HomeMy WebLinkAbout04/16/2002, C9 - TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK council Mating Nm
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CITY O F SAN L U I S O B I S P O
FROM: Bill Statler, Director of Finance
SUBJECT- TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK
CAO RECOMMENDATION
Adopt a Memorandum of Understanding (MOU) with Cingular Wireless for the lease of Santa
Rosa Park for a telecommunications facility.
DISCUSSION
Overview
The proposed MOU with Cingular Wireless provides that if it receives discretionary planning
approvals, the City will enter into a lease agreement with them for the use of Santa Rosa Park
that includes the following key"business"terms:
1. Annual Rent. The starting rent will be $20,000 annually, payable annually in advance. This
will increase annually by 3% or the increase in the consumer price index, which ever is
greater. This base rent is higher than the tentative amount of $17,500 provided to the
Council in December 2001.
2. Subtenants. Subtenants are allowed. (In fact, from a planning perspective in minimizing the
visual impact of these facilities, co-location is preferable). However, any subtenants are
subject to the same terms and conditions as the primary tenant (Cingular), including rent.
Cingular has indicated that Verizon will be a subtenant. This means the effective initial lease
revenue from this site will probably be $40,000 per year.
3. Term. The initial term will be five years, which may be extended for three additional five-
year terms at Cingular's option. In essence, this is a 20-year agreement, unless Cingular
decides to end it sooner after the first five years.
4. City Park Improvements. As discussed below, Cingular will also be responsible for
designing and installing City improvements at Santa Rosa Park. The cost of these
improvements (to be confirmed via a guaranteed maximum price construction contract
acceptable to the City before execution of the lease agreement) will be credited against
annual rental payments by Cingular(and any subtenants).
As described below, by entering into an MOU with Cingular, we separate our regulatory versus
proprietary role in this lease. We do not provide any guarantees under the MOU that they will
receive discretionary planning approvals for their project (which includes making improvements
to Santa Rosa Park); however, if they receive these approvals—and we agree upon a guaranteed
maximum cost for the City improvements—then we agree to enter into the facility lease provided
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Council Agenda Report—Telecommunications Facility Lease at Santa Rosa Park
Page 2
as Exhibit 1 to the MOU. This "two-step"process ensures that the City retains its full discretion
in approving(or not approving) this project in our regulatory role, while providing Cingular with
needed assurances on the "business terms" of the lease if it is successful in receiving these
approvals.
Background
On December 11, 2001, the Council approved the concept of leasing Santa Rosa Park for
wireless telecommunication facilities and authorized staff to begin negotiations with service
providers. As part of this process, the Council also approved the concept of improvements to
Santa Rosa Park—which have already been approved and budgeted for in the 2001-03 Financial
Plan—in lieu of rental payments. The proposed lease is consistent with all key concepts
presented to the Council at that time.
City Park Improvements
Including park improvements and allowing for their value to be in-lieu of rental payments does
not have any significant net fiscal advantages to the City or to Cingular compared with a
straightforward lease. (There are some minor cash flow advantages to the City by receiving the
value of the improvements at the beginning of the lease term). However; it does result in
significantly less disruption to park users and neighbors by integrating the improvements,
especially since many of these will occur in the same areas of the park. Also, given current.
Engineering workloads, it is possible that the park improvements may be completed 18 to 24
months sooner with this approach.
As approved by the Council in the 2001-03 Financial Plan and again on December 11, 2001, the
park improvements include:
1. Removing the central parking lot and reconfiguring the layout of the remaining parking lot to
result in no net loss of parking spaces. This will include design of all on site parking, and
reconstruction of the portion affected by removing the central parking lot.
2. Installing turf and imgation systems where the asphalt was removed.
3. Relocating the right field fence from the east to the west of the newly turfed area.
4. Replacing and relocating the right field light pole to the west side of the newly turfed area
with two light poles. (These will also serve as cellular antennas.)
5. Constructing a building located on the east side of the basketball court for communications
equipment and storage for the skate and blading program. (This will also include radio
system improvements for the Fire Department as described in the MOU.)
6. Installing a retaining wall at the south end of the former parking lot and making related
parking improvements:
These improvements will require approval by the Architectural Review Commission and the
Parks and Recreation Commission; and under the MOU, it is Cingular's responsibility to design
these improvements and receive all regulatory approvals.
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Council Agenda Report—Telecommunications Facility Lease at Santa Rosa Park
Page 3
Improvements In-Lieu of Rent:. How This Works. As noted above, the underlying "business
terms" of the lease agreement are not affected by Cingular making these improvements on our
behalf. Instead of making agreed-upon annual rent payments in the first years of the lease, the
value of the site improvements will be prorated as "in lieu"rent payments.
For example, as shown in the sidebar, if the City's park improvements were valued at $200,000,
then for the first four years (assuming Improvements In-Lieu P Example
two tenants as currently envisioned), no Annual Rentpayme= Annual FormofPa
"cash" lease payments would be due. In First Six Years Rent in-Lieu Cash
"Year Five," $12,365 would be due in year 1 40,000 40,000
cash, followed thereafter by "normal" Year 41,200 41,200
annual rental payments for the balance Year 3 42,436 42,436
of the lease term. (For example, Y=4 43,709 43,709
$46,371 in "Year Six," reflecting the Year 45,020 32,655 12,365
first year's rent of $40,000 adjusted for Year 46,371 46,371
Total
the minimum 3% annual rent increase. Year 6 1 $ 258,7361 $ 200,0001 $ 58,736
Guaranteed Maximum Price Construction Contract As set forth in the MOU, a pre-condition
to executing the lease agreement is a guaranteed maximum price construction contract acceptable
to the City for the scope of these improvements,phasing, completion date and cost.
The Process: Requests for Proposals and Follow-On Negotiations
As noted above, the Council authorized staff to begin negotiations for wireless
telecommunication facilities at this site on December 11, 2001. Because there was initial interest
in this site by several telecommunication providers, we prepared and issued a Request for
Proposals (RFP) before initiating negotiations with a specific firm. The purpose of the RFP was
to set forth the City's minimum "business" terms and the process we would use in selecting who
we would initiate negotiations with. This resulted in one proposal from Cingular, with Verizon
as a likely subtenant.
While multiple proposals were not ultimately received, this process helped clarify which firms
were in fact interested in this site, and who was representing them (an area of significant
ambiguity at the outset of this process). It also helped expedite subsequent negotiations by
clearly setting forth the City's business terms—and clearly separating them from our regulatory
role—at the very beginning of the process.
The City's multi=departmental review team in preparing the RFP and reviewing the proposal
included Wendy George (Administration), Paul LeSage (Parks and Recreation), Whitney
Mcnvaine (Community Development), Bob Neumann (Fire), Bill Statler (Finance), Gil Trujillo
(City Attorney) and Jay Walter(Public Works).
