HomeMy WebLinkAbout04/19/2011, C 5 - TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK councit
4-19-I1
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CITY O F SAN LUIS O B I S P O
FROM: Mary Bradley, Interim Director of Finance & Information Technology
Rachel Messner, Administrative Analyst
SUBJECT: TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK
RECOMMENDATION
Approve a revised lease agreement with AT&T for a telecommunications facility at Santa Rosa
Park.
DISCUSSION
On January 18, 2011, the Council approved an Agreement with AT&T to lease a portion of Santa
Rosa Park for a telecommunications facility. However, after this approval, AT&T's legal
department requested substantial changes to the Agreement to achieve consistency with the
company's 2009 telecommunications lease agreement at Laguna Lake Golf Course.
Notable Lease Revisions
The majority of the revisions to the current lease Agreement were proposed based on language
from the Laguna Lake agreement that was approved by Council on September 16, 2009. These
changes are shown in the attached red-lined document.
In addition to these modifications, several other changes were proposed by AT&T. These
revisions are described in greater detail below, in the order in which they appear in the
Agreement.
1. Section 4(A) -Rent
AT&T requested that the grace period to process only the initial installment of annual rent be
established at 30 days following the lease commencement date. This is the amount of time
required to process payments internally within AT&T's national real estate payment function.
2. Section 14(A)—Maintenance
The current Agreement grants the Lessor 30 days to respond to routine maintenance and repair
,problems that arise at the Premises. However, both parties agreed that maintenance issues that
result in an "imminent threat to the health and safety of City residents"must be corrected sooner.
Therefore, the lease revisions provide that if an emergency presents itself to the City as a result
of AT&T's Facility, AT&T would be required to respond within 72 hours, and, if AT&T failed
to do so, the City would then be permitted to undertake repairs to the extent reasonably necessary
to abate the emergency. In a non-emergency setting, AT&T would be afforded the customary 30-
day time period to correct the problem.
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Council Agenda Report—Revised Telecommunications Facility Lease at Santa Rosa Park
Page 2
3. Section 16(C)—Insurance
The revisions drafted in the insurance section were provided by AT&T Risk Management to
accommodate new requirements of AT&T's national insurance provision. The City's Risk
Manager, in coordination with the California Joint Powers Insurance Authority (CJPIA),
reviewed and approved all proposed modifications to this section of the Agreement.
4. Exhibit B—Description of the Project
AT&T updated the Scope of Work described in Exhibit B to more clearly depict the proposed
installation.
CONCURRENCES
The Assistant City Attorney and Risk Manager have reviewed and approved all proposed lease
modifications.
FISCAL IMPACT
There is no fiscal impact associated with the proposed lease modifications. The revenue from
this lease agreement is $26,000 annually, increasing by at least 3% per year, for a possible
duration of 20 years.
ALTERNATIVES
1. Do Not Approve the Lease Agreement. This alternative is not recommended because it
would result in less revenue to the City than is otherwise possible and would be inconsistent
with the Council's direction on January 18, 2011.
2. Amend the Provisions of the Lease Agreement. In this case, the Council would need to
identify the specific changes it wants. However, the proposed lease agreement is consistent
with AT&T's telecommunications site lease agreement at Laguna Lake Golf Course which
was approved by Council in 2009..
ATTACHMENT
Red-lined lease agreement with AT&T for a telecommunications facility at Santa Rosa Park
T:\Finance&17 Telecommunication Lease Agreements\Santa Rosa Park,2010\20I0_v2\CAR-Lease Revisions-04191 I.doc
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AttechmeflL.
TELECOMMUNICATIONS FACILITIES LEASE AT SANTA ROSA PARK
Deleted: is made and rntercdinm an
This Lease dated as of the latter of the signature dates below (the "Effective Date"L is-, , ' Janwryla,zo c
entered into by and between the CITY OF SAN LUIS OBISPO, a municipal corporation and
charter city (hereinafter referred to as "Lessor"), and New Cingular Wireless PCS, LLC, a
Delaware limited liability company(hereinafter referred to as"Lessee").
RECITALS
This Lease is made and entered into with respect to the following facts:
A. Lessor is the owner of property described in Exhibit A,located at 190 Santa Rosa
Street,San Luis Obispo,California,commonly known as"Santa Rosa Park."
B. Lessor is willing to lease certain Premises on this property as described in
Section I to Lessee upon the terms and conditions hereinafter set forth,:
C. Lessee warrants that use of these Premises 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 operate a wireless communications facility in the Premises,
described in Exhibit B as"the project"and as defined below.
E. Lessor and Lessee have heretofore entered into a Memorandum of Understanding
dated
October 19,2010,concerning the lease of a City site located at Santa Rosa Park.
NOW THEREFORE,the parties hereto agree as follows:
1. Premises. Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to
lease from Lessor approximately one hundred and ten(I 10)square feet of building space,known
as the City's communication room in building B, and all access and utility easements, including
space on one of the two antenna towers, described in Exhibit A attached hereto, and by this
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AftaChmen b.
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 GLdays a week,twenty-four(24)hours a day,and the right to
install and maintain underground utility wires and cables through existing conduits (1) from the
Premise;to the nearest public right-of-way,and(2) from the radio equipment to the antennas.
