HomeMy WebLinkAboutItem 5j - Lease Amendment with PTI US Towers II LLC for Telecommunication at Santa Rosa Park Item 5j
Department: Administration
Cost Center: 1001
For Agenda of: 5/19/2026
Placement: Consent
Estimated Time: N/A
FROM: Greg Hermann, Deputy City Manager
Prepared By: Natalie Harnett, Policy and Project Manager
SUBJECT: LEASE AMENDMENT WITH PTI US TOWERS II, LLC FOR
TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK
RECOMMENDATION
1. Approve a Draft Resolution (Attachment A) authorizing the Second Amendment to the
Lease Agreement between the City of San Luis Obispo and PTI US TOWERS II, LLC,
to extend the lease for telecommunications facilities at Santa Rosa Park for an
additional 20-year term.
2. Authorize the Finance Director to implement any necessary budget adjustments to
reflect the amended lease terms.
POLICY CONTEXT
The City’s Financial Management Manual (Section 475-C) allows for long-term leases of
City property on a case-by-case basis and provides guidance for leases that support
significant City goals, plans, or policies and offer measurable community benefits. The
policy emphasizes that the overarching principle is to pursue an approach that best
achieves the City’s objectives given the circumstances. The original lease for this property
was executed in accordance with all City policies and procedures. The recommendation
follows Council direction from a Closed Session discussion regarding price and terms for
the associated property and lease and is in alignment with the applicable guidance from
the City’s Financial Management Manual.
In addition, Council approval of the lease is required by Resolution No. 10052 (2009),
which states that “no sale or lease of real property nor any sale of personal property of a
value in excess of one thousand dollars ($1,000.00) nor any lease of personal property
for a period exceeding three (3) years shall be authorized by the Council except by
resolution passed by affirmative vote of three-fifths (3/5) of all members of the Council.”
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Item 5j
DISCUSSION
Background
The City of San Luis Obispo currently holds five cellular communication site leases
executed between 2003 and 2017. These leases provide locations for wireless service
infrastructure, including antennas, towers, and related transmitting equipme nt. A ground
lease is the legal agreement that authorizes a wireless provider or tower company to use
City-owned land for these purposes in exchange for rent.
A ground lease at Santa Rosa Park was executed on February 3, 2003 (Attachment A),
between the City of San Luis Obispo and Pacific Bell Wireless (d/b/a Cingular Wireless)
for space to install two light pole “towers”, among other improvements . In June 2003,
there was a First Amendment to the Lease Agreement (Attachment B) which made
changes to include additional improvements to the park. T‑Mobile became the sole
owner of Pacific Bell Wireless, LLC in January 2005. In November 2015, PTI entered into
an agreement with T‑Mobile to acquire ownership and management rights to hundreds
of T‑Mobile tower sites in the U.S., including this location. As a result, PTI is now the
entity that operates the tower and serves as the tower ground lessee.
The lease covers approximately 1,200 square feet of land which now includes two light
standards that support wireless communication equipment and two shared buildings that
house cell equipment and storage for the City’s skate program. In lieu of rent payments
through 2008, Cingular funded the construction of new light standards, two small
buildings, site lighting, and landscaping improvements, all of which are now owned by the
City. The site currently hosts three wireless carriers: New Cingular Wireless (AT&T),
Verizon, and T‑Mobile, which use the tower infrastructure to provide service to the
surrounding area. AT&T holds a separate direct ground lease with the City expiring in
2031, while Verizon and T‑Mobile are subtenants of PTI.
The original 2003 lease agreement (Attachment A) included an initial five ‑year term
followed by three successive five‑year renewal periods, for a total potential term of 20
years. PTI has exercised all three of the initial five -year renewal options, and the lease
expired in March 2023. PTI has expressed interest in further extending the lease and has
continued providing rent payment through 2026. No formal notice of lease termination
has been issued, as the City was actively working through the logistics of the lease
extension. The City Council met in closed session on November 18, 2025, to discuss the
lease and provide direction on price and terms for a potential lease extension.
Although the original lease term expired in 2023, the parties agreed to proceed by
amendment rather than a new agreement because the majority of the existing terms
remain acceptable and continue to govern the relationship. Staff therefore recommend
approval of Attachment D, which amends the existing lease to add four successive five-
year renewal options along with the following key changes:
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Item 5j
Section 3. Term: The amendment adds four (4) additional successive five-year
Renewal Terms beyond the current term. Each Renewal Term will automatically
extend unless the Lessee provides at least sixty (60) days’ written notice of its
intent not to renew. The first additional Renewal Term will commence retroactively
on April 1, 2023, following the expiration of the current term on March 30, 2023.
Public Purpose Termination Provision: Under the original agreement, PTI held
a unilateral right to terminate the lease for convenience with 60 days’ notice, while
the City had no comparable option. This amendment adds a new termination right,
providing the City greater flexibility should the Premises be required for public
purposes. During any Renewal Term, the City may terminate the lease with two
(2) years’ prior written notice. The parties will negotiate in good faith to identify a
potential relocation site on City property; however, if a mutually acceptable
relocation site cannot be reached, or if the Lessee is unwilling or unable to relocate,
the lease will automatically terminate at the end of the two -year notice period. This
provision establishes a clear off -ramp for the City and enhances long-term control
of the property.
Section 4. Rent: Effective retroactively to April 1, 2026, annual rent will increase
to $45,000, escalated annually by Consumer Price Index (CPI) or 3 percent (3%),
whichever is greater. Note: Section 22.E.1 includes an “additional annual rent”
clause requiring the Lessee to pay the City additional rent for each subtenant. With
two current subtenants, the City will receive a total of $90,000 annually.
One-Time Payment: Upon full execution of the Second Amendment, the Lessee
will pay the City a one-time payment of $25,000.
Standard Provisions: The amendment includes standard legal provisions
affirming that the remainder of the lease remains in effect, California law governs,
the City has authority to enter into the agreement, and the Lessee may update and
record accurate property descriptions at its expense.
Previous Council or Advisory Body Action
On November 18, 2025, the City Council met in closed session pursuant to Government
Code section 54956.8 to provide direction to its real property negotiators regarding the
lease of telecommunications facilities at Santa Rosa Park. The proposed Lease
Amendment is the result of those negotiations and is now presented for Council
consideration in open session.
Public Engagement
Notice of this agenda item was provided through the meeting's posted agenda. The public
may submit comments in writing before the meeting or share their input during the public
meeting.
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Item 5j
CONCURRENCE
The Parks and Recreation department, IT, and Finance were consulted at the onset of
lease negotiations and concur with the recommendation. The City Attorney’s Office has
supported the lease negotiations and has reviewed and approved the lease as to form.
ENVIRONMENTAL REVIEW
This action is not considered a “project” under the California Environmental Quality Act
(CEQA) pursuant to CEQA Guidelines Section 15060(c)(3) because it involves an
administrative activity that will not result in a direct or reasonably foreseeable indirect
physical change in the environment.
Additionally, the proposed lease amendment is categorically exempt from CEQA under
CEQA Guidelines Section 15301 (Class 1 - Existing Facilities), which applies to the
operation, permitting, and leasing of existing public or private facilities involving negligible
or no expansion of existing use. The amendment would extend the term of an existing
telecommunications lease at an established facility at Santa Rosa Park and does not
authorize any new construction or expansion of the existing use.
