HomeMy WebLinkAboutA21-05 Sprint Lease Golf CourseTELECOMMUNICATIONS FACILITY ,LEASE AT LAGUNA LAKE GOLF COURS E{iaE}?ICI IIIII~ItI,li M 11ii~I P u ~~6~1~~~~ll ll8~!II~III ~I~[!!1~ia~~~!i~'I~~k~~<«l
This Lease is made and entered into this 1st day of February, 2005, by and between the CITY OF SA N
LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to as "Lessor"), and SPRIN T
PCS ASSETS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, (hereinafter referred to a s
"Lessee").
RECITALS
This Lease is made and entered into with respect to the following facts :
A.Lessor is the owner of the property described in Exhibit A, located at 11175 Los Osos Valle y
Road, San Luis Obispo, California, commonly known as Laguna Lake Golf Course .
B.Lessee has requested permission to construct a wireless communications facility to be locate d
at Laguna Lake Golf Course and Lessee is willing to construct and dedicate certain public improvements t o
Lessor. Lessor is willing to lease a portion of Laguna Lake Golf Course to Lessee upon the terms an d
conditions hereinafter set forth .
C.Lessee warrants that the facility will not interfere with the Department of Parks an d
Recreation's operations or the public's use of the course .
D.This Lease is conditioned upon Lessee obtaining all governmental permits and approval s
enabling Lessee to construct and operate wireless communications facilities on the Premises, as defined below .
E.Lessor and Lessee have heretofore entered into a Memorandum of Understanding date d
June 1, 2004 concerning Laguna Lake Golf Course .
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 11175 Los Osos Valley Road, San Luis Obispo ,
California, 93401, commonly known as Laguna Lake Golf Course . The land is more particularly described i n
Exhibit A, attached hereto . Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease fro m
Lessor approximately one four hundred (400) square feet of the land and all access and utility easement s
described in Exhibit B attached hereto, and by this reference made a part hereof (hereinafter referred to as th e
4a/-as
"Premises"). This Lease is subject to the terms, covenants and conditions hereinafter set forth and Lesse e
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 o f
ingress and egress, seven days a week, twenty-four (24) hours a day, and the right to install and maintai n
underground utility wires and cables and conduits and pipes (1) from the Premises to the nearest public right -
of-way, and (2) from the radio equipment to the antennas .
2 .
Improvements .
A .
Lessee shall design and perform, construct or erect or cause to be constructed o r
erected at its sole cost the following minor improvements ("Improvements") as shown on Exhibit "B :"
1)Construct a building or unit for cellular equipment on the northwest side of
the Maintenance Shop .
2)Construct a structure (tree-type) to hold the antennas to be located on th e
southerly side of the Maintenance Shop .
3)Install landscaping and replace chain link on the east side of the Maintenanc e
Shop and landscape the front driveway entrance .
4)Install one 2-inch HDPE conduit for City services at the Maintenance Shop ,
intercept existing City communication conduit, and place City standard pullbox with traffic cover .
5)Making other minor improvements as may be necessary to successfull y
complete this project .
B . Lessee shall also erect on the Premises communications facilities, which include, bu t
are not limited to, equipment shelters, radio frequency transmitting and receiving equipment, batteries, utilit y
lines, transmission lines, radio frequency transmitting and receiving antennas, and supporting structures an d
improvements (hereinafter "Lessee's Facilities") as shown on Exhibit "B". The plans for the Improvement s
and Lessee's Facilities (landscaping, irrigation, fencing, building, concrete, and all related improvements) a s
shown on Exhibit "B" shall have the prior written approval of Lessor in its municipal capacity (not in it s
capacity as landlord). Lessee shall dedicate the Improvements to Lessor upon completion thereof .
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C.The Improvements shall be performed by Lessee under the authority, direction ,
supervision, and approval of Lessor . Lessee shall submit construction plans to the City's D irector of Parks and
Recreation for approval prior to submitting the application and plans to the Community Developmen t
Department for building permit procession and approval .
D.Lessee acknowledges and understands that the improvement is a public constructio n
project subject to the competitive bidding requirement contained in California Public Contracts Code Sectio n
20162 and the prevailing wage requirement contained in California Labor Code Section 1771 .
3 .Term .The initial term of this Lease shall be for five (5) years ("Initial Term") commencin g
with the issuance of a City building permit to construct the Lessee's Facilities and Improvements . 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 leas t
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 th e
Lease the sum of Twenty-Five Thousand Dollars ($25,000 .00) ("Annual Rent") without deduction, setoff,
notice or demand .
B.Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease yea r
without deduction, setoff, notice, or demand the previous year's Annual Rent multiplied by the CPI Adjuster ,
or multiplied by three percent (3%), whichever is greater .
C.The CPI Adjuster means a percent, which is calculated by dividing the United State s
Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of the U .S .
Department of Labor three (3) months prior to the adjustment date by the base Index number published thre e
(3) months prior to the Commencement Date, or previous adjustment date, as applicable . If the Index i s
changed so that the base Index number differs from that in effect when the first extended term commenced, th e
Index shall be converted in accordance with the conversion factor published by the Bureau of Labor Statistics .