Separating Our Proprietary Versus Regulatory Role
In entering into the MOU, the City is acting in our "proprietary" role as a property owner. This
is separate and distinct from the City's regulatory role, which we would play regardless of where
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Council Agenda Report Telecommunications Facility Lease at Santa Rosa Park
Page 4
wireless communications facilities were being proposed in the City. In our"regulatory role,"we
cannot guarantee discretionary "planning" approvals in a lease agreement. On the other hand,
Cingular cannot responsibly enter into the development review process without knowing the
"business"terms of the lease. To address this, we recommend a"two-step"process:
1. Memorandum of Understanding. The MOU sets forth the basic "business" terms of the
lease agreement that the City will enter into after Cingular receives all of its regulatory
approvals. It also sets forth the pre-condition of a guaranteed maximum price construction
contract for the park improvements before entering into the lease agreement.
2. Lease Agreement. After Cingular has met all of the pre-conditions set forth in the MOU, the
City will enter into the lease agreement provided as Exhibit 1 of the MOU.
In short, this two-step process makes it clear that the City will not make any guarantees about the
outcome of the development review process. However, if Cingular is successful in this process,
it clearly sets forth the business terms for a subsequent lease agreement.
Next Steps
Upon approval of the MOU, Cingular will finalize plans for their project—including City park
improvements—and submit them for the City's regulatory review. Once the review process is
complete, Cingular will provide us with a guaranteed maximum price construction contract for
the park improvements based on the approved project. Assuming we concur with the cost and
schedule, we will return to the Council for formal approval of the lease agreement. This is likely
to occur three to six months from now. Construction will begin shortly thereafter, and this is
likely to take six to nine months. As such, it is possible that construction could be underway by
Fall 2002 and completed by Spring 2003.
CONCURRENCES
City Staff. Administration, City Attorney, Community Development, Finance, Fire, Parks &
Recreation and Public Works concur with this recommendation.
Parks and Recreation Commission. They approved this concept at their December 5, 2001
meeting.
FISCAL IMPACT
Assuming approval of the MOU and subsequent lease agreement, this will provide at least
$20,000 in additional revenue annually, increasing by at least 3% per year. Assuming that
Verizon will be a subtenant (a very likely possibility), first year revenues will probably be
$40,000 (also increasing by at least 3% per year). With these assumptions, if the lease goes for
its full 20-year term, this will mean $800,000 (in 2002 dollars)in additional revenues to the City.
In reviewing similar site lease agreements in both the private and public sectors, we believe this
a very competitively priced lease.
Council Agenda Report—Telecommunications Facility Lease at Santa Rosa Park
Page 5
ALTERNATIVES
1. Do Not Approve the MOU. This would result in less revenue to the City—and a slower
start on already-approved park improvements—than is otherwise possible, without any
significant impacts on the community. It would also be inconsistent with the Council's
direction on December 11, 2001.
2. Amend the Provisions of the MOU. In this case, the Council would need to identify the
specific changes it wants. However, the proposed MOU and lease agreement are consistent
with the general terms and conditions conceptually approved by the Council on December
11, 2001. Additionally, we believe the"economic"terms of the lease are very competitive.
ATTACHMENT
Memorandum of Understanding with Cingular Wireless for a telecommunications facility lease
at Santa Rosa Park
ON FILE IN THE COUNCIL OFFICE
December 11, 2001 Council agenda report regarding a lease for wireless telecommunication
facilities at Santa Rosa Park
G:Santa Rosa Park Telecommunications Lease/Council Agenda Report
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MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is made this 16th day of April 2002, by and between the
CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (the "City") and CINGULAR
WIRELESS LLC, a Delaware limited liability company, on behalf of Pacific Bell Wireless, LLC, a
Nevada limited liability company d/b/a Cingular Wireless("Cingular").
RECITALS
WHEREAS, Cingular desires to construct a wireless communications facility at Santa Rosa Park and is
willing to construct and dedicate certain public improvements to the City; and
WHEREAS, the City is willing to lease a portion of Santa Rosa Park to the Cingular upon the terms and
conditions set forth in Exhibit 1, provided that Cingular is able to obtain all discretionary approvals
required by the City in its municipal and regulatory capacity; and
WHEREAS, the MOU is non-binding in nature.
Now,therefore,the parties have prepared the following MOU:
1. PROJECT DESCRIPTION
The project consists of two components: a wireless communications facility and park
improvements. The wireless communications facility and park improvements to Santa Rosa Park
(hereafter"Park Improvements")include design and implementation of the following:
A. Removing the central parking lot; and reconfiguring the layout of the remaining parking
lot to result in no net loss of parking spaces(design only).
B. Installing replacement turf and irrigation systems where the asphalt was removed.
C. Relocating the softball field right field fence from the east to the west of the newly turfed
area.
D. Replacing and relocating the right field light pole to the west side of the newly turfed area
with two light poles that also serve as cellular antennas.
E. Constructing a building for cellular equipment on the north side of the softball field_.
F. Constructing a building located on the east side of the basketball court for
communications equipment and storage for the skate and blading program ("radio/utility
building"), including the following for the Lessee's Fire Department: a) fiber and phone
service access in two dedicated conduits (2 inch) from Santa Rosa to the radio/utility
building; b) space and installation for a two floor-to-ceiling "standard racks" (each one
being 19 inches wide by 84 inches tall); c) area separation, for security purposes only, for
the two racks mentioned above (chain link fence with a locking gate is suggested); d) one
20 amp electrical service, backed-up for by emergency generator to the secure area (this
may be a shared system);e) climate control for the secured area; f) access to the secure
area 24-hours a day, 365 days a year; g) space for 6 antenna on the light pole site, with
appropriate conduit runs to the radio/utility building;h) assurance that only FCC licensed
radio FX's systems are to be installed in the radio/utility building.
Memorandum of Understanding Page 1 of 4
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G. Installing a retaining wall at the south end of the former parking lot and making related
parking improvements.
H. Making other minor improvements as may be necessary to successfully complete this
project.
2. PARK IMPROVEMENT SPECIFICATIONS
In its capacity as the owner of the Park Improvements, and separate from its capacity as regulator,
the City shall have rights of specific approval and review of all designs and plans, initially at the
concept and schematic plan level, and subsequently at the final plans as set forth herein. Upon
execution of the MOU the City shall review and approve the preliminary design. After approval
of the preliminary design, Cingular shall submit to the City the final plans for the Park
Improvements. Within 30 days of such submission, the City shall exercise its final right of
review and approval of such plans. These rights shall be supplemental to and not concurrent with
its rights of inspection in connection with building permit, fire and other regulatory functions.
3. CONTRACT ARRANGEMENTS
Prior to initiation of construction of the Park Improvements, Cingular shall provide the City with
a final construction contract containing a fixed price contract for all work, materials and
contingencies("Guaranteed Maximum Price Contract'or"GMP"). In addition to price,the GMP
will also detail the scope of improvements, phasing and completion date. The form and content
of these documents shall be acceptable to the City.
4. CITY RIGHTS OF APPROVAL AND INSPECTION
During the construction process of the Park Improvements, the City shall have the right, as an
owner, to review all change orders, to require change orders which the City reasonably deems
necessary only in order to ensure consistency or equivalency with the approved plans and
specifications, and to inspect all parts of construction at any time. These rights, like the rights of
plan review and approval, are supplementary to and separate from the regulatory functions of the
City.