2. Improvements. Lessee shall be allowed to make minor improvements, such as
the addition of air conditioning or for the provision of emergency electrical service, as necessary
to successfully complete this project. Plans for improvements shall have the prior written
approval of Lessor in its municipal capacity(not its capacity as landlord). Lessee shall dedicate
any permanent improvements, such as the addition of a generator, HVAC system or changes to
the electrical system,to Lessor upon completion thereof
3. Term. The term of this Lease shall be for five (5) years ("Initial Term")
commencing with the issuance of a City building permit to construct any improvements
("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
4. Rent. Rent shall be paid annually in advance as follows:
A. Lessee shall pay to Lessor as annual rent on or before the
Commencement Date of the Lease the sum of$26,000.00 ("Annual Rent") without deduction,
setoff, notice or demand provided. Only with respect to the first installment of Annual Rent due
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upon the Commencement Date, Lessor hereby grants to Lessee a one-time_aace period of thirtv
(30) days following the Commencement Date within which to deliver the first installment of
Annual Rent to Lessor.
B. Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that
Deleted:.ior
lease year without deduction, setoff, notice, or demand the previous year's Annual Rent ,
-- - - -- Deleted::increased
multiplied , by jhe CPI Adjuster (as defined below), or multiplied by Three Percent (3%1,_,_'_ Deleted:changes,in the U.S.consumer
Price Index,All Urban Consumers.(CPI-
whichever is greater.
Deleted:o
C. The CPI Adiuster means a percent, which is calculated by dividing the Deleted:
Local Metropolitan Area Consumer Price Index(All Urban Consumers) published by the Bureau
of Labor Statistics of the U.S. Denartment of Labor Urban Wage Earners and Clerical Workers
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,ac applicable. If the Index
is changed so that the base Index number differs from that in effect when the first extended term
commenced, the Index shall be converted in accordance with the conversion tactor 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.
Deleted:C
I� If Lessee fails to pay the Annual Rent within thirty (30)days_after such
rent is due,Lessee shall pay a late fee of 1.5%per month upon written notice to Lessee. 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.
5. Use.
A. Lessee shall use the Premises for the sole purpose of maintaining,
securing and operating wireless communications facilities (including but not limited to cellular,
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PCS,paging,and broad band). 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 facility at this
location shall require architectural review.. The applicant shall submit application materials and
fees as required by the Community Development Department. The Premises shall not be
modified prior to obtaining any required City building 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 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. 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 a wireless communication facility, Lessee may
terminate this Lease as provided herein,upon thirty(30)days prior written notice.
6. Interference.
A. Lessee warrants that its operations in or repair of Lessee's Premises will
not interfere with Lessor's fire, police, public works and other public safety or City department
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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
Deleted: or identify
communication systems, and if Lessee _does not proceed diligently to eliminate such ,
interference. or ii provide evidence that Lessee is not the source of such interference, within ten
(10) business days after notice from Lessor to do so, Lessor may immediately terminate this
Lease by giving notice to Lessee.
C. Lesseeshall provide Lessor with a contact person who shall be available _
Dektw:lessor may report such
twenty-four(24)hours a day to receive reports of any interference with Lessor's frequencies. Jn interference to (Name,
Title,Address,Phone,Pager Cellular
Nos.etc.).
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
6.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.
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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 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 Premises 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 theeffective 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
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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 Mitigation. Lessee will use a variety of visual mitigation strategies for all
of itsfacilities,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,screening and camouflage. The applicant shall use the smallest and least
visible antennas possible to accomplish the coverage objectives. The project shall be designed to
blend into its surroundings so that the antenna(s) and equipment are not apparent to the casual
observer. Ground mounted support equipment shall be.undergrounded or otherwise screened
from view so as to be effectively unnoticeable: All connections between the base of the
antenna(s) and support equipment shall be undergrounded using existing conduit. Electrical and
telephone service to the support equipment shall be undergrounded using existing conduit.
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
n�r .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
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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 as permitted in this Lease(including, without limitation, cables, conduits and pipes
within the Premises to connect Lessee's communications equipment from building Bto an
existing antenna tower).
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
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
the Premises and all improvements thereon in good condition, free from rodents, weeds, noxious
plants, wild growth and graffiti, 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
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by Lessee. If Lessee fails to maintain the Premises as required herein, Lessor may notify Lessee
of said failure. If Lessee fails to correct the situation within thirty (30) days after receipt of
written notice from Lessor 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
Deleted:and
administration,Jabor, materials, and equipment, shall be paid by Lessee within thirty (30) days_,
after receipt of a statement of said cost from Lessor, except to the extent that the failure to
maintain the Premises pertains to a situation which creates an imminent threat to the health and
safely of Citv residents, in which event Lessee shall have seventy-two (72)hours after receipt of
written notice from Lessor to correct such situation, after which Lessor may undertake repairs
which are reasonably necessary to abate the imminent threat to the health and safety of Citv
residents, and the cost thereof shall be paid by Lessee within thirtv (30) dans after receint 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.
B. Lessor shall have no duty to maintain or repair the Premises or any of
Lessee's improvements,including the antenna towers 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
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Insurance Guide:
Deleted:ptehmsive
A. Commercia General Liability insurance with a)imit of five Million_,•'_. Deleted:combined single
Dollars($5,000,000.00)for each occurrence,and Five Million Dollars($5,000,000.00)ags_n•ecate. Deleted,at least
Deleted:covered
Lessor,its officials,employees and agents shall beyncluded as additional insureds with respect to
liability arising from activities performed by or on behalf of Lessee. Said insurance shall be
• Deleted:endorsement.
primary insurance with respect to Lessor and shall contain a cross liability�)rovision_
B. "All Risk" property insurance in an amount sufficient to cover the full
replacement value of Lessee's personal property, improvements and equipment on the Premises.
