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HomeMy WebLinkAbout2003 Santa Rosa Park Lease Agreement PTITELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK This Lease is made and entered into this 11 day of2003, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to as "Lessor"), and PACIFIC BELL WIRELESS, LLC, a Nevada limited liability company d/b/a CINGULAR WIRELESS (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 property described in Exhibit A, located at 190 Santa Rosa Street, San Luis Obispo, California, commonly known as Santa Rosa Park. B. Lessee has requested permission to construct a wireless communications facility to be located at Santa Rosa Park and Lessee is willing to construct and dedicate certain public improvements to Lessor. Lessor is willing to lease a portion of Santa Rosa Park to Lessee upon the terms and conditions hereinafter set forth. C. Lessee warrants that the facility will not interfere with the Department of Parks and Recreation's operations or the public's use of the park. D. This Lease is conditioned upon Lessee obtaining all governmental permits and approvals enabling Lessee to construct and operate wireless communications facilities on the Premises, as defined below. E. Lessor and Lessee have heretofore entered into a Memorandum of Understanding dated April 16, 2002 concerning Santa Rosa Park. NOW THEREFORE, the parties hereto agree as follows: 1. Premises. Lessor is the owner of a parcel of land located in the City of San Luis Obispo, County of San Luis Obispo, State of California, located at 190 Santa Rosa Street, San Luis Obispo, California, 93401, commonly known as Santa Rosa Park. The land is more particularly described in Exhibit A, attached hereto. Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor approximately one thousand two hundred (1,200) square feet of the land and all access and Teleconununications Facility Lease at Santa Rosa Park Page 1 of 27 AV-9 utility easements described in Exhibit B attached hereto, and by this reference made a part hereof (hereinafter referred to as the "Premises"). This Lease is subject to the terms, covenants and conditions hereinafter set forth and Lessee covenants, as a material part of the consideration for this Lease, to keep and perform each and every term, covenant and condition of said Lease. During the term of this Lease, Lessor also grants to Lessee an irrevocable, nonexclusive right of ingress and egress, seven days a week, twenty-four (24) hours a day, and the right to install and maintain underground utility wires and cables and conduits and pipes (1) from the Premises to the nearest public right-of-way, and (2) from the radio equipment to the antennas. 2. Improvements. A. Lessee shall design and perform, construct or erect or cause to be constructed or erected at its sole cost the following improvements as shown on Exhibit `B" (hereinafter "Park Improvements"): 1) Remove a portion of the central parking lot and reconfigure the layout of the remaining parking lot to result in no net loss of parking spaces. the newly turfed area. 2) Install turf and irrigation systems where the asphalt was removed. 3) Relocate the softball field right field fence from the east to the west of 4) Replace and relocate the right field light pole to the west side of the newly turfed area with two light poles that also serve as cellular antennas. softball field. 5) Construct a building for cellular equipment on the north side of the 6) Construct a building located on the east side of the basketball court for communications equipment and storage for the skate and blading program ("radio/utility bui(ding"), including the following for the Lessee's Fire Department: a) fiber and phone service access in two dedicated conduits (2 inch) from Hathway Street to the radio/utility building; b) space and installation for a two floor -to -ceiling "standard racks" (each one being 19 inches wide by 84 inches tall); c) area Telecommunications Facility Lease at Santa Rosa Park Page 2 of 27 separation, for security purposes only, for the two racks mentioned above (chain link fence with a locking gate is suggested); d) one 20 amp electrical service, backed -up for by emergency generator to the secure area (this may be a shared system); e) climate control for the secured area; f) access to the secure area 24- hours a day, 365 days a year; g) space for 6 antenna on the light pole site, with appropriate conduit runs to the radio/utility building; h) assurance that only FCC licensed radio systems are to be installed in the radio/utility building. Improvements project. 7) Upgrade the lighting on the multi -use court and skate area. 8) Make other minor improvements as necessary to complete the Park Lessee shall also erect on the Premises communications facilities, which include, but are not limited to, equipment shelters, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas, and supporting structures and improvements (hereinafter "Lessee's Facilities") as shown on Exhibit "B". The plans for the Park Improvements and Lessee's Facilities (landscaping, irrigation, fencing, building, concrete, and all related improvements) as shown on Exhibit "B" shall have the prior written approval of Lessor in its municipal capacity (not in its capacity as landlord). Lessee shall dedicate the Park Improvements to Lessor upon completion thereof. B. The Park Improvements shall be performed by Lessee under the authority, direction, supervision and approval of Lessor. Lessee shall submit construction plans to the City's Director of Parks and Recreation for approval prior to submitting the application and plans to the Community Development Department for building permit processing and approval. C. Lessee acknowledges and understands that the improvement is a public construction project subject to the competitive bidding requirement contained in California Public Contracts Code Section 20162 and the prevailing wage requirement contained in California Labor Code Section 1771. Telecon+n unications Facility Lease at Santa Rosa Park Page 3 of 27 D. Lessee shall provide a Performance Bond to Lessor to guarantee completion of the Park Improvements in the amount of Two Hundred Twenty-seven Thousand Eighty-three Dollars ($227,083). Bond shall be provided prior to the issuing of the building permit. 