5. CONTINGENCIES TO LEASE SIGNING
In its capacity as landowner, the City is under no obligation to enter into any lease until the
development review process is concluded and all discretionary approvals are obtained and such
other requirements as may pertain to final entitlement and approval of this project are fulfilled.
6. PERFORMANCE BOND FOR PUBLIC IMPROVEMENTS
In addition to the GMP, Cingular shall also provide at no cost to the City a surety bond to
guarantee completion of the Park Improvements that meet City standards for such bonds.
7. RESPONSIBILITIES OF THE PARTIES
A. Cingular. It shall be the responsibility of Cingular to diligently pursue all aspects of the
application for the development of the project; including all environmental processing, all
zoning processing, any supporting technical studies, and any other supporting studies as
may be necessary. All costs associated with the processing of entitlements and City
Memorandum of Understanding Page 2 of 4
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• 43 cIJ�'.��~1C.�1.F�Py.
approvals and the production of studies, planning and design for the development and
Park Improvement shall be paid for by Cingular.
B. City. The City, in its role as landowner, shall cooperate with and furnish information to
Cingular on the property.
With regard to zoning approvals, the City's responsibility shall be limited to providing
that level of interaction, timely response and review as provided for in regulations and
ordinances of the City of San Luis Obispo.
8. OTHER MUNICIPAL PROCESSING
The Parties understand and agree that those approvals required of the City acting in its
governmental or regulatory capacity are separate and distinct from those approvals required by
the City under this MOU. Notwithstanding anything to the contrary in this MOU,nothing herein
shall be interpreted to mean that the City is any way waiving, limiting or weakening any
regulatory or police power the City may have in any of its governmental capacities. It is intended
that Cingular shall be obligated to fulfill such requirements as may be imposed by the City or any
other governmental agency or authority having or exercising any jurisdiction over the project or
over any construction to be undertaken by Cingular in,on or about said project.
Refusal or failure by the City in its governmental or regulatory capacity to take a legislative
action, issue any permit, license or any other action or approval sought by Cingular for
construction of improvements on, or development of, the project shall not constitute a breach of
this MOU.
9. NON-BINDING NATURE OF THE AGREEMENT
Without obligating either of the parties, this MOU summarizes what Cingular and the City
perceive to be the major deal points with respect to the project. No binding obligation is created
by this MOU or can be created other than by execution of a Telecommunications Facilities Lease
in the form attached hereto as Exhibit 1. Notwithstanding the foregoing,the parties agree that if a
Telecommunications Facilities Lease is entered into between the parties, it shall substantially
include the terms of this MOU.
This MOU is an outline for discussion purposes only, is not intended to be contractual or binding
for any purpose and is not an offer or representation by either party. It is designed to reflect the
ideas being formulated, to provide a framework to attempt to resolve issues and concerns that
have been raised, as well as for the resolution of issues and concerns which may arise. In some
instances, a tentative but not binding, agreement on a matter is referred to, and in other instances,
material agreements are yet to be defined and specified. The fact that any particular component
or issue is not addressed in this MOU does not mean that it cannot be the subject of future
discussions and negotiations, and the fact that a component is addressed does not mean that it
cannot be rejected or modified by either party. Cingular further acknowledges and agrees that the
officers and employees of the City, do not.have authority to bind the City, and the final form of
any proposed lease to be negotiated may have to contain matters not contemplated by this MOU.
The parties acknowledge that neither party will be contractually bound to any agreement nor to
any element of the proposed development until the final execution of a mutually acceptable lease
approved and executed by authorized representatives. Alternatively, either of the parties may
determine that further negotiations will not be fruitful and then terminate this MOU or allow this
MOU to lapse without further liability to the other.
Memorandum of Understanding Page 3 of 4
10. ACCEPTANCE AND ACKNOWLEDGEMENT
CITY OF SAN LUIS OBISPO CINGULAR WIRELESS LLC
By: By:
Mayor Allen Settle Charles Vranek,Vice President
Special Projects/Real Estate
ATTEST:
Lee Price,City Clerk
APPROVED AS TO FORM:
Jeffrey G.Jorgensen, City Attorney
Exhibit 1: Form of Telecommunications.Facility Lease at Santa Rosa Park
Memorandum of Understanding Page 4 of 4
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TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK
This Lease is made and entered into this_day of , 2002,by and between the
CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to as
"Lessor"), and CINGULAR WIRELESS LLC, a Delaware limited liability company, on behalf of
PACIFIC BELL WIRELESS, LLC, a Nevada limited liability company d/b/a CINGULAR WIRELESS
(hereinafter referred to as"Lessee").
RECITALS
This Lease is made and entered into with respect to the following facts:
A. Lessor is the owner of the property described in Exhibit A, located at 190 Santa Rosa
Street, San Luis Obispo, California,commonly known as Santa Rosa Park.
B. Lessee has requested permission to construct a wireless communications facility to be
located at Santa Rosa Park and Lessee is willing to construct and dedicate certain public improvements to
Lessor. Lessor is willing to lease a portion of Santa Rosa Park to Lessee upon the terms and conditions
hereinafter set forth.
C. Lessee warrants that the facility will not interfere with the Department of Parks and
Recreation's operations or the public's use of the park.
D. This Lease is conditioned upon Lessee obtaining all governmental permits and approvals
enabling Lessee to construct and operate wireless communications facilities on the Premises, as defined
below.
E. Lessor and Lessee have heretofore entered into a Memorandum of Understanding dated
April 16, 2002 concerning Santa Rosa Park.
NOW THEREFORE, the parties hereto agree as follows:
1. Premises. Lessor is the owner of a parcel of land located in the City of San Luis Obispo,
County of San Luis Obispo, State of California, located at 190 Santa Rosa Street, San Luis Obispo,
California, 93401, commonly known as Santa Rosa Park. The land is more particularly described in
Exhibit A, attached hereto. Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease
Exhibit 1 of the Memorandum of Understanding Page 1 of 26
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from Lessor approximately one thousand two hundred (1,200) square feet of the land and all access and
utility easements described in Exhibit B attached hereto, and by this reference made a part hereof
(hereinafter referred to as the "Premises"). This Lease is subject to the terms, covenants and conditions
hereinafter set forth and Lessee covenants, as a material part of the consideration for this Lease, to keep
and perform each and every term, covenant and condition of said Lease.
During the term of this Lease, Lessor also grants to Lessee an irrevocable, nonexclusive right of
ingress and egress, seven days a week, twenty-four(24) hours a day, and the right to install and maintain
underground utility wires and cables and conduits and pipes (1) from the Premises to the nearest public
right-of-way,and(2) from the radio equipment to the antennas.
2. Improvements.
A. Lessee shall design and perform, construct or erect or cause to be constructed or
erected at its sole cost the following improvements as shown on Exhibit `B" (hereinafter "Park
Improvements"):
1) Remove the central parking lot and reconfigure the layout of the
remaining parking lot to result in no net loss of parking spaces(design only).
2) Install turf and irrigation systems where the asphalt was removed.
3) Relocate the softball field right field fence from the east to the west of
the newly turfed area.
4) Replace and relocate the right field light pole to the west side of the
newly turfed area with two light poles that also serve as cellular antennas.
