ingress and egress to and from the Premises shall be across San
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Bernardino County Flood Control District property, located adjacent to the Premises. Lessee's
employees, agents and contractors will not access the Premises over adjacent City park property.
Lessee shall have the sole responsibility of obtaining the necessary access permit and pay all
applicable fees to the San Bernardino County Flood Control District. 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, liens, or
encumbrances arising out of performance of work on Lessee's behalf, furnishing of materials on
Lessee's behalf, or 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, ownership, use, or operation of
Lessee's leasehold improvements.
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
documentation associated with the assessment and shall execute any and all documents
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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; (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) 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.
(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 ofrequired limits of the policy.
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(d) That Lessee's insurance shall be primary to any insurance coverage the
City of San Bernardino may have in connection with the acts or omissions of Lessee.
II. Indemnification:
Lessor and Lessee shall each indemnify, defend and hold the other harmless from
and against all claims, causes of action, 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 operations under 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 termination ofthis Lease.
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,
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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
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
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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.
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
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(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.
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
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
11
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
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
12
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
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
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
ofthe respective parties set forth below:
Lessor:
Lessee:
City of San Bernardino
Development Services Department
Real Property Section
300 N D Street
San Bernardino, CA 92410
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, W A 98006
Attn: PCS Lease Administrator
Site No. IE04832D
with a copy to: Attn: Legal Department
With a copv to:
With a copy to:
A TS Communications
22642 Lambert Street, #402
Lake Forest, CA 92692
Omnipoint Communications, Inc.
3 MacArthur Place, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager
Site No. IE04832D
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
the purposes of this Lease.
14
(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 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 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.
III
III
15
LEASE AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNIPOINT
COMMUNICATIONS INC., A SUBSIDIARY OF T-MOBILE USA INC.
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
OMNIPOINT COMMUNICA nONS, INC.
A SUBSIDIARY OF T-MOBILE USA, INC.
EXHIBIT COpy
EXHIBIT COPY
Lori Sassoon, Acting City Manager
By: Jon Zumsteg, Area Director
ATTEST:
Rachel Clark, City Clerk
Approved as to form:
JAMES F. PENMAN, City Attorney
16
EXHIBIT "A"
DESCRIPTION OF LAND
to the Lease Agreement dated , 2008, by and between CITY
OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc. as Lessee.
The Land is described and/or depicted as follows:
APN: 0266-6 I 1-02
Lot 4, Tract Map No. 13039, City of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Book 195, pages 87 and 88, records of said County.
(.99 acre parcel)
17
EXHIBIT "B"
DESCRIPTION OF PREMISES
to the Lease Agreement dated , 2008, by and between CITY
OF SAN BERNARDINO, as Lessor and Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc., as Lessee.
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 drawin2s dated 6/12/08. Sheets A-I. A-2. and A-3. identified with Site
Information: IE04832D. NorthDark University Park.
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.
18
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EXHIBIT "C"
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Omnipoint Communications, Inc.
2008 McGaw A venue
Irvine, CA 92614
Attn: Property Management
Site No. IE04832D
MEMORANDUM OF LEASE
IE04832D lNorthpark University Park
APN: 0266-611-02
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
subsidiary ofT-Mobile USA Inc., (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 effective upon full
execution of the parties ("Effective Date") and terminating on the fifth anniversary of the
Commencement Date with three (3) successive five (5) year options to renew.
3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto.
The portion ofthe 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:
LESSEE:
CITY OF SAN BERNARDINO
Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc.,
By:
EXHIBIT COPY
By:
EXHIBIT COPY
Name:
Name:
Danny Bazerman
Title:
Title:
Director, Engineering & Operations
Date:
Date:
19
State of California
County of
On
before me,
. Notarv Public, personally appeared
who 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 hislher/their authorized capacity(ies), and that by
hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature:
State of California
County of
)
)
On
before me,
. Notarv Public, personally appeared
who 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 hislher/their authorized capacity(ies), and that by
hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State ofCaHfornia that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature:
20
EXHIBIT "A"
DESCRIPTION OF LAND
to the Lease Agreement dated , 2008, by and between CITY
OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc. as Lessee.
The Land is described and/or depicted as follows:
APN: 0266-611-02
Lot 4, Tract Map No. 13039, City of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Book 195, pages 87 and 88, records of said County.
(.99 acre parcel)
LEASE
THIS LEASE (Lease), is made and entered into this day of October 2008, by
and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to
as "Lessor", and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc.,
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 Northpark University Park ("Property") on the Southeast corner of
University Parkway and Northpark Boulevard in the City of San Bernardino (APN 0266-6 I 1-
02), 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 Northpark University Park.
(d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all
govemmental 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:
I. Prooertv Leased:
Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately six
hundred eighty-nine (689) 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 three (3) 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 Pavments:
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and
00/100 dollars ($2,100.00) 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$2,100.00 for work performed.