If the Index is discontinued or revised during an extended term, such other government index or computatio n
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with which it is replaced shall be used in order to obtain substantially the same result as would be obtained i f
the Index had not been discontinued or revised .
D . If Lessee fails to pay the Annual Rent within thirty (30) days after such rent is due ,
Lessee shall pay a late fee of one and one half percent (1 .5%) per month . This late charge does not establish a
grace period . Lessor and Lessee agree that the charge is presumed to be the damages sustained by Lessor fo r
Lessee's late payment of rent and that it is impracticable or difficult to fix the actual damages .
5.Termination for Convenience .Notwithstanding, the initial and renewal terms set forth i n
Section 3, Sprint PCS may terminate this Lease without further liability by delivering 60 days prior writte n
notice . In this event, Lessee's improvements shall be removed in accordance with Section 18 of this Lease ,
without refund of previously paid rent ; a terminitation fee of one (1) year's current rent shall be paid to Lessor .
6.
Use .
A.Lessee shall use the Premises for the sole purpose of constructing, maintaining ,
securing and operating wireless communications facilities including the construction of equipment building s
and installation of required antennas and related communications equipment upon the new stealth poles all a s
listed, depicted, and described in the "Lessee's Facilities" which is attached hereto as Exhibit "B" and hereb y
incorporated by reference . Any other use of the Premises or use of equipment not described in Exhibit "B," i s
not authorized and shall constitute a breach of this Lease .
B.Lessee must obtain all discretionary permits and approvals required by Lessor in it s
municipal capacity . Installation of a new wireless telecommunication or modification of an existin g
installation shall require use permit approval and architectural review . The applicant shall submit applicatio n
materials and fees as required by the Community Development Department . Wireless communication s
facilities shall not be constructed, installed or modified prior to obtaining a City building permit . It shall be the
responsibility of the owner/operator of a telecommunications facility to provide the City with a notice of inten t
to modify site equipment in any way . Lessor shall reasonably cooperate (at no expense to Lessor) with Lesse e
in connection with Lessee's efforts to obtain all such permits and approvals ; provided, however, Lessor shall
not be obligated to apply for any permits or approvals with Lessee . Construction of Lessee's Facilities and th e
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Park Improvements shall be at Lessee's sole expense . Further, Lessee shall maintain the Lessee's Facilitie s
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 i n
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 it s
municipal or regulatory capacity and from any federal, state or other local authority. Lessor agrees t o
cooperate with Lessee as to Lessee's obtaining such certificates, permits or other approvals . In the event
Lessee is unable to obtain any necessary certificate, permit or other approval in order to operate or construc t
the Park Improvements or Lessee's Facilities, Lessee may terminate this Lease as provided herein, upon thirt y
(30) days prior written notice .
E.Facility cannot be operational until final acceptance by the Lessor .
7 .
Interference .
A.Lessee warrants that its construction, repair and operation of Lessee's Facilities will
not interfere with Lessor's fire, police, public works and other public safety or city department communicatio n
broadcasts or frequencies . All operations by Lessee shall be in compliance with all Federal Communication s
Commission requirements and all applicable laws .
B.If Lessor suspects or has reason to believe that Lessee's use of the Premises create s
radio or television interference for nearby residents or interference with Lessor's communication systems, an d
if Lessee (i) does not proceed diligently to eliminate such interference, or (ii) provide evidence that Lessee an d
the sublease tenant are not the source of such interference, within ten (10) business days after notice fro m
Lessor to do so, Lessor may immediately terminate this Lease by giving notice to Lessee .
C.Lessee shall provide Lessor with a contact person who shall be available twenty-fou r
(24) hours a day to receive reports of any interference with Lessor's frequencies . In the event that there is
interference with Lessor's public safety frequencies, Lessee shall immediately cease the operations creating th e
interference when directed to do so by the City's Director of Finance and/or Information Technology until
such time that the interference can be eliminated to the satisfaction of the Information Technology Division .
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Lessee's failure to immediately cease such operations shall be considered a material breach of this Leas e
notwithstanding Paragraph 6 .B . above .
8 .
Radio Frequency Emission Exposure .
A.No wireless telecommunication facility shall be sited or operated in such a manne r
that it violates any condition of its Federal Communication Commission's (FCC) permit or license . To tha t
end no facility or combination of facilities shall produce at any time power densities in any inhabited area tha t
exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength an d
power density for transmitters or any more restrictive legally enforceable and applicable standard subsequentl y
adopted or promulgated by the city, county, the state of California, or the federal government . For purposes o f
radio frequency emissions, compliance with FCC exposure limitations shall constitute a conclusiv e
presumption that there is no hazard or risk to the public health, safety or welfare .