5) Construct a building for cellular equipment on the north side of the
softball field.
6) Construct a building located on the east side of the basketball court for
communications equipment and storage for the skate and blading program ("radio/utility building"),
including the following for the Lessee's Fire Department: a) fiber and phone service access in two
dedicated conduits (2 inch) from Santa Rosa to the radio/utility building; b) space and installation for a
Exhibit I of the Memorandum of Understanding Page 2 of 26
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two floor-to-ceiling "standard racks" (each one being 19 inches wide by 84 inches tall); c) area
separation, for security purposes only, for the two racks mentioned above (chain link fence with a locking
gate is suggested); d)one 20 amp electrical service, backed-up for by emergency generator to the secure
area(this may be a shared system); e)climate control for the secured area; fl access to the secure area 24-
hours a day, 365 days a year; g) space for 6 antenna on the light pole site,with appropriate conduit runs to
the radio/utility building; h)assurance that only FCC licensed radio systems are to be installed in the
radio/utility building.
7) Install a retaining wall at the south end of the former parking lot and
make related parking improvements.
8) Make other minor improvements as necessary to complete the Park
Improvements project.
Lessee shall also erect on the Premises communications facilities, which include,
but are not limited to, equipment shelters, radio frequency transmitting and receiving equipment,
batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas, and
supporting structures and improvements (hereinafter"Lessee's Facilities")as shown on Exhibit`B". The
plans for the Park Improvements and Lessee's Facilities (landscaping, irrigation, fencing, building,
concrete, and all related improvements) as shown on Exhibit`B" shall have the prior written approval of
Lessor in its municipal capacity (not in its capacity as landlord). Lessee shall dedicate the Park
Improvements to Lessor upon completion thereof.
B. The Park Improvements shall be performed by Lessee under the authority,
direction, supervision and approval of Lessor. Lessee shall submit construction plans to the City's
Director of Parks and Recreation for approval prior to submitting the application and plans to the
Community Development Department for building permit processing and approval.
C. Lessee acknowledges and understands that the improvement is a public
construction project subject to the competitive bidding requirement contained in California Public
Exhibit 1 of the Memorandum of Understanding Page 3 of 26
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Contracts Code Section 20162 and the prevailing wage requirement contained in California Labor Code
Section 1771.
D. Lessee shall provide a Performance Bond to Lessor to guarantee completion of
the Park Improvements in the amount of($ ).
3. Term. The initial term of this Lease shall be for five (5) years ("Initial Tenn")
commencing with the issuance of a City building permit to construct the Lessee's Facilities and Park
Improvements, or January 1, 2003, whichever is earlier ("Commencement Date"). This Lease shall
automatically be renewed on the same terms and conditions, for three (3) additional terns (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 Tenn or any Renewal Tenn.
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 Twenty Thousand Dollars ($20,000.00) ("Annual Rent") without deduction,
setoff, notice or demand, provided, however, that Lessor shall waive the Annual Rent and any Additional
Annual Rent (as defined in Section 22.E.) in consideration for the Park Improvements constructed by
Lessee at its, and its sublease tenant's sole cost. Lessor's waiver of Lessee's obligation to make Annual
Rent and any Additional Annual Rent payments shall commence on the Commencement Date and shall
continue until the total cost of the Park Improvements has been credited against such Rent payments.
B. Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease year
without deduction, setoff, notice, or demand the previous year's Annual Rent multiplied by the CPI
Adjuster,or multiplied by three percent(3%),whichever is greater.
C. The CPI Adjuster means a percent, which is calculated by dividing the United
States Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of the
U.S. Department of Labor three (3) months prior to the adjustment date by the base Index number
published three (3) months prior to the Commencement Date, or previous adjustment date, as applicable.
If the Index is changed so that the base Index number differs from that in effect when the first extended
Exhibit I of the Memorandum of Understanding Page 4 of 26
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term commenced, the Index shall be converted in accordance with the conversion factor published by the
Bureau of Labor Statistics. If the Index is discontinued or revised during an extended term, such other
government index or computation with which it is replaced shall be used in order to obtain substantially
the same result as would be obtained if the Index had not been discontinued or revised.
D. If Lessee fails to pay the Annual Rent within thirty (30) days after such rent is
due, Lessee shall pay a late fee of one and one half percent (1.5%) per month. This late charge does not
establish a grace period. Lessor and Lessee agree that the charge is presumed to be the damages sustained
by Lessor for Lessee's late payment of rent and that it is impracticable or difficult to fix the actual
damages.
5. Use.
A. Lessee shall use the Premises for the sole purpose of constructing, maintaining,
securing and operating wireless communications facilities (including but not limited to cellular, PCS,
paging, and broad band) including the construction of equipment buildings and installation of required
antennas and related communications equipment upon the new sports lighting poles all as listed, depicted,
and described in the"Lessee's Facilities"which is attached hereto as Exhibit`B"and hereby incorporated
by reference. Any other use of the Premises or use of equipment not described in Exhibit `B," is not
authorized and shall constitute a breach of this Lease.
B. Lessee must obtain all discretionary permits and approvals required by Lessor in
its municipal capacity. Installation of a new wireless telecommunication or modification of an existing
installation shall require use permit approval and architectural review. The applicant shall submit
application materials and fees as required by the Community Development Department. Wireless
communications facilities shall not be constructed, installed or modified prior to obtaining a City building
permit. It shall be the responsibility of the owner/operator of a telecommunications facility to provide the
City with a notice of intent to modify site equipment in any way. Lessor shall reasonably cooperate(at no
expense to Lessor) with Lessee in connection with Lessee's efforts to obtain all such permits and
approvals; provided, however, Lessor shall not be obligated to apply for any permits or approvals with
Exhibit 1 of the Memorandum of Understanding Page 5 of 26
G9-l4
Lessee. Construction of Lessee's Facilities and the Park Improvements shall be at Lessee's sole expense.
Further, Lessee shall maintain the Lessee's Facilities free from hazards or risk to the public health, safety
and welfare.
C. At all times throughout the term of this Lease, Lessee's use of the Premises shall
be in conformance with, and subject to all conditions of,any and all discretionary permits in effect.
D. Lessor agrees that Lessee's ability to use the Premises is dependent upon
Lessee's obtaining all necessary certificates, permits and/or other approvals which may be required from
Lessor in its municipal or regulatory capacity and from any federal, state or other local authority. Lessor
agrees to cooperate with Lessee as to Lessee's obtaining such certificates, permits or other approvals. In
the event Lessee is unable to obtain any necessary certificate, permit or other approval in order to operate
or construct the Park Improvements or Lessee's Facilities, Lessee may terminate this Lease as provided
herein, upon thirty(30) days prior written notice.
6. Interference.
A. Lessee warrants that its construction, repair and operation of Lessee's Facilities
will not interfere with Lessor's fire, police, public works and other public safety or city department
communication broadcasts or frequencies. All operations by Lessee shall be in compliance with all
Federal Communications Commission requirements and all applicable laws.
