Item 17 - Approval of Lease Agreement between City and Sprint PCS Assets LLC AGENDA REPORT SUMM •
ARY F P�w�y
TO: Honorable Mayor and Members of the City Council ,. THE `O�
7
FROM: James L. Bowersox, City Mana•
INITIATED BY: Warren H. Shafer, Director of Administrative Services
DATE: April 26, 2005
SUBJECT: Approval of Lease Agreement Between the City of Poway and Sprint PCS Assets,
LLC for the Installation & Operation of a Telecommunications Facility at Celestial
Reservoir
ABSTRACT
Sprint PCS Assets, LLC submitted an application for Conditional Use Permit (CUP 04-08), for the
installation of a telecommunications,facility at Celestial Reservoir, which was approved by the City
Council at a public hearing on November 9, 2004. Following the conditional use permit process, staff
negotiated the terms and conditions of a lease for the facilities. Staff is recommending that the City
Council approve the attached lease agreement with Sprint PCS Assets, LLC and authorize the Mayor
to execute the lease on behalf of the City. Legal counsel for Sprint and the City Attorney have
reviewed and approved the lease agreement.
ENVIRONMENTAL REVIEW
This item is not subject to CEQA review.
FISCAL IMPACT
The lease agreement will generate $150,082 in revenue over the initial five-year term of the
agreement.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE
Additional notification was sent to Velocitel representing Sprint PCS Assets, LLC.
RECOMMENDATION
It is recommended that the City Council approve the attached lease agreement with Sprint PCS
Assets, LLC and authorize the Mayor to execute such lease agreement.
ACTION Approved staff recommendation, 4-0, with yor a agna absent.
lane Shea, City Clerk
c2da to b ro perry•TinalSprintCe lestial.summ a ry.doc
1 of 45 April 26, 2005 Item # i
CITY OF POWA Y
AGENDA REPORT
This report is included on the Consent Calendar. There will be no separate discussion of the report priorto approval by the City Council unless members of the Council,
staff or public request it to be removed from the Consent Calendar and discussed separately. If you wish to have this report pulled for discussion, please fill out a slip
indicating the report number and give it to the City Cieri< prior to the beginning of the City Council meeting.
TO:
FROM:
Honorable Mayor and Members\~~ City Council
James L. Bowersox, City Mana~ .~.
Warren H. Shafer, Director of Administrative SeryiC'~
Tina White, Revenue & Business Activity Manage~
April 26, 2005
INITIATED BY:
DATE:
SUBJECT:
Approval of Lease Agreement Between the City of Poway and Sprint
PCS Assets, LLC for the Installation and Operation of a
Telecommunications Facility at Celestial Reservoir (13472 Celestial
Road)
BACKGROUND
Since December 2004, City staff has been working with Delta Groups and Velocitel,
representatives of Sprint PCS Assets, LLC, to negotiate a lease agreement for the installation
of a Sprint telecommunications facility at Celestial Reseryoir. Sprint's application for
Conditional Use Permit (CUP 04-08) for this site, was approved by the City Council on
November 9, 2004.
FINDINGS
Staff has negotiated the terms of a lease with Velocitel for an initial period of five years, with
three options to renew for a period of five years per option. Lease payments are to be paid
annually on the anniversary date ofthe lease. The first year lease payment of $26,256 is due
upon execution of the lease agreement by the City. Sprint's legal counsel and the City
Attorney have reviewed and approved the proposed lease agreement. Staff recommends
approval of the lease.
ENVIRONMENTAL REVIEW
This item is not subject to CEQA review.
FISCAL IMPACT
The lease agreement will generate $150,082 in revenue for the initial five-year term of the
agreement.
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April 26, 2005 Item # ...11
Approval of Lease Agrmt. Between City & Sprint at Celestial Reservoir
April 26, 2005
Page 2
PUBLIC NOTIFICATION AND CORRESPONDENCE
Additional notification was sent to Velocitel representing Sprint PCS Assets, LLC.
RECOMMENDATION
It is recommended that the City Council approve the attached lease agreement with Sprint
PCS Assets, LLC and authorize the Mayor to execute the lease agreement on behalf of the
City.
Attachment: Exhibit A - Lease Agreement
JLB:WS:TW:dh
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April 26, 2005 Item # I '1
LEASE AGREEMENT
This Lease Agreement ("Lease") is entered into this day of ,
200_, by and between the City of Poway ("Landlord") and Sprint PCS Assets, L.L.C., a
Delaware limited liability company (formerly known as Cox PCS Assets) ("Tenant").
Background
A. Landlord is the owner in fee simple of a parcel of land located in the City of
Poway, San Diego County, State of California, legally described on the attached Exhibit
A (the "Owned Premises" or "Premises" as the context may require), on which a
reseryoir is located. The street address of the Owned Premises is 13472 Celestial
Road.
B. Tenant desires to lease space on the Owned Premises for the installation and
operation of certain antenna facilities and other related equipment and improvements
("Antenna Facilities") for use in connection with Tenant's communications business.
C. Pursuant to Resolution No. P-04-88, Conditional Use Permit No. 04-08 for the
Antenna Facilities (the CUP) was approved by the Poway City Council on November 9,
2004.