B.Initial compliance with this requirement shall be demonstrated for any facility withi n
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 o f
application for the necessary permit or entitlement, calculations specifying MPE levels in the inhabited are a
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 t o
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 Communit y
Development Director . Lessee's Facilities shall not commence normal operations until it complies with, o r
has been modified to comply with this standard . Proof of compliance shall be a certification provided by th e
engineer who prepared the original report . In order to assure the objectivity of the analysis, the City ma y
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 it s
FCC permit or license and MPE limits . Every five (5) years a report listing each transmitter and antenn a
present at the facility and the effective radiated power radiated shall be submitted to the Communit y
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Development Director . If either the equipment or effective radiated power has increased, calculation s
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 o f
these cases exceed eighty (80%) of the MPE limits, the operator of the facility shall hire a qualified electrica l
engineer licensed by the State of California to measure the actual exposure levels produced . A report of thes e
calculations, required measurements, if any, and the engineer's findings with respect to compliance with th e
current MPE limits shall be submitted to the Community Development Director within five (5) years of facilit y
approval and every five (5) years thereafter . In the case of a change in the limits, the required report shall b e
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 .
9.Visual Mitigation.Lessee will use a variety of visual mitigation strategies for all of it s
facilities, as determined necessary by the Community Development Director and as required through th e
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 t o
accomplish the coverage objectives . Each installation shall be designed to blend into its surroundings so tha t
the antenna(s) and equipment are not apparent to the casual observer . The light poles in which antennas are
located shall not exceed fourteen (14) inches in diameter . No more than one carrier shall install antennas i n
any given light pole . Ground mounted support equipment shall be undergrounded or otherwise screened from
view so as to be effectively unnoticeable . All connections and conduits between the base of the antenna(s) an d
support equipment shall be undergrounded. Electrical and telephone service to the support equipment shall b e
undergrounded .
10.Noise .Each facility shall be operated in a manner that minimizes any possible disruptio n
caused by noise to people working and living in the vicinity . At no time shall equipment noise from an y
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
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Director where typical ambient noise levels exceed 55 dB . Outdoor noise producing construction activitie s
shall take place only on weekdays between the hours of 8 :00 am and 5 :00 pm unless a different schedule i s
approved as part of the use permit. Any facility utilizing temporary backup generators shall be required t o
meet or exceed Air Pollution Control District Standards . All generators shall be fitted with approved ai r
pollution control devices . The cellular site shall not be in operation prior to the issuance of a Certificate o f
Occupancy from the Community Development Department . Projects that propose to include backup
generators shall require review and approval from the Air Pollution Control District . Project plans shal l
indicate location, size, horsepower and type of fuel used for any proposed generator . Generators shall only b e
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 2 :00 pm.
11.Nondiscrimination .Subject to applicable laws, rules, and regulations, Lessee shall no t
discriminate against any person or group on the basis of age, sex, sexual orientation, AIDS, AIDS relate d
condition, marital status, race, religion, creed, ancestry, national origin, disability, or handicap .
12.Subsurface Restrictions .The parties agree that this Lease covers only the surface of th e
Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premises a s
permitted in this Lease (including, without limitation, (i) the foundation for Lessee's monopole antenn a
structure and building, and (ii) cables, conduits and pipes within the Premises to connect Lessee's
communications equipment within such building to the antennas to be constructed and maintained by Lesse e
within the Premises).
13.Liens .Lessee shall keep the premises free of mechanic's, material supplier's or other liens fo r
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 whateve r
kind for any such work done, labor performed or materials furnished .
14.No Utilities .Lessor shall not provide any utilities to the Premises . Lessee shall be permitte d
to install utility lines, meters for electricity, and shall arrange and pay for the installation and use of all utilitie s
of whatsoever kind to the Premises .
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15 .
Maintenance .
A.Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintain Lessee's
Facilities and all related improvements (except the Park Improvements as shown on Exhibit "B") in goo d
condition, free from rodents, weeds, noxious plants and wild growth, in substantial repair, in a safe an d
sanitary condition, and in compliance with all applicable laws and regulations and shall promptly repair an y
damage caused by Lessee . If Lessee fails to maintain the Lessee's Facilities as required herein, Lessor ma y
notify Lessee of said failure . If Lessee fails to correct the situation within thirty (30) days after notice or suc h
longer period as may be established by Lessor, Lessor may make the necessary correction and the cost thereof ,
including but not limited to the cost of administration, and labor, materials, equipment, shall be paid by Lesse e
within thirty (30) days after receipt of a statement of said cost from Lessor . If said statement is not timel y
paid, Lessor may, at its option, choose any remedy available herein or by law, including the termination of thi s
Lease . Lessee hereby waives to the extent permitted by law any right to make repairs at the expense of Lesso r
or to vacate the Premises in lieu thereof as may be provided by law .
B.Lessor shall have no duty to maintain or repair Lessee's Facilities or any of Lessee's
improvements .
16 .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 shal l
promptly pay, prior to delinquency, all taxes, assessments and other governmental fees that may be lawfull y
levied against the Premises and any improvements or personal property located on the Premises and on an y
possessory interest created by this Lease, and provide proof of payment to Lessor on demand .
