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HomeMy WebLinkAbout22- Development Services - I GINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Resolution authorizing the execution of a Lease Agreement with Dept: Development Services Omnipoint Communications Inc. (T- Mobile), for the placement of a cell Date: August 14, 2008 antenna and appurtenant ground equipment on City property located at Anne Shirrells Park. File No. 15.06-169 MCC Date: August 18, 2008 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. V&� Valerie C. Ross Contact person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report, Map, Reso,Agreement Ward: 6 FUNDING REQUIREMENTS: Amount: $107,940 in revenue for initial five (5) yr. term Source: (Acct. No.) 001-000-4520 (Acct. Description) Lease Revenue Finance: Council Notes: Eso Zo�� 22-CP Agenda Item No. 2� Page 1 of 2 CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution authorizing the execution of a Lease Agreement with Omnipoint Communications Inc. (T-Mobile), for the placement of a cell antenna and appurtenant ground equipment on City property located at Anne Shirrells Park. BACKGROUND: In June, Omnipoint Communications, commonly known as T-Mobile, submitted a proposal to lease 500 square feet of property in Anne Shirrells Park, located north of Base Line Street and east of California Street, for the placement of a cell antenna on an existing light pole and appurtenant ground equipment. The lease agreement provides a five (5) year term with the option of five (5) successive five (5) year renewal periods. The initial monthly rent is to be $1,799 per month with a 10% increase at each renewal term. The term of the lease begins on the date both parties execute the lease and payments commence upon issuance of building permits. Building permits are proposed to be pulled by September 1, 2008, at which time the first payment will be due. Omnipoint Communications will be responsible for payment of any utilities used by their equipment. The Planning Section has indicated that this proposed cell tower is consistent with the development code. Upon termination of the lease agreement, Omnipoint Communications will be required to restore the premises to its previous grade and condition including removal of all appurtenances installed, to the satisfaction of the City of San Bernardino. The attached resolution authorizes the execution of a Lease Agreement with Omnipoint Communications Inc. FINANCIAL IMPACT: The total revenue for the initial five (5) year term is $107,940. The revenue for FY 2008/2009 is estimated to be $17,990, based on the first payment being September 1, 2008. RECOMMENDATION: Adopt Resolution. ATTACHMENTS: - Vicinity Map - Site Sketch - Resolution Page 2 of 2 � r F m m ! r F � i i i ke 18 I� 15 — d 40th St. 330 . e Marshall Blvd. 0 7D U 10 Highland Ave. 259 > > " 0 Q) Base Line St. a "' n 9th St 5th St. 0 c Rialto Ave. 215 Mill St. a 0 C Q) 210 a Orange how Rd. ° Location of Proposed Lease Area VICINITY MAP NO SCALE J CITY OF SAN BERNARDINO Proposed Lease Agreement with Omnipoint t DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION Communications Inc., located north of Base Line 3anBernar inn Street and east of California Street (Ann Shirrell's Park) ® indicates un-incorporated areas within City's Sphere of Influence Created by: Ryan Sandoval Date:07/23/08 ■ i @ Aobiflem- Site Sketch Drive Grass Grass Pennsylvania Ave T-Mobile Equipment/Park Storage area by T-Mobile Drive Garbage Grass Current building S' Drive ® Bullpen Power Ball Field Light to Replace Drive Drive Access Ball Field Drive Drive Access Drive Access Access N Not to Scale Flood Plain Map (only if necessary) N/A Flood Plain Map Legend: N/A 11 1 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 EXECUTION OF A LEASE AGREEMENT WITH OMNIPOINT COMMUNICATIONS INC., RELATING TO CITY OWNED PROPERTY LOCATED NORTH OF BASE 4 LINE STREET AND EAST OF CALIFORNIA STREET (ANNE SHIRRELLS PARK). 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. That the City Manager of the City of San Bernardino is hereby authorized 8 and directed to execute on behalf of the City, a Lease Agreement with Omnipoint Communications 9 Inc., relating to City owned property located north of Base Line Street and east of California Street 10 11 (Anne Shirrells Park), more specifically described in the Lease Agreement, a copy of which is 12 attached hereto as Exhibit "1" and made a part hereof. 13 SECTION 2. The authorization to execute the above-referenced agreement is rescinded 14 if the parties to the agreement fail to execute it within sixty (60) days of the passage of this 15 resolution. 16 17 18 19 20 21 22 23 24 25 26 27 28 08/14/08 1 1 : , RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE AGREEMENT WITH OMNIPOINT COMMUNICATIONS INC.,RELATING TO CITY OWNED 2 PROPERTY LOCATED NORTH OF BASE LINE STREET AND EAST OF CALIFORNIA STREET (ANNE SHIRRELLS PARK). 