E. Accordingly, the parties are entering into this Lease on the terms and conditions
set forth below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord
on a non-exclusive basis a portion of the Owned Premises, including space on the
Reservoir and Reservoir Site (the "Reseryoir"), as shown on the Site Plan attached as
Exhibit B (the "Leased Premises" or "Premises" as the context may require). Tenant
intends to locate the Antenna Facilities on the Leased Premises as described more fully
on the attached Exhibit C. Tenant may not add additional equipment and/or antennas
from that shown on Exhibit C without the prior written approval of Landlord, which may
include the requirement to amend the CUP.
Landlord reserves the right to require Tenant to relocate its facilities to another
location on the Reservoir and/or Owned Premises. Any such relocation shall be limited
to one time only during the term of this Lease, including any options. Tenant shall
complete the relocation of its facilities within sixty (60) days after Tenant's receipt of
written notice from Landlord. During such period of relocation, Landlord shall allow
Tenant to install temporary facilities sufficient to maintain Tenant's operations. Tenant
must remove such temporary facilities from the Premises after Tenant's relocation is
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ATTACHMENT
April 26, 2005 Item # 1'7
complete. In no event will temporary facilities remain on the Premises for more than
sixty (60) days without the written permission of Landlord. The relocation shall be at
Tenant's expense unless Landlord's relocation requirement results from Landlord's
desire to lease space on the Reseryoir or Leased Premises to non-governmental third-
party users. In that case, Landlord will promptly reimburse Tenant for the reasonable
relocation costs of Tenant. Relocation shall not result in a lessening of Tenant's ability
to use the Leased Premises for its intended purpose, or the quality of such use.
This Lease is not a franchise pursuant to Chapter 5.60 of the Poway Municipal
Code nor is it a permit to use the rights-of-way under Chapter 12.04 of the Poway
Municipal Code. Any such franchise or permit must be obtained separately from
Landlord. This Lease shall not be interpreted as imposing, elevating validation,
invalidating or in any way modifying any franchise license or permit requirement
imposed, restricted, pre-empted or otherwise affected by local, state or federal law.
2. Term. The term of this Lease shall be five (5) years, commencing on the first day
of the month following both (i) City Council approval of the CUP and (ii) execution of this
Lease by the parties hereto (The "Commencement Date"). So long as Tenant is in
compliance with the terms and conditions contained herein and the terms and
conditions of the CUP, Tenant shall have three (3) five-year options to extend this
Lease on the same terms and conditions, excluding Rent which shall be adjusted
annually as set forth in Section 3.b. below. Each option shall be deemed exercised
unless Tenant provides written notice of intent not to exercise the option at least ninety
(90) days prior to the expiration of the then current five-year term.
Notwithstanding such extension options, Tenant understands and acknowledges
that conditions of approval of the CUP are subject to review and modification at any
time by the City Council, after public hearing.
3. Rent.
a. Tenant shall pay Landlord as annual initial rent for the Premises the sum
of Twenty Six Thousand Two Hundred Fifty Six Dollars ($26,256) ("Rent"). Tenant shall
pay Landlord Rent for the first year on the Commencement Date. Tenant shall pay
Landlord Rent annually in advance on each annual anniversary of the Commencement
Date. Rent shall be as follows:
Year 2
Year 3
$27,569
$28,947
Year 4
Year 5
$
$
30,395
31,915
b. Upon extension of this Lease a cost of living adjustment shall be applied
to the rent, calculated as follows:
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Beginning with Year 6 following the Commencement Date, and annually thereafter on
the anniversary of the Commencement Date, Rent shall be calculated by multiplying the
amount of rent for the prior year by a fraction, the numerator of which is the Revised
Consumer Price Index for All Urban Consumers, published by the U.S. Department of
Labor, Bureau of Labor Statistics for the Los Angeles-Riverside-Orange County Area,
All Items (1982-84 = 100), the ("CPI"), and the denominator of which is the CPI for the
same calendar month of the prior year. Each such adjustment shall apply to the rent to
be paid for that year until the next adjustment occurs. In no event shall the cost of living
increase be less than three percent (3%) per year nor greater than eight percent (8%)
per year. If the index is discontinued or revised during the 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, as determined by the Director of Administrative Services of the
Landlord.
c. Tenant shall pay Landlord a late payment charge equal to five percent
(5%) of the Rent for any Rent not paid when due. Any amounts not paid when due shall
bear interest until paid at the lesser of the rate of two percent (2%) per month or the
highest rate permitted by law.
d. For each additional antenna installed by Tenant beyond the initial array
described in Exhibit C and approved by Landlord pursuant to Section 8 below, Tenant
shall execute an amendment to this Lease and shall pay Landlord as additional Rent
$200 per month for each additional antenna. The additional Rent shall increase
annually under the same terms provided in this Lease and shall become part of the
annual Rent.
e. If this Lease is terminated at a time other than on the last day of the term,
Rent shall be prorated as of the date of termination and, in the event of termination for
any reason other than nonpayment of Rent, the balance of all prepaid Rents shall be
refunded to Tenant within thirty (30) days of the date of termination.