3. Term. The initial term of this Lease shall be for five (5) years ("Initial Term") commencing with the issuance of a City building permit to construct the Lessee's Facilities and Park Improvements, or April 1, 2003, whichever is earlier ("Commencement Date"). This Lease shall automatically be renewed on the same terms and conditions, for three (3) additional terms (each a "Renewal Term") of five (5) years each, unless Lessee notifies Lessor of its intention not to renew, at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term. 41 A 4. Rent. Rent shall be paid annually in advance as follows: 4 !,-C.Joey 2 ju � z2 A. Lessee shall pay to Lessor as annual rent on or before the Commencement Date of the Lease the sum of Twenty Thousand Dollars ($20,000.00) ("Annual Rent") and Additional Rent per tenant without deduction, setoff, notice or demand, provided, however, that Lessor shall waive the Annual Rent and any Additional Annual Rent (as defined in Section 22.E.) in consideration for the Park Improvements constructed by Lessee at its, and its sublease tenant's sole cost. Lessor's waiver of Lessee's obligation to make Annual Rent and any Additional Annual Rent payments shall commence on the Commencement Date and shall continue until the total cost of the Park Improvements has been credited against such Rent payments. B. Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease year without deduction, setoff, notice, or demand the previous year's Annual Rent multiplied by the CPI Adjuster, or multiplied by three percent (3%), whichever is greater. C. The CPI Adjuster means a percent, which is calculated by dividing the United States Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of the -)K U.S. Department of Labor three (3) months prior to the adjustment date by the base Index number published three (3) months prior to the Commencement Date, or previous adjustment date, as applicable. If the Index is changed so that the base Index number differs from that in effect when the first extended W usF —' lE— u s c. t -n E s A,l a a_A Gt 6— C-P i t= oe.- TWC Y E*Z," DFt rr-meMC Z c>KX . Teleconrnuunications Facility Lease at Santa Rosa Park Page 4 of 27 term commenced, the Index shall be converted in accordance with the conversion factor published by the Bureau of Labor Statistics. If the Index is discontinued or revised during an extended term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. D. If Lessee fails to pay the Annual Rent within thirty (30) days after such rent is due, Lessee shall pay a late fee of one and one half percent (1.5%) per month. This late charge does not establish a grace period. Lessor and Lessee agree that the charge is presumed to be the damages sustained by Lessor for Lessee's late payment of rent and that it is impracticable or difficult to fix the actual damages. E. Provided in Exhibit D is a sample schedule of lease payments to the City, assuming the value of improvements set forth in Section 2(A) of Two Hundred Twenty-seven Thousand Eighty-three Dollars ($227,083.) Minimum lease payments increase three percent 3% as set forth in Section 4(B) and are scheduled for the full twenty (20) year term. 5. Use. A. Lessee shall use the Premises for the sole purpose of constructing, maintaining, securing and operating wireless communications facilities (including but not limited to cellular, PCS, paging, and broad band) including the construction of equipment buildings and installation of required antennas and related communications equipment upon the new sports lighting poles all as listed, depicted, and described in the "Lessee's Facilities" which is attached hereto as Exhibit `B" and hereby incorporated by reference. Any other use of the Premises or use of equipment not described in Exhibit `B," is not authorized and shall constitute a breach of this Lease. B. Lessee must obtain all discretionary permits and approvals required by Lessor in its municipal capacity. Installation of a new wireless telecommunication or modification of an existing installation shall require use permit approval and architectural review. The applicant shall submit application materials and fees as required by the Community Development Department. Wireless communications facilities shall not be constructed, installed or modified prior to obtaining a City building Telecommunications Facility Lease at Santa Rosa Park Page 5 of 27 permit. It shall be the responsibility of the owner/operator of a telecommunications facility to provide the City with a notice of intent to modify site equipment in any way. Lessor shall reasonably cooperate (at no expense to Lessor) with Lessee in connection with Lessee's efforts to obtain all such permits and approvals; provided, however, Lessor shall not be obligated to apply for any permits or approvals with Lessee. Construction of Lessee's Facilities and the Park Improvements shall be at Lessee's sole expense. Further, Lessee shall maintain the Lessee's Facilities free from hazards or risk to the public health, safety and welfare. C. At all times throughout the term of this Lease, Lessee's use of the Premises shall be in conformance with, and subject to all conditions of, any and all discretionary permits in effect. D. Lessor agrees that Lessee's ability to use the Premises is dependent upon Lessee's obtaining all necessary certificates, permits and/or other approvals which may be required from Lessor in its municipal or regulatory capacity and from any federal, state or other local authority. Lessor agrees to cooperate with Lessee as to Lessee's obtaining such certificates, permits or other approvals. In the event Lessee is unable to obtain any necessary certificate, permit or other approval in order to operate or construct the Park Improvements or Lessee's Facilities, Lessee may terminate this Lease as provided herein, upon thirty (30) days prior written notice. 6. Interference. A. Lessee warrants that its construction, repair and operation of Lessee's Facilities will not interfere with Lessor's fire, police, public works and other public safety or city department communication broadcasts or frequencies. All operations by Lessee shall be in compliance with all Federal Communications Commission requirements and all applicable laws. B. If Lessor suspects or has reason to believe that Lessee's use of the Premises creates radio or television interference for nearby residents or interference with Lessor's communication systems, and if Lessee (i) does not proceed diligently to eliminate such interference, or (ii) provide evidence that Lessee and the sublease tenant are not the source of such interference, within ten (10) Telecommunications Facility ,Lease at Santa Rosa Park Page 6 of 27 business days after notice from Lessor to do so, Lessor may immediately terminate this Lease by giving notice to Lessee. C. Lessee shall provide Lessor with a contact person who shall be available twenty- four (24) hours a day to receive reports of any interference with Lessor's frequencies. In the event that there is interference with Lessor's public safety frequencies, Lessee shall immediately cease the operations creating the interference when directed to do so by the City's Fire Chief and/or Police Chief until such time that the interference can be eliminated to the satisfaction of the City's Fire Chief and/or Police Chief. Lessee's failure to immediately cease such operations shall be considered a material breach of this Lease notwithstanding Paragraph G.B. above. 