Lessee is granted permission to self-insure this coverage in a manner consistent with its tisk .
management Program in effect from time to time.
C. Upon the execution of this Lease, Lessee shall deliver to Lessor
Deleted:original
certificates of insurance with copies of applicable endorsements evidencing the coverage required '
. Deleted:and endorsements
by this Lease. The certificates Shall be signed by a_person_authorized by the insurer_ to bind-, _
Deleted:Lessor reserves the right to
coverage on its behalf _ ,` require complete certified copies of all
g --------------------- -------------...--..__..-._....-...-._. .policies many time.
D. Said insurance shall contain i;,rrovision requiring insurers$o provide_. -' Deleted:n
Deleted:endorsement
Prior-written-notice in accordance with state law to Lessor before cancellation of coverage., Deleted:endeavor
E. ,4m_deductibles or self-insured retention shall he the sole res�onsihilitvDeleted:at least thirty(30)days
F
_______ ___ _ _ _ ___ __ _ Deleted:Notwithstanding any
notification obligation imposed upon the
of Lessee In the event such insurance does provide for deductibles or self-insured retention, insurer under this section or pursuant to
the required endorsement.Los=shell
have the additional and independent
Lessee agrees that it will fully protect Lessor, its officials and employees in the same manner as obligation to provide Lessortvith thirty
(30)days prior written notice of any
these interests would have been protected had a policy of commercial insurance been in effect. co�igaeon or change or required
With respect to damage to property, Lessor and Lessee herebywaive all rights of subrogation, Deleted:Said insurance may provide
g for such
one against the other,but only to the extent that collectible commercial insurance is available for Deleted:as may be acceptable to the
g y - City's Risk Manager or designee
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
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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
Deleted:the
made with the written approval of lessor's Risk Manager or designee._ __
IT 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 equipment or
temporary improvements placed in or 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 equipment 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 he 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 16 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, or by a nationally recognized overnight courier, Posta ree prepaid, to be effective when
Deleted:to the
Properly sent and received, refused or returned undelivered. Notices will be jaddressed tQ the Deleted:of
respective parties as set forth below:
If to Lessor:
City Clerk
City of San Luis Obispo
990 Palm Street
San Luis Obispo,CA 93401
If to Lessee:
New Cingular Wireless PCS,LLC
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i
Attachmu ant
Attn:Network Real.Estate Administration
Re:Cell Site#SBL051
Cell Site Name: Santa Rosa Park(CA)
Fixed Asset#: 10145610
12555 Cingular Way,Suite 1300
Alpharetta,GA 30004
With the required copy of legal notice sent to Lessee at the.address above,a copy to AT&T Legal
Department:
If sent via certified or registered mail:
New Cingular Wireless PCS,LLC
Attn:AT&T Legal Department
Re:Cell Site#SBL051
Cell Site Name: Santa Rosa Park(CA)
Fixed Asset#: 10145610
P.O.Box 97061
Redmond,WA 98073-9761
If sent via nationally recognized overnight courier:
New Cingular Wireless PCS,LLC
Atm:AT&T Legal Department
Re:Cell Site#SBL051
Cell Site Name: Santa Rosa Park(CA)
Fixed Asset#: 10145610
16331 NE 72nd Way
Redmond,WA 98052-7827
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.upon thirty(30)days prior written notice by either party.
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
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Attachment ,
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.
Deleted:shall specify
C. If Lessee 4'euuires any proposed generator usage from an existing
-- - - - - Deleted:and
Verizon Wireless generator on the Prooerrv, Lessee shall be solely responsible t ,ipnter into a_,
Deleted: prior to signing lease
shared use agreement with Verizon Wireless- _ - - _ agn=nent with the City
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.
Deleted:ry
21. Indemnification.
A. Lessee shall defend, protect, indemnify and hold harmless Lessor, its
officials, employees and agents froth 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
ornissions 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.
B. Lessor shall nrotect, indemnify and save harmless Lessee and its
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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 irisins out of the use of the Premises byLessor hereunder and resulting from
the sole neslisence 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 endeavor to 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 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
C5-16
V-VftW chnu BR
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, other than a sublease through a
Permitted Assignment, 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"), other than a sublease
payment through a Permitted.Assignment. 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
$82,750.20: the.Annual Rent for the Lessee($27,583.40,which is the first year's rent of$26,000
increased by 3% for two years) and the Additional Annual Rent for the two sublease tenants
($27,583.40 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.
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.
C5-1
I � 1�Iiff.��dtld9u��F61,-
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 to 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 under Subsection 26(A)
throe h�shall constitute a default by Lessee.and Subsection 26(F)shall constitute a default by
Lessor:
A. Failure to pay Annual Rent or Additional Annual Rent when due where
such failure shall continue for a period of ten (10) business 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 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 .
C5-18
j
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.