4. Taxes. This Lease may result in a taxable possessory interest and be subject to
the payment of property taxes. Tenant agrees to and shall pay before delinquency all
taxes and assessments of any kind assessed or levied upon Tenant or the Premises by
reason of this Lease or of any buildings, machines, or other improvements of any nature
whatsoever erected, installed or maintained by Tenant or by reason of the business or
other activities of Tenant upon or in connection with the Premises. Such taxes and
assessments shall be in addition to Rent.
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5. Use of Premises. Tenant shall use the Premises for the installation, operation,
and maintenance of the Antenna Facilities for the transmission, reception and operation
of a communications system and uses incidental thereto and for no other uses. Tenant
may not add additional equipment and/or antennas from that shown on Exhibit C
without the prior written approval of Landlord, which may require the amendment of the
CUP, pursuant to Section 8 below. Landlord reserves the right to enter into agreements
with other parties, including, but not limited to, wireless communication carriers
(hereinafter "Carrier") for use of the Owned Premises. The Carrier will provide
Landlord and Landlord will deliver to Tenant a certified evaluation indicating the antenna
and other facilities will not interfere with Tenant's existing antennas, and the Reseryoir
and/or Reservoir Site can structurally support the additional antennas. If Carrier's plans
and specifications are approved by Landlord, Landlord shall notify Tenant in writing as
to the scheduled date and time of commencement of construction and installation of
Carrier's transmittinglreceiving equipment not less than ten (10) business days prior to
such date. Any change to the Carrier's approved antenna type and location and/or
change in transmitter types and power output shall be made compatible with Tenant's
use of the Reservoir at Carrier's sole expense.
In the event Tenant experiences interference with a Carrier in the use of the
Premises and the Antenna Facilities, Landlord will make its best effort to assist Tenant
in resolving such interference.
Tenant shall, at its expense, comply with all applicable present and future
federal, state, and local laws, ordinances, rules and regulations (including laws and
ordinances relating to health, radio frequency emissions, other radiation and safety) in
connection with the use, operation, maintenance, construction and/or installation of the
Antenna Facilities and/or the Owned Premises. Landlord agrees to reasonably
cooperate with Tenant in obtaining, at Tenant's expense (including reimbursement of
Landlord's reasonable attorney and administrative fees), any federal, state and local
licenses and permits required for or required by Tenant's use of the Leased Premises.
Tenant shall exercise due diligence in utilizing the Owned Premises so as to not
interfere with utilization of the Owned Premises by Landlord, and Tenant agrees to
comply with the terms and provisions of this Lease and the CUP. It is understood by
Tenant that Landlord's principal use of the Owned Premises is as a water storage
reseryoir and as a part of the water transmission system of Landlord and that it is
necessary to maintain adequate security at all times for the primary utilization of the
Owned Premises by Landlord.
Tenant has been advised and understands that Landlord has a radio controlled
telemetry system for the Reservoir and Tenant agrees not to create any interference of
any kind with Landlord's signals and further agrees to promptly, upon receipt of written
notice and supporting evidence from Landlord, correct any interference that may result
from Tenant's equipment or to promptly cease all operations of Tenant's equipment
(except for intermittent testing) until non-interference with Landlord's telemetry
equipment has been obtained.
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Tenant's installation, operation, and maintenance of the Antenna Facilities shall
not damage or interfere in any way with Landlord's operations or related repair and
maintenance activities. Tenant agrees to cease all such actions which materially
interfere with Landlord's use of the Reservoir or Owned Premises promptly upon
Tenant's receipt of actual written notice of such interference, provided, however, in such
case, Tenant shall have the right to terminate this Lease pursuant to the provisions of
Section 6 herein. Landlord, at all times during this Lease, reserves the right to take any
action it deems necessary, in its sole discretion and for any reason, to repair, maintain,
alter or improve the Owned Premises of which the Reservoir is a part, in connection
with its operations as may be necessary including leasing parts of the Reseryoir or
Owned Premises to others as provided herein.
6. Termination. This Lease may be terminated, without liability to either party, (a)
by Tenant upon ninety (90) days' written notice if it is unable to obtain or maintain any
license, permit, or other Governmental Approval necessary for the construction and/or
operation of the Antenna Facilities or Tenant's business; or (b) by Landlord if Landlord
decides, in its sole discretion and for any reason, to discontinue use of the Reservoir
and/or Owned Premises and provides Tenant with a one hundred eighty (180) day
notice of termination; or (c) by Landlord upon thirty (30) days' written notice if it
determines, in its sole discretion and for any reason, that the Reservoir and/or Owned
Premises is not safe for Tenant's use; or(d) immediately by Landlord if it determines in
its reasonable and qualified discretion that continued use of the Reservoir or Owned
Premises by Tenant is in fact a threat to health, safety or welfare or violates applicable
laws or ordinances and ten (10) days after receiving written notice from Landlord,
Tenant fails to resolve issue; or (e) by Tenant upon sixty (60) days' prior written notice if
Tenant determines that interference by or to Tenant's use of Premises cannot be
resolved to Tenant's reasonable satisfaction; or (f) by Landlord upon ninety (90) days'
prior written notice if Landlord determines that interference by or to Landlord's use of
Premises cannot be resolved to Landlord's reasonable satisfaction; or (g) by Tenant
upon ninety (90) days' written notice if, due to technological changes, Tenant
determines that it is no longer practical to use the Premises for Tenant's intended
purposes, provided Tenant has removed Antenna Facilities from the Premises by that
time.