17 .Insurance .Concurrent with the execution of this Lease, Lessee shall procure and maintain, a t
its cost, during the initial and any extended or Renewal Term of this Lease from an insurer admitted i n
California or having a minimum rating of or equivalent to A : VII in Best's Insurance Guide :
A. Comprehensive General Liability insurance with a combined single limit of at leas t
Five Million Dollars ($5,000,000) for each occurrence . Lessor, its officials, employees and agents shall b e
covered as additional insured's with respect to liability arising from activities performed by or on behalf o f
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Lessee . Said insurance shall be primary insurance with respect to Lessor for actions of Lessee or those fo r
whom Lessee is responsible and shall contain a cross liability provision .
B."All Risk" property insurance in an amount sufficient to cover the full replacemen t
value of Lessee's personal property, improvements and equipment on the Premises .
C.Upon the execution of this Lease, Lessee shall deliver to Lessor certificates o f
insurance with endorsements evidencing the coverage required by this Lease . The certificates an d
endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf .
D.Said insurance shall contain an endorsement requiring thirty (30) days prior writte n
notice from insurer to Lessor before cancellation of coverage .
E.Said insurance may provide for such deductibles or self-insured retention . In th e
event such insurance does provide for deductibles or self-insured retention, Lessee agrees that it will full y
protect Lessor its officials and employees in the same manner as these interests would have been protected had
a policy of commercial insurance been in effect . With respect to damage to property, Lessor and Lessee
hereby waive all rights of subrogation, one against the other, but only to the extent that collectible commercia l
insurance is available for said damage .
F.The procuring of insurance shall not be construed as a limitation on Lessor's liabilit y
or as full performance on Lessee's part of the indemnification provision of this Lease . Lessee understands an d
agrees that, notwithstanding any insurance, Lessee's obligation to defend and indemnify Lessor, its officials
and employees hereunder is for the full amount of any damage, loss cost or expense .
G.Any modification or waiver of these insurance requirements shall only be made wit h
the written approval of the Lessor's Risk Manager or designee .
18 .Removal of Improvements .On the expiration or sooner termination of this Lease, Lessee a t
Lessee's sole cost shall have the right to remove Lessee's Facilities (with the exception of the Park
Improvements as shown on Exhibit B) erected on the Premises by Lessee by giving notice of its intention to d o
so to Lessor and by removing same within forty-five (45) days after expiration or sooner termination of thi s
Lease . Lessor may treat any such buildings or improvements as abandoned if Lessee fails to timely remove
them and, in such event, (a) Lessor shall be deemed owner of them without accounting to Lessee, or (b) Lesso r
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y_.ss 'tie .
may cause their removal at Lessee's cost, with the exception of the underground conduits which may b e
abandoned in place by Lessee .
19.Relocation .Lessee agrees that nothing contained in this Lease shall create any right in Lesse e
for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapter 16 of th e
California Government Code from Lessor on account of the expiration or sooner termination of this Lease .
20.Notice .Any notice required hereunder shall be in writing and personally delivered o r
deposited in the U .S . Postal Service, registered or certified, return receipt, postage prepaid, to the address o f
the respective parties set forth below :
LESSOR :
LESSEE:
Parks and Recreation Director
Sprint Contracts and Performanc e
City of San Luis Obispo
Mailstop KSOPHTOIO-Z265 0
1341 Nipomo Street
6391 Sprint Parkway
San Luis Obispo, CA 93401
Overland Park, KS 66251-202 0
ATTN : Sprint Real Estate Attorne y
Notice shall be deemed effective on the date shown on the return receipt or on the date personal delivery i s
made, whichever first occurs . If delivery is refused, the date of deposit of the copy in the mail shall be deeme d
the date of notice. Change of address shall be given as provided herein for notices .
21.Hazardous Materials and Waste .
A.Lessee shall comply with all applicable laws regarding the use, storage and disposal o f
hazardous materials on the Premises . Lessee shall comply with California Health and Safety Code Sectio n
25359 .7 or its successor regarding notice to Lessor on discovery by Lessee of the presence or suspecte d
presence of any hazardous substance on the Premises .
B.Lessee shall not bring any hazardous materials onto the Premises except for thos e
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 accordanc e
with all federal, state and local laws and regulations .
C.Lessee shall specify any proposed generator usage and its proposed location .
D.Lessor represents that the Premises have not been used for the generation, storage ,
treatment or disposal of hazardous materials, hazardous substances or hazardous wastes . In addition, Lessor
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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 derivativ e
thereof), or underground storage tanks are located on or near the Premises .
22.Indemnity .Lessee shall defend, protect, indemnify and hold harmless Lessor, its officials ,
employees and agents from all claims, demands, damages, causes of action, losses, liability, costs or expenses ,
including reasonable attorney's fees, of any kind or nature whatsoever (except those resulting from Lessor's
sole negligence or willful misconduct) which Lessor, its officials, employees and agents may incur for injur y
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), th e
alleged acts or omissions of Lessee, any parent, subsidiary, affiliate or partnership in which any such entit y
participates, Lessee's officers, employees or agents, the occupancy, use or misuse of the Premises by Lessee ,
any parent, subsidiary, affiliate or partnership in which any such entity participates, Lessee's officers ,
employees or agents, or any breach of this Lease .