C. Any attempted 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 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
. Deleted:g
additional or different remedies for the same or any other default by Lessees pelma;F.,Failure to perforin any of
the terms,covenants or conditions of this
Lessor's failure to perform_any of the terms,_covenants or conditions or Lease if said failure is not cured within
--------------- thirty(30)days after Lessee notifies
Lessor of said failure shall constitute a
this Lease if said failure is not cured within thirty(30)days after Lessor's receipt of written notice default by Lessor of this Lease. If the
default cannot reasonably be cured in
thirty(30)days after receipt of such
from Lessee of said failure. If the default cannot reasonably be cured in thirty (30) days after notice,Lessor shall not he in default if
Lessor begins to etre within the thirty
receipt of such notice,Lessor shall not be in default if Lessor be o cure w
s to the thirty-day da (30)day period and diligently proceeds to
p y cute to completion.
period and diligently proceeds to clue to completion. Lessee's notice shall describe the default Dekted.G
and shall demand that Lessor perform or Lessee may terminate this Lease. No such notice shall
be deemed a forfeiture or termination of the Lease unless Lessee so elects in the notice.
27. Right of Entry.
A. In the event of an emergency which poses an immediate threat of harmor
damage to persons or property, Lessor may enter the Premises and take such actions as are
C5-19
required to 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
Deleted:and to serve,post or keep
the Premises to determine whether or not Lessee is complying with this Lease,Except in the-,- posted any notice
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. Si s. 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 as to
the date of such taking. 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 Lesseeshall elect in writing either to
C5-20
� -�.� 6�R►1�6�i�NikIUtlllll�JIltJFb -_
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.
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. Notwithstanding the above, the parties will each be entitled to pursue their
own separate awards in the condemnation proceeds, which for Lessee will include, where
applicable, the value of its Lessee's Facilities, moving expenses, prepaid Rent, and business
dislocation expenses,provided that any award to Lessee will not diminish Lessor's recovery.
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
Deleted:Less=or
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 parry 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
C5-21
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.
35. Rinht 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 in
any such action 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
C5-22
Attachment
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 shall be construed as 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 supersedes all other agreements and communication
between the 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. Cations. 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 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,
C5-23
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.
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
communicationsJwrnoses. that might interfere with Lessee's use of the Premises. In the event
Lessor or any other communication company at 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.
C5-24
IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities• --- Formatted:Line spacing: single
required by law as of thejEffective Date. __- Deleted:date fust above written.
LESSOR:
CITY OF SAN LUIS OBISPO,a
Municipal Corporation
By:
Jan Marx,Mayor
Date:
ATTEST:
By:
Elaina Cano,City Clerk
APPROVED AS TO FORM:
For Font:11 pt
Formatted:Font:11 pt,No
By: underline,Font color:Auto
J.Christine Dietrick,City Attorney Formatted:Font:11 pt
Formatted:Font:11 pt,No
.` underline,Font color:.Auto
LESSEE; Formatted:Font:11 pt
Formatted:Font:11 pt
NEW CINGULAR WIRELESS PCS, LLC. Formatted:Font:11 pt No
a Delaware limited liability comasnv underline,Font color:Auto
--- - - - --- -- - -- - Formatted:Font:11 Pt
ts: AT&T Tobilit4 Cornorattort _.__ - Form:Font:11 pt,No
It,: A4ana¢er underline,Font color:Auto
------_._........---..-----_.----_- .._.-.__._.__....._.__-. Formatted:Font:11 pt
Bv: Formatted:Font:11 pt
Formatted:Indent:Left: 0"
Print Name: Formatted:Font:11 pt,No
underline,Font color:Auto
Its: Formatted:Font:11 pt,No
underline,Font color:Auto
Date: ••. Formatted:.Font:11 pt:...
Formatted:Font:11 pt,No
(ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING PAGE] underline,Font color:Auto
Formatted::Font:11 pt
Formatted:No underline,Font color:
Auto
C5-25
Attachment ._
Formatted „• 1
Formatted ... 2 fl
LESSOR ACKNOWLEDGMENT Formatted 3
Formatted 4
State of California •• 5
Count of
Formatted
Chi before met Formatted 8
y(insen name and title of the officer), Formatted F-71-911
' Formatted ... 10
personally appeared ---proved Formatted ... ti
who
to me on the basis of satisfactory evidence to be the persons)whose name(;)is/are subscribed to the, FOrmatted F7R-211
within instrument and acknowledged to me that he/she.,they executed the same in his/her/their Formatted 13
authorized canacity(ies),and that by hi.,-.her/their sitmature(s)on the instrument the person(s),or the Formatted 14
entity upon behalf of which the person(s)acted,executed the instrument_ i Formatted 15
Formatted
I cenifv under PENALTY OF PERJURY under the laws of the State of California that the foregoing.- 16
paragraph is true and correct. Formatted
17
' Formatted 17.7.7-1-91-1
WITNESS my hand and official seal.. Formatted ...r201
Formatted 21
Signature (Seal). LFormatted ••• 22
Formatted F..r231j
Formatted ... 24
LESSEE ACKNOWLEDGMENT Formatted
... 25
Formatted 26
State of California Fo^"a� F.—.r2-71
Countv of ) Formatted 28
Formatted ... 29
On before me. 30
------------------- Formatted
;inser(name and title of the officer)
Formatted 31
-11
Formatted ...r321
personally appeared Formatted 33
who proved to me on the basis of satisfactory evidence to he the person(s) whose name(s)is./are Formatted 34
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in Formatted ,,. 35
his,her.'their authorized capacitv(ies),anti that by his/her/their signatures)on the instrument the
Formatted
persoo(s),or the entity upon behalf of which the person(s)acted,executed the instrument, 36
Formatted 7.7-3-711
I certify under PENALTY OF PERJURY under the laws of the State of C'aliFornia that the foregoing" Formatted 38
paragraph is true and correct., Formate
... 39
Formatted ... 40
WITNESS my hand and official seal. Form 41
Formatted 42
Formatted r43lj
Signature {Seal Formatted
• - Formatted ... 45
C5-26
Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY AND PREMISES
All that real property located in the State of California,County of Sen Luis Obispo,described as follows:
BASIS OF BEARING:
THE BEARING ARE BASED UPON CALIFORNIA COORDINATE SYSTEM,ZONE 5,NAD 83.