If the Reservoir, Owned Premises or Leased Premises, or any portion thereof, is
altered, destroyed or damaged so as to materially hinder effective use of the Antenna
Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this
Lease upon thirty (30) days' written notice to Landlord. Landlord shall have no
obligation to undertake any repair to the Reservoir or Owned Premises.
If this Lease is terminated by Landlord due to a material breach by Tenant of one
of Tenant's obligations herein, the termination shall be effective thirty (30) calendar days
from the date of delivery of written notice of termination.
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Upon termination of this Lease for any reason, Tenant shall remove its
equipment, personal property, Antenna Facilities, and leasehold improvements from the
Premises within 30 days after the date of termination, and shall restore the Leased
Premises to the same condition as existed prior to this Lease, ordinary wear and tear
excepted; all at Tenant's sole cost and expense. Any such property, equipment or
Antenna Facilities not removed within thirty (30) days of Lease termination, may be
removed by Landlord and stored on behalf of Tenant at Tenant's sole expense and
Tenant may be charged for the reasonable, actual and documented cost of removal.
Notice of Termination of this Lease for any reason shall be given pursuant to
Section 25 below.
7. Construction Standards. The Antenna Facilities shall be installed on the
Premises in a good and workmanlike manner, without the attachment of any
construction liens, and in compliance with the terms and conditions of the CUP and this
Lease.
8. Installation of Eauipment.
a. Tenant shall have the right, at its sole cost and expense, to install, operate
and maintain on the Premises, in accordance with good engineering practices and with
all applicable FCC and CPUC rules and regulations, the Antenna Facilities as described
in Exhibit C. Tenant may not add additional equipment and/or antennas from that
shown on Exhibit C without the prior written approval of Landlord, which may require an
amendment of the CUP.
b. Tenant's installation of the Antenna Facilities shall be done according to
plans approved by Landlord and in compliance with the conditions of approval for the
CUP. Any damage done to the Reservoir or Owned Premises during installation and/or
during operations shall be repaired or replaced promptly at Tenant's expense. In
connection with the installation and operation of the Antenna Facilities, Tenant shall not
locate or attach any antennas or other equipment to the Reservoir tank except that
approved by the CUP. The installation methods for the Antenna Facilities or other
equipment to the Reseryoir tank must be done in a manner that will be compatible with
the cathodic protection of the Reservoir tank and all other City facilities and equipment
located on the Owned Premises and in compliance with the terms and conditions of the
CUP.
c. Within thirty (30) days after final inspection of the Antenna Facilities,
Tenant shall provide Landlord with as-built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual location of all
equipment and improvements consistent with Exhibit C.
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April 26, 2005 Item # 1'1
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d. Any change to Tenant's approved antenna type, number of antennas,
antenna location andlor change in transmitter type and power output shall require the
prior written approval of Landlord, which may include an amendment of the CUP, and
shall, at the sole expense of Tenant, be made in accordance with applicable regulations
issued by the FCC and/or the CPUC. If Tenant's plans and specifications are approved
by Landlord, Landlord shall notify all other tenants of the Reservoir in writing as to the
scheduled date and time of commencement of construction on installation of Tenant's
modified equipment not less than ten (10) days prior to such date.
9. Eouipment Uporade. Tenant may update or replace the Antenna Facilities from
time to time with the prior written approval of Landlord, provided that the replacement
facilities are not greater in number or size than the existing facilities and that any
change in their location on the Reseryoir or Premises is approved in writing by Landlord.
Such equipment upgrades may also require an amendment of the CUP . Tenant shall
submit to Landlord a detailed proposal for any such replacement facilities and any
supplemental materials as may be reasonably requested, for Landlord's evaluation and
determination.
10. Maintenance and Operations.
a. Tenant shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in good repair and in a
manner suitable to Landlord so as not to conflict with the use of or other leasing of the
Reservoir and Owned Premises by Landlord.
b. Tenant shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, Antenna Facilities, and leasehold
improvements, and shall keep the same in good repair and condition during the Lease
term.
c. Tenant shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or undue
vibration, heat, noise or interference.
d. In the event Landlord or any other tenant undertakes painting,
construction or other alterations on the Reseryoir or Owned Premises, Tenant shall take
reasonable measures at Tenant's cost to cover Tenant's equipment, personal property
or Antenna Facilities and protect such from paint and debris fallout which may occur
during the painting, construction or alteration process. Landlord and/or any tenant that
is undertaking the work on the Reservoir or Owned Premises will give each other tenant
at least fifteen (15) days written notice prior to commencing such work.
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11. Premises Access.
a. Tenant shall have both pedestrian and vehicular access to the Premises
by means reasonably designated by Landlord, subject to notice requirements to
Landlord in 11 b., below.
b. Tenant shall have access to the Premises in order to install, operate,
maintain and remove the Antenna Facilities only with the prior written approval of
Landlord. Said written approval shall not be unreasonably withheld and may be
obtained by fax. Tenant shall notify Landlord twenty-four (24) hours in advance of
Tenant's access to the Premises, except in an emergency, in which case Tenant shall
notify Landlord within twenty-four (24) hours after such emergency access.
c. In the event Tenant requires access to the Premises outside of City's
regular business hours (7:00 a.m. to 3:30 p.m., Monday through Friday), Tenant shall
be billed for City's costs to provide such access. Costs shall include any overtime or
call-out compensation to which an employee facilitating Tenant access may be entitled,
the cost of the vehicle, as well as an overhead charge. Tenant shall reimburse City for
these costs within thirty (30) days of billing.
d. Landlord shall be allowed and granted access to the Premises at
reasonable times to examine and inspect the Premises for safety reasons or to ensure
that Tenant's covenants are being met, as long as Tenant's equipment, technology and
proprietary interests remain secure and the operation of the Antenna Facilities is not
adversely affected.