3 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof 6 held on the day of . 20 by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 ESTRADA 9 10 BAXTER 11 BRINKER 12 DERRY 13 KELLEY 14 JOHNSON 15 16 MCCAMMACK 17 18 City Clerk 19 20 The foregoing resolution is hereby approved this day of , 20 21 22 PATRICK J. MORRIS, Mayor City of San Bernardino 23 Approved as to form: 24 25 � J AphS F. PENMAN 26 Attorney 27 28 08/14/08 2 Exhibit 1 LEASE THIS LEASE (Lease), is made and entered into this day of 2008, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "Lessor", and Omnipoint Communications Inc., a Delaware corporation, a subsidiary of T-Mobile USA Inc., a Delaware corporation hereinafter referred to as "Lessee". RECITALS This Lease is made and entered into with respect to the following facts: (a) Lessor is the owner of the Premises herein described. (b) Lessee has requested permission to construct mobile/wireless communications facilities to be located at Anne Shirrells Park ("Property") on the North East corner of the intersection of N. California Street and W. Base i L ne Street in the City of San Bernardino (APN 0143-211-04, 11), which Property is more particularly described in Exhibit "A" attached hereto, and Lessor is willing to lease a portion of the Property to Lessee upon the terms and conditions hereinafter set forth. (c) Lessee believes that the facilities will not interfere with the Department of Parks and Recreation's operations or the public's use of Anne Shirrells Park. (d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all governmental permits and approvals enabling Lessee, or its assigns to construct and operate mobile/wireless communications facilities on the Premises. NOW THEREFORE, the parties hereto agree as follows: 1. Property Leased: Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, approximately IF-24775 B Anne Sherrills Park 1 five hundred ten (510) square feet of land, more particularly described in Exhibit "B" attached hereto (the "Premises"). Said Premises includes any appurtenant facilities and applicable easements for access and utilities as described herein. 2. Term: The term of this Lease shall be five (5) years, commencing with the date both Lessor and Lessee have executed this Lease ("Commencement Date"). Lessee shall have the right to extend the term of this Lease for five (5) additional terms of five (5) years each. Each renewal term shall be on the terms and conditions set forth herein. This Lease shall automatically be extended for each successive five (5) year renewal term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior to the expiration of the first five (5) year term or any renewal term. 3. Lease Payments: Lessee shall pay Lessor as rent, the annual sum of Twenty- One Thousand, Five Hundred and Eighty-Eight and 00/100 Dollars ($ 21,588), payable in monthly installments commencing upon the date the building permit is issued ("Rent Start Date"). The monthly installments shall be in the amount of One Thousand and Seven Hundred and Ninety-Nine and 00/100 Dollars ($1,799.00) each month, due and payable on the Rent Start Date, and on the same date of each month thereafter. Should the first and last payment of rent be for a partial month, then only the pro-rata portion of the rent shall be paid to Lessor. Payments shall be mailed or delivered to: City of San Bernardino Development Services Department/Real Property Section EE24775 B Anne Sherrills Park 300 North "D" Street San Bernardino, CA 92418 Rent shall be increased on each five (5) year anniversary of the Rent Start Date by an amount equal to ten percent (10%) of the rent then in effect for the previous term or renewal term. 4. Use Restrictions: The Premises may be used by Lessee for any lawful activity in connection with the provision of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies, and the testing, investigation, construction, maintenance and operation of related communications facilities. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses, permits, and any and all other necessary approvals that may be required for Lessee's intended use of the Premises. 