FISCAL IMPACT
Budgeted: Yes Budget Year: 2025-26
Funding Identified: Yes
Fiscal Analysis:
Funding
Sources
Total Budget
Available
Current
Funding
Request
Remaining
Balance
Annual
Ongoing
Cost
General Fund N/A N/A N/A N/A
State
Federal
Fees
Other:
Total N/A N/A N/A N/A
There is no direct fiscal impact associated with this request beyond staff time required for
negotiation. Cell tower leases provide a source of passive revenue for the City. The
increased rent will be backdated to April 2026 and reflects an approximate 12 percent
year over year increase from 2025, resulting in an estimated additional $10,000 in annual
revenue from what was originally budgeted. In addition, the City will receive a one-time
payment of $25,000.
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Item 5j
ALTERNATIVES
Modify terms of the Second Amendment to the lease. Council could choose to change
the proposed terms, in which case staff would return to PTI to determine if the revised
terms are acceptable.
Do not amend the lease. Under this alternative, Council could direct staff to issue notice
to terminate the existing agreement and provide direction on whether to seek a new tower
operator. The telecommunications infrastructure is already in place, and discontinuing the
lease could disrupt services to the community. While the City could issue an RFP for a
new tower operator, the process is uncertain, would require significant staff resources,
and may not result in terms more favorable than those currently proposed.
ATTACHMENTS
A – Resolution Approving First Amendment to Lease Agreement
B – April 2003 Lease Agreement with Cingular Wireless
C – June 2003 First Amendment to Lease Agreement
D – Second Amendment to Lease Agreement (Exhibit A to Resolution)
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R ______
RESOLUTION NO. _____ (2026 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, APPROVING THE SECOND AMENDMENT
WITH PTI US TOWERS II, LLC FOR TELECOMMUNICATIONS
FACILITIES AT SANTA ROSA PARK
WHEREAS, the City entered into a lease agreement with Pacific Bell Wireless,
LLC (d/b/a Cingular Wireless) on April 1, 2003, for an initial five-year term with options to
extend for three additional five-year terms; and
WHEREAS, a First Amendment to the agreement was executed in June 2003 to
revise the Improvements associated with the site; and
WHEREAS, T‑Mobile became the sole owner of Pacific Bell Wireless, LLC in
2005 and later transferred ownership and management rights for this tower site to PTI US
Towers II, LLC (PTI) through a 2015 agreement, resulting in PTI now serving as the
operator of the tower and ground lessee; and
WHEREAS, PTI has exercised all three initial five-year renewal options, and the
current lease term expired in March 2023; and
WHEREAS, PTI has expressed interest in further extending the lease, and while
the lease has technically expired, PTI has continued providing rent payments through
2026; and
WHEREAS, the City Council met in closed session on November 18, 2025, to
discuss options for the Santa Rosa Park telecommunications site and determine
negotiating parameters for the lease extension, and staff subsequently negotiated a lease
amendment within the parameters established by Council; and
WHEREAS, the Financial Management Manual (Section 475 -C) authorizes long-
term leases of City property on a case-by-case basis when they support City goals, plans,
or policies and provide measurable community benefits.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. The City Council has determined, based on the circumstances at the
time, that approval of Second Lease Amendment is in the best interest of the City and
ensures continued reliable telecommunications service to the community.
SECTION 2. The City Council hereby approves the Second Amendment to the
Lease Agreement with PTI US Towers II, LLC, substantially in the form attached hereto
as Exhibit A, and authorizes the City Manager or designee to execute the amendment
and any related documents necessary to effectuate the lease extension.
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Resolution No. _____ (2026 Series) Page 2
R ______
SECTION 3. The City Manager or designee is authorized to take all actions
necessary to implement this Resolution, inclu ding recording the lease amendment and
updating financial records to reflect the updated annual rent.
SECTION 4. This Resolution shall take effect immediately upon adoption.
Upon motion of Council Member ___________, seconded by Council Member
___________, and on the following roll call vote:
AYES:
NOES:
ABSENT:
The foregoing resolution was adopted this _____ day of _______________ 20 26.
___________________________
Mayor Erica A. Stewart
ATTEST:
______________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
______________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of San Luis Obispo, California, on ______________________.
___________________________
Teresa Purrington
City Clerk
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TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK
This Lease is made and entered into this // day of ?-~a-k , 2003, by a n d between the
CITY OF SAN LUIS OBISPO, a mW1icipal corporation and charter ct (herei nafter 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 a nd e ntered into with respect to the following facts:
A. Lessor is the owner of the prope11Y described in Exhibit A, located at I 90 Santa Rosa
Street, San Luis Obispo, Cal ifornia, 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 approval s
enabling L essee to construct and operate wireless communications facili ties 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 R osa Street, San Luis Obispo,
California, 93401, commonly known as Santa Rosa P ark. 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
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.: ·,
. •
utility casements described in Ex hibit B attac hed hereto, and by this referenc e made a part hereo f
(he reinafter r eferred to as the "Premises"). This lease is s ubject to th e tenns, covenants and conditions
hereinafter set forth and Lessee covenants, as a material part of the consideration for th is Lea se, to keep
and pcrfom1 each and every tem1, covenant and condition of said Lease.
During the term of this Lease, Lessor also grants to Lessee an irrevocab le, nonexclusive right of
ingress and egress, seven d ays a week, twenty-fo ur (24) hours a day, and the right to install and maintain
underground uti lity wires and cables and conduits and pipes (I) from the Premises to the neare st public
r igh t-of-way, and (2) from the radio equipment to the an tennas.
2. Improvements.
A. lessee shall d esign and perform, construct or erect or cause to be constructed or
e rected al it s sole cost the followi ng improvements as shown on Exhibi t "B" (herei nafter "Park
Improvement s"):
I) Remove a portion of the central parking lot and reconfi gure the layout of
th e re maining parking tot to re sult in no net loss of parking spaces.
2) Install turf and irrigation syste ms where the asphalt was removed .
3) Relocate the soil.ball field right field fen ce from the cast to the west of
the newly turfed area.
4) Replace a nd re locate the r ight fi e ld light pole to the west side of the
newly turfed area with two light poles tha t a lso serve as cellular antennas.
5) Construct a building for c ellul ar equipment on the north side of the
soil.ball field .
6) Construct a building located on the east side of the basketball cou rt for
communication s equipment a nd stora ge fo r the skate and blading pro gram ("radio/utility building"),
including th e fo ll owing for the Lessee's Fire Department: a) fib er and phone service access in two
dedicated conduits (2 inch) from Ha thway Street to th e radio/utili ty building; b) space and install ati on for
a two floor-t o-ceiling "st3Jldard racks" (each one be ing 19 inches wide by 84 inches ta ll); c) area
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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; I) access to the sec ure area 24-
hours a day, 365 days a year; g) space for 6 antenna on the light pole s ite, with appropriate conduit runs to
the radio/utility building; h) assurance that only FCC licensed radio systems a re to be insta lled in the
radio/utility building.
7) Upgrade the lighting on the multi-use court and skate orea .
8) Make other minor improvements as necessary to complete the Park
Improveme nts project.