NOTES:
1. ACREAGE PARCEL- .005 ACRES
2. PROPOSED LEASE AREA: 12.00'X 17.83'—214.00.4E
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 'SC" AS SHOWN ON FLOOD
INSURANCE RATE MAP NO.0603IMMS-C,EFIWI VE DATE JULY 7, 1981. AS PUBLIS11ED
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- N35'17'24.38'
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 CARSON ITE
WITNESS POST.AND ABOUT I FOOT HIGHER THAN THE ROADWAY.
EL.EV=464.00 FEET AMSL(NAVD 88)
PID=FV 1478
C5-27
Attachment -
Exhibit B
DESCRIPTION OF THE PROJECT
SCOPI: OF WORI<
Formatted:Centered,Indent:First
line: 0"
xistlill-, Formatted:Centered
light standards in Santa Rosa Pvrk Formatted:Indent:Left: MY
• Each light standard will have six (6antenna mounted for a rotal of twelve(I
• AT&T Nvill 1-cli-Of-it the existing park equitiment room to house aSSOCirtlCCI
C(4UiPn1CnL.
• AT&T will install two(2) new AIV WZ1H 111OUnWd 1-Mils on the existjtiq park
C(lUipnicnt room.
• AT&I will HISM11 co-axial CahleIrOni Lhe eClUil)nient alVa to the ailleilll.i.s ill
existing and new underground conduit..
• AT&T will n1odit v cxi.stin�o�N er and telco Nei-vices to accominodate its new.
facility.
The accompanied Plans and Specifications dated September 8,2010 maybe amended by
mutual consent between the Lessor and Lessee.
C5-28
Attachment
Exhibit C
MEMORANDUM OF LEASE
RECORDING REQUESTED BX Deed:
A WHEN RECORDEDRETURN TO:
._ Formatted:Underline
New Cingular Wireless PCS,LLC Deleted:I
Attn:JJetwork Real Estate Administration ¶
12555 Cingular Way.Suite 1300 ¶
Alpharetta,GA 30004
Formatted:Font:Bold,Font color:
Auto
- ' Formatted:Font:Bold,Underline
Deleted:,
• - - - - -- -- - - Deleted:(For Overnight Courier)
Deleted:AT&T
APN: 001-031-028, Deleted:Re: Market:Los Angela
Deleted: Cell Site Number.
f Srxice Above Tbi,Linc lyr SBIA51
Re; Market: Los Angeles
_ � � leted: Cell Site Name:Santa Rosa
Cell Site NumbtT:S81,051 Park
Cell Sitc\ame:Santa Rosa Park Deleted: Site Address:
Site Address: 190 Santa Rosa Street,San Luis Obispo.CA ' Deleted: .Count :San Luis Obispo
Counh:San Luis Obispo. Formatted:Font:Bold,No
underline,Font color:Auto
MEMORANDUM OF LEASE Formatted:Font:Bold
Formatted:Font:8 pt,No underline,
Font color:Auto
This MEMORANDUM OF LEASE ("Memorandum") dated as of the latter of the Formatted:Font:8 pt,No underline,
signature dates below (the "Effective Date'L is between_ the CITY OF SAN LUIS OBISPO, a Font color:Auto
municipal corporation and charter city ("Lessor'), and New Cingular Wireless PCS, LLC, a :, Formatted:Font:8 pt,No underline,
Delaware limited liability company ("Lessee'). All capitalized terms not otherwise defined Font color:Auto
herein shall have the meanings ascribed to such terms in the Lease(as defined below). Formatted:Font:8 pt
Formatted:Font:Bold,No
RECITALS underline,Font color:Auto
' Formatted:Font:Bold )
WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Formatted:Font:Times New
Lease -I Santa Rosa Park ("Lease") dated as of ipl Roman,tt pt,Bold
covering certain prernises (the "Premises") situated on a portion of that certain real property Deleted:
located in the County of San Luis Obispo, State of California,and more particularly described in Deleted:a
Exhibit"A"attached hereto and incorporated herein by this reference(the-Pronerrv");and
WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official
Records of San Luis Obispo County,California, Deleted:
C5-29
NOW, THEREFORE, in consideration of the foregoing, Lessor and Lessee hereby
declare as follows:
I. Lessor has leased the Premises_to-Lessee (together with access rights), and- . ._- Deleted:Demise.
Lessee has hired the Premises from Lessor, subject to the terms, covenants and conditions
contained in the Lease.