B. If Lessor suspects or has reason to believe that Lessee's use of the Premises
creates radio or television interference for nearby residents or interference with Lessor's communication
systems, and if Lessee (i) does not proceed diligently to eliminate such interference, or (ii)provide
evidence that Lessee and the sublease tenant are not the source of such interference, within ten (10)
business days after notice from Lessor to do so, Lessor may immediately terminate this Lease by giving
notice to Lessee.
C. Lessee shall provide Lessor with a contact person who shall be available twenty-
four (24) hours a day to receive reports of any interference with Lessor's frequencies. In the event that
there is interference with Lessor's public safety frequencies, Lessee shall immediately cease the
Exhibit I of the Memorandum of Understanding Page 6 of 26
C 9-/S
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.
B. Initial compliancewith 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
Facilities shall not commence normal operations until it complies with, or has been modified to comply
with this standard. Proof of compliance shall be a certification provided by the engineer who prepared the
Exhibit I of the Memorandum of Understanding Page 7 of 26
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original report. In order to assure the objectivity of the analysis, the City may require, at the applicant's
expense, independent verification of the results of the analysis.
C. Every wireless telecommunication facility within three hundred (300) feet of an
inhabited area and all broadcast radio and television facilities shall demonstrate continued compliance
with its FCC permit or license and MPE limits. Every five (5) years a report listing each transmitter and
antenna present at the facility and the effective radiated power radiated shall be submitted to the
Community Development Director. If either the equipment or effective radiated power has increased,
calculations specifying exposure levels in the inhabited areas where the levels are projected to be highest
shall be prepared. Calculations shall also be prepared every time the adopted WE limits change. If
calculated levels in either of these cases exceed eighty (80%) of the MPE limits, the operator of the
facility shall hire a qualified electrical engineer licensed by the State of California to measure the actual
exposure levels produced. A report of these calculations, required measurements, if any, and the
engineer's findings with respect to compliance with the current MPE limits shall be submitted to the
Community Development Director within five (5) years of facility approval and every five (5) years
thereafter. In the case of a change in the limits, the required report shall be submitted within ninety (90)
days of the date the change becomes effective.
D. Failure to supply the required reports or to remain in continued compliance with
any FCC license,permit or MPE limits shall be considered a material breach of this Lease.
8. Visual Mitigation. Lessee will use a variety of visual mitigation strategies for all of its
facilities, as determined necessary by the Community Development Director and as required through the
Architectural Review process, with the goal of achieving a 100% stealth installation. Facilities shall be
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. The light
poles in which antennas are located shall not exceed fourteen (14) inches in diameter. No more than one
Exhibit 1 of the Memorandum of Understanding Page 8 of 26
C �-l�
carrier shall install antennas in any given light pole. Ground mounted support equipment shall be
undergrounded or otherwise screened from view so as to be effectively unnoticeable. All connections and
conduits between the base of the antenna(s) and support equipment shall be undergrounded. Electrical
and telephone service to the support equipment shall be undergrounded.
9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption
caused by noise to people working and living in the vicinity. At no time shall equipment noise from any
source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such equipment,
whichever is less. This requirement may be modified at the discretion of the Community Development
Director where typical ambient noise levels exceed 55 dB. Outdoor noise producing construction
activities shall take place only on weekdays between the hours of 8:00 am and 5:00 pm unless a different
schedule is approved as part of the use permit. Any facility utilizing temporary backup generators shall
be required to meet or exceed Air Pollution Control District Standards. All generators shall be fitted with
approved air pollution control devices. Projects that propose to include backup generators shall require
review and approval from the Air Pollution Control District. Project plans shall indicate location, size,
horsepower and type of fuel used for any proposed generator. Generators shall only be operated during
power outages and for testing and maintenance purposes. Testing and maintenance shall only take place
on weekdays between the hours of 10:00 am and noon.
10. Nondiscrimination. Subject to applicable laws, rules, and regulations, Lessee shall not
discriminate against any person or group on the basis of age, sex, sexual orientation, AIDS, AIDS related
condition,marital status,race,religion, creed, ancestry,national origin, disability, or handicap.
11. Subsurface Restrictions. The parties agree that this Lease covers only the surface of the
Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premises
as permitted in this Lease(including,without limitation, (i)the foundation for Lessee's monopole antenna
structure and building, and (ii)cables, conduits and pipes within the Premises to connect Lessee's
communications equipment within such building to the antennas to be constructed and maintained by
Lessee within the Premises).
Exhibit I of the Memorandum of Understanding Page 9 of 26
J ., .. . ...._, ,.
12. Liens. Lessee shall keep the premises free of mechanic's, material supplier's or other
liens for any work done, labor performed or materials furnished therein by or for Lessee, and Lessee shall
defend, indemnify and hold Lessor, its officials, employees and agents harmless from and against all
claims, liens, demands, causes of action, liability, loss, cost and expense (including reasonable attorney's
fees)of whatever kind for any such work done,labor performed or materials furnished.
13. No Utilities. Lessor shall not provide any utilities to the Premises. Lessee shall be
permitted to install utility lines, meters for electricity, and shall arrange and pay for the installation and
use of all utilities of whatsoever kind to the Premises.
14. Maintenance.
A. Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintain
Lessee's Facilities and all related improvements (except the Park Improvements as shown on Exhibit`B")
in good condition, free from rodents, weeds, noxious plants and wild growth, in substantial repair, in a
safe and sanitary condition, and in compliance with all applicable laws and regulations and shall promptly
repair any damage caused by Lessee. If Lessee fails to maintain the Lessee's Facilities as required herein,
Lessor may notify Lessee of said failure. If Lessee fails to correct the situation within thirty (30) days
after notice or such longer period as may be established by Lessor, Lessor may make the necessary
correction and the cost thereof, including but not limited to the cost of administration, and labor,
materials, equipment, shall be paid by Lessee within thirty (30) days after receipt of a statement of said
cost from Lessor. If said statement is not timely paid, Lessor may, at its option, choose any remedy
available herein or by law, including the termination of this Lease. Lessee hereby waives to the extent
permitted by law any right to make repairs at the expense of Lessor or to vacate the Premises in lieu
thereof as may be provided by law.
B. Lessor shall have no duty to maintain or repair Lessee's Facilities or any of
Lessee's improvements, including the light poles on the Premises.
15. Taxes. Lessee acknowledges that this Lease may create a possessory interest subject to
property taxation and that Lessee may be liable for payment of taxes levied on such interest. Lessee shall
Exhibit 1 of the Memorandum of Understanding Page 10 of 26
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promptly pay, prior to delinquency, all taxes, assessments and other governmental fees that may be
lawfully levied against the Premises and any improvements or personal property located on the Premises
and on any possessory interest created by this Lease,and provide proof of payment to Lessor on demand.
16. Insurance. Concurrent with the execution of this Lease, Lessee shall procure and
maintain, at its cost, during the initial and any extended or Renewal Term of this Lease from an insurer
admitted in California or having a minimum rating of or equivalent to A: VII in Best's Insurance Guide:
A. Comprehensive General Liability insurance with a combined single limit of at
least Five Million Dollars ($5,000,000) for each occurrence. Lessor, its officials, employees and agents
shall be covered as additional insureds with respect to liability arising from activities performed by or on
behalf of Lessee. Said insurance shall be primary insurance with respect to Lessor and shall contain a
cross liability endorsement.