7. Radio Frequency Emission Exposure. A. No wireless telecommunication facility shall be sited or operated in such a manner that it violates any condition of its Federal Communication Commission's (FCC) permit or license. To that end no facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive legally enforceable and applicable standard subsequently adopted or promulgated by the city, county, the state of California, or the federal government. For purposes of radio frequency emissions, compliance with FCC exposure limitations shall constitute a conclusive presumption that there is no hazard or risk to the public health, safety or welfare. B. Initial compliance with this requirement shall be demonstrated for any facility within three hundred (300) feet of residential uses or sensitive receptors such as schools, churches, hospitals, etc. and all broadcast radio and television facilities, regardless of adjacent land uses, through submission, at the time of application for the necessary permit or entitlement, calculations specifying MPE levels in the inhabited area where the levels produced are projected to be highest. If these calculated levels exceed eighty percent (80%) of the MPE limits, the applicant shall hire a qualified electrical engineer licensed by the State of California to measure exposure levels at the location after the Telecommunications Facility Lease at Santa Rosa Park Page 7 of 27 I& b facility is in operation. A report of these measurements and the engineer's findings with respect to compliance with MPE limits shall be submitted to the Community Development Director. Lessee's Facilities shall not commence normal operations until it complies with, or has been modified to comply with this standard. Proof of compliance shall be a certification provided by the engineer who prepared the original report. In order to assure the objectivity of the analysis, the City may require, at the applicant's expense, independent verification of the results of the analysis. C. Every wireless telecommunication facility within three hundred (300) feet of an inhabited area and all broadcast radio and television facilities shall demonstrate continued compliance with its FCC permit or license and MPE limits. Every five (5) years a report listing each transmitter and antenna present at the facility and the effective radiated power radiated shall be submitted to the Community Development Director. If either the equipment or effective radiated power has increased, calculations specifying exposure levels in the inhabited areas where the levels are projected to be highest shall be prepared. Calculations shall also be prepared every time the adopted MPE limits change. If calculated levels in either of these cases exceed eighty (80%) of the MPE limits, the operator of the facility shall hire a qualified electrical engineer licensed by the State of California to measure the actual exposure levels produced. A report of these calculations, required measurements, if any, and the engineer's findings with respect to compliance with the current MPE limits shall be submitted to the Community Development Director within five (5) years of facility approval and every five (5) years thereafter. In the case of a change in the limits, the required report shall be submitted within ninety (90) days of the date the change becomes effective. D. Failure to supply the required reports or to remain in continued compliance with any FCC license, permit or MPE limits shall be considered a material breach of this Lease. 8. Visual Mid ag tion. Lessee will use a variety of visual mitigation strategies for all of its facilities, as determined necessary by the Community Development Director and as required through the Architectural Review process, with the goal of achieving a 100% stealth installation. Facilities shall be creatively designed to minimize the visual impact to the greatest extent possible by means of placement, Telecommunications Facility Lease at Santa Rosa Park Page 8 of 27 screening, and camouflage. The applicant shall use the smallest and least visible antennas possible to accomplish the coverage objectives. Each installation shall be designed to blend into its surroundings so that the antenna(s) and equipment are not apparent to the casual observer. The light poles in which antennas are located shall not exceed fourteen (14) inches in diameter. No more than one carrier shall install antennas in any given light pole. Ground mounted support equipment shall be undergrounded or otherwise screened from view so as to be effectively unnoticeable. All connections and conduits between the base of the antenna(s) and support equipment shall be undergrounded. Electrical and telephone service to the support equipment shall be undergrounded. 9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption caused by noise to people working and living in the vicinity. At no time shall equipment noise from any source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such equipment, whichever is less. This requirement may be modified at the discretion of the Community Development Director where typical ambient noise levels exceed 55 dB. Outdoor noise producing construction activities shall take place only on weekdays between the hours of 8:00 am and 5:00 pm unless a different schedule is approved as part of the use permit. Any facility utilizing temporary backup generators shall be required to meet or exceed Air Pollution Control District Standards. All generators shall be fitted with approved air pollution control devices. Projects that propose to include backup generators shall require review and approval from the Air Pollution Control District. Project plans shall indicate location, size, horsepower and type of fuel used for any proposed generator. Generators shall only be operated during power outages and for testing and maintenance purposes. Testing and maintenance shall only take place on weekdays between the hours of 10:00 am and noon. 10. Nondiscrimination. Subject to applicable laws, rules, and regulations, Lessee shall not discriminate against any person or group on the basis of age, sex, sexual orientation, AIDS, AIDS related condition, marital status, race, religion, creed, ancestry, national origin, disability, or handicap. 11. Subsurface Restrictions. The parties agree that this Lease covers only the surface of the Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premises Teleco►nmunications Facility Lease at Santa Rosa Park Page 9 of 27 as permitted in this Lease (including, without limitation, (i) the foundation for Lessee's monopole antenna structure and building, and (ii) cables, conduits and pipes within the Premises to connect Lessee's communications equipment within such building to the antennas to be constructed and maintained by Lessee within the Premises). 12. Liens. Lessee shall keep the premises free of mechanic's, material supplier's or other liens for any work done, labor performed or materials furnished therein by or for Lessee, and Lessee shall defend, indemnify and hold Lessor, its officials, employees and agents harmless from and against all claims, liens, demands, causes of action, liability, loss, cost and expense (including reasonable attorney's fees) of whatever kind for any such work done, labor performed or materials furnished. 