(b) Lessee shall pay Lessor as rent, the annual sum of Twenty-Three
Thousand, Nine Hundred and Eighty-Eight and 00/100 Dollars ($23,988.00), 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 Nine Hundred
and Ninety-Nine and 00/100 Dollars ($1,999.00) 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.
2
Payments shall be mailed or delivered to:
City of San Bernardino
Development Services Department/Real Property Section
300 North "0" Street
San Bernardino, CA 92418
Or as may otherwise directed by lessor. Rent shall be increased on each anniversary of the Rent
Start Date by an amount equal to four percent (4%) of the rent then in effect for the previous
year.
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
3
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 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 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 Wlfeasonably 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) Access for ingress and egress to and from the Premises shall be across San
4
Bernardino County Flood Control District property, located adjacent to the Premises. Lessee's
employees, agents and contractors will not access the Premises over adjacent City park property.
Lessee shall have the sole responsibility of obtaining the necessary access permit and pay all
applicable fees to the San Bernardino County Flood Control District. 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.
5
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, liens, or
encumbrances arising out of performance of work on Lessee's behalf, furnishing of materials on
Lessee's behalf, or 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, ownership, use, or operation of
Lessee's leasehold improvements.
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
documentation associated with the assessment and shall execute any and all documents
6
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) 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) 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.
(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.
7
(d) That Lessee's insurance shall be primary to any insurance 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, causes of action, 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 operations under 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 I I shall apply as of the Effective Date of
this Lease and survive the termination of this Lease.
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,
8
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
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 LesseeA
(i) has obligations for borrowed money or with respect to guaranties thereof, (ii) has obligations
9
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.
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
10
(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.
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
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
II
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
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
12
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
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
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
Development Services Department
Real Property Section
300 N D Street
San Bernardino, CA 92410
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, W A 98006
Attn: PCS Lease Administrator
Site No. IE04832D
with a copy to: Attn: Legal Department
With a copv to:
With a copy to:
A TS Communications
22642 Lambert Street, #402
Lake Forest, CA 92692
Omnipoint Communications, Inc.
3 MacArthur Place, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager
Site No. IE04832D
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
the purposes of this Lease.
14
(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 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.
(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.
(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 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.
III
11/
15
LEASE AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND OMNIPOINT
COMMUNICATIONS INC., A SUBSIDIARY OF T-MOBILE USA INC.
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
Lori Sassoon, Acting City Manager
ATTEST:
Rachel Clark, City Clerk
Approved as to form:
LESSEE:
OMNIPOINT COMMUNICA nONS, INC.
A SUBSIDIARY OF T-MOBILE USA, INe.
By: Jon Zumsteg, Area Director
16
EXHIBIT "A"
DESCRIPTION OF LAND
to the Lease Agreement dated , 2008, by and between CITY
OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc. as Lessee.
The Land is described and/or depicted as follows:
APN: 0266-611-02
Lot 4, Tract Map No. 13039, City of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Book 195, pages 87 and 88, records of said County.
(.99 acre parcel)
17
EXHIBIT "B"
DESCRIPTION OF PREMISES
to the Lease Agreement dated , 2008, by and between CITY
OF SAN BERNARDINO, as Lessor and Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc., as Lessee.
The Premises are described and/or depicted as follows:
A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED
HERETO
See the attached drawine:s dated 6/12/08. Sheets A-I. A-2. and A-3. identified with Site
Information: IE04832D. Northpark Universitv Park.
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.
18
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EXHIBIT "C"
RECORDED AT REQUEST OF, AND
WHEN RECORDED RETURN TO:
Ornnipoint Communications, Inc.
2008 McGaw Avenue
Irvine, CA 92614
Attn: Property Management
Site No. IE04832D
MEMORANDUM OF LEASE
IE04832D /Northpark University Park
APN: 0266-611-02
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
subsidiary ofT-Mobile USA Inc., (hereinafter referred to as "ocr 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 effective upon full
execution of the parties ("Effective Date") and terminating on the fifth anniversary of the
Commencement Date with three (3) successive five (5) year options to renew.
3. The Land that is the subject of the 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:
LESSEE:
CITY OF SAN BERNARDINO
Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc.,
By:
EXHIBIT COPY
By:
EXHIBIT COPY
Name:
Name:
Danny Bazerman
Title:
Title:
Director, Engineering & Operations
Date:
Date:
19
State of California
County of
)
)
On
before me,
. Notarv Public, personally appeared
who 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 hislher/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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature:
State of California
County of
)
)
On
before me,
. Notarv Public, personally appeared
who 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 hislher/their authorized capacity(ies), and that by
hislher/their signature( s) on the instrument the person(s), or the entity upon behalf of which the person( s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature:
20
EXHIBIT" A"
DESCRIPTION OF LAND
to the Lease Agreement dated , 2008, by and between CITY
OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary ofT-
Mobile USA Inc. as Lessee.
The Land is described and/or depicted as follows:
APN: 0266-611-02
Lot 4, Tract Map No. 13039, City of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Book 195, pages 87 and 88, records of said County.
(.99 acre parcel)