Lessor shall protect, indemnify and save harmless Lessee, and its officers, agents and employees, fro m
and against all claims, demands and causes of action by Lessor's employees or third parties on account o f
personal injuries or death or on account of property damages arising out of the use of the Premises by Lesso r
hereunder and resulting from the sole negligence or willful misconduct of Lessor or its officers, agents an d
employees .
23.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, withou t
the prior written consent of Lessor which shall not be unreasonably withheld, provided, however, that Lesse e
shall notify Lessor in writing of a Permitted Assignment within thirty (30) days . To obtain Lessor's consent t o
a proposed assignment or transfer (hereinafter collectively referred to as "transfer"), Lessee shall meet th e
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 desire s
the transfer to take effect ("Transfer Date") which notice shall contain the name, address and telephone numbe r
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of the proposed transferee ; the nature of the proposed transferee's business and details of its busines s
experience .
B.Lessor shall notify Lessee at least thirty days (30) days prior to the Transfer Dat e
whether Lessor approves or disapproves of the proposed transfer .
C.Any approved transferee shall assume and be deemed to have assumed this Lease an d
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 transfere e
shall deliver to Lessor a counterpart of the transfer agreement with contains a covenant of assumption b y
transferee but the failure or refusal to execute or deliver such instrument shall not release transferee from it s
liability as stated herein .
D.The consent of Lessor to any transfer shall not relieve Lessee of the obligation t o
obtain such consent to any further transfer . Further, neither this Lease nor any interest herein shall be subjec t
to transfer by attachment, execution, proceedings in insolvency or bankruptcy (either voluntary o r
involuntary), or receivership. In the event of the transfer without the prior written consent of Lessor, suc h
transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest . Any transfer
without Lessor's consent shall constitute a default of this Lease .
E.To obtain Lessor's consent to a sublease, Lessee shall meet the followin g
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 th e
sublease tenant's behalf as the Lessee ("Additional Annual Rent"). For example, if there were two subleas e
tenants by the beginning of the third year of this Agreement, the total rent due from the Lessee would b e
$79,567 .50 : the Annual Rent for the Lessee ($26,522 .50, which is the first year's rent of $25,000 increased b y
3% for two years) and the Additional Annual Rent for the two sublease tenants ($26,522 .50 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 sam e
terms, conditions and remedies as the Annual Rent .
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2)Lessee shall notify Lessor at least sixty (60) days prior to the date whe n
Lessee desires the sublease to take effect ("Sublease Date"), which notice shall contain the name, address an d
telephone number of the proposed sublease tenant ; the nature of the proposed sublease tenant's business an d
details of its business experience . The first year of Additional Annual Rent shall be paid prior to the Subleas e
Date and will be prorated to the Lessee's Annual Rent payment due date; and shall be due annually thereafte r
with the Annual Rent .
3)Lessor and Lessee agree (by way of example and without limitation) that i t
shall be reasonable for Lessor to withhold its consent if any of the following exist or may exist : the propose d
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 suc h
default, if the same can be cured, prior to ten (10) business days prior to the Sublease Date .
4)
The sublease tenant is subject the same terms and conditions of thi s
Agreement as the Lessee .
5)
Lessor shall notify Lessee at least fifteen (15) days prior to the Sublease Dat e
whether Lessor approves or disapproves of the proposed sublease .
24.
No Permits .Lessee shall not grant any rights-of-way, easements, franchises or permits in, o n
or across the Premises .
25.
Encumbrances .Lessee shall take the Premises subject to any and all existing easements and
other encumbrances .
26.
Reservations .Lessor reserves the right to grant franchises, easements, rights-of-way o r
permits for pipeline purposes which will not interfere with Lessee's use of the Premises .
27.
Default.The occurrence of any of the following acts shall constitute a default by Lessee :
A.Failure to pay Annual Rent or Additional Annual Rent when due where such failur e
shall continue for a period of ten (10) days after Lessee's receipt of written notice from Lessor .
B.Failure to perform any of the terms, covenants or conditions of this Lease if sai d
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 i n
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default if Lessee begins to cure within the thirty-day period and diligently proceeds to cure to completion .
Lessor's notice shall describe the default and shall demand that Lessor perform or quit the Premises . No such
notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects in the notice .
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 i n
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 occupanc y
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 an d
condition of this Lease or if a default occurs, then Lessor may terminate this Lease and Lessor may then ente r
the Premises and take possession thereof provided, however, that these remedies are not exclusive bu t
cumulative to other remedies provided by law in the event of Lessee's default, and the exercise by Lessor o f
one or more rights and remedies shall not preclude the Lessor's exercise of additional or different remedies fo r
the same or any other default by Lessee .