13. No Utilities. Lessor shall not provide any utilities to the Premises. Lessee shall be permitted to install utility lines, meters for electricity, and shall arrange and pay for the installation and use of all utilities of whatsoever kind to the Premises. 14. Maintenance. A. Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintain Lessee's Facilities and all related improvements (except the Park Improvements as shown on Exhibit "B") in good condition, free from rodents, weeds, noxious plants and wild growth, in substantial repair, in a safe and sanitary condition, and in compliance with all applicable laws and regulations and shall promptly repair any damage caused by Lessee. If Lessee fails to maintain the Lessee's Facilities as required herein, Lessor may notify Lessee of said failure. If Lessee fails to correct the situation within thirty (30) days after notice or such longer period as may be established by Lessor, Lessor may make the necessary correction and the cost thereof, including but not limited to the cost of administration, and labor, materials, equipment, shall be paid by Lessee within thirty (30) days after receipt of a statement of said cost from Lessor. If said statement is not timely paid, Lessor may, at its option, choose any remedy available herein or by law, including the termination of this Lease. Lessee hereby waives to the extent permitted by law any right to make repairs at the expense of Lessor or to vacate the Premises in lieu thereof as may be provided by law. Telecommunications Facility Lease at Santa Rosa Park Page 10 of 27 B. Lessor shall have no duty to maintain or repair Lessee's Facilities or any of Lessee's improvements, including the light poles on the Premises. 15. Taxes. Lessee acknowledges that this Lease may create a possessory interest subject to property taxation and that Lessee may be liable for payment of taxes levied on such interest. Lessee shall promptly pay, prior to delinquency, all taxes, assessments and other governmental fees that may be lawfully levied against the Premises and any improvements or personal property located on the Premises and on any possessory interest created by this Lease, and provide proof of payment to Lessor on demand. 16. Insurance. Concurrent with the execution of this Lease, Lessee shall procure and maintain, at its cost, during the initial and any extended or Renewal Term of this Lease from an insurer admitted in California or having a minimum rating of or equivalent to A: VII in Best's Insurance Guide: A. Comprehensive General Liability insurance with a combined single limit of at least Five Million Dollars ($5,000,000) for each occurrence. Lessor, its officials, employees and agents shall be covered as additional insureds with respect to liability arising from activities performed by or on behalf of Lessee. Said insurance shall be primary insurance with respect to Lessor and shall contain a cross liability endorsement. B. "All Risk" property insurance in an amount sufficient to cover the full replacement value of Lessee's personal property, improvements and equipment on the Premises. C. Upon the execution of this Lease, Lessee shall deliver to Lessor certificates of insurance with original endorsements evidencing the coverage required by this Lease. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. D. Said insurance shall contain an endorsement requiring thirty (30) days prior written notice from insurer to Lessor before cancellation or change of coverage. E. Said insurance may provide for such deductibles or self -insured retention as may be acceptable to the City's Risk Manager or designee. In the event such insurance does provide for deductibles or self -insured retention, Lessee agrees that it will fully protect Lessor its officials and employees in the same manner as these interests would have been protected had a policy of commercial Telecommunications Facility Lease at Santa Rosa Park Page 11 of 27 insurance been in effect. With respect to damage to property, Lessor and Lessee hereby waive all rights of subrogation, one against the other, but only to the extent that collectible commercial insurance is available for said damage. F. The procuring of insurance shall not be construed as a limitation on Lessor's liability or as full performance on Lessee's part of the indemnification provision of this Lease. Lessee understands and agrees that, notwithstanding any insurance, Lessee's obligation to defend and indemnify Lessor, its officials and employees hereunder is for the full amount of any damage, loss cost or expense. G. Any modification or waiver of these insurance requirements shall only be made with the written approval of the Lessor's Risk Manager or designee. 17, Removal of Improvements. On the expiration or sooner termination of this Lease, Lessee at Lessee's sole cost shall have the right to remove Lessee's Facilities (with the exception of the Park Improvements as shown on Exhibit B, consisting of the equipment buildings and sports lighting poles) erected on the Premises by Lessee by giving notice of its intention to do so to Lessor and by removing same within forty-five (45) days after expiration or sooner termination of this Lease. Lessor may treat any such buildings or improvements as abandoned if Lessee fails to timely remove them and, in such event, (a) Lessor shall be deemed owner of them without accounting to Lessee, or (b) Lessor may cause their removal at Lessee's cost, with the exception of the underground conduits which may be abandoned in place by Lessee. 18. Relocation. Lessee agrees that nothing contained in this Lease shall create any right in Lessee for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapter lb of the California Government Code from Lessor on account of the expiration or sooner termination of this Lease. 19. Notice. Any notice required hereunder shall be in writing and personally delivered or deposited in the U.S. Postal Service, registered or certified, return receipt, postage prepaid, to the address of the respective parties set forth below: Telecommunications Facility Lease at Santa Rosa Park Page 12 of 27 LESSOR: LESSEE: Parks and Recreation Director City of San Luis Obispo 1341 Nipomo Street San Luis Obispo, CA 93401 Cingular Wireless Mail code GAN02 Attn: Network Real Estate Administration 6100 Atlantic Blvd. Norcross, GA 30071 With a copy concurrently to: Cingular Wireless Attn: Legal Department 2521 Michelle Drive, 2id Floor Tustin, CA 92780 Notice shall be deemed effective on the date shown on the return receipt or on the date personal delivery is made, whichever first occurs. If delivery is refused, the date of deposit of the copy in the mail shall be deemed the date of notice. Change of address shall be given as provided herein for notices. 