B. "All Risk" property insurance in an amount sufficient to cover the full
replacement value of Lessee's personal property, improvements and equipment on the Premises.
C. Upon the execution of this Lease, Lessee shall deliver to Lessor certificates of
insurance with original endorsements evidencing the coverage required by this Lease. The certificates
and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf.
D. Said insurance shall contain an endorsement requiring thirty (30) days prior
written notice from insurer to Lessor before cancellation or change of coverage.
E. Said insurance may provide for such deductibles or self-insured retention as may
be acceptable to the City's Risk Manager or designee. In the event such insurance does provide for
deductibles or self-insured retention, Lessee agrees that it will fully protect Lessor its officials and
employees in the same manner as these interests would have been protected had a policy of commercial
insurance been in effect. With respect to damage to property, Lessor and Lessee hereby waive all rights
of subrogation, one against the other, but only to the extent that collectible commercial insurance is
available for said damage.
Exhibit I of the Memorandum of Understanding Page 11 of 26
G9-0-(TUA
I. e-j . __. .... ,.
F. The procuring of insurance shall not be construed as a limitation on Lessor's
liability or as full performance on Lessee's part of the indemnification provision of this Lease. Lessee
understands and agrees that, notwithstanding any insurance, Lessee's obligation to defend and indemnify
Lessor, its officials and employees hereunder is for the full amount of any damage, loss cost or expense.
G. Any modification or waiver of these insurance requirements shall only be made
with the written approval of the Lessor's Risk Manager or designee.
17. Removal of Improvements. On the expiration or sooner termination of this Lease, Lessee
at Lessee's sole cost shall have the right to remove Lessee's Facilities (with the exception of the Park
Improvements as shown on Exhibit B, consisting of the equipment buildings and sports lighting poles)
erected on the Premises by Lessee by giving notice of its intention to do so to Lessor and by removing
same within forty-five (45) days after expiration or sooner termination of this Lease. Lessor may treat
any such buildings or improvements as abandoned if Lessee fails to timely remove them and, in such
event, (a)Lessor shall be deemed owner of them without accounting to Lessee, or (b) Lessor may cause
their removal at Lessee's cost, with the exception of the underground conduits which may be abandoned
in place by Lessee.
18. Relocation. Lessee agrees that nothing contained in this Lease shall create any right in
Lessee for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapter
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, to the address
of the respective parties set forth below:
LESSOR: LESSEE:
Parks and Recreation Director Cingular Wireless
City of San Luis Obispo Attn: Property Management
1341 Nipomo Street 2521 Michelle Drive,2nd Floor
San Luis Obispo,CA 93401 Tustin, CA 92780
Exhibit I of the Memorandum of Understanding Page 11 of 26
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„1
Notice shall be deemed effective on the date shown on the return receipt or on the date personal delivery
is made, whichever first occurs. If delivery is refused, the date of deposit of the copy in the mail shall be
deemed the date of notice. Change of address shall be given as provided herein for notices.
20. Hazardous Materials and Waste.
A. Lessee shall comply with all applicable laws regarding the use, storage and
disposal of hazardous materials on the Premises. Lessee shall comply with California Health and Safety
Code Section 25359.7 or its successor regarding notice to Lessor on discovery by Lessee of the presence
or suspected presence of any hazardous substance on the Premises.
B. Lessee shall not bring any hazardous materials onto the Premises except for those
contained in its back-up power batteries and common materials used in telecommunications operations,
e.g., cleaning solvents. Lessee shall treat all hazardous materials brought onto the Premises by it in
accordance with all federal, state and local laws and regulations.
C. Lessee shall specify any proposed generator usage and its proposed location.
D. Lessor represents that the Premises have not been used for the generation,
storage, treatment or disposal of hazardous materials, hazardous substances or hazardous wastes. In
addition, Lessor represents that no hazardous materials, hazardous substances, or hazardous wastes,
pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil, or
any fraction or derivative thereof), or underground storage tanks are located on or near the Premises.
21. Indemnity. Lessee shall defend, protect, indemnify and hold harmless Lessor, its
officials, employees and agents from all claims, demands, damages, causes of action, losses, liability,
costs or expenses, including reasonable attorney's fees, of any kind or nature whatsoever (except those
resulting from Lessor's sole negligence or willful misconduct) which Lessor, its officials, employees and
agents may incur for injury to or death of persons or damage to or loss of property occurring in, on or
about the Premises arising from the condition of the Premises (other than conditions existing prior to
Lessee's occupancy of the Premises), the alleged acts or omissions of Lessee, any parent, subsidiary,
affiliate or partnership in which any such entity participates, Lessee's officers, employees or agents, the
Exhibit I of the Memorandum of Understanding Page 13 of 16
c 9-aa
occupancy, use or misuse of the Premises by Lessee, any parent, subsidiary, affiliate or partnership in
which any such entity participates, Lessee's officers, employees or agents,or any breach of this Lease.
Lessor shall protect, indemnify and save harmless Lessee, and its officers, agents and employees,
from and against all claims, demands and causes of action by Lessor's employees or third parties on
account of personal injuries or death or on account of property damages arising out of the use of the
Premises by Lessor hereunder and resulting from the sole negligence or willful misconduct of Lessor or
its officers,agents and employees.
22. Assignment and Sublettine. Except for an assignment, sublease or transfer to Lessee's
affiliate, parent, subsidiary, member or partner, or as a result of a merger or sale of substantially all of
Lessee's assets ("Permitted Assignment") Lessee shall not assign or transfer this Lease or any interest
herein, without the prior written consent of Lessor which shall not be unreasonably withheld, provided,
however, that Lessee shall notify Lessor in writing of a Permitted Assignment within thirty(30)days. To
obtain Lessor's consent to a proposed assignment or transfer (hereinafter collectively referred to as
"transfer"), Lessee shall meet the following requirements and Lessee's failure to meet any requirement
shall allow Lessor to withhold consent:
A. Lessee shall notify Lessor at least sixty (60) days prior to the date when Lessee
desires the transfer to take effect ("Transfer Date") which notice shall contain the name, address and
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
Exhibit 1 of the Memorandum of Understanding Page 14 of 26
0, 9-�3
assumption by transferee but the failure or refusal to execute or deliver such instrument shall not release
transferee from its liability as stated herein.
D. The consent of Lessor to any transfer shall not relieve Lessee of the obligation to
obtain such consent to any further transfer. Further, neither this Lease nor any interest herein shall be
subject to transfer by attachment, execution,proceedings in insolvency or bankruptcy(either voluntary or
involuntary), or receivership. In the event of the transfer without the prior written consent of Lessor, such
transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest. Any
transfer without Lessor's consent shall constitute a default of this Lease.
E. To obtain Lessor's consent to a sublease, Lessee shall meet the following
requirements and Lessee's failure to meet any requirement shall allow Lessor to withhold consent:
1) The Lessee must pay to Lessor the same amount of Annual Rent on the
sublease tenant's behalf as the Lessee ("Additional Annual Rent"). For example, if there were two
sublease tenants by the beginning of the third year of this Agreement, the total rent due from the Lessee
would be $63,654: the Annual Rent for the Lessee ($21,218, which is the first year's rent of$20,000
increased by 3% for two years) and the Additional Annual Rent for the two sublease tenants ($21,218
each). While the Lessee may require the sublease tenant to pay this amount as part of their sublease
agreement with the Lessee, payment of the Additional Annual Rent is the sole responsibility of the
Lessee,and is subject to the same terms, conditions and remedies as the Annual Rent.