Lessee shall also erect on the Premises commun ications 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 (h ereinafter "Lessee's Facilities") as shown on Exhib it "B". Titc
plan s for the Park Improvements and Lessee's Facilities (landscaping, irrigati on, fencing, bu ilding,
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 la ndlord). L essee 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 sha ll submit construction plans to the City's
Direc tor of Parks and Recreation for approval prior to submilling 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 lo the competitive bidding requirement contained in California Public
Contracts Code Section 20162 and the prevailing wage requirement contained in California Labor Code
Section t 771.
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D. Lessee shall provide a Perfonnance Bond to Lessor to guarantee completi on of
the Park Improvements in the amount of Two Hundred Twenty-seven Thousand Eighty -three Do llars
($227 ,083). Bond shall be provided prior to the issuing of the building pennit.
3. Tenn. The initial tenn of this Lease shall be for five (5) years {"Initial Tenn")
commencing with the issuance of a City building pem1 it to constn1ct the Lessee 's Facilit ies and Park
Improvements, or April I , 2003, whichever is earlier ("Commencement Da te"). This Lease shall
au tomati call y be renewed on the same tenns and conditions , for three (3) additi onal tc nns (each a
"Renewal Tenn") of five (5) years each, unless Lessee notifies Lessor of its intention not lo ren ew, at
least s ixty (60) days prior to th e e xpiration of the Initia l Tenn or any Rene wal Tenn.
4. Rent. Rent shall be paid annua lly in advance as follows:
A . Lessee shall pay to Lessor as annual re nt on or before the Commencement Date
of the Lease the sum of Twenty Thousand Do llars ($20,000.00) ("Annual Rent") and Additional Rent per
tenant without deducti on, setoff, notice or d emand, provided, however, th at Lessor shall waive the Annual
Rent and any Additiona l Annual Rent (n s de fined in Section 22.E.) in consid erati on for the Park
Impro vements conslructed by Lessee at it s, and its s ublease tena nt's sole cos t. Lessor 's waiver of
Lessee's obligation to make Annual Rent and a ny Additional Annual Rent payments shall commence on
the Commencement Date and shall continue until the total cost of the Pa rk Improvements has been
credited against s uch Rent payments.
B. Annuall y thereafter, Lessee shall pay to Lessor as Annua l Rent for th at lease year
without deduction, setoff, n otice, 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 d ividing the Unit ed
S tates Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of th e
U.S. Depanment of l.abor three (3) months prior to the adj ustment date by th e base Index number
publi shed three (3) mont hs pri or to the Co mmenceme nt Date, or previou s adjustment date, as applicab le.
If th e In dex is changed so that the ba se In dex number di ffers from that in effect when the first extended
Telecommunlcatlons Facility Lease ar Santa Rosa Park l'age 4 of27
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term com men ce d, the Ind ex shall be converted in accordance with the conversion factor publi shed by the
Bureau of Labor Statistics. If th e Index is discontin ue d or revised during an extended tem1, suc h othe r
government index or computat ion with which it is replaced sha ll be used in order to obtai n substantially
th e same res ult as would be obtained if th e Index had no t bee n discontinued or revise d.
D. If Lessee fails to pay th e Annua l Rent wi thin th irty (30) days aficr such rent is
due, Lessee sha ll pay a late fee of one and one ha lf percent ( 1.5%) per month. This late charge docs not
establish a grace period. Lessor and Lessee agree that th e charge is presumed to be th e da mages sus tai ned
by Lessor for Lesse e's late payment of rent and that it is impracticable or difficult to fi x the ac tu al
dama ges .
E. Pro vid ed in Exhibit D is a sample schedul e of lease payments to the City,
assum ing th e va lue of improvements set forth in Section 2(A) of Two Hundred Twenty-seven Thousand
Eighty-thr ee Dollars ($227,083.) Minimum lease payme nts increa se three percent 3% as se t forth in
Section 4(D) and are scheduled for the full twenty (20) ye ar teml.
5. Use.
A. Lessee shall use th e Premises for th e so le purpose of constructing, maintaining,
securing and operating wirele ss communications facilities (including but no t limited to cell ul ar, PCS,
paging, and broad band) including the construction of equipment buildings and installation of required
antennas and related commun ications equipment upon the new sports lighting poles all as liste d, dep ic te d,
and described in the "Lessee's Facilities" which is attached hereto as Exhibit "B" and hereby in corporated
by reference. Any other use of the Premi ses or use of equipment not described in Exhibit "B," is not
authorized and shall constitute a breac h of this Lease .
0. Lessee must obtain all discretionary permit s and app ro vals re qui red by Lessor in
its municipal ca pacity. In stallation of a new wire less tclcco mmuni cAt io n or mod ification of an e~i s ting
in stallation shall require use permit approval and architectural review. The applicant shall s ubmit
application materials and fees as required by th e Community Development Department. Wireless
communications faciliti es shall not be construct ed, installed or modifi ed pri or to obtain ing a City building
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pcnn it. It sha ll be the responsibility of the owner/operator of a te lecommunications facility to provide the
C ity with a notice of intent to modify site equi pmen t in an y way. Lessor shall reasonably cooperate (at no
expense lo Lessor) with Lessee in connection with Le ssee's e fforts to obtai n a ll such permits and
approvals; provided, however , Lessor shall not be obligated to a ppl y for an y pennits or approvals with
Lessee. Construction of Lessee's Facilities and the Park Improvements shall be at Lessee's sole expense.
Further, Le ssee s hall mainta in the Lessee's Facilities !Tee from hazards or risk to the public health, safety
and welfare.
C. At all times throughout the tcnn of thi s Lease, Lessee's use of the Premises shall
be in confom1ancc with, and s ubj ect to all conditions of, any and all discretionary pcnnits in effect.
D. Lessor agrees that Le ssee's ability to use the Premises 1s dependent upon
Lessee's obtaining all necessary certificates, pcm1ils and/or oth er approvals which may be required from
Lessor in its munic ipal or regulatory capaci ty and fr om any fed era l, slate or other local authority. Le ssor
agrees to cooperate with Lessee as to Lessee's obtaining such certificates, pennits or other approvals. In
the event Lessee is unable to obtai n any ne cessary certificate, pcm1it or other a pproval in order to operate
or conslrucl lhe Park Improvements or Le ssee's Facilities, Lessee may tenninate lh is Lease as provided
here in, upon thirty (30) days prior written notice.
6. Interferen ce.
A. Lessee warrants that its construction, repair and opcralion of Lessee's Facilities
w ill not interfere with Lessor's fire, police, public works and ot her public safety or city department
communication broadcasts or frequencies. All operations by Lessee shall be in compl iance wi th all
Fed eral Communications Commi ssion requirement s and a ll applicable Jaws .
B. If Lessor suspe cts or has r eason to believe that Lessee's use o f the Pre mises
creates radio or television interference for nearby residents or inte rfere nce with Lessor's com m un ication
systems, and if Lessee (i) docs n ot proceed diligently to elimin ate su ch interference, or (ii) provid e
evidence that Lessee and the sublease tenant a re not the source of such interference, wit hin ten (10)
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business days after notice from Lessor to do so, Lessor may immediately termi nate this Lease by gi,~ng
notice to Lessee.