20. Hazardous Materials and Waste. A. Lessee shall comply with all applicable laws regarding the use, storage and disposal of hazardous materials on the Premises. Lessee shall comply with California Health and Safety Code Section 25359.7 or its successor regarding notice to Lessor on discovery by Lessee of the presence or suspected presence of any hazardous substance on the Premises. B. Lessee shall not bring any hazardous materials onto the Premises except for those contained in its back-up power batteries and common materials used in telecommunications operations, e.g., cleaning solvents, Lessee shall treat all hazardous materials brought onto the Premises by it in accordance with all federal, state and local laws and regulations. C. Lessee shall specify any proposed generator usage and its proposed location. D. Lessor represents that the Premises have not been used for the generation, storage, treatment or disposal of hazardous materials, hazardous substances or hazardous wastes. In addition, Lessor represents that no hazardous materials, hazardous substances, or hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil, or any fraction or derivative thereof), or underground storage tanks are located on or near the Premises. Teleconi nunications Facility Lease at Santa Rosa Park Page 13 of 27 21. Indemnity. Lessee shall defend, protect, indemnify and hold harmless Lessor, its officials, employees and agents from all claims, demands, damages, causes of action, losses, liability, costs or expenses, including reasonable attorney's fees, of any kind or nature whatsoever (except those resulting from Lessor's sole negligence or willful misconduct) which Lessor, its officials, employees and agents may incur for injury to or death of persons or damage to or loss of property occurring in, on or about the Premises arising from the condition of the Premises (other than conditions existing prior to Lessee's occupancy of the Premises), the alleged acts or omissions of Lessee, any parent, subsidiary, affiliate or partnership in which any such entity participates, Lessee's officers, employees or agents, the occupancy, use or misuse of the Premises by Lessee, any parent, subsidiary, affiliate or partnership in which any such entity participates, Lessee's officers, employees or agents, or any breach of this Lease. Lessor shall protect, indemnify and save harmless Lessee, and its officers, agents and employees, from and against all claims, demands and causes of action by Lessor's employees or third parties on account of personal injuries or death or on account of property damages arising out of the use of the Premises by Lessor hereunder and resulting from the sole negligence or willful misconduct of Lessor or its officers, agents and employees. 22. Assignment and Subletting. Except for an assignment, sublease or transfer to Lessee's affiliate, parent, subsidiary, member or partner, or as a result of a merger or sale of substantially all of Lessee's assets ("Permitted Assignment") Lessee shall not assign or transfer this Lease or any interest herein, without the prior written consent of Lessor which shall not be unreasonably withheld, provided, however, that Lessee shall notify Lessor in writing of a Permitted Assignment within thirty (30) days. To obtain Lessor's consent to a proposed assignment or transfer (hereinafter collectively referred to as "transfer"), Lessee shall meet the following requirements and Lessee's failure to meet any requirement shall. allow Lessor to withhold consent: A. Lessee shall notify Lessor at least sixty (60) days prior to the date when Lessee desires the transfer to take effect ("Transfer Date") which notice shall contain the name, address and Telecoinsnunications Facility Lease at Santa Rosa Park Page 14 of 27 tip telephone number of the proposed transferee; the nature of the proposed transferee's business and details of its business experience. B. Lessor shall notify Lessee at least thirty days (30) days prior to the Transfer Date whether Lessor approves or disapproves of the proposed transfer. C. Any approved transferee shall assume and be deemed to have assumed this Lease and shall be jointly and severally liable with Lessee for the payment of rent and performance of the terms, covenants, and conditions of this Lease. No approved transfer shall be binding on Lessor until such transferee shall deliver to Lessor a counterpart of the transfer agreement with contains a covenant of assumption by transferee but the failure or refusal to execute or deliver such instrument shall not release transferee from its liability as stated herein. D. The consent of Lessor to any transfer shall not relieve Lessee of the obligation to obtain such consent to any further transfer. Further, neither this Lease nor any interest herein shall be subject to transfer by attachment, execution, proceedings in insolvency or bankruptcy (either voluntary or involuntary), or receivership. In the event of the transfer without the prior written consent of Lessor, such transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest. Any transfer without Lessor's consent shall constitute a default of this Lease. E. To obtain Lessor's consent to a sublease, Lessee shall meet the following requirements and Lessee's failure to meet any requirement shall allow Lessor to withhold consent: 1) The Lessee must pay to Lessor the same amount of Annual Rent on the sublease tenant's behalf as the Lessee ("Additional Annual Rent"). For example, if there were two sublease tenants by the beginning of the third year of this Agreement, the total rent due from the Lessee would be $63,654: the Annual Rent for the Lessee ($21,218, which is the first year's rent of $20,000 increased by 3% for two years) and the Additional Annual Rent for the two sublease tenants ($21,218 each). While the Lessee may require the sublease tenant to pay this amount as part of their sublease agreement with the Lessee, payment of the Additional Annual Rent is the sole responsibility of the Lessee, and is subject to the same terms, conditions and remedies as the Annual Rent. Telecommunications Facility Lease at Santa Rosa Park Page 15 of 27 J �r 2) Lessee shall notify Lessor at least sixty (60) days prior to the date when Lessee desires the sublease to take effect ("Sublease Date"), which notice shall contain the name, address and telephone number of the proposed sublease tenant; the nature of the proposed sublease tenant's business and details of its business experience. The first year of Additional Annual Rent shall be paid prior to the Sublease Date and will be prorated to the Lessee's Annual Rent payment due date; and shall be due annually thereafter with the Annual Rent. 3) Lessor and Lessee agree (by way of example and without limitation) that it shall be reasonable for Lessor to withhold its consent if any of the following exist or may exist: the proposed transferee's use of the Premises conflicts with or is inconsistent with the use of the Premises stated herein; the Lessee is in default under this Lease at the time the request for sublease is made and has not cured such default, if the same can be cured, prior to ten (10) business days prior to the Sublease Date. 4) The sublease tenant is subject the same terms and conditions of this Agreement as the Lessee. 