2. The Initial TErm of the Lease will be five(51iears("Initial Term')Fommencin< Deleted:Expiration Date.
on jhe Commencement Date-,E itltthree(3)�uccessiveAye(5)years options to renew --------
_--.___ I,; Deleted:t
3. is Memorandum is sole) for the ose of vin constructive notice of the Deleted:is whcduled to
- --- - to y - - p`-'p-- - gi -g- p
Lease. This Memorandum is not intended to amend or modify, and shall not be deemed or , •, Deleted:`
construed as amending or modifvintr,any ofthe terms,conditions and provisions of the Lease, all ,,.P;;. Deleted:or before
of which are herehv ratified and affirmed_ In the event of conflict between the terms of the Lease Deteted: and shall expire five(5)years
and this Memorandum,the terms of the Lease shall control. The Lease shall be binding upon and theRaaer
inure to the benefit of the paries and their respective heirs,successors,and assigns, subject to the Deleted:subject m Lcs;see's option to
provisions of the Lease. Olio extend the Term pursuant to Section 3 of
the Lease
Deleted:for
Deleted:additional terns
r'
Deleted:of
1SIGNATURES APPEAR ON THE FOLLOWING PAGE] _ _ Deleted:each.
Deleted:Lease Controlling.
Delett'd:. i
Deleted:n
Formatted: No bullets or numbering
Formatted:Font:Bold
Formatted:Centered, No bullets or
numbering
C5-30
Attachment-
WITNESS WHEREOF,-Lessor-and-Lessee have executed this Memorandum- -. - Deleted:9
of the Effective Date.
Formatted:Normal,Justified,
Indent:First line: 0"
'---------------------------------`---------------------.-..... ..---
LESSOR: Deleted:of Lease
Deleted:date and yearfirst written
CITY OF SAN LUIS OBISPO, above.
a Municipal Corporation Formatted:Font:Italic
Deleted:LESSOR. . . . . . . . .I
I
By: By:
Jan Marx, Mayor . .No
me:
Date:
.Title:
ATTEST:
Bv:
Elaina C'ano,City Clerk
APPROVED AS TO FORM:
BV:
J.Christine DieHck,Citv Attorney
LESSEE:
NEW CINGULAR WIRELESS PCS. LLC,
a Delaware limited liability company
Bv: AT&T Mobility Cmoration
Its: Manager
Bv:
Print Name:
Its:
Date:
Formatted:Font:Bold
[ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING PAGEI. Formatted:Centered
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Attachment_ J Deleted:NOTAR=SICNATUR£Sj
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LE SSO R7 ACKNOWLEDGMENT Formatted ... 50
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State of California Formatted "' S2
County of ) Forme 53
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On before me , " Formates 55
f insert name and title of the officerll Formatted 56
personally appeared y Formatted "' S
who proved to me on the basis of satisfactory evidence to be the person(s)whose names) Ware FOf ••• 58
subscribed to the within instrument and acknowledged to me that he/shel'thev executed the same in Fore F.. 59
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hisheritheir authorized canaciMies).and that by his/her/their signature(s)on the instrument the Formatted 60
person(s).or the entitv upon behalf of which the person(s)acted,executed the instrument, Formatted 61
I certify[aider PF�'A(.TY OF PFRJLIRY under the laws of the State of California that the foregoing' Formatted "' 62
paragraph is true and correct. Formatted ... 63
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Wll'\FSS my hand and official seal ' ' Formatted 66
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person(s),or the entity upon behalf of which the Persons)acted,executed the instrument,
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I, ceiYifyumder PENAL TY OF PFRJI;RY under the laws ofthz St?te of California that the foreuoing; Formatted 84
paragraph i;true and correct. Formatted
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WITNESS my hand and official seal.
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Exhibit D
WIRELESS TELECOMMUNICATION DEVELOPMENT
STANDARDS
Table 9—Uses Allowed by Zone
TRANSPORTATION&
COMMUNICATIONS Permit Requirement by Zoning District
Specific use
Land Use AG CIOS R1 R2 R3 R4 PF 0 1 C-N GC C-0 C-R GT GS M BP Regulations
Antennas and
telecommunications facilities D D I I I I D D I D D D D D D D 17.16.120
Key:
D=Director's approval required
17.16.120 Wireless telecommunication facilities.
A. Purpose
To establish standards for the development,siting and installation of wireless telecommunications
facilities; to protect and promote public health, safety, and welfare; and to preserve view corridors and
avoiding adverse visual and environmental impacts. These standards are not intended to be all-inclusive.
Projects may be subject to additional standards deemed appropriate through architectural review and use
permit processing to address site-specific conditions.
B. Definitions.
1. Wireless telecommunications facilities consist of commercial wireless communications systems,
including but not limited to:cellular,PCS,paging,broadband,data transfer,and any other type of
technology that fosters wireless communication through the use of portable electronic devices. A
facility includes all supporting structures and associated equipment.
2. Co-location is the practice of two or more wireless telecommunication service providers sharing
one support structure or building for the location of their antennas and equipment.
3. Stealthing means improvements or treatments added to a wireless telecommunications facility
which mask or blend the proposed facility into the existing structure or visual backdrop in such a
manner as to render it effectively unnoticeable to the casual observer.
C. Exempt facilities.
The following wireless telecommunication facilities are exempt from the requirements of this
section:
1. Govemment-owned communications facilities used primarily to protect public health,welfare,and
safety.
2. Facilities operated by providers of emergency medical services, including hospital, ambulance,
and medical air transportation services,for use in the provision of those services.
3. Satellite dish antennas for residential and commercial use, solely for the use of the occupants of
the site,subject to compliance with development standards set forth in Section 17.16.100 et al of
the zoning ordinance.
4. Any facility specifically exempted under federal or state law.
D. Planning Applications and approvals required.
1. Installation of a new wireless telecommunication or modification of an existing installation shall
C5-33
require administrative use permit approval and architectural review.