2) Lessee shall notify Lessor at least sixty (60) days prior to the date when
Lessee desires the sublease the transfer to take effect ("Sublease Date"), which notice shall contain the
name, address and telephone number of the proposed sublease tenant; the nature of the proposed sublease
tenant's business and details of its business experience. The first year of Additional Annual Rent shall be
paid prior to the Sublease date and will be prorated to the Lessee's Annual Rent payment due date; and
shall be due annually thereafter with the Annual Rent.
3) Lessor and Lessee agree (by way of example and without limitation) that
it shall be reasonable for Lessor to withhold its consent if any of the following exist or may exist: the
Exhibit I of the Memorandum of Understanding Page 15 of 26
C 9 aft
_. :T:
. ._. ...' ... ..
proposed transferee's use of the Premises conflicts with or is inconsistent with the use of the Premises
stated herein; the Lessee is in default under this Lease at the time the request for sublease is made and has
not cured such default,if the same can be cured,prior to ten(10)business days prior to the Sublease Date.
4) The sublease tenant is subject the same terms and conditions of this
Agreement as the Lessee.
5) Lessor shall notify Lessee at least fifteen (15) days prior to the sublease
date whether Lessor approves or disapproves of the proposed sublease.
23. No Permits. Lessee shall not grant any rights-of-way, easements, franchises or permits
in,on or across the Premises.
24. Encumbrances. Lessee shall take the Premises subject to any and all existing easements
and other encumbrances.
25. Reservations. Lessor reserves the right to grant franchises, easements, rights-of-way or
permits for pipeline purposes which will not interfere with Lessee's use of the Premises.
26. Default. The occurrence of any of the following acts shall constitute a default by Lessee:
A. Failure to pay Annual Rent or Additional Annual Rent when due where such
failure shall continue for a period of ten(10)days after Lessee's receipt of written notice from Lessor.
B. Failure to perform any of the terms, covenants or conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee's receipt of written notice from Lessor of said
failure. If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lessee
shall not be in default if Lessee begins to cure within the thirty-day period and diligently proceeds to cure
to completion. Lessor's notice shall describe the default and shall demand that Lessor perform or quit the
Premises. No such notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects
in the notice.
C. Any attempted assignment, transfer or sublease except as permitted in Section 22
hereof.
Exhibit I of the Memorandum of Understanding Page 16 of 26
C, 9-as
D. Failure to maintain all necessary permits and business licenses required by the
City in its municipal or regulatory capacity or failure to pay any fees for permits or licenses to the City
when due;
E. Failure to report or pay to the City all applicable sales taxes, transient occupancy
taxes,business taxes, utility taxes or other excise taxes,when due.
Subject to the terms of this Section, if Lessee does not comply with each term, covenant
and condition of this Lease or if a default occurs, then Lessor may terminate this Lease and Lessor may
then enter the Premises and take possession thereof provided, however, that these remedies are not
exclusive but cumulative to other remedies provided by law in the event of Lessee's default, and the
exercise by Lessor of one or more rights and remedies shall not preclude the Lessor's exercise of
additional or different remedies for the same or any other default by Lessee.
F. Failure to perform any of the terms, covenants or conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee notifies Lessor of said failure shall constitute a
default by Lessor of this Lease. If the default cannot reasonably be cured in thirty (30) days after receipt
of such notice, Lessor shall not be in default if Lessor begins to cure within the thirty (30) day period and
diligently proceeds to cure to completion.
27. Right of Entr_y.
A. In the event of an emergency which poses an immediate threat of harm or
damage to persons or property, Lessor may enter the Premises and take such actions as are required to
protect persons or property from such immediate threat of harm or damage, provided that promptly after
such emergency entry into the Premises (and in no event later than twenty-four (24) hours) Lessor gives
telephonic and written notice to Lessee of Lessor's entry into the Premises. In addition to Lessor's rights
under the immediately preceding sentence, Lessor shall have the right, upon forty-eight (48) hours prior
telephonic notification to Lessee (which notification shall specify the date and time at which Lessor seeks
to enter the Premises), to enter the Premises to determine whether or not Lessee is complying with this
Lease and to serve, post or keep posted any notice. Except in the event of an emergency, Lessor agrees
Exhibit I of the Memorandum of Understanding Page 17 of 26
C 9�b
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. Sims. Lessee shall not place, affix, maintain or permit any sign, advertisement, name,
insignia, logo, descriptive material or similar item (collectively "sign") on the Premises without the prior
written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at all
times. Lessor may remove any sign not approved by Lessor at Lessee's cost. The cost of removal shall
be additional rent..
29. Condemnation. If the whole of the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain, then this Lease shall terminate. If any part of the Premises
shall be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, as
of the day possession (of that part) is required for any public purpose, and on or before that day Lessee
shall elect in writing either to terminate this Lease or to continue in possession of the remainder of the
Premises provided, however, that rent shall only be reduced in proportion to the amount of the Premises
taken if Lessee is unable to operate at the same level after the condemnation as before the condemnation.
All damages awarded for any taking shall belong to Lessor, whether such damages be awarded as
compensation for diminution in value to the leasehold or to the fee provided, however, that Lessor shall
not be entitled to any portion of the award made for loss of Lessee's business or relocation expenses.
30. Nuisance. Lessee shall not do or permit to be done in or on the Premises any act, which
may be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or
occupants of adjoining property, or to the neighborhood.
Exhibit 1 of the Memorandum of Understanding Page 18 of 26
C9 a�
31. Exculpation. Except as expressly provided herein,Lessor shall not be liable to Lessee for
any damages to Lessee's property from any cause. To the extent permitted by law, Lessee waives all
claims against Lessor for damage or injury to persons or property arising or alleged to have arisen from
any cause whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's breach of its
obligations hereunder.
32. Waiver of Rights. The failure or delay of either party to insist on strict enforcement of
any term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that such
party may have and shall not be deemed a waiver of any subsequent or other breach of any term,
covenant, or condition herein. The receipt and acceptance by Lessor of delinquent rent shall not
constitute a waiver of any other default but shall only constitute a waiver of timely payment for the
particular rent payment involved. Any waiver by either party of any default or breach shall be in writing.
Either party's consent to or approval of any act by the other party requiring a party's consent or approval
shall not be deemed to waive such party's consent or approval of any subsequent act of the other party.
33. Partial Invalidity. If any term, covenant or condition of this Lease is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect.
34. Successors in Interest. This Lease shall be binding on and inure to the benefit of the
parties and their successors, heirs, personal representatives, approved transferees and assignees, and all of
the parties hereto shall be jointly and severally liable hereunder.