5) Lessor shall notify Lessee at least fifteen (15) days prior to the Sublease Date whether Lessor approves or disapproves of the proposed sublease. 23, No Permits. Lessee shall not grant any rights -of -way, easements, franchises or permits in, on or across the Premises. 24. Encumbrances. Lessee shall take the Premises subject to any and all existing easements and other encumbrances. 25. Reservations. Lessor reserves the right to grant franchises, easements, rights -of -way or permits for pipeline purposes which will not interfere with Lessee's use of the Premises. 26. Default. The occurrence of any of the following acts shall constitute a default by Lessee: A. Failure to pay Annual Rent or Additional Annual Rent when due where such failure shall continue for a period of ten (10) days after Lessee's receipt of written notice from Lessor. B. Failure to perform any of the terms, covenants or conditions of this Lease if said failure is not cured within thirty (30) days after Lessee's receipt of written notice from Lessor of said Teleconannoucations Facility Lease at Santa Rosa Park Page 16 of 27 a V failure. If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lessee shall not be in default if Lessee begins to cure within the thirty -day period and diligently proceeds to cure to completion. Lessor's notice shall describe the default and shall demand that Lessor perform or quit the Premises. No such notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects in the notice. hereof. C. Any attempted assignment, transfer or sublease except as permitted in Section 22 D. Failure to maintain all necessary permits and business licenses required by the City in its municipal or regulatory capacity or failure to pay any fees for permits or licenses to the City when due; E. Failure to report or pay to the City all applicable sales taxes, transient occupancy taxes, business taxes, utility taxes or other excise taxes, when due. Subject to the terms of this Section, if Lessee does not comply with each term, covenant and condition of this Lease or if a default occurs, then Lessor may terminate this Lease and Lessor may then enter the Premises and take possession thereof provided, however, that these remedies are not exclusive but cumulative to other remedies provided by law in the event of Lessee's default, and the exercise by Lessor of one or more rights and remedies shall not preclude the Lessor's exercise of additional or different remedies for the same or any other default by Lessee. F. Failure to perform any of the terms, covenants or conditions of this Lease if said failure is not cured within thirty (30) days after Lessee notifies Lessor of said failure shall constitute a default by Lessor of this Lease. If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lessor shall not be in default if Lessor begins to cure within the thirty (30) day period and diligently proceeds to cure to completion. 27. Right of Entry. A. In the event of an emergency which poses an immediate threat of harm or damage to persons or property, Lessor may enter the Premises and take such actions as are required to Telecommunications Facility Lease at Sawa Rosa Park Page 17 of 27 protect persons or property from such immediate threat of harm or damage, provided that promptly after such emergency entry into the Premises (and in no event later than twenty-four (24) hours) Lessor gives telephonic and written notice to Lessee of Lessor's entry into the Premises. In addition to Lessor's rights under the immediately preceding sentence, Lessor shall have the right, upon forty-eight (48) hours prior telephonic notification to Lessee (which notification shall specify the date and time at which Lessor seeks to enter the Premises), to enter the Premises to determine whether or not Lessee is complying with this Lease and to serve, post or keep posted any notice. Except in the event of an emergency, Lessor agrees that it shall not enter the Premises without a representative of Lessee being present, and Lessee agrees to make its representative promptly and readily available to accompany Lessor on the date and at the time given in Lessor's telephonic notice. If Lessee fails to make its representative available on the date and at the time given in Lessor's telephonic notice or at a mutually agreeable time, then Lessor may enter the Premises accompanied by a peace officer. B. Lessee shall install a lock box system on the Premises and give the City access to the lock box in order to allow the City to inspect the Premises pursuant to Paragraph A above. 28. Suns. Lessee shall not place, affix, maintain or permit any sign, advertisement, name, insignia, logo, descriptive material or similar item (collectively "sign") on the Premises without the prior written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at all times. Lessor may remove any sign not approved by Lessor at Lessee's cost. The cost of removal shall be additional rent. 29. Condemnation. If the whole of the Premises shall be taken by any public or quasi -public authority under the power of eminent domain, then this Lease shall terminate. If any part of the Premises shall be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, as of the day possession (of that part) is required for any public purpose, and on or before that day Lessee shall elect in writing either to terminate this Lease or to continue in possession of the remainder of the Premises provided, however, that rent shall only be reduced in proportion to the amount of the Premises taken if Lessee is unable to operate at the same level after the condemnation as before the condemnation. Telecommunications Facility Lease at Santa Rosa Pack Page 18 of 27 1h #AW All damages awarded for any taking shall belong to Lessor, whether such damages be awarded as compensation for diminution in value to the leasehold or to the fee provided, however, that Lessor shall not be entitled to any portion of the award made for loss of Lessee's business or relocation expenses. 30. Nuisance. Lessee shall not do or permit to be done in or on the Premises any act, which may be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or occupants of adjoining property, or to the neighborhood. 31. Exculpation. Except as expressly provided herein, Lessor shall not be liable to Lessee for any damages to Lessee's property from any cause. To the extent permitted by law, Lessee waives all claims against Lessor for damage or injury to persons or property arising or alleged to have arisen from any cause whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's breach of its obligations hereunder. 