12. Utilities. Tenant shall, at its expense, separately meter charges for the
consumption of electricity and other utilities associated with its use of the Leased
Premises and shall timely pay all costs associated therein.
13. Approvals: Comoliance with Laws. This Lease, Tenant's obligations under this
Lease and Tenant's use of the Premises is contingent upon Tenant's ability to obtain
and maintain all necessary governmental licenses, permits, and approvals and pay all
fees in connection therewith that may be required by any federal, state or local authority
("Governmental Approvals"), including Landlord. Landlord makes no representation,
commitment or obligation, as to Tenant's success in obtaining the required
Governmental Approvals. Tenant shall erect, maintain and operate the Antenna
Facilities in accordance with statutes, ordinances, rules and regulations now in effect or
that may be issued thereafter by the FCC or any other governing bodies.
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14. Interference.
Before approving the placement of Antenna Facilities, Landlord may obtain from
Tenant, at Tenant's expense an interference study indicating whether Tenant's intended
use will interfere with any existing communications facilities on the Reservoir or Owned
Premises and an engineering study indicating whether the Reservoir or Premises is
able to structurally support Tenant's Antenna Facilities without prejudice to Landlord's
primary use of the Reservoir. After review of Tenant's study, Landlord may, in its sole
discretion, determine that a third party study is necessary and Landlord may obtain such
study at Tenant's expense.
Tenant shall be responsible for installing any equipment, at its own expense,
reasonably required by Landlord to eliminate any interference that may be caused by
the location of the radio transmitting or other equipment of all parties existing on the
Reservoir prior to the Commencement Date including, but not limited to, Landlord and
other Carriers on the Owned Premises.
Tenant's use and operation of the Antenna Facilities shall not interfere with the
use and operation of other communication facilities on the Reseryoir or Owned
Premises which pre-existed the Antenna Facilities. If the Antenna Facilities cause
interference, Tenant shall take all measures reasonably necessary to correct and
eliminate the interference. If the interference cannot be eliminated in a reasonable time,
Tenant shall immediately cease operating its facility (other than intermittent testing) until
the interference has been eliminated. If the interference cannot be eliminated within
thirty (30) days after Tenant receives written notice from Landlord of such interference,
Landlord or Tenant may terminate this Lease pursuant to Section 6 herein.
15. Lease and Landlord's Remedies. It shall be a default if Tenant fails to pay Rent
or any other sums to Landlord when due, and does not cure such default within ten (10)
business days after receipt of written notice from Landlord; or if Tenant fails to obtain
the necessary Governmental Approvals; or if Tenant defaults in the performance of any
other covenant or condition of this Lease and does not cure such other default within
thirty (30) days after receipt of written notice from Landlord specifying the default
complained of; or if Tenant abandons or vacates the Premises; or if Tenant is
adjudicated bankrupt and the bankruptcy proceeding is not dismissed within ninety (90)
days from its commencement or makes any assignment for the benefit of creditors; or if
Tenant becomes insolvent.
In the event of a default and following the applicable cure period if the default
remains uncured, Landlord shall have the right, at its option, in addition to and not
exclusive of, any other remedy Landlord may have by operation of law, without any
further demand or notice, to reenter the Premises and eject all persons therefrom, and
either (a) declare this Lease at an end, in which event Tenant shall immediately pay
Landlord a sum of money equal to the total of (i) the amount of the unpaid Rent accrued
through the date of termination; (ii) the amount by which the unpaid Rent reserved for
the balance of the term exceeds the amount of such rental loss that Tenant proves
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could be reasonably avoided (net of the costs of such reletting); and (iii) any other
amount necessary to compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease, or (b) without terminating
this Lease, relet the Premises, or any part thereof, for the account of Tenant upon such
terms and conditions as Landlord may deem advisable, and any monies received from
such reletting shall be applied first to the expenses of such reletting and collection,
including reasonable attorneys' fees, and thereafter toward payment of all sums due or
to become due Landlord hereunder, and if a sufficient sum shall not be thus realized to
pay such sums and other charges, Tenant shall pay Landlord any deficiency monthly,
notwithstanding that Landlord may have received rental in excess of the rental
stipulated in this Lease in previous or subsequent months, and Landlord may bring an
action therefor as such monthly deficiency shall arise.
No reentry and taking of possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease, regardless of the
extent of renovations and alterations by Landlord, unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
16. Cure bv Landlord. In the event of any default of this Lease by Tenant, Landlord
may at any time, after delivering at least thirty (30) days' prior written notice to Tenant,
cure the default for the account of and at the expense of Tenant. If Landlord incurs any
expense to cure such default, Tenant shall reimburse Landlord for such expense.