5. Improvements: (a) Lessee shall have the right (but not the obligation) at any time prior to the Commencement Date, to enter the Premises for the purpose of making necessary engineering surveys and inspections (and soil tests where applicable) and other reasonably necessary tests ("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined herein) for mobile/wireless communications operations. During any Tests, Lessee shall obtain and maintain insurance as set forth in Paragraph 10, and will notify Lessor at least forty-eight (48) hours prior to any proposed Tests, and will coordinate the scheduling of same with Lessor. If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee shall notify Lessor and this Lease shall terminate. Lessee shall repair any damage to the Premises caused by Lessee and shall restore the Premises to the condition existing prior to conducting the Tests. EE24775 B Anne Sherrills Park 3 (b) Lessee shall have the right to construct, erect, maintain, operate and remove mobile/wireless communications facilities on the Premises, including but not limited to an antenna tower or pole and foundation, utility lines, transmission lines, air conditioned equipment shelter(s), electronic equipment, transmitting and receiving antennas, a standby / emergency power generator and generator pad, and supporting equipment, structures and improvements ("Lessee Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare, maintain and alter the Premises for Lessee's business operations and to install transmission lines connecting the antenna to transmitters and receivers. All of Lessee's construction and installation work shall be performed at Lessee's sole cost and expense and in a good workmanlike manner. Lessee shall hold title to the Lessee Facilities and all of the Lessee Facilities shall remain the property of Lessee and are not fixtures. Lessee has the right to remove the Lessee Facilities at its sole expense on or before the expiration or earlier termination of this Lease. Once the Lessee Facilities are installed, Lessee shall not make any material alterations to the Premises, or any part thereof, other than as set forth in Paragraph 5 herein, without the prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing maintenance, repairs, like-kind or similar replacements of the Lessee Facilities and modifications made within the interior of any shelters or base station equipment shall not be considered "Material Alterations" Any and all alterations and/or improvements made to the Premises pursuant to this Lease, including but not limited to Lessee Facilities, shall, upon termination of this Lease, be removed from the Premises, and the land returned to its previous state, excepting normal wear and tear. (c) Lessor shall provide to Lessee, Lessee's employees, agents and contractors, access to the Premises without notice to Lessor twenty-four (24) hours a day, seven IE24775 B Anne Sherrills Park 4 (7) days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of ingress to and egress from said Premises over the Property, and shall allow Lessee access from the nearest public roadway to the Premises at all times, and hereby grants such non-exclusive ingress and egress rights to Lessee, and to Lessee's agents, employees, and contractors, across the Property as described in Exhibit A, to the extent required to construct, erect, maintain, install, remove and operate the Lessee Facilities on the Premises. Lessee shall repair any damages Lessee, its agents, employees, officers, or contractors cause to the Property in accessing the Premises over the above-described ingress and egress area. 6. Maintenance and Inspections: Lessee shall, at Lessee's own cost and expense, keep and maintain all improvements hereinafter constructed on the Premises in good condition and repair, and shall use all reasonable precaution to prevent waste, damage or injury to the Premises. Lessor shall, at any reasonable time, have the right to go upon the Premises upon seventy-two (72) hour prior written notice to Lessee, and inspect and examine the same relative to such maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an employee or authorized representative of Lessee. 7. Utilities: Lessee shall have the right to install utilities at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency power generators), subject to Lessor's approval of the location, which approval shall not be unreasonably withheld. Lessee shall pay for all electricity, gas, water, telephone service, and all other services and utilities, including service installation fees and charges for such utilities, used by IE24775 B Anne Sherrills Park 5 Lessee related to the Premises during the term of this Lease. 8. Liens and/or Encumbrances: Lessee shall pay or cause to be paid, all costs of construction and/or installation of all improvements. Lessee shall keep the Premises free and clear of any and all claims arising out of performance of work on Lessee's behalf, furnishing of materials on Lessee's behalf, and upon use of utilities by Lessee. This Lease shall be subordinate to any lien, mortgage or deed of trust currently on record against said Property. 