32. Waiver of Rights. The failure or delay of either party to insist on strict enforcement of any term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that such party may have and shall not be deemed a waiver of any subsequent or other breach of any term, covenant, or condition herein. The receipt and acceptance by Lessor of delinquent rent shall not constitute a waiver of any other default but shall only constitute a waiver of timely payment for the particular rent payment involved. Any waiver by either party of any default or breach shall be in writing. Either party's consent to or approval of any act by the other party requiring a party's consent or approval shall not be deemed to waive such party's consent or approval of any subsequent act of the other party. 33. Partial Invalidity. If any term, covenant or condition of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect. 34. Successors in Interest. This Lease shall be binding on and inure to the benefit of the parties and their successors, heirs, personal representatives, approved transferees and assignees, and all of the parties hereto shall be jointly and severally liable hereunder. Telecommunications Facility Lease at Santa Rosa Park - Page 19 of 27 35. Right to Re -Enter. Lessor acknowledges that Lessee's use of the Premises includes proprietary trade secrets. Lessor shall have no right whatsoever to enter the Premises except as provided in Paragraph 27.A. above, without Lessee's written consent which Lessee shall not unreasonably withhold. Lessee shall peaceably deliver possession of the Premises to Lessor on the effective date of termination or expiration of this Lease. On giving notice of termination to Lessee, Lessor shall have the right to re-enter and take possession of the Premises on the termination or expiration date without further notice of any kind and without institution of summary or regular legal proceedings. Termination of the Lease and re-entry of the Premises by Lessor shall in no way alter or diminish any obligation of Lessee under the Lease and shall not constitute an acceptance or surrender. Lessee waives any and all right of redemption under any existing or future law, in the event of eviction from the Premises and in the event Lessor re-enters and takes possession. Lessee agrees that should the manner and method used by Lessor in re-entering or taking possession after breach by Lessee gives Lessee a cause of action for damages or in forcible entry and detainer, the total amount of damages to which Lessee shall be entitled due to the re-entering shall be One Dollar ($1.00). Lessee agrees that this Section may be filed in any such action and that when filed it shall be a stipulation by Lessee fixing the total damages to which Lessee is entitled in such action. 36. Holding Over. If Lessee holds over and remains in possession of the Premises after the expiration of the Lease, such holding over shall be construed as a tenancy from month to month on the same terms, covenants, and conditions herein, except that monthly rent shall be one -twelfth (1/12) of one hundred twenty-five percent (125%) of the annual rent then in effect. Nothing in this Section shalt be construed as a consent by Lessor to any holding over by Lessee. 37. Time. Time is of the essence in this Lease and every provision hereof. 38. Attorney's Fees. In any action or proceeding relating to this Lease, the prevailing party shall be entitled to its costs, including reasonable attorney's fees and court costs. 39. Integration and Amendments. This Lease represents and constitutes the entire understanding between the parties and supercedes all other agreements and communication between the Telecommunications Facility Lease at Santa Rosa Park Page 20 of 27 �&W parties, oral or written, concerning the subject matter herein. This Lease shall not be modified except in writing duly signed by the parties and referring to this Lease. 40, Recordation. Concurrently with the execution of this Lease, Lessor shall execute before a notary and deliver to Lessee for recording a "Memorandum of Lease" substantially in the form of Exhibit "C" attached hereto and by this reference incorporated herein (the "Memorandum"). Lessee may record the Memorandum and shall pay any fees or taxes applicable to or arising from said recordation. Upon expiration or sooner termination of this Lease, Lessee shall, at its sole cost, immediately record a Quitclaim Deed with respect to its interest under this Lease. 41. Governing Law. This Lease shall be governed by and construed in accordance with the laws of the State of California. 42. Captions. The various headings and numbers herein and the grouping of the terms hereof into separate sections, paragraphs and clauses are for convenience only and shall not be considered a part hereof, and shall have no effect on the construction or interpretation of this Lease. 43. Abandoned Property. The vacating or abandonment of the Premises by Lessee shall include but not be limited to the failure of Lessee to occupy the Premises for a continuous period of forty- five (45) days or more while not paying rent. If Lessee abandons the Premises, title to any personal property belonging to Lessee and left on the Premises forty-five (45) days after such abandonment shall be deemed to have been transferred to Lessor. Lessor shall thereafter have the right to remove and to dispose of said property without liability to lessee or to any person claiming under Lessee, and shall have no duty to account therefor. 44. Compliance with the Law. Lessee shall comply with all laws, ordinances, rules and regulations of all federal, state and local governmental authorities having jurisdiction over the Premises and business thereon. 45. Quiet Enjoyment. Lessor covenants that, if Lessee performs the terms, covenants and conditions of this Lease, Lessee shall peaceably and quietly hold and enjoy the Premises. Telecommunications Facility Lease at Santa Rosa Park Page 21 of 27 E Is 46. Lessor's Representation of Authority. Lessor represents that it has title to the Premises and full authority to execute this Lease and to grant the easements and access to the Premises. Lessor further represents that there are no undisclosed liens, judgments, impediments or exceptions of title on the Premises that would affect this Lease. 47. Non -Interference Provision. Lessor will use its best efforts to provide Lessee with notice of any applications received from any other communications companies wishing to utilize any part of Santa Rosa Park. Further, Lessor will use its best efforts to not lease property in Santa Rosa Park to other communication companies, nor to use Santa Rosa Park for communications purposes, that might interfere with Lessee's use of the Premises. In the event Lessor or any other communication company on Santa Rosa Park does, in fact, interfere with Lessee's use of the Premises, Lessor shall eliminate, or cause to be eliminated, such interference within seventy-two (72) hours of written notice by Lessee. If such interference is not eliminated in such time period, Lessee may exercise any right or remedy at law or in equity to eliminate the interference or may terminate this Lease. IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities required by law as of the date first above written. LESSOR: CITY OF SAN LUIS OBISPO, a Municipal Corporation By: _ l David F. Romero, Mayor ATTEST: By: Lee Price, City Clerk APPROVED S TO FO y: bert A T e jillo, Int m City A ney LESSEE: PACIFIC BELL WIRELESS LLC, a Nevada limited liability company d/b/a/ CINGULAR WIRELESS By: GSM Facilities, LLC, its sole member By: CCiingular Wireless LLC, its agent BY: , Charles Vr ek, Vice Presi ent, Special Projects/Real Estate Telecommunications Facility !