C. Lessee shall provide Lessor with a contact person who shall be available twenty-
four (24) hours a day to rece ive reports of any interfe rence \vith Lessor's frequencies. In th e event tha t
there is in terference with Lessor's publ ic safo ty frequen cies, Lessee s hall immedi ately cease th e
operations creating the interference when directed to do so by th e City's Fire Ch ief and/or Police Chief
un til s uch time that the interfe rence can be eliminated to the sa tisfaction of the City 's Fire Ch ief and/or
Police Chief. Lessee's fai lu re to immediately cease such operations shall be consid ered a material breach
of thi s I.ease notw ith stand ing Paragraph 6.B. above.
7. Radio Frequency Emission Exposure.
A. No wireless te lecommunica tion facility shall be s iled or operated in suc h a
manner th at it violates any condition of its Federal Communication Commission's (FCC) permit or
licen se. To that end no facility or co mbinati on of faci liti es shall produce at any time power densities in
any inhab it ed area that exceed the FCC's Maximum Pe rm issible Exposure (MPE) limits for electric and
magnetic fie ld strength and powe r density for transmi tt ers or any more restrictive legally enforceable and
appli cable standard subsequently adopted or promu lga ted by the city, count y, th e stat e of California, or
th e federal governme nt. For purposes of radio frequenc y emissions, com pliance with FCC exposure
lim it ations sha ll consti tu te a conclusive presumption that there is no hazard or risk to the pub lic hea lth,
safety or we lfare.
B. Initial compliance with this requirement shall be demonstrated for any facility
within three hu ndred (300) feet of resid ential uses or sensiti ve receptors such as schools, churches,
hos pit als, etc. and all broadcas t radio and te levision facili ti es, regardless of adjace nt la nd uses, through
submi ssion , at th e time of application for the necessary perm it or en titlement, ca lculati ons spec ifyi ng
MPE levels in the inhabited area where the leve ls produced are projected to be highest. If the se
calculated levels exceed eighty percent (80%) of the MPE limits, th e applicant sha ll hire n qualifie d
electrica l engineer li censed by th e State or Ca li fornia to measure exposure le\•els at th e loca ti on aft er the
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facility is in operation. A report of these measurements and the engineer's findings wi th respect lo
compliance with MPE limits shall be submil1cd to the Community Development Director. Lessee's
Facilities shall not commence nonnal operations until it complies with, or has been modified to comply
with this standard. Proof of compliance shall be a ce rtification provided by the engineer who prepared the
original r eport. In order 10 assure the objectivity of the analysis, the City may require, at the <tpplicant's
expense, independent verification of the re s ult s of the analysis.
C. Every wi reless telecommunication faci li ty within three hundred (300) feet of an
inhabite d area and all broadcast radio and television facili ties shall demonstrate continued compliance
with its FCC permi t or li cense and MPE limits. Every fiv e (5) years a report listing each tran smitter and
antenna present at the faci lity and the effective radiated power radiated sha ll be submillcd to the
Community Development Director. If either the equipment or effective radiated power has increased,
calculations specifying exposure levels in th e inhabiled areas where th e level s are projected lo be highest
shall b e prepared. Calculations shall also be prepared every lime the adopted MPE limits change. If
ca lculated levels in either of these cases exceed e ighty (80%) of the MPE limits, the operator of the
fa ci lity shall hire a qua lified e lectrical engin ee r licensed by the State of Cali fo rnia to measure the ac tu al
exposure levels produced. A report of these calculations, required measurement s, if any, and the
engineer's findings with respect to compliance with the current MPE limits sha ll be submillcd to the
Community Development Direc tor within five (5) yea rs of facility npproval and every fi ve (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 limit s shall be considered a material breach of this Lease.
8. Visual Mitigation. Lessee wi ll use a variety of visual mitigation strategics for all of its
fac ili tie s, as determined necessary by the Community Development Director and as requ ired through the
Architectural Review process, wi th the goal of achieving a l 00% stealth in sta llation. Facilities shall be
creatively designed to minimi ze the visual impact to the greatest extent possible by means of placement,
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screening, and ca mouflage. The applicant shall use the smallest and least visible antennas possible to
accomplish the coverage objectives. Each install ation shall be designed to b lend inlo its surroundings so
that the antenna(s) and equi pment are not apparent to the casual observer. The light poles in which
antenna s are located shall not exceed fourteen (14) inche s in diameter. No more than one carrier s ha ll
install antenn as in any given light pole. Ground mounted support equipment shall be und ergrounded 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 te lephone
service to the support equipment shall be undergrounded.
9. ~. Each facility s hall be operated in a manner that minimizes any possible disrnplion
c aused by noise to people working and living in the vicinity. At no time s hall equipment noi se from any
source exceed an exterior noise level of 55 dB at the property li ne or within 20 feel of such equipment,
whichever is less. This requirement may be modi fi ed al the discretion of the Community Development
Di re ctor where typi c al ambient n oise levels exceed 55 dB. Outdoor noise producing constructi on
activities shall take place only on weekdays between the hours o f 8:00 am and 5 :00 pm unless a different
sc hedule is a pproved as part of th e use pcm1it. Any fac il ity util izing temporary backup generators shall
be requ ired to meet or exceed Air Pollution Control Distri c t Standards. All generators shall be fitted with
approved a ir poll ution control devices. Projects that propose lo include backup ge nerators shall require
review and approval from the Air Poll ution Control D istrict . P roject plans shall indicate loc ation, size,
horsepower and type of fue l used for any proposed ge nerator. Generators shall only be operated during
p ower outages an d for testing and ma intenance purposes. Testi ng and maintenance sha ll only take place
on weekdays between the hours of t 0 :00 am and noo n.
I 0. Nondi scrimjnJ!li!m . Subject lo ap plicable laws, rnle s, and regulations, Lessee shall nol
d isc riminate against any person or group on the basis of age, sex, sexual orientation, AIDS , AIDS related
condition, marital s latus, race, religion, creed, ancestry, national origin, disa bility, or ha ndicap.
11. Subsurface Restrictions. The parties agree that this Lease covers only the s urface of the
Premises and only so much of the subsurface as is r easonably necessary for Lessee's u se of the Premi ses
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as permitted in this Lease (including, without limitation, (i) the foundation for Lessee's monopole ante nna
stnicturc and building, and (ii) cables, conduits and pipe s within the Premises to connect Lessee's
communications equipment within suc h building to the antennas to be constrnc ted and maintained by
Les see within th e Premises).
12. Liens. Lessee sha ll keep the premises free of mechanic's, material supplier's or other
liens for any work done, labor perfom1ed 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, los s, cost and expense (including reasonable attorney's
fees) of whatever kind for any such work done, labor perfonmed 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 arrnnge and pay for the installation and
use of all utilities of whatsoever kind to the Premises .
14 . Mamtenance.
A. Lessee shall, al Lessee's sole cost and to the satisfaction of Lessor, maintain
Lessee's Faci litie s 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 substanti al repair, in a
safe and san itary 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 Les see 's Facilities as required herein,
Lessor may notify Le ssee of said failure. If Lessee fails to correct the si tuation within thirty (30) days
aficr notice or such long er period as may be established by Lessor, Lessor may make the nec essary
correction and lhc cost thereof, including but not limited to lhc cost of administration, and labor,
malerials, equipmen t, shall be paid by Lessee within thirty (30) days aficr recei pt of a stalement of said
cost from Lessor. If said slatemcnt is not timel y paid, Lessor may, at its option, choose any remedy
avai labl e herein or by law, including the tenmination of this Lea se. Lessee hereby waives to the ex tent
pcrm.itt ed by law any right to make repairs at the expense of Lessor or to vacate th e Premises in lieu
thereof as may be provided by law.