F.Failure to perform any of the terms, covenants or conditions of this Lease if sai d
failure is not cured within thirty (30) days after Lessee notifies Lessor of said failure shall constitute a defaul t
by Lessor of this Lease . If the default cannot reasonably be cured in thirty (30) days after receipt of suc h
notice, Lessor shall not be in default if Lessor begins to cure within the thirty (30) day period and diligentl y
proceeds to cure to completion .
28 .
Right of Entry .
A. In the event of an emergency which poses an immediate threat of harm or damage t o
persons or property, Lessor may enter the Premises and take such actions as are requ ired to protect persons o r
property from such immediate threat of harm or damage, provided that promptly after such emergency entr y
into the Premises (and in no event later than twenty-four (24) hours) Lessor gives telephonic and written notic e
to Lessee of Lessor's entry into the Premises . In addition to Lessor's rights under the immediately precedin g
sentence, Lessor shall have the right, upon forty-eight (48) hours prior telephonic notification to Lessee (whic h
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notification shall specify the date and time at which Lessor seeks to enter the Premises), to enter the Premise s
to determine whether or not Lessee is complying with this Lease and to serve, post or keep posted any notice .
Except in the event of an emergency, Lessor agrees that it shall not enter the Premises without a representative
of Lessee being present, and Lessee agrees to make its representative promptly and readily available t o
accompany Lessor on the date and at the time given in Lessor's telephonic notice . If Lessee fails to make it s
representative available on the date and at the time given in Lessor's telephonic notice or at a mutuall y
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 th e
lock box in order to allow the City to inspect the Premises pursuant to Paragraph A above .
29.Signs .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 additiona l
rent .
30.Condemnation .If the whole of the Premises shall be taken by any public or quasi-publi c
authority under the power of eminent domain, then this Lease shall terminate . If any part of the Premises shal l
be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, as of the da y
possession (of that part) is required for any public purpose, and on or before that day Lessee shall elect i n
writing either to terminate this Lease or to continue in possession of the remainder of the Premises provided ,
however, that rent shall only be reduced in proportion to the amount of the Premises taken if Lessee is unabl e
to operate at the same level after the condemnation as before the condemnation . All damages awarded for an y
taking shall belong to Lessor, whether such damages be awarded as compensation for diminution in value t o
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 .
31.Nuisance .Lessee shall not do or permit to be done in or on the Premises any act, which ma y
be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or occupants of
adjoining property, or to the neighborhood .
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32.Exculpation.Except as expressly provided herein, Lessor shall not be liable to Lessee for an y
damages to Lessee's property from any cause . To the extent permitted by law, Lessee waives all claim s
against Lessor for damage or injury to persons or property arising or alleged to have arisen from any caus e
whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's breach of its obligation s
hereunder.
33.Waiver of Rights .The failure or delay of either party to insist on strict enforcement of an y
term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that such party ma y
have and shall not be deemed a waiver of any subsequent or other breach of any term, covenant, or conditio n
herein . The receipt and acceptance by Lessor of delinquent rent shall not constitute a waiver of any othe r
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 an y
act by the other party requiring a party's consent or approval shall not be deemed to waive such party's consen t
or approval of any subsequent act of the other party .
34.Partial Invalidity.If any term, covenant or condition of this Lease is held by a court o f
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remai n
in full force and effect .
35.Successors in Interest.This Lease shall be binding on and inure to the benefit of the partie s
and their successors, heirs, personal representatives, approved transferees and assignees, and all of the partie s
hereto shall be jointly and severally liable hereunder .
36.Right to Re-Enter .Lessor acknowledges that Lessee's use of the Premises include s
proprietary trade secrets . Lessor shall have no right whatsoever to enter the Premises except as provided i n
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 o r
expiration of this Lease . On giving notice of termination to Lessee, Lessor shall have the right to re-enter an d
take possession of the Premises on the termination or expiration date without further notice of any kind an d
without institution of summary or regular legal proceedings . Termination of the Lease and re-entry of th e
Premises by Lessor shall in no way alter or diminish any obligation of Lessee under the Lease and shall no t
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constitute an acceptance or surrender . Lessee waives any and all right of redemption under any existing o r
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 afte r
breach by Lessee gives Lessee a cause of action for damages or in forcible entry and detainer, the total amoun t
of damages to which Lessee shall be entitled due to the re-entering shall be One Dollar ($1 .00). Lessee agree s
that this Section may be filed in any such action and that when filed it shall be a stipulation by Lessee fixin g
the total damages to which Lessee is entitled in such action .
37.Holding Over.If Lessee holds over and remains in possession of the Premises after th e
expiration of the Lease, such holding over shall be construed as a tenancy from month to month on the sam e
terms, covenants, and conditions herein, except that monthly rent shall be one-twelfth (1/12) of one hundre d
twenty-five percent (125%) of the annual rent then in effect . Nothing in this Section shall be construed as a
consent by Lessor to any holding over by Lessee .