2. The co-location of a new wireless telecommunication with an existing approved installation shall
only require architectural review.
3. The applicant shall submit application materials and fees as required by the Community
Development Department.
E. Building permit required.
Wireless communications facilities shall not be constructed,installed or modified prior to
obtaining a City building permit.
F. Site development and performance standards.
1. Setbacks. All facility towers and accessory structures shall comply with the setback requirements
of the applicable zoning district.
2. Height The height of any antenna or support equipment shall be determined as part of the use
permit on a case by case basis. All facilities shall be designed to the minimum necessary
functional height. .
3. Site Access. Telecommunication facilities should use existing roads and parking whenever
possible. New and existing access roads and parking shall be improved and surfaced where
necessary to the satisfaction of the Community Development Director.
4. Aesthetics and Visibility. Facilities shall be creatively designed to minimize the visual impact to
the greatest extent possible by means of placement,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.
a. Building mounted facilities shall appear as an integral pan of the structure. Equipment and
antennas shall be compatible and in scale with existing architectural elements, building
materials and site characteristics. Wall mounted antennas shall be integrated architecturally
with the style and character of the structure. If possible, antennas and equipment shall be
located entirely within an existing or newly created architectural feature so as to be effectively
unnoticeable.
b. Ground mounted support equipment shall be undergrounded or otherwise screened from view
so as to be effectively unnoticeable.
c. All connections and conduits between the base of the antenna(s)and support equipment shall
be undergrounded. Connections and conduit above ground shall be fully enclosed to the
satisfaction of the Community Development Director. Electrical and telephone service to the
support equipment shall be undergrounded.
d. Ground mounted antennas, poles, structures, equipment, or other parts of a
telecommunications facility,which would extend above a ridgeline so as to silhouette against
the sky shall be discouraged. Where allowed,they shall be designed to be indistinguishable
from the natural surroundings.
5. Lighting. All telecommunication facilities, not otherwise required to have lighting pursuant to
Federal Aviation Administration rules, shall be unlit, except when authorized personnel are
actually present at night,and except for exempt facilities.
6. Historic Buildings. Any wireless facility located on or adjacent to a historic building or site shall
be designed to ensure consistency with the Secretary of Interior standards for remodeling and
rehabilitation.
7. Equipment Upgrades. 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. At the time of modification, co-location, or upgrade of facilities, existing equipment
shall be replaced with equipment of equal or greater technical capacity and modified to reduce
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Anachment—
aesthetic impacts by reducing the size of the facility or introducing camouflaging techniques to the
satisfaction of the Community Development Director. Unused or obsolete equipment or towers
shall be removed from the site within 90 days after their use has ceased.
8. Number of facilities per site.The City shall retain the authority to limit the number of antennas
with related equipment and providers to be located at any site and adjacent sites in order to prevent
negative visual impacts associated with multiple facilities.
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.
10. Backup Generators. 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 8:00 am and 5:00 pm.
11. Biological Impacts. Wireless telecommunication facility shall minimize potential impacts to
biological resources to the greatest extent possible.
12. Radio Interference. Interference with municipal radio communication is prohibited. Any
telecommunication facility that the City has reason to believe is interfering with municipal radio
communication shall cease operation immediately upon notice from the City,and shall be subject
to use permit review and possible revocation. Testing shall be done prior to any permanent
installation and frequencies shall be monitored at regular intervals after installation established by
the use permit,at the expense of the facility owner/operator.
13. Airport Operations. Wireless communications facilities shall not be sited in locations where
they will interfere with the operation of the San Luis Obispo Airport. Wireless towers and related
facilities within the Airport Planning Area shall be referred to the Airport Manager or the Airport
Land Use Commission for a determination of consistency with airport area standards.
14. Radio Frequencies and Electromagnetic Exposure.
a. Wireless telecommunications facilities operating alone or in conjunction with other
telecommunications facilities shall not produce radio frequency radiation in excess of the
standards for permissible human exposure as adopted by the Federal Communications
Commission(FCC).Applications for facilities shall include a radio frequency radiation(RFR)
report that measures the predicted levels of RF radiation emitted by the proposed facility. The
radio frequency radiation report shall compare proposed project levels to levels allowed by
the FCC and shall show output of the proposed facility in combination with other facilities
located or proposed in the vicinity.
b. The City may require one or more post-construction RFR reports as a condition of project
approval,to verify that the actual levels of RFR emitted by the approved facilities,operating
alone or in combination with other approved facilities, substantially conform to the pre-
approval RFR report and do not exceed current standards for permissible human exposure to
RFR as adopted by the FCC.
15. Signs. Explanatory waning signs shall be posted at all access points to cellular
telecommunication facilities in compliance with the American National Standards Institute(ANSI)
C95.2 color,symbol,and content conventions.
16. Nuisance. Facility generators,mechanical equipment,construction,testing and maintenance shall
be operated or performed in such a manner that no nuisance results. At the discretion of the
Director,upon receipt of written complaints,the use permit allowing a telecommunications facility
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chment—
may be scheduled for public review.At the hearing,conditions of approval may be added,deleted,
or modified,or the use permit may be revoked.
17. Interference with Public Services and Fac0ities. Telecommunication facilities within public
parks shall not interfere with park operations or limit public use of park facilities. Installations in
conjunction with other public facilities shall be held to a similar standard.
18. City inspection. The City shall have the right to access facilities after 24 hours written or verbal
notice.