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B. Lessor s hall have no duty to ma intain or repair Lessee's Facilities or any of
Lessee's improvements, incl uding th e light pol es on the Premises.
15. Taxe s. Les see acknowledges that thi s Lease may create a possess ory interest subject to
property taxation and that Lessee may b e liable for payment of taxes levied on s uch interest. Lessee shall
promptly pay, prior to delinqu ency, all ta xes, assessments and other governmental fee s that may be
lawfully levied against the Premises and any improvements or personal property located on the Premises
and on any posscssory interest created by thi s Lease, and provide proof of payment to Lessor on dema nd .
16. Insura nce . Concurrent with the execution of th is Lease, Le ssee sha ll procure and
maintain, at its cost, during the initial and any exte nded or Renewal Term of this Lease from an insurer
admilled in California o r having a minimum rating of or equivalent to A: VTI 111 Best's /11S11ra11 ce Guide:
A. Comprehensive General Liability insurance with a combined single limit of al
least Five Million Dollars ($5,000,000) for each occurrence. Le ssor, its officials, employees and agents
sha ll be covered as additi ona l insureds w ith respect to liability arising from activiti es 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. "Alt Risk" property insurance in an amount s ufficient to cover the full
replacement value of Lessee's personal property, improvements and equipment on the Premises.
C. Upon the execution of th is Lease, Le ssee shall de liver to Lessor certificates of
in surance with original endorsements evidencing th e coverage required by thi s Lease. The certificates
and endorse me nts shall be signed by a person authorized by the ins urer to bind coverage on its behalf.
D . Said insurance shall contain an e ndorseme nt requiring thirty (30) days prior
written notice from in surer to Lessor before cancell ation or change of coverage.
E . Said insurance may provide for such deductibles or se lf-insured retention as may
be acceptable to the City's Ri sk Manager or d csignee. In the event such insurance docs provide for
deductibles or self-insured retention, Lessee agrees that it will fully protect Les sor its officials and
e mployees in the same manner as these interests would have been protected had a policy of commercial
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insurance been in effect. With respect to damage to property, Lessor and Le ssee hereby waive all rights
of s ubrogat ion, on~ against the other, but on ly to the exten t th at coll ectible commerc ial insurance is
available for said damage.
F . The procuring of in surance s hall not be constnied as a limitation on Lessor's
liability or as fu ll performance on Lessee's part o f the indemnilicalion provision of this Lease. Lessee
understands and agrees that, notwiths tanding any insurance, Le ssee's obli gation to defend and indemnify
Lessor, its o ffi c ia ls and e mployees hereu nder is for th e full amount o f any damage, loss cost or expense.
G. Any modification or waiver of th ese in surance require ments shall only be made
wi th the wr itten approval of the Lessor's Risk Manager or designee.
17 . Removal o flmprovemcnts. On the expirat ion or sooner term in ation of this Lease, Lessee
at Lessee's sole cos t shall ha ve th e right to remove Lessee's Fac ilities (w ith the cxccpli on o f the Park
Improveme nts as shown on Ex hibit B, consisting of the equi pment buildings and sports lighting po les)
erected on the Premises by Le ssee by giving notice of it s intention to do so lo Le ssor and by re mo vi ng
same within forty-five (45) days a fter expiration or sooner termination of this Lease. Lessor may trea t
any suc h buildings or improvements as abandoned if Le ssee fails to timely remo ve them and, in such
event, (a) Lessor shall be deemed owner of them without accounting to Lessee , o r (b) Lessor may cause
their removal at Lessee's cost, wi th the e xceptio n of the underground conduits wh ich may be abandoned
in place by Lessee.
18 . Relocation. Lessee agrees that nothing contained in thi s Lease shall crea te any right in
Lessee for any rel ocati on payment or assistance pursuant to the provisions of Title l , Division 7, Chap te r
16 of the California Government Code from Les sor on account of the expiration or sooner termination o f
this Lease.
19. Not ic e . Any notice req ui red hereunder sha ll be in writing and p ersonally deli vered or
depos ited in the U.S. Postal Service, registered or certified, r eturn receipt, postage pre paid, to the address
of the respec ti ve parties set forth be lo w:
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LESSOR:
Parks and Recreatio n Direc tor
City of San Luis Ob ispo
LESSEE:
Cingu lar Wireless
Ma il code GAN02
1341 Ni pomo Street
San Lu is Obispo, CA 93401
Attn: Network Rea l Esta te Administration
6100 Atlan tic Blvd.
Norcross, GA 3007 1
With a copy concurren lly to:
Cingul ar Wire less
Attn: Lega l Department
2521 Miche ll e Drive, 2oc1 Floor
Tustin, CA 92780
Noti ce shall be deemed effective on the date shown on the return receipt or on the da te personal delivery
is made, whichever first occurs. If delivery is refused, the date of deposit o f the copy in the mail sha ll be
deemed the date of no tice. Change of address sha ll be given as pro vided herein for notices.
20. Ha1,;irdous Materials and Waste.
A. Lessee shall comply with all applicable laws regarding th e use, storage and
disposal of hawrdous materials on the Premises. Lessee sha ll comply with California Heallh and Safety
Code Secti on 25359.7 or its successor regarding notice to Lessor o n discovery by Lessee of the presence
or suspec ted presence of any hazardous substa nce on the Premises .
D. Le ssee shall not bring any hazardous materials onto th e Premises except for those
contained in it s back-up power batteries and comm on ma terials used in telecommunicat ions operatio ns,
e.g ., clea n ing so lvents. Lessee shall treat all haza rdous ma terials brought onto the Premises by it in
accordance with all fede ral , state and loca l laws an d regula tions.
C. Lessee sha ll specify any proposed generator usage and its proposed location.
D. Lessor represents that the Premises have not been used for the ge neration,
storage, treatment or disposa l of hazardous materia ls, hazardous substances or hazardous wastes. In
addition, Lessor represents tha t no hazardo us materia ls, hazardous substances, or hazardous wastes,
po ll uta nt s, asbestos, polych lori natcd biphenyls (PC Bs), petroleum or oth er fuels (including crude oil, or
any frac tion or deri vative th ereof), or undergroun d storage tan ks arc located on or near the Premises.
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21. Ind emn ity. Lessee shall defend, protect, indemn ify and hold hannlcss Lessor, its
officials, employees and agents from a ll claims, demands, damages, causes of action, losses, liability,
costs or expenses, including reasonable altomey's fees, of any kind or nature whatsoever (except those
resulting from Lessor's sole negligence or willful mis condu ct) 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 a ll eged acts or omissions of Lessee, any p arent, subsidiary,
affi liate 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, subsid iary, affi liate or partnership in
which any such entity participate s, Lessee's officers, employees or agents, or any breach of th is Lease.
Lessor shall protect, inde nm ify and save hannless Le ssee, and its officers, agents and emp lo yees,
fr om 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
Pre mises by Le ssor hereunder and resulling from the sole negligence or willful misconduct of Lessor or
its officers, agents and empl oyees.