_,ease at Santa Rosa Park Page 22 of 27 1b �w EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY All that real property located in the State of California, County of San Luis Obispo, described as follows: BASIS OF BEARING: THE BEARING ARE BASED UPON CALIFORNIA COORDINATE SYSTEM, ZONE 5, NAD 83. 2101Im 1. ACREAGE PARCEL: .005 ACRES 2. PROPOSED LEASE AREA: 12.00' X 17.83' — 214.00SF 3. NO PARKING REMOVED OR PROPOSED 4. UNMANNED FACILITY (NO EMPLOYEES) 5. PCS FACILITY — WIRELESS COMMUNICATIONS FIRM CLASSIFICATION THE PROPERTY SHOWN HEREON FALLS WITHIN ZONE "C" AS SHOWN ON FLOOD INSURANCE RATE MAP NO, 060310-0005-C, EFFECTIVE DATE JULY 7, 1981. AS PUBLISHED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY IN ACCORDANCE WITH THE NATIONAL FLOOD INSURANCE PROGRAM. PROPOSED ANTENNA GEODETIC COORDINATES: THE CENTER OF THE PROPOSED ANTENNAS AS SHOWN HEREON IS LOCATED AT THE FOLLOWING COORDINATES (NAD 83): LATITUDE: N 35' 17' 24.38' LONGITUDE: W 120'39'48.89 BENCHMARK: THE STATION MARK AND REFERENCE MARKS NO. 1 AND NO. 2 WERE RECOVERED AS DESCRIBED WITH THE FOLLOWING REVISIONS. STATION IS 17.5 FEET SOUTH OF THE CENTERLINE OF BUENA VISTA AVENUE, 6.1 FEET NORTH OF THE SOUTH FACE OF A 9 FEET HIGH CONCRETE RETAINING WALL, 5.5 FEET SOUTH OF THE CURB FACE OF BUENA VISTA AVENUE, 1.9 FEET NORTH OF A CARSONITE WITNESS POST, AND ABOUT I FOOT HIGHER THAN THE ROADWAY. ELEV = 464.00 FEET AMSL (NAVD 88) PID = FV 1478 Telecommunications Facility Lease at Santa Rosa Park Page 23 of 27 *00 EXHIBIT B DESCRIPTION OF THE PROJECT 1. Remove a portion of the central parking lot and reconfiguring the layoff parking lot resulting in no net loss of parking spaces. 2. Install turf and irrigation systems where the asphalt was removed. 3. Relocate the right field fence from the east to the west of newly turfed are... 4. Replace and relocate the right field light pole to the west side of the newly turfed area with two light poles. (These will also serve as cellular antennas.) 5. Construct two buildings located on the east side of the basketball court for communications equipment and storage for the skate and blading program. (This will also include radio system improvements for the Fire Department as described in the Agreement.) 6. Upgrade the lighting on the multi -use court and skate area. The accompanied Plans and Specifications dated November 11, 2002 may be amended by mutual consent between the Lessor and Lessee. Telecommunications Facility Lease at Santa Rosa Park Page 24 of 27 RECORDING REQUESTED BY: WHEN RECORDED, RETURN TO: EXHIBIT C MEMORANDUM OF LEASE MEMORANDUM OF LEASE �10 This MEMORANDUM OF LEASE ("Memorandum") dated as of , 2003, is between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ("Lessor") and PACIFIC BELL WIRELESS, LLC, a Nevada limited liability company d/b/a CINGULAR WIRELESS ("Lessee"). RECITALS WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Lease at Santa Rosa Park "Lease") dated as of , 2003, covering certain premises (the "Premises") situated on a portion of that certain real property located in the County of San Luis Obispo, State of California, and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference; and WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official Records of San Luis Obispo County, California; NOW, THEREFORE, in consideration of the foregoing, Lessor and Lessee hereby declare as follows: 1. Demise. Lessor has leased the Premises to Lessee (together with access rights), and Lessee has hired the Premises from Lessor, subject to the terms, covenants and conditions contained in the Lease. 2. Expiration Date. The term of the Lease ("Term") is scheduled to commence on or before April 1, 2003 and shall expire five (5) years thereafter, subject to Lessee's option to extend the Term pursuant to Section 3 of the Lease for three (3) additional terms of five (5) years each. 3. Lease Controlling. This Memorandum is solely for the purpose of giving constructive notice of the Lease. In the event of conflict between the terms of the Lease and this Memorandum, the terms of the Lease shall control. Telecommunications Facility Lease at Santa Rosa Park Page 25 of 27 IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum of Lease the date and year first written above. LESSOR LESSEE By: By: Name: Name: Title: Title: NOTARIZED SIGNATURES STATE OF CALIFORNIA ) ss. COUNTY OF ) On , before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) istare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Signature of Notary Public) STATE OF CALIFORNIA ) ss. COUNTY OF ) On , before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) istare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Signature of Notary Public) Teleeonununications Facility Lease at Santa Rosa Park Page 26 of 27 M EXHIBIT D SAMPLE SCHEDULE OF LEASE PAYMENTS Because of variables in the Agreement such as minimum annual adjustments to rent and renewal options, it not possible to prepare a "fixed" lease payment schedule. However, to ensure a clear understanding between the Lessor and Lessee, the following is a sample schedule of lease payments based on the following assumptions: 1. City improvements value of $227,083 as set forth in Section 2(D) of the Agreement. 2. Maximum term of twenty (20) years as set forth in Section 3 of the Agreement. 3. Payment due date of on the anniversary of the Commencement Date of each year as set forth in Section 4(A) of the Agreement. 4. Credit of the value of City improvements against annual rent payments as set forth in Section 4(A) of the Agreement. 5. Minimum annual rent increase of three percent (3%) as set forth in Section 4(B) of the Agreement. 6. Two tenants throughout the twenty (20) year term as allowed under Section 22 of the Agreement. ScheduleSample Form of Payment Annual Year Rent In -Lieu Cash 2003 40,000 40,000 0 2004 41,200 41,200 0 2005 42,436 42,436 0 2006 43,709 43,709 0 2007 45,020 45,020 0 2008 46,371 14,718 31,653 2009 47,762 47,762 2010 49,195 49,195 2011 50,671 50,671 2012 52,191 52,191 2013 53,757 53,757 2014 55,370 55,370 2015 57,031 57,031 2016 58,742 58,742 2017 60,504 60,504 2018 62,319 62,319 2019 64,189 64,189 2020 66,115 66,115 2021 68,098 68,098 2022 70,141 70,141 TOTAL $ 1,074,821 1 $ 227,083 1 $ 847,738 Teleconununications Facility Lease at Santa Rosa Park Page 27 of 27