17. Condemnation. In the event the Premises are taken by eminent domain by the
City of Poway or any other governmental agency, this Lease shall terminate as of the
date possession of the Premises is taken by the condemning authority. In the event a
portion of the Premises is taken by eminent domain, either party shall have the right to
terminate this Lease as of the date of transfer of possession, by giving thirty (30) days'
written notice to the other party. In the event of any taking under the power of eminent
domain, Tenant shall not be entitled to any portion of the award paid for the taking
(except for relocation expenses) and Landlord shall otherwise receive the full amount of
such award. Except as herein provided, Tenant hereby expressly waives any right or
claim to any portion thereof, including any claim for loss of business or goodwill. All
damages, whether awarded as compensation for diminution in value of the leasehold or
to the fee of the Premises, shall belong to Landlord.
18. Indemnitv and Insurance.
a. Disclaimer of Liabilitv: Landlord shall not at any time be liable for injury or
damage occurring to any person or property from any cause whatsoever arising out of
Tenant's construction, maintenance, repair, use, operation, condition or dismantling of
the Premises or the Antenna Facilities.
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April 26, 2005 Item # 1 '1
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b. Indemnification: Tenant shall, at its sole cost and expense, indemnify and
hold harmless Landlord and all associated, affiliated, allied and subsidiary entities of
Landlord, now existing or hereinafter created, and their respective officers, boards,
employees, agents, attorneys, and contractors (hereinafter referred to as
"Indemnitees"), from and against:
i. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any act or omission of Tenant, its personnel, employees, agents, contractors
or subcontractors, resulting in personal injury, bodily injury, sickness, disease or
death to any person or damage to, loss of or destruction of tangible or intangible
property, libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name, copyright, patent, service mark or any other right of any
person, firm or corporation, which may arise out of or be in any way connected
with the construction, installation, operation, maintenance, use or condition of the
Owned Premises, Leased Premises or Antenna Facilities or the Tenant's failure
to comply with any federal, state or local statute, ordinance or regulation.
ii. Any and all liabilities, obligations, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitations, reasonable
fees and expenses of attorneys, expert witnesses and other consultants), which
are imposed upon, incurred by or asserted against the Indemnitees by reason of
any claim or lien arising out of work, labor, materials or supplies provided or
supplied to Tenant, its contractors or subcontractors, for the installation,
construction, operation, maintenance or use of the Premises or Antenna
Facilities, and, upon the written request of Landlord, Tenant shall cause such
claim or lien covering Landlord's property to be discharged or bonded within
thirty (30) days following such request.
iii. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any financing or securities offering by Tenant or its affiliates which results in
any violations of the common law or any laws, statutes, or regulations of the
State of California, or United States, including those of the Federal Securities and
Exchange Commission.
iv. Tenant's obligation to indemnify Indemnitees under this Lease shall
not extend to claims, losses, and other matters covered hereunder that are
caused by the negligence of one or more Indemnitees.
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April 26, 2005 Item #...r:L
14 of 45
c. Assumption of Risk. Tenant undertakes and assumes for its officers,
agents, affiliates, contractors and subcontractors and employees (collectively "Tenant"
for the purpose of this section), all risk of dangerous conditions, if any, on or about the
Premises, and Tenant hereby agrees to indemnify and hold harmless the Landlord
against and from any claim asserted or liability imposed upon the Indemnitees for
personal injury or property damage to any person (other than from Indemnitee's gross
negligence) arising out of the Tenant's installation, operation, maintenance, condition or
use of the Premises or Tenant's Antenna Facilities or Tenant's failure to comply with
any federal, state or local statute, ordinance or regulation.
d. Defense of Landlord. In the event any action or proceeding shall be
brought against the Landlord by reason of any matter for which the Landlord is
indemnified hereunder, Tenant shall, upon receipt of written notice from Landlord, at
Tenant's sole cost and expense, resist and defend the same with legal counsel mutually
selected by Tenant and Landlord; provided however, that Tenant shall not admit liability
in any such matter on behalf of the Landlord without the prior written consent of
Landlord and provided further that Landlord shall not admit liability for, nor enter into
any compromise or settlement of, any claim for which it is indemnified hereunder,
without the prior written consent of Tenant.
e. Notice, Cooperation and Expenses. Landlord shall give Tenant prompt
written notice of the making of any claim or the commencement of any action, suit or
other proceeding covered by the provisions of this Section. Nothing herein shall be
deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses
incurred by Landlord in response to any such actions, suits or proceedings. These
expenses shall include all out-of-pocket expenses such as attorney fees and shall also
include the reasonable value of any services rendered by the Landlord's attorney, and
the actual expenses of Landlord's agents, employees or expert witnesses and
disbursements and liabilities assumed by Landlord in connection with such suits,
actions or proceedings but shall not include attorneys' fees for services that are
unnecessarily duplicative of services provided Landlord by Tenant.