22. Assignlllent and Subletting. Except for an assignlllent, sublease or transfer lo Lessee's
affiliate, parent, subsidiary, member or partner, or as a result of a merger or sale of substanti ally all of
Lessee's asse\s ("Pcm1itted Assignment") Lessee s hall no\ assign or transfer this Lease or any interest
herein, w ith out the prior wrillen consent of Lessor wh ich sh ull not be unreasonably withheld, provided,
however, that Lessee shall notify Lessor in writi ng ofa Permitted Assignment with in thirty (30) days. To
obtain Lessor's consent to a pro posed assignment or transfer (hereinafter collective ly referred to as
"tran sfer"), Lessee shall meet th e fo llowing requirements and Lessee's fai lure to meet any requirement
shall allow Lessor to withhold consent:
A. Lessee shall notify Le ssor at least sixty (60) days prior to the date when Les see
desires the transfer to take effect ("Transfer Date") wh ich noti ce shall contain the name, address and
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telephone number of the proposed transferee; the nature of \he proposed transferee's business and dc\a1l s
of its business experi ence.
B. Lessor shall notify Lessee a\ least thirty days (30) days prior lo the Transfer Date
whether L essor approves or disapproves of the proposed trnn sfcr.
C. Any approved transferee shall assume and be deemed to have assumed this Lea se
and shall be jointly and severally liable with Lessee for the payment of rent and performance of the terms,
covenants, and conditions of thi s Lease. No approved transfer shall be binding on Lessor until such
trnns feree shall deliver to Le ssor a counterpart of the transfer agreement with contains a cove nant of
assumpti on by transferee but the failure or refusal to execute or deliver such instmment shall not release
transferee from its liability as stated herein.
0. 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
s ubject to transfer by attachment, execution, proceedings in in solvency or bankruptcy (either voluntary or
involuntary), or rec eivership. In the event of the transfer without the prior written con sent of Lessor, such
trans fer shall be voida ble at Le ssor 's election and, if voided by Lessor, sha ll convey no interest. Any
transfer without Lessor's consent shall constitute a default of thi s Lease.
E. To obtain Lessor's consent to a sublease, Lessee shall meet the following
requirements and Lessee's failure to mecl any rcquircmenl shall allow Lessor to wilhhold consent
I) The Lessee must pay to Lessor the same amount of Annual Rent on the
sublease tenant's behalf as lhe 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 lhe Lessee
would be S63,654: the Annual Rcnl for the Lessee ($21,2 18, which is the first year's rent of S20,000
increased by 3% for two years) and the Additional Annual Rent for the two sublease tenants (S2 I ,2 I 8
each). While the Lessee may require the sublease tenant to pay this amount as part of their sublease
agreement with the L essee, payment of the Additional Annual Rent is the sole res ponsibility of the
Lessee, and is subj ect to the same temts, conditions and remedies as the Annual Rent .
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2} Lessee shall notify Lessor at least sixty (60} days prior to the da te when
Lessee desires the sublease to take effect ("Sublease Date"}, which notice shall contain the name, address
and telephone number of the proposed s ublease ten ant ; the nature of the p roposed sublease tenant's
business and detail s 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 thereaf\cr with the Annual Rent.
3} Lessor and Lessee agree (by way of example and without limitation} that
it shall he reasonable for Le ssor to withhold its consent if any of the following exist or may exist: the
proposed transferee 's use of the Premises conf\1ets with or is inconsistent with the use of the Premises
stated herein; the Lessee is in d efault under this Lease at the time th e request for sublease is made and has
not cured such default, if the same can be cured, prior to ten (I O} bu siness days prior to the Sublease Date.
4} The sublease tenant is s ubjec t th e same terms and conditions of this
Agreement as the Lessee.
5} Lessor shall notify Lessee at least lif\een (15} days prior to the Sublease
Date whether Lessor app rove s or disapproves of the proposed sublea se.
23. No Pc nnits . Lessee s hall not grant any rights-of-way, easements, fra nchises or pe rmits
in, on or across the Premises.
24. Encumbrances. Le ssee shall take the Premi ses subject to any and a ll existing casements
and other encumbrWlces.
25. Reservations. Lessor reserves lhe right 10 grant franchises, casements, rights-of-way or
pennits for pipeline purposes which will no t interfere with Lessee's use oflhc Premises.
26. Default. The occurrence of any of the fo ll owing acts shall constitute a default by Lessee:
A. Failure to pay Annual Rent or Additional Annual Rent when due where s uch
fa ilure shall continue for a period of ten (10} days af\cr Lessee's receipt ofwrillen noti ce from Lessor.
B. Failure to perform any o f the terms, co venan ts or conditions of thi s Lease if s aid
fai lure is not cured within thirty (30) days ancr Lessee's receipt of written notice from Lessor o f said
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failure. If th e default cannot reasonably be cured in thirty (30) days after rece ipt of such notice, Le ssee
shall not be in default if Lesse e 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
Premi ses. No such notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects
in the notice.
C. A11y al!empted assignment, transfer or sublease except as permitted in Section 22
hereof.
D. Failure to maintain all necessary permits and business licenses required by the
City in its municipal or r egulatory 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 tem1s of this Section, if Lessee due s not comply with each term, covenant
and cond ition of this Lease or if a default occurs , then Lessor may term in ate this Lease and Le ssor may
lhcn enter the Premises and tnkc possession thereof provided, however, that these rem edie s are not
exclusive but cumulative to other remedies provided by law in the event of Lessee's d efault, and the
exercise by Lessor of one or more rights and remedie s shall not preclude the Lessor's exercise of
additional or different remedies for the same or any other default by Lessee.
F. Failure to perfom1 any of the term s, covenants o r conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee no t ifies 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 recei pt
of such notice, Lessor shall not be in default if Lessor begins lo cure within the thi rty (30) day period and
d iligen tl y proceeds to cure to completion.
27 . B.1ght ofEntry.
A . In the event of an eme rgency which poses an immedi ate threat of hami or
damage to persons or property, Lessor may enter the Premises and take such actions as are required lo
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protect persons or property from such immediate threat of harm or damage, provided that promptly after
such emergency cntTy into the Premises (and in no event later than twenty-four (24) hours) Lessor gives
telephonic and writte n notice to Lessee of Lessor's enrry into the Premises. In addition to Lessor's rights
under the immediately preceding se ntence , Lessor shall have the right, upon forty-eigh t (48) hours prior
telephonic notification to Lessee (which notifi ca tion sha ll specify the date and time at which Lessor seeks
to enter the Premises), to enter the Premises to dctem1ine whether or not Lessee is complying with this
Lea se 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 wi thout a representati ve of Lessee being pre sent, and Lessee agrees to
make its representative promptly and readily available to accompany Lessor on th e date and at the time
given in Le ssor's telephonic notice. If Le ssee fails to make its representative available on the date an d 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.
ll. Lessee shall install a lock box system on the Premises and give the City access to
th e lock box in order to allow the City to inspect the Premi ses pursuant to Paragraph A above.
28.· filgfil. Lessee shall not pla ce, affix, maintain or permit any sign, adverl is emcnt, name,
insignia, logo, descriptive materia l or similar item (collectively "sign") on the Pre mises w ithout the pri or
written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at a ll
times . Lessor may remove any sign not approved by Lessor al 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 termina te . If any parl of the Premises
shall be taken under the power of emi nent domain, then this Lease sh all tem1inatc as to the part taken, as
of the day posse ss ion (of that p~rl) is required fo r any public purpose, and on or before that day Lessee
shall dect 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 proporlion to the amount of the Premises
taken if Lessee is unable to operate at the same level after the condemnation as before the condemnation.