9. Permits and Fees: Lessee shall pay all license fees, assessments, penalties or fines which may be levied against Lessee by virtue of the installation of Lessee's Facilities. Lessor shall pay when due all real property taxes for the Property, including the Premises. In the event that Lessor fails to pay any such real property taxes or other fees and assessments, Lessee shall have the right, but not the obligation, to pay such owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing, Lessee shall pay any personal property tax, real property tax or any other tax and/or fee which are directly attributable to the presence or installation of the Lessee's Antenna Facilities, only for so long as this Lease has not expired of its own terms or is not terminated by either party. Lessor hereby grants to Lessee the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of Lessor and/or Lessee, any personal property or real property tax assessments that may affect Lessee. If Lessor receives notice of any personal property or real property tax assessment against the Lessor, which may affect Lessee and is directly attributable to Lessee's installation, Lessor shall provide timely notice of the assessment to Lessee sufficient to allow Lessee to consent to or challenge such assessment. Further, Lessor shall provide to Lessee any and all IE24775 B Anne Sherrills Park 6 documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 9. 10. Liability Insurance: Lessee agrees to procure and maintain in force during the term of this Lease and any extension, at Lessee's sole cost and expense, the following insurance from companies with an A.M. Best Rating of at least A-VII, and with such minimum limits as set forth below, which shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and contractors, arising out of or in connection with Lessee's use of the Premises as provided for herein; (1) Commercial General Liability with limits of five million dollars ($5,000,000.00) per occurrence, provided such limit may be satisfied by a combination of primary and umbrella policies, Lessee may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Lessee may maintain. (2) Automobile Liability with a combined single limit of one million dollars ($1,000,000.00) per accident, and (3) Worker's Compensation Insurance as required by law and Employers' Liability with limits of one million dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor a certificate of insurance and name Lessor as an additional insured for the general liability policy, which certificate provides: (a) On the Commercial General Liability policy that the City of San Bernardino is named as an additional insured for the acts or omissions of Lessee. (b) The certificates shall include the insurance company name, policy number, period of coverage, and the amount of insurance. (c) That the Real Property Section of the Development Services Department of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to cancellation or reduction of required limits on the Lease of the policy. IE24775 B Anne Sherrills Park 7 (d) That Lessee's insurance shall be primary to any coverage the City of San Bernardino may have in connection with the acts or omissions of Lessee. 11. Indemnification: Lessor and Lessee shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from or related to the indemnifying party's breach of any term or condition of this Lease or the negligence or willful misconduct of the indemnifying party, or its agents, employees or contractors in or about the Premises. Except as provided in the first sentence, Lessee shall defend (if requested by Lessor), indemnify, and hold harmless Lessor, its agents, boards, officers, employees, representatives or contractors against any and all claims, suits, damages for bodily injury, including death, property damage, demands, loss or liability of any kind or nature ("Claims") arising from or related to Lessee's operations under this Lease except for claims arising out of the negligence or misconduct of Lessor, its agents, officers, employees, representatives or contractors. The duties described in this Paragraph 11 shall apply as of the Effective Date of this Lease and survive the termination of this Lease. 12. Taxes/Possessory Interest: Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of property taxes levied on such interest. Lessee agrees to, and shall indemnify and hold harmless, Lessor from any and all liability for any such taxes during the lease term due pursuant to Paragraph 9, Permits and Fees above. 13. Waiver of Lessor's Lien. IE24775 B Anne Sherrills Park 8 (a) Lessor waives any lien rights it may have concerning the Lessee Facilities, all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. (b) Lessor acknowledges that Lessee has entered into a financing arrangement including promissory notes and financial and security Leases for the financing of the Lessee Facilities ("Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Lessor 1 (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 14. Assignment and Subletting: Lessee may not assign all or any part of its interest in this Lease or in the Premises without the prior written consent of Lessor; provided, however, that Lessee may assign, without notice to Lessor, its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease as set forth in Paragraph 13 above. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under this Lease, provided that the assignee assumes all of Lessee's obligations herein. Lessor may assign this Lease, which assignment may be evidenced by written notice to Lessee within a reasonable period of time thereafter, provided that the assignee assumes all of Lessor's obligations herein, including but not limited to, those set forth in Paragraph 13 ("Waiver of Lessor's Lien") above. This Lease shall run with the Property EE24775 B Anne Sherrills Park 9 E , and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity, to whom Lessee (i) has obligations for borrowed money or with respect to guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or with respect to guaranties thereof. 15. Termination: This Lease may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term hereof by the -. other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that the Lease shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty (60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice; or (ii) by Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Lessee Facilities; or (iii) by Lessee if Lessee is unable to occupy.and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; or (iv) by Lessee if any environmental report for the Property reveals the presence of any Hazardous Material after the Commencement Date; or (v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference; or (vi) by 1 IE24775 B Anne Sherrills Park 10 WYfiNl 111 CW Lessee if the Lessor fails to deliver to Lessee an executed memorandum of Lease or non-disturbance and attornment pursuant to Paragraphs 18(g) and (h) below. 16. Hazardous Materials: (a) As of the Commencement Date of this Lease: (1) Lessee hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Premises in violation of any Environmental Law (as defined below), and (2) Lessor hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Premises in violation of any Environmental Law; (ii) no notice has been received by or on behalf of Lessor from, and Lessor has no knowledge that notice has been given to any predecessor owner or operator of the Premises by, any governmental entity or any person or entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Property; and (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Property in violation of any Environmental Law. (b) Without limitation of Paragraph 11, Lessor and Lessee shall each indemnify, defend and hold the other harmless from and against all Losses arising from (i) any breach of any representation or warranty made in this Paragraph 16 by such party; and/or (ii) environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Lessee, from operations in or about the Premises by Lessee or Lessee's agents, employees or contractors, and in the case of Lessor, from the ownership or control of, or operations in or about, the Property by Lessor or Lessor's predecessors in interest, and their respective agents, employees, contractors, lessees, guests or other parties. The duties described in IE24775 B Anne Sherrills Park 11 this Paragraph 16 shall apply as of the Commencement date of this Lease and survive termination of this Lease. (c)"Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Law" means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i) human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment. 17. Interference with Communications: Lessee's Facilities shall not disturb the communications configurations, equipment and frequency which exist on the Property on the Commencement Date ("Pre-existing Communications"), and Lessee's Facilities shall comply with all non-interference rules of the EE24775 B Anne Sherrills Park 12 Federal Communications Commission ("FCC"), and the conditions set forth in Development Permit I, regarding the City's public safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC or other Federal agency or department). Lessor shall not and shall not permit its lessees or licensees to use of any portion of the Property in a way that interferes with the communications operations of Lessee described in Section 4, above. Such interference with Lessee's communications operations shall be deemed a material breach by Lessor, and Lessor shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference will cause irreparable injury to Lessee, and therefore, Lessee shall have the right to bring action to enjoin such interference or to terminate this Lease immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 18. Miscellaneous: (a) This Lease constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other Leases concerning the subject matter contained herein. Any amendments to this Lease must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Premises and their real and personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. (c) If any provision of this Lease is invalid or unenforceable with respect to any party, the remainder of this Lease or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of IE24775 B Anne Sherrills Park 13 this Lease shall be valid and enforceable to the fullest extent permitted by law. (d) This Lease shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (e) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Lessor: Lessee: City of San Bernardino T-Mobile USA, Inc. Development Services Department 12920 SE 38th Street Real Property Section Bellevue, WA 98006 300 N D Street Attn: PCS Lease Administrator San Bernardino, CA 92410 Site No. IE24775B Anne Shirrells Park with a copy to: Attn: City Attorney With a copy to: Omnipoint Communications, Inc. 3 MacArthur Place, Suite 1100 Santa Ana, CA 92707 Attn: Lease Administration Manager Site No. IE24775B Anne Shirrells Park Lessor or Lessee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt. (f) This Lease shall be governed by the laws of the State of California. Any legal proceeding brought to enforce any right, interest, or other demand to this Lease shall be brought in the courts with jurisdiction in the County of San Bernardino, State of California. The prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to recover from the losing party reasonable attorney's fees and court costs, including appeals, if any, in connection with that action. The costs, salary, and expenses of the City Attorney and members of its office in connection with that action shall be considered as "attorney's fees" for IE24775 B Anne Sherrells Park 14 the purposes of this Lease. (g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in the form annexed hereto as Exhibit C and acknowledges that such Memorandum of Lease will be recorded by Lessee in the official records of the County where the Land is located. (h) In the event the Land is encumbered by a mortgage or deed of trust. Lessor agrees to obtain and deliver to Lessee an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. (i) Lessor agrees to fully cooperate, including executing necessary documentation, with Lessee to obtain information and documentation clearing any outstanding title issues that could adversely affect Lessee's interest in the Premises created by this Lease. (j) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Lease, such party shall not unreasonably delay or withhold its approval or consent. (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Lease. (1) The captions and headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Lease. (m) All Riders and Exhibits annexed hereto form material parts of this Lease. (n) This Lease may be executed in duplicate counterparts, each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set forth at the beginning of this Lease. IE24775 B Anne Sherrills Park 15 LESSOR: LESSEE: CITY OF SAN BERNARDINO OMNIPOINT COMMUNICATIONS, INC. Fred Wilson, City Manager 4�torEn ura, Di gine e Engineering & Operations- Inland Empire Market ATTEST: Approved as to form Tania 8. D o Corporate Counsel Rachel Clark, City Clerk Approved as to form: a es F. Penman. City Attorney IE24775 B Anne Sherrills Park 16 EXHIBIT A DESCRIPTION OF LAND to the Lease Agreement dated 200 , by and between CITY OF SAN BERNARDINO, as Lessor, and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc. as Lessee. The Land is described and/or depicted as follows Lot 7 and the South 170 feet of Lot 6, H.H Linville's Subdivision, as per plat thereof recorded in Book 8 of Maps, Page 47, records of the County Recorder of San Bernardino County, State of California. EXCEPTING THEREFROM, the west 300 feet and the south 190 feet of said Lot 7. APN: 0143-211-04, 11 I IE24775 B Anne Sherrills Park 17 i EXHIBIT B DESCRIPTION OF PREMISES to the Lease Agreement dated , 200 , by and between CITY OF SAN BERNARDINO, as Lessor and Omnipoint Communications Inc., a subsidiary of T-Mobile USA Inc., as Lessee. The Premises are described and/or depicted as follows: See Attached Notes: 1. Lessee may replace this Exhibit with a survey of the Premises once Lessee receives it. 2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental authorities. 3. The access road's width will be the width required by the applicable governmental authorities, including police and fire departments. 4. Lessee may install up to twelve (12) antennas and twenty four (24) coaxial cables subject to City Development Permit approval. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions and locations may vary from what is shown above. 