If Tenant requests Landlord to assist it in such defense then Tenant shall pay all
expenses incurred by Landlord in response thereto, including defending itself with
regard to any such actions, suits or proceedings. These expenses shall include all out-
of-pocket expenses such as reasonable attorney fees and shall also include the
reasonable costs of any services rendered by the Landlord's attorney, and the actual
and documented expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits,
actions or proceedings, but shall not include attorneys fees for services that are
unnecessarily duplicative of seryices provided Landlord by Tenant.
f. Insurance. During the term of this Lease, Tenant shall maintain, or cause
to be maintained, in full force and effect and at its sole cost and expense, the following
types and limits of insurance:
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April 26, 2005 Item #n
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i. Workers' compensation insurance meeting applicable statutory
requirements and employer's liability insurance with minimum limits of One
Hundred Thousand Dollars ($100,000) for each accident.
ii. Comprehensive commercial general liability insurance with
minimum limits of Three Million Dollars ($3,000,000) as the combined single limit
for each occurrence of bodily injury, personal injury and property damage. The
policy shall provide blanket contractual liability insurance for all written contracts,
and shall include coverage for products and completed operations liability,
independent contractor's liability; coverage for property damage from perils of
explosion, collapse or damage to underground utilities, commonly known as XCU
coverage.
iii. Automobile liability insurance covering all owned, hired, and non-
owned vehicles in use by Tenant, its employees and agents, with personal
protection insurance and property protection insurance to comply with the
provisions of state law with minimum limits of Two Million Dollars ($2,000,000) as
the combined single limit for each occurrence for bodily injury and property
damage.
iv. At the start of and during the period of any construction, builders
all-risk insurance, together with an installation floater or equivalent property
coverage covering cables, materials, machinery and supplies of any nature
whatsoever which are to be used in or incidental to the construction. Upon
completion of the construction, Tenant shall substitute for the foregoing
insurance policies of fire, extended coverage and vandalism and malicious
mischief insurance. The amount of insurance at all times shall be representative
of the insurable values installed or constructed.
v. All policies other than those for Workers' Compensation shall be
written on an occurrence and not on a claims made basis.
vi. The coverage amounts set forth above may be met by a
combination of underlying and umbrella policies so long as in combination the
limits equal or exceed those stated.
vii. Tenant shall furnish certificates of insurance to Landlord before
commencement of any work on the Leased Premises or Owned Premises.
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April 26, 2005 Item #-LL
16 of 45
g. Additional Insureds. All policies, except for business interruption and
worker's compensation policies, shall name Landlord and all associated, affiliated, allied
and subsidiary entities of Landlord, now existing or hereafter created, and their
respective officers, boards, commissions, employees, agents and contractors, as their
respective interests may appear as additional insureds (herein referred to as the
"Additional Insureds"). Each policy which is to be endorsed to add Additional Insureds
hereunder, shall contain cross-liability wording, as follows:
"In the event of a claim being made hereunder by one insured for which another insured
is or may be liable, then this policy shall cover such insured against whom a claim is or
may be made in the same manner as if separate policies had been issued to each
insured hereunder."
h. Evidence of Insurance. Certificates of insurance for each insurance policy
required to be obtained by Tenant in compliance with this Section, shall be filed and
maintained with Landlord annually during the term of this Lease. Tenant shall promptly
advise Landlord in writing of any claim or litigation that may result in liability to Landlord.
i. Cancellation of Policies of Insurance. All insurance policies maintained
pursuant to this Lease shall contain the following endorsement:
"At least sixty (60) days' prior written notice shall be given to Landlord by the insurer of
any intention not to renew such policy or to cancel, such notice to be given by U.S.
registered mail to the Landlord or certificate holder named in this policy."
j. Deductibles. Tenant agrees to indemnify and save harmless Landlord, the
Indemnitees and Additional Insureds from and against the payment of any deductible
and from the payment of any premium on any insurance policy required to be furnished
by this Lease.
k. Contractors. Tenant and Landlord shall each require that each and every
one of its contractors and their subcontractors who perform work on the Owned
Premises or Leased Premises to carry, in full force and effect, workers' compensation,
comprehensive public liability and automobile liability insurance coverages of the type
which the insured is required to obtain under the terms of this Section with appropriate
limits of insurance.
19. Hazardous Substance Indemnification. Tenant represents and warrants that its
use of the Premises herein will not generate any hazardous substance, and it will not
store or dispose on the Premises nor transport to or over the Premises any hazardous
substance in violation of any applicable local, state or federal law or regulation. Tenant
shall be allowed to store on the Premises the number of batteries as shown in Exhibits
Band C of this Lease. The batteries shown on the Exhibits are to be used for
emergency backup power. No additional batteries may be stored on the Premises
without the prior written approval of Landlord. Tenant further agrees to hold Landlord
harmless from and indemnify Landlord against any release of any such hazardous
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April 26, 2005 Item #...r:L
17 of 45
substance and any damage, loss, or expense or liability resulting from such release
including reasonable attorneys' fees, costs and penalties incurred as a result thereof
except any release caused by the negligence of Landlord, its employees, agents or
contractors. "Hazardous substance" shall be interpreted broadly to mean any
substance or material defined or designated as hazardous or toxic waste, hazardous or
toxic material, hazardous or toxic or radioactive substance or other similar term by any
federal, state or local environmental law, regulation or rule presently in effect or
promulgated in the future, as such laws, regulations or rules may be amended from time
to time; and it shall be interpreted to include, but not be limited to, any substance which
after release into the environment will or may reasonably be anticipated to cause
sickness, death or disease.