G. Abandonment
It shall be the responsibility of the owner/operator of a telecommunications facility to provide the
City with a notice of intent to vacate the site a minimum of thirty(30)days prior to ceasing operation. Any
wireless telecommunication facility that is not operated for a continuous period of ninety(90)days shall be
removed within ninety(90)days of the date upon which the operation ceased.
H. Revocation of a Permit
Wireless telecommunication service providers shall fully comply with all conditions related to any
permit or approval granted under this section. Failure to comply with any condition shall constitute
grounds for revocation. If a condition is not remedied within a reasonable period, the Community
Development Director may schedule a public hearing before the Hearing Officer to consider revocation of
the permit. (Ord. 1409—2001 Series)
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Ittachment_ —
Exhibit.E
ARCHITECTURAL REVIEW STANDARDS AND CONDITIONS
Provided for background information only- these conditions
have been met and must continue to be met or the project must
undergo architectural review again.
Findings(from the letter to the original applicant,dated October 8,2002):
1. The project complies with the site development and performance standards of the City's
wireless telecommunication facilities ordinance.
2. The antennas can be considered camouflaged.
3. Although the project could have a significant effect on the environment,there will not be
a significant effect in this case because revisions in the project have been made or
mitigation measures added and agreed to by the project proponent.
Conditions(from the letter to the original applicant,dated October 8,2002):
1. Option A, light pole with lights on top and exposed antennas below, shall be utilized.
2. The project shall be developed in substantial compliance with the plans approved by the
ARC. All ARC conditions shall be listed on a sheet in the building plans. Any changes
to lighting or parking lot designs shall be subject to the review and approval of the
Community Development Director.
3. All existing public utilities shall be showing in detail on these plans. All existing private
park facilities shall be detailed on these plans. Underground utilities, including but not
limited to,gas piping,phone lines,electrical service, irrigation controller circuits,remote
sending circuits, landscape irrigation, domestic waster services, sewer laterals, water
mains,and sewer mains shall be shown in detail to the approval of the Parks Maintenance
Supervisor.
4. All-weather access shall be maintained to all sanitary sewer manholes. No permanent
structures shall be constructed within three meters of the existing sewer main. If conduit
will be installed with directional drilling techniques, contractor shall be responsible for
video inspecting all sewer mains and laterals in the vicinity and immediately repair any
damaged pipes and manholes. All underground conduits shall maintain two meter
minimum horizontal separation from the sewer. Conduit crossing any sewer main shall
maintain 0.5 meter minimum separation.
5. An accessible path of travel shall be provided to the existing facilities that are now served
by the parking lot being removed. A new four foot wide path with an all-weather surface
such as concrete or asphalt shall be installed between the ball field facilities (restrooms,
baseball play field, bleachers), the skate park / skate rink, the existing path to Murray
Street,the new buildings and the remaining existing parking lot. Path shall comply with
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AnaChMent
requirements for surface material, cross slope, slope in the direction of travel and any
other applicable sections for walkways(see UBC 1133B.7.)
6. Improvement plans shall include detailed lighting specifications for the new light poles.
These fixtures may need to be shielded to minimize spill and glare while at the same time
achieving the lighting needs of the ball field. A note shall be included on t he
improvements plans that "After installation, the new ball field lights may need to be
modified or shielded if the Community Development Director determines that they emit
excessive glare.
7. Trees shall be added between Santa Rosa Street and the main parking lot,adjacent to the
parking lot closest to the ball fields where possible, and behind the new antenna, light
pole closest to the skate park. Acceptable tree varieties shall be those from the City's
street tree list and shall exclude eucalyptus and pine varieties.
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— 1
Attachment.,
Exhibit F
PLANNING COMMISSION USE PERMIT
Provided for background information only—these are the
conditions set for Application No. U 11-02 allowing installation
of a wireless telecommunication facility at 190 Santa Rosa
Street, dated October 23, 2002. These conditions have been met
and must continue to be met or the project must obtain a revised
use permit.
Findings:
1. The project complies with the site development and performance standards of the City's
wireless telecommunication facilities ordinance.
2. The proposal could be established and maintained without jeopardy to persons or
property within or adjacent to the proposed site and without damage to the resources of
the site and its surroundings subject to the conditions of the Architectural Review
Commission in that the proposed antennas can be considered camouflaged, as the casual
observer would not usually suspect a ball field light to be a cell tower. In addition, the
telecommunications site will comply with FCC regulations regarding radio frequency
transmissions and potential light impacts to the neighborhood would not be in excess of
existing conditions.
3. Although the proposed project could have a significant effect on the environment,there
will not be a significant effect in this case because mitigation measures have been added
and agreed to by the project proponent.
Aesthetics
1. Screen outdoor mechanical equipment from on-site and off-site views to the satisfaction
of the Architectural Review Commission.
Monitoring Program: The Architectural Review Commission will ensure that any
outdoor and roof-mounted mechanical equipment will be screened from on-site and off-
site views. Building plans shall be in substantial compliance with plans approved by the
Architectural Review Commission.
2. The new ball field lights shall be directed downward as indicated in the project plans to
minimize light and glare into the adjacent neighborhood. Lighting of the skate park and
roller rink shall have maximum illumination levels of 30 foot-candles within those
respective activity areas. Park policy shall be that lights are off at 10:00 P.M.
Monitoring Program: The Architectural Review Commission will ensure compliance
through the Architectural Review process and Building plans shall be in substantial
compliance with plans approved by the Architectural Review Commission.
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