35. Right to Re-Enter. Lessor acknowledges that Lessee's use of the Premises includes
proprietary trade secrets. Lessor shall have no right whatsoever to enter the Premises except as provided
in Paragraph 27.A. above, without Lessee's written consent which Lessee shall not unreasonably
withhold. Lessee shall peaceably deliver possession of the Premises to Lessor on the effective date of
termination or expiration of this Lease. On giving notice of termination to Lessee, Lessor shall have the
right to re-enter and take possession of the Premises on the termination or expiration date without further
notice of any kind and without institution of summary or regular legal proceedings. Termination of the
Exhibit 1 of the Memorandum of Understanding Page 19 of 26
C 9��
Lease and re-entry of the Premises by Lessor shall in no way alter or diminish any obligation of Lessee
under the Lease and shall not constitute an acceptance or surrender. Lessee waives any and all right of
redemption under any existing or future law, in the event of eviction from the Premises and in the event
Lessor re-enters and takes possession. Lessee agrees that should the manner and method used by Lessor
in re-entering or taking possession after breach by Lessee gives Lessee a cause of action for damages or in
forcible entry and detainer, the total amount of damages to which Lessee shall be entitled due to the
re-entering shall be One Dollar ($1.00). Lessee agrees that this Section may be filed in any such action
and that when filed it shall be a stipulation by Lessee fixing the total damages to which Lessee is entitled
in such action.
36. Holding Over. If Lessee holds over and remains in possession of the Premises after the
expiration of the Lease, such holding over shall be construed as a tenancy from month to month on the
same terms, covenants, and conditions herein, except that monthly rent shall be one-twelfth(1/12) of one
hundred twenty-five percent (125%) of the annual rent then in effect. Nothing in this Section shall be
construed as a consent by Lessor to any holding over by Lessee.
37. Time. Time is of the essence in this Lease and every provision hereof.
38. Attorney's Fees. In any action or proceeding relating to this Lease, the prevailing party
shall be entitled to its costs, including reasonable attorney's fees and court costs.
39. Integration and Amendments. This Lease represents and constitutes the entire
understanding between the parties and supercedes all other agreements and communication between the
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.
Exhibit I of the Memorandum of Understanding Page 20 of 26
C 9-a9
Upon expiration or sooner termination of this Lease, Lessee shall, at its sole cost, immediately record a
Quitclaim Deed with respect to its interest under this Lease.
41. Governing Law. This Lease shall be governed by and construed in accordance with the
laws of the State of California.
42. Captions. The various headings and numbers herein and the grouping of the terms hereof
into separate sections, paragraphs and clauses are for convenience only and shall not be considered a part
hereof, and shall have no effect on the construction or interpretation of this Lease.
43. Abandoned Property. The vacating or abandonment of the Premises by Lessee shall
include but not be limited to the failure of Lessee to occupy the Premises for a continuous period of forty-
five (45) days or more while not paying rent. If Lessee abandons the Premises, title to any personal
property belonging to Lessee and left on the Premises forty-five (45) days after such abandonment shall
be deemed to have been transferred to Lessor. Lessor shall thereafter have the right to remove and to
dispose of said property without liability to lessee or to any person claiming under Lessee, and shall have
no duty to account therefor.
44. Compliance with the Law. Lessee shall comply with all laws, ordinances, rules and
regulations of all federal, state and local governmental authorities having jurisdiction over the Premises
and business thereon.
45. Quiet Enjoyment. Lessor covenants that, if Lessee performs the terms, covenants and
conditions of this Lease, Lessee shall peaceably and quietly hold and enjoy the Premises.
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
Exhibit 1 of the Memorandum of Understanding Page 21 of 26
communication companies, nor to use Santa Rosa Park for communications purposes, that might interfere
with Lessee's use of the Premises. In the event Lessor or any other communication company on Santa
Rosa Park does, in fact, interfere with Lessee's use of the Premises, Lessor shall eliminate, or cause to be
eliminated, such interference within seventy-two (72) hours of written notice by Lessee. If such
interference is not eliminated in such time period, Lessee may exercise any right or remedy at law or in
equity to eliminate the interference or may terminate this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities
required by law as of the date first above written.
LESSOR: LESSEE:
CITY OF SAN LUIS OBISPO,a CINGULAR WIRELESS LLC,
Municipal Corporation a Delaware limited liability company
on behalf of PACIFIC BELL WIRELESS,
LLC, a Nevada limited liability company
d/b/a/CINGULAR WIRELESS
By: By:
Allen Settle, Mayor Charles Vranek,
Vice President, Special Projects/Real Estate
ATTEST:
By:
Lee Price, City Clerk
APPROVED AS TO FORM:
By:
Jeffrey G.Jorgensen, City Attorney
Exhibit I of the Memorandum of Understanding Page 21 of 26
�2 3/
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
All that real property located in the State of California,County of San Luis Obispo, described as follows:
[Note: The legal description will be prepared at a later date prior to execution of the lease.]
Exhibit I of the Memorandum of Understanding Page 23 of 26
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EXHIBIT B
DESCRIPTION OF THE PROJECT
------------
[Note: The detailed project description will be prepared at a later date prior to execution of the lease.]
Exhibit l of the Memorandum of Understanding Page 24 of 26
C �'-
EXHIBIT C _
MEMORANDUM OF LEASE
RECORDING REQUESTED BY:
WHEN RECORDED,RETURN TO:
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE ("Memorandum") dated as of 2002, is
between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ("Lessor") and
CINGULAR WIRELESS LLC, a Delaware limited liability company, on behalf of PACIFIC BELL
WIRELESS,LLC, a Nevada limited liability company d/b/a CINGULAR WIRELESS ("Lessee").
RECITALS
WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Lease at
Santa Rosa Park "Lease") dated as of 2002, covering certain premises (the
"Premises") situated on a portion of that certain real property located in the County of San Luis Obispo,
State of California, and more particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference; and
WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official Records of
San Luis Obispo County,California;
NOW, THEREFORE, in consideration of the foregoing, Lessor and Lessee hereby declare as
follows:
1. Demise. Lessor has leased the Premises to Lessee (together with access rights), and
Lessee has hired the Premises from Lessor, subject to the terms, covenants and conditions contained in
the Lease.
2. Expiration Date. The term of the Lease ("Term") is scheduled to commence on or
before and shall expire five (5) years thereafter, subject to Lessee's
option to extend the Term pursuant to Section 3 of the Lease for three (3) additional terms of five (5)
years each.
3. Lease Controlling. This Memorandum is solely for the purpose of giving constructive
notice of the Lease. In the event of conflict between the terms of the Lease and this Memorandum, the
terms of the Lease shall control.
Exhibit I of the Memorandum of Understanding Page 25 of 26
C9-331
IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum of Lease as of
the date and year first written above.
LESSOR LESSEE
By: By:
Name: Name:
Title: Title:
NOTARIZED SIGNATURES
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On ,before me, ,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s),or the entity upon behalf of which the person(s) acted,executed the.instrument.
WITNESS my hand and official seal.
(Signature of Notary Public)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On ,before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s),or the entity upon behalf of which the person(s)acted,executed the instrument.
WITNESS my hand and official seal.
(Signature of Notary Public)
Exhibit I of the Memorandum of Understanding Page 26 of 26
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