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All damages awarded for any taking shall belong to Lessor, whether such damages be awarded as
compensation for diminution in va lue to the leasehold or lo the fee provided, however, that Le ssor shall
not be entitled lo any portion of the award made for lo ss of Le ssee's business or relocMion expenses.
30. Nuisance. Lessee shall not do or pcnnil 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 lhc 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 pemtitted by law, Lessee waives all
c laims 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 mi sconduct or Lessor's breach of its
obligations hereunder.
32. Waiver of Rights. The failure or delay of either party to in sist on slrict 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 tem1 ,
c ovenant, or condition herein. The receipt and acceptance by Lessor of delinquent rent shall not
constitute a waiver of any other default bul shall only constitute a waiver of timely payment for the
partic ular rent payment involved. Any waiver by either party of any default or brea ch 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 1101 be deemed to waive such party's consent or approva l of any subsequent ac l of the other party.
33. l'arti~) Invalidity . If any tenn, 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 h ereof shall
remain in full force and effect.
34. ~rs in Interest. TI1is Lease shall be binding on and inure to the benefit of the
parties and their successors, h eirs , personal representatives, approved transferees and ass ignees, and all of
the parties hereto shall be joinlly and severally liable hereunder.
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35. Right to Re-Enter. Lessor acknowledges that Lessee 's use of the Premi ses includes
proprietary ITnde secrets. Lessor s hall 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
w ithhold , Lessee shall peaceably deliver possession of the Premises to Lessor on the effec tive date of
termination or expiration of this Lease. On giving notice of tcm1ination to Lessee, Lessor shall have the
right to re-enter a nd take posse ssion of the Pre mise s on the te nnination or expiration d ate without further
notice of any kind and without institution o f summary or regular lega l proceedings. Tem1ination of the
Lea se a nd re-entry of the Premises by Lessor shall in no way alter or diminish an y obli gat ion of 1.cssee
under the Lease and shall not constitute an acceptance or surrender. Lessee waives any and a ll right of
red emption unde r any existing or future law, in th e event of eviction from the Pre mi ses and in th e event
Le ssor re-enters and takes possession. Lessee agrees that should the manne r and method u sed by Les sor
in re-entering or tak ing possession afier breach by Lessee gives Lessee a cause of action for damages or in
forcible entry and detainer, th e total amount of d amages to which Lessee shall be entitled due to the
re-entering shall be One Dollar ($1.00). Les se e agrees that thi s Section may be fil ed in any s uch action
and tha t when filed it s hall be a stipulation by Les see fi x ing the total damages to which Lessee is entitled
in such action .
36. Ho ldin g Over. If Lessee holds over and remains in possess ion of the Premises afier the
expiration of the Lease, such holding over shall be constrned as a tenancy from month to month on th e
sa me terms, covenants, and c onditions here in, except that monthly rent shall be one-twclfih (1/1 2) o f one
hundred twenty-fi\•e percent (125%) of the annual rent then in effect. Nothing in this Section shall be
constrncd as a consent by Lessor to any holding o ver by Lessee.
37. Time. Time is of the e ssence in thi s Lease and every provision hereof.
38. Attorney's Fees. In any action or proceeding relating to thi s Lease, the prevailing party
sha ll be entitl ed to its costs, including reasonable attorney 's fe es and court costs.
39. Integration and Amendm ents. 111i s Lease represents and constitutes the entire
und erstanding between th e parties and supe re edes all other agreements and communication between the
Te/ecommrmication s Fncl/i/y Leas e al Sama Rosa Park
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parties, oral o r written, concerning the subject matter herein. 111i s Lease shall not be modifi ed excep t in
wri ting duly s igned by the pa rties and referring to thi s Lease.
40. Recordatjon . Concurrentl y with th e exec ution of th is Lease, Lessor sha ll execute before
a notary and deliver to Le ssee 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 lo or arising from said recordalion .
Upon expiratio n or sooner termination of thi s Lease, l essee shall, at it s sole co st, immediately record a
Qui tclaim Deed with respect tn its interest und er this l ease.
41. Governing Law. This Lease shall be governed by and construed in accordance wi th the
laws of the State of California .
42. ~-'The various headings and num bers herein and th e grouping of the terms h ereof
int o se parate sections, paragraphs and clau ses are for conve nience on ly and sha ll not be con sidered a part
hereof, and shall have no effect on the constru ction or inlcrprcia tion of this Lease.
43 . 8Jm11doned Pr~-111e vacating or abandonment of the Premises by Lessee sha ll
include but not be hmitcd to the fai lure of 1.csscc to occupy the Premises for a continuous period of forty-
five (45) days or more wh ile not paying rent. I f lessee abandons the Premi ses, title to any personal
p ro perty be longing to Lessee and left on the Premises forty-five (45) da ys a ft er such abandon men t shall
be d eemed to have been transferred to Lessor. Lessor shall thereafter have the right to remove and to
dispose of sa id property without lia bility to lessee or to any person claiming under Lessee, a nd shall have
no duty to a ccount therefor.
44. Complionee with the law. Lessee shall comply with all la ws, ordinances, rules and
regulations of all federal, slate a nd lo ca l governmental authori ties having jurisd iction over the Premi ses
an d business thereon .
45. Quiet En joyment Lessor covena nts that, if Lessee performs the terms, covenants and
conditions of this Lease, Lessee sh all peaceably and quietly hold and enjoy the Premises.
Telecomm1111icnU011s Facility Lease at Santa Rosa Park Page l l ofl7
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46. Le ssor's Reprcscnlalion of Authority. L essor reprcscnls Iha\ it has title lo lhe Premi ses
and full a uthority to execute thi s Lease and to granl the casemen ts and access lo the Premises. Lessor
furthe r repre sents that there are no undisclosed liens, judgments, impcd imenls or exce ptions of ti tle on the
Premi ses that would affect this Lease.
47. Non-Interference Provision. Lessor will use its best efforts to provid e Lessee wi th notice
of a ny applications received from any other communic ations co mpanies wishing to uti lize ony part of
Sa nta Rosa Park. Further, Lessor will use it s best elTort s to no t lease property in Santa Rosa Park to other
commun ication companies, nor to use S anta Rosa Park for comnmnicalions purposes, \hat might interfere
with Lessee's use of the Premises. Jn the event Lessor or any other commun icat ion co mpany on Santa
Ros a Park docs , in fac t, interfere w ith Lessee's use of the Premises, Lessor shall eliminate, or cause to be
eliminated, suc h interference within seventy-two (72) hours of written noti ce by Le ssee. If such
interferen ce is not eliminated in s uch time period, Le ssee may exercise any right o r re medy at law or in
equity to e liminate the interfe rence or may tcm1 inate thi s Lea se.
fN WITNESS WHEREOF, th e parties have executed thi s Lease wit h all of the formalities
r equ ired by law as of the date fir st above written.