5. The location of any utility easement is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations. IE24775 B Anne Sherrills Park TOTAL PROPOSED T—MOBILE ALL EQUIPMENT LOCATIONS ARE APPROXIMATE AND ARE LEASE AREA 441 S.F. SUBJECT TO APPROVAL BY T—MOBILE, STRUCTURAL AND RF ENGINEERS. LOCATIONS OF POWER do CMU ENCLOSURE — 21'-1'x13'-5' - 297 S.F. TELEPHONE FACILITIES ARE SUBJECT TO APPROVAL BY LIGHT POLE— 12'-0'x12'-0' = 144 S.F. UTILITY COMPANIES. �J APN: - PROPOSED T—MOBILE G` - - - 0143-211-004- -••-- - LEASE AREA (22'-1'x -:•:-:-:- �` PROPOSED T—MOBILE' 13'-5' 297 SOFT) V LEASE AREA (12'-0'x 12'-0' = 144 SQ.FT7 PROPOSED POWER/TELCO G - - RUN (*175') X X x — WEST 1_3TtL STREET 0143-211-011 x _•,•,•,•_�_ _ � 4•.::(E) BASEBALL, I — G j. FIELD. . x . (E) POWER POC PROPOSED POWER APN: \ SOURCE 0143-211-003 G,f- x \.'. (E) POWER POLE NO. < +- APN: :.I I 4028591E PROPOSED 01.43 2.11-0.12 '_ _ x- j TELCO SOURCE G < x Z L(E) RESIDENTIAL XG a G < x N AREA PLA SCALE: 1- = too•—o' U PROPOSED T—MOBILE 3' 21— 1. PROPOSED T—MOBILE B 5 WIDE METAL ACCESS GATE CABINETS (6 TOTAL) LO i i PROPOSED T—MOBLt'77 ————_ PPC CABINET, COMBO r CABINET k DISCONNECT MOUNTED TO CMU WALL \.� ��' �./ �./ �/� �'✓ fit/ PROPOSED T—MOBILE PROPOSED TMOBILIL E UNDERGROUND COAX 75y—O'O LIGHT PO CAB4,RUN APROX PROPOSED T—MOBILE PANEL ANTENNA (TOTAL 0"2) M PROPOSED��"f—M081LE GPS ANTENNA - x x x x x x x x x LEASE PLAN SCALE: 1/16' = 1'-0- PUNS PREPARED Y. SITE INFORMATION: T ' Mobile'' NOVACOm ANNE SHIRRELLS BHT POLE 7/25/08 stick together' ".``°mm" °`"".°"' PARK RAW 'AND "•'" :"�`"„ ^••• IE24775B DRAWN ew TGW WAI NTS 41DO OLYRDUN STREET.SUITE tai 9T 1699 D919�1Q .19R 0 SI MI VALLEY,G 93063 090014A G 91590-17U 1295 N.PENNSYLVANIA AVE. mmmm_(1151)505-am FM(981)55FM55 SAN BERNARDINO,CA 92411 LANDLORD may: DATE TOTAL PROPOSED T-MOBILE LEASE AREA 411 S.F. ALL EQUIPMENT LOCATIONS ARE APPROXIMATE AND ARE SUBJECT TO APPROVAL BY T-MOBILE, STRUCTURAL CMU ENCLOSURE - 12'-1'x13'-5' = 297 S.F. AND RF ENGINEERS. LOCATIONS OF POWER k UGHT POLE - 12'-0'x12'-0' - 144 S.F. TELEPHONE FACILITIES ARE SUBJECT TO APPROVAL BY UTILITY COMPANIES. PROPOSED E MOBILE (STING LIGHT POLE PROPOSED T-MOBILE TO REPLACE EXISTING LIGHT POLE GPS ANTENNA PROPOSED T-MOBILE PANEL ANTENNA (TOTAL OF 12) (o � � U PROPOSED T—MOBILE 2'0 PARABOLIC ANTENNA LIJ J O LJ V) n Z Z E- J Z 2 Of LJ C7 Q LLJ Z J H Z W < LJ U LLJ J Iw— Q J m0 Q Z 0 U F- H O Q DO ~ 0 LJ w -J N o a_ o° of Ld_J m 0 d m a LL. ° o a 0 a o ~ o O (- PROPOSED T-MOBILE N 22'-1'x13'-5' CMU CL 0 1 EQUIPMENT ENCLOSURE al I n WITH CHAIN UNK TOPPER 0 O O.. � PROPOSED 8T5 CABINET (TOTAL OF 5) p I PROPOSED T-MOBILE POWER/TELCO H-FRAME LO PROPOSED T-MOBILE CV U.G. COAX RUN PROPOSED T-MOBILE U.G. UTILITY RUN TLE TLE-TLE-TLE E TLE' ELEVATION SCALE: 3/32• = 1' mi PLANS PREPARED BY. SITE INFORMATION: '1' ' •Mobile'' NOVACOm ANNE SHIRRELLS ' HT POLE 7/25/08 stick together` """""``°mm°°"°"°°`°°`°"'°' PARK �"W LAND ".-A.,W""1.0" 11—.... IE24775B DRAWN BY--TGW SCALE NITS 4100 GUARG STREET,SURE 101 faro comQa n.un D SIMI VALLEY,U 93063 ppgyk CA AMP-1788 1298 N.PENNSYLVANIA AVE. PHONE:(1181)898-SM FAX.(281)901-9108 SAN BERNARDINO,CA 92111 LANDLORD RIRIAL. DA7E EXHIBIT C RECORDED AT REQUEST OF,AND WHEN RECORDED RETURN TO: Omnipoint Communications, Inc. a Subsidiary of T-Mobile USA Inc. 3 MacArthur Place, Suite 1100 Santa Ana,CA 92707 Attn: Lease Administration Site No. IE24775B Site Name: Anne Shirrells Park MEMORANDUM OF LEASE IE24775B/Anne Shirrells Park APN: 0143-211-04; -11 This MEMORANDUM OF LEASE is entered into on this day of , 2008 by CITY OF SAN BERNARDINO, with an address at 300 N. D Street, San Bernardino, CA 92410 (hereinafter referred to as "Owner' or "Lessor") and Omnipoint Communications Inc., a Delaware corporation, a subsidiary of T-Mobile USA Inc., a Delaware corporation (hereinafter referred to as "OCI" or"Lessee"). 1. Lessor and Lessee entered into a Lease Agreement ("Lease") dated as of this day of , 2008 effective upon full execution of the parties ("Effective Date") for the purpose of OCI undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Lease. 2. The term of the Lease is for five (5) years commencing on the date of full execution of the parties ("Effective Date") and terminating on the fifth anniversary of the Commencement Date with five(5) successive five (5) year options to renew. 3. The Land that is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee and all necessary access and utility easements (the "Premises") are set forth in the Lease. In witness whereof, the parties have executed this Memorandum of Lease as of the day and year first written above. LESSOR: City of San Bernardino, LESSEE: Omnipoint Communications, Inc. A Municipal corporation a subsidiary of T-Mobile USA, Inc. NOT FOR EXECUTION -EXHIBIT ONLY NOT FOR EXECUTION—EXHIBIT ONLY Wilson Martha Ventura Title: City Manager Title: Area ctor Date: Date: IE24775 B Anne Sherrills Park 19 STATE OF ) COUNTY OF ) On this day of before me, Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: STATE OF ) COUNTY OF ) On this day of before me, Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: IE24775 B Anne Sherrills Park 20