38.Time .Time is of the essence in this Lease and every provision hereof .
39.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 .
40.Integration and Amendments .This Lease represents and constitutes the entire understandin g
between the parties and supercedes all other agreements and communication between the parties, oral o r
written, concerning the subject matter herein . This Lease shall not be modified except in writing duly signe d
by the parties and referring to this Lease .
41.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 wit h
respect to its interest under this Lease .
42.Governing Law .This Lease shall be governed by and construed in accordance with the law s
of the State of California .
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43.Captions .The various headings and numbers herein and the grouping of the terms hereof int o
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 .
44.Abandoned Property .The vacating or abandonment of the Premises by Lessee shall includ e
but not be limited to the failure of Lessee to occupy the Premises for a continuous period of forty-five (45 )
days or more while not paying rent . If Lessee abandons the Premises, title to any personal property belongin g
to Lessee and left on the Premises forty-five (45) days after such abandonment shall be deemed to have bee n
transferred to Lessor . Lessor shall thereafter have the right to remove and to dispose of said property withou t
liability to lessee or to any person claiming under Lessee, and shall have no duty to account therefore .
45.Compliance with the Law.Lessee shall comply with all laws, ordinances, rules an d
regulations of all federal, state and local governmental authorities having jurisdiction over the Premises an d
business thereon .
46.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 .
47.Lessor's Representation of Authority .Lessor represents that it has title to the Premises an d
full authority to execute this Lease and to grant the easements and access to the Premises . Lessor furthe r
represents that there are no undisclosed liens, judgments, impediments or exceptions of title on the Premise s
that would affect this Lease .
48.Non-Interference Provision .Lessor will use its best efforts to provide Lessee with notice o f
any applications received from any other communications companies wishing to utilize any part of Lagun a
Lake Golf Course . Further, Lessor will use its best efforts to not lease property in Laguna Lake Golf Course t o
other communication companies, nor to use Laguna Lake Golf Course for communications purposes, tha t
might interfere with Lessee's use of the Premises . In the event Lessor or any other communication compan y
on Laguna Lake Golf Course 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 equit y
to eliminate the interference or may terminate this Lease .
G:-Caundl Agenda Repond'GoifltemNLGC - Cell SiteVeaseVrase ofILGCfor Sprint -I/JZ04.doc
Page 19 of 26
IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities required b y
law as of the date first above written .
LESSOR :
LESSEE :
CITY OF SAN LUIS OBISPO, a
SPRINT PCS ASS S, L . A DELAWAR E
Municipal Corporation
LIMITED LIAB I~• PAN Y
By :
Name :
,.
P .
Title :
Sprint Contracts and Performance Hotline :
800.357 .764 1
By :
David F. Romero, Mayo r
APPROVED AS TO FORM :
By :
Jonathitn-f Lowell, City Attorney
e
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Page 20 of 26
EXHIBITA
LEGAL DESCRIPTION OF THE PROPERT Y
All that real property located in the State ofCalifornia, County ofSan Luis Obispo, described as follows :
PARCEL 1 ;
A portion of Lot 5 of the Rancho Canada de Los Osos and Laguna, in the City of San Lui s
Obispo, County of San Luis Obispo, State of California, according to map recorded in Boo k
A, Page 83 of Maps, in the office of the County Recorder of said County, described a s
follows :
Beginning at the centerline intersection monument at the intersection of Prefumo Canyo n
Road and Los Osos Valley Road, the basis of bearings being the center line of Prefum o
Canyon Road having a bearing of North 45°30' 00" East as recorded on the map of Trac t
No . 403,recorded in Book 8, Page 1 of Maps ;
thence Easterly along said Los Osos Valley Road centerline, South 44° 13' 30" East, 2 0
feet ;
thence South 45° 30' 00" West, 50 feet ;
thence South 44° 13' 30 "East, 313 .94 feet to the true point of beginning ;
thence South 45 0 46' 30" West, 346 .60 feel ;thence South 44° 30' 00" East, 269 .21 feet ;
thence North 45° 46' 30" East, 202 .31 feet ;thence North 44° 13 '30 "West, 179 .15 feet ;
thence North 45° 46' 30" East, 143 .00 feet ;
thence North 44° 13' 30" West, 90-06 feet to the true point of beginning .
PARCEL 2 :
A portion of Lot 59 of the Rancho Canada de Los Osos and Laguna, in the City of San Lui s
Obispo, County of San Luis Obispo, State of California, according to map recorded in Boo kA,Page 83 of Maps, in the office of the County Recorder of said County, described a sfollows:
Beginning at the centerline intersection monument at the intersection of Prefumo Canyo n
Road and Los Osos Valley Road ;
thence Easterly along said Los Osos Valley Road centerline. South 44° 13'30'East, 20feet;
thence South 45° 30' 00" West, 50 feet ;-thence South 44° 13' 30" East, 404 feet ;thence South 45° 46' 30 "West, 143 feet ;
thence South 44° 13' 30" East, 179 .15 feet to the true point of beginning ;
thence South 45° 46' 30" West, 202 .31 feet ;thence South 44 0 30' 00" East, 228 .49 feet ;thence North 45 0 46' 30" East, 108 .16 feet;thence North 44°13' 30" West, 90 feet ;
thence North 5°52'55"West, 150 feet;
thence North 44° 13' 30" West, 20 .85 feet to the true point of beginning .