LESSOR :
C ITY OF SAN LUIS OBIS PO, a
Muni cipal Corporation
By :
Le e Price, City Clerk
Telecomm1111ications Facility l ease at San ta Rosa Park
LESSEE :
PAC IFIC BELL WIRELESS LLC,
a Nevada limited l iability company
d/b/a/ CJNGULAR WIRELESS
By : GSM Fac ilities, LLC, its sole membe r
By : Cingular Wireless LLC, its agent
By: ~~_..wa>t-J~'><><JM.--=~
Charles Vrane ,
Vice Presid en , Special Projects.IReal Estate
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1
PTI Site US-CA-1258/ Santa Rosa Park
PTI US Towers II LLC
999 Yamato Road, Suite 100
Boca Raton, FL 33431
SECOND AMENDMENT TO TELECOMMUNICATIONS FACILITY LEASE AT
SANTA ROSA PARK
THIS SECOND AMENDMENT TO TELECOMMUNICATIONS FACILITY
LEASE AT SANTA ROSA PARK (“Second Amendment”) is executed this ______ day of
_____________, 202___, and is effective April 1, 2023 (“Effective Date”) by and between CITY
OF SAN LUIS OBISPO, a California municipal corporation, having an address at 990 Palm
Street, San Luis Obispo, CA 93401 (“Lessor”) and PTI US Towers II LLC, having a principal
office located at 999 Yamato Road, Boca Raton, FL 33431 (“Lessee”).
WHEREAS, Lessor and PACIFIC BELL WIRELESS, LLC a Nevada limited liability
company d/b/a CINGULAR WIRELESS, entered into that certain Telecommunications Facility
Lease at Santa Rosa Park dated February 11, 2003, as thereafter amended from time to time
(hereinafter referred to as "Lease") and assigned to Lessee, PTI US Towers II LLC, for Lessee’s
use of a portion of the real property (“Premises”), located at 190 Santa Rosa Street, San Luis
Obispo, CA 93405 (hereinafter referred to as “Land”), being more particularly described in the
attached Exhibit “A”; and
WHEREAS, Lessor and Lessee desire and intend to amend and supplement the Lease as
provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby, acknowledged, the parties hereto covenant, agree, and bind themselves to the
following modifications to the Lease:
1. Section 3. Term, of the Lease is hereby amended to include the following:
In addition to the Renewal Terms as referenced in the Lease, the Lease is hereby amended
to include four (4) additional successive Renewal Terms of five (5) years, each of which
shall be deemed automatically extended unless Lessee notifies Lessor of its intention not
to renew the Lease at least sixty (60) days prior to the commencement of the succeeding
Renewal Term. The first additional Renewal Term shall commence on April 1, 2023, upon
the expiration of the Renewal Term expiring on March 30, 2023.
In the event Lessor determines in its reasonable discretion that the Premises are required
for public purposes, during each Renewal Term Lessor may terminate this Lease upon
providing two (2) years’ prior written notice. Following such notice, the parties shall
negotiate in good faith to identify a potential relocation site within the Land. Should the
parties fail to reach an agreement on a mutually acceptable site, or if Lessee is unable or
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PTI Site US-CA-1258/ Santa Rosa Park
unwilling to relocate, this Lease shall terminate automatically upon the expiration of the
two-year notice period.
2. Section 4. Rent, subsection A, of the Lease is hereby deleted and replaced with the
following, wherein all other subsections of Section 4 remain unchanged and in full force
and effect:
A. Lessee shall pay to Lessor the sum of Forty-Five Thousand and No/100 Dollars
($45,000.00) (“Annual Rent”) and Additional Annual Rent per tenant in the same
amount as Annual Rent (as further set forth in Section 22.E.), beginning upon Lessee’s
payment of Annual Rent due and payable on or before April 1, 2026. All payments of
Annual Rent previously provided by Lessee to Lessor for calendar years 2023, 2024
and 2025 are acknowledged as received by Lessor. Partial payment of Lessee’s Annual
Rent due and payable on or before April 1, 2026 is acknowledged as received by
Lessor, and Lessee and Lessor agree to reconcile the full amount of Annual Rent due
for such period for which Lessee shall provide a true-up differential payment to Lessor
within thirty (30) days of the Effective Date of this Second Amendment.
3. Section 19. Notice, of the Lease is hereby amended as follows:
LESSOR: City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
LESSEE: PTI US Towers II LLC
999 Yamato Road, Suite 100
Boca Raton, FL 33431
4. Within thirty (30) days of full execution of this Second Amendment, Lessee shall pay to
Lessor a one-time payment of Twenty-Five Thousand and No/100 Dollars ($25,000.00).
Said amount constitutes a one-time signing bonus, and Lessor’s acceptance thereof shall
confirm that neither Lessee nor Lessor are in default of any material term or condition of
the Lease, including the payment of Annual Rent, at the time of said payment.
5. Capitalized terms not defined in this Second Amendment will have the meaning ascribed
to such terms in the Lease.
6. This Second Amendment will be governed by and construed and enforced in accordance
with the laws of the state in which the Land is located without regard to principles of
conflicts of law.
7. Except as specifically set forth in this Second Amendment, the Lease is otherwise
unmodified and remains in full force and effect and is hereby ratified and reaffirmed. In
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PTI Site US-CA-1258/ Santa Rosa Park
the event of any inconsistencies between the Lease and this Second Amendment, the terms
of this Second Amendment shall take precedence.
8. Lessor acknowledges that the exhibits attached to the Lease may be incomplete or contain
inaccuracies and, accordingly, Lessee may replace and substitute such exhibits at its cost
and with written consent of Lessor, with an accurate survey and/or legal descriptions of the
Premises and re-record this Second Amendment with copy provided to Lessor. Following
such re-recording, the descriptions contained therein shall serve as the descriptions for the
same for all purposes under the Lease.
9. Lessor represents and warrants to Lessee that Lessor is the sole owner in fee simple title to
the Land and Lessor’s interest under the Lease and that consent or approval of no other
person is necessary for Lessor to enter into this Second Amendment.
10. This Second Amendment may be executed in one or more counterparts and by the different
parties hereto in separate counterparts, each of which when executed shall be, deemed to
be an original but all of which taken together shall constitute one, and the same Second
Amendment.
11. Lessee shall have the right to record this Second Amendment.
[The remainder of this page is intentionally left blank. Signatures to follow.]
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PTI Site US-CA-1258/ Santa Rosa Park
IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the
day and year first above written.
LESSOR:
City of San Luis Obispo, a California
municipal corporation
By: ___________________________________
Print Name: _________________________
Title: __________________________________
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF )
On _________________________, 202___, before me, ____________________________
personally appeared __________________, who proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
____________________________________
Notary Public________________________
My Commission Expires _______________
(NOTARY SEAL)
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PTI Site US-CA-1258/ Santa Rosa Park
WITNESSES: LESSEE:
PTI US Towers II LLC
999 Yamato Road, Suite 100
Boca Raton, FL 33431
_______________________________________ By: ________________________________
Print Name: __________________________
_______________________________________
Print Name: __________________________
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of [X] physical presence
or [ ] online notarization, this _____ day of _______________________, 202___, by
_________________________, on behalf of said company, who is personally known to me and
did not take an oath.
___________________________________
Notary Public ________________________
My Commission Expires _______________
(NOTARY SEAL)
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PTI Site US-CA-1258/ Santa Rosa Park
EXHIBIT “A”
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