Assessor's Parcel No :053-111-055
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EXHIBITB
DESCRIPTION OF THE PRO ECT
PROPOSED SWA MTHEE - MMSBN S
watt+ps a y
memo seta
LOM 11E0130 PIE1E M
A
re—Wr
Wn4 .11511O SPRINT PARKWA Y
OVERLAND PARK . KA . 6B251
r aw"
SCALER
NTS.
011 E
DS/04/04
SITE ADDRESS:11175 WS EGOS YADLY IRS11 DEB OOMO, OA U40 5
LAGUNA LAKE GOLF MIRE
JOB NO.;
5N46X0089–B LE—1 SHEET:
t W 0
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PIOPOAO o.MST
ISE om OEERWSAGRWOw (OS CAL)
WOOED V ME
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PEWEE! COASTMC OW OOEM0.6
MEW (15 GAL)
GACouneil Agenda ReportMmlfltemtLLGC - Cell SiteVeaMteare of UGC for Sprint -II .1Z04.dx
Page 22 of 26
o°un°°un°u1m"Qan°PROPOSED SPRM 12 (1331'/WIDE ACCESS EMINEN T
.PROPOSE) SPRXRS'–0' WIDE ACCESSPROPOSED SPRINT'
6-FENCE C4NN 1
SATE
UNK W/ORED
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PROPOSED BPPo71N3T~p
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GACoancil Agenda Report1GolflnnNdGC - Cell SiteVeaseV<are ofLLGCfor Sprint- ILl].OAdo c
Page 23 of 2 6
SOUTHWEST ELEVATION
SOUTHEAST ELEVATION
I s
L
S
w ME NS IS
SCALD JOB NO.:
N.T.S.SN45xc0aa—a LE—3 SHEET:
a OP 3
BATE:
05/06/04 uauw►wcE30LFcoutNAko.µliIm IV.*wS•rvlcn nna 6888 BPPoM PA:IKWYOWRIANO PARK. NA. 88251 SITE AMORE=
SN%SAN11173WL05S OBI0333 Wart$34A05D
G:V;ouu'i/Agenda ReponAGol(lten&,LLGC - Cell SiteVease\Lean of UGC for Sprint- 11 .17.0tdoePage 24 of 2 6
EXHIBIT C
MEMORANDUM OF LEAS E
RECORDING REQUESTED BY :
Sprint PCS Assets, L .L.C .
WHEN RECORDED, RETURN TO :
6391 Sprint Parkwa y
Mailstop KSOPHT0101-Z2650
Overland Park, Kansas 66251-265 0
Site :SN45XC089B
MEMORANDUM OF LEAS E
This MEMORANDUM OF LEASE ("Memorandum") dated as of , 2004, is
between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ("Lessor") and Spint PC S
Assets, L .L.C., a Delaware limited liability company ("Lessee").
RECITALS
WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Lease a t
Laguna Lake Golf course"Lease") dated as of , 2004, covering certain premises (th e
"Premises") situated on a portion of that certain real property located in the County of San Luis Obispo, Stat e
of California, and more particularly described in Exhibit "A" attached hereto and incorporated herein by thi s
reference ; and
WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official Records of Sa n
Luis Obispo County, California ;
NOW, THEREFORE, in consideration of the foregoing, Lessor and Lessee hereby declare a s
follows :
1.Demise.Lessor has leased the Premises to Lessee (together with access rights), and Lesse e
has hired the Premises from Lessor, subject to the terms, covenants and conditions contained in the Lease .
2.Expiration Date.The term of the Lease ('Term") is scheduled to commence on or befor e
and shall expire five (5) years thereafter, subject to Lessee's option to extend
the Term pursuant to Section 3 of the Lease for three (3) additional terms of five (5) years each .
3.Lease Controlling .This Memorandum is solely for the purpose of giving constructive notic e
of the Lease . In the event of conflict between the terms of the Lease and this Memorandum, the terms of th e
Lease shall control .
IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum of Lease as of th e
date and year first written above .n
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LESSOR LESSEE : Sprint PCS Assets, L .L.0
By :By :
Name :Name :
Title :Title:
NOTARIZED SIGNATURES
STATE OF CALIFORNIA )
COUNTY OF
) ss .
)
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s )
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same i n
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or th e
entity upon behalf of which the person(s) acted, executed the instrument .
WITNESS my hand and official seal .
(Signature of Notary Public )
STATE OF CALIFORNI A
COUNTY O F
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s )
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same i n
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or th e
entity upon behalf of which the person(s) acted, executed the instrument .
WITNESS my hand and official seal .
(Signature of Notary Public)
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