20. Radio Freouencv (RF) Indemnification. Tenant shall comply with all present and
future applicable laws, orders, and regulations relating to Radio Frequency ("RFs") to
the extent required by current or future Federal Communications Commission
regulations.
21. Holdina Over. Any holding over after the expiration of the term hereof with the
consent of Landlord shall be construed to be a tenancy from month to month at two
times the rents herein specified (prorated on a monthly basis) and shall otherwise be for
the term and on the conditions herein specified, so far as applicable.
22. Subordination to Mortaaae. Any mortgage now or subsequently placed upon any
property of which the Premises are a part shall be deemed to be prior in time and senior
to the rights of Tenant under this Lease. Tenant subordinates all of its interest in the
leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall,
upon receipt of Landlord's written request, execute any additional documents
reasonably necessary to effectuate this subordination.
23. Aaoreoate Payment. With the execution of this Lease, Tenant shall pay Landlord
the sum of Five Thousand Dollars ($5,000). This Aggregate Payment is a one-time
payment and is in addition to Rent.
24. Acceptance of Premises. By taking possession of the Premises, Tenant accepts
the Premises in the condition existing as of the Commencement Date. Landlord makes
no representation or warranty with respect to the condition of the Premises and, except
as provided by applicable law, Landlord shall not be liable for any latent or patent defect
in the Premises.
25. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed given as of the date of such service or mailing if
personally delivered, mailed, certified mail, return receipt requested or sent by a
nationally recognized overnight courier; to the following addresses:
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18 of 45
April 26, 2005 Item #.J:L
If to Landlord, to: James L. Bowersox
City Manager
City of Poway
P.O. Box 789
Poway, California 92074-0789
With a copy to: Tina M. White
Revenue & Business Activity Manager
City of Poway
P.O. Box 789
Poway, California 92074-0789
If to Tenant, to: Sprint PCS Assets, L.L.C.
4683 Chabot Drive, Suite 100
Pleasanton, California 94588-2715
Attn: Lease Management
With a copy to: Sprint Law Department
6391 Sprint Parkway
MailStop: KSOPHT0101-22020
Overland Park, Kansas 66251-2020
Attn: Sprint Real Estate Attorney
26. Assianment. Tenant may assign this Lease and all or any rights, benefits,
liabilities and obligations hereunder, to: (i) any person or entity which is a parent,
subsidiary or affiliate of Tenant; (ii) any person or business entity that controls or is
controlled by or under common control with Tenant; or (iii) any person or business entity
that is merged or consolidated with Tenant or purchases a majority or controlling
interest in the ownership or assets of Tenant. Upon notification to Landlord by Tenant
of any such assignment, Tenant will be relieved of all future performance, liabilities and
obligations under this Lease to the extent of such assignment. Tenant may not
otherwise assign or sublet this Lease without Landlord's written consent, which consent
shall not be unreasonably withheld, conditioned or delayed.
27. Successors and Assions. This Lease shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and
assigns.
28. Miscellaneous.
a. Landlord and Tenant represent and warrant to each other that each,
respectively, has full right, power, and authority to execute this Lease.
b. This Lease constitutes the entire agreement and understanding of the
parties and supersedes all offers, negotiations, and other agreements of any kind.
There are no representations or understandings of any kind not set forth herein. Any
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April 26, 2005 Item # I ~
19 of 45
modifications of or amendment to this Lease must be in writing and executed by both
parties.
c. This Lease shall be construed in accordance with the laws of the State of
California.
d. If any term of this Lease is found to be void or invalid, such invalidity shall
not affect the remaining terms of this Lease, which shall continue in full force and effect.
e. Landlord represents and warrants to Tenant that: (i) it solely owns the
Owned Premises as a lot in fee simple, unencumbered by any liens, restrictions,
mortgages, covenants, conditions, easements, leases, agreements, of record or not of
record, which would adversely affect Tenant's intended use and enjoyment of the
Premises under this Lease; and (ii) as long as Tenant is not in default, Landlord grants
to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the
Premises.
f. Limitation on Applicabilitv. Notwithstanding any language in this Lease,
the terms and conditions herein shall apply only to the Reservoir and the Premises
described above. Nothing in this Lease shall be interpreted to affect the parties' right
and obligations regarding other properties, sites, facilities or proposed projects of
Tenant.
This Lease was executed as of the date first set forth above.
LANDLORD:
City of Poway
TENANT:
Sprint pes Assets, L.L.C.
By:
By:
Michael P. Cafagna, Mayor
Approved as to form:
By:
Tamara A. Smith, City Attorney
Attest:
By:
L. Diane Shea, City Clerk
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April 26, 2005 Item #fl.
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EXHIBIT A
LEGAL DESCRIPTION OF OWNED PREMISES
21 of 45
April 26, 2005 Item #n
EXHIBIT B
SITE PLAN OF RESERVOIR
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April 26, 2005 Item # \'1
EXHIBIT C
DESCRIPTION OF ANTENNA FACILITIES
23 of 45
April 26, 2005 Item # Pl
LEASE AGREEMENT
This Lease Agreement ("Lease") is entered into this day of ,
200_. by and between the City of Poway ("Landlord") and Sprint PCS Assets, L.L.C., a
Delaware limited liability company (formerly known as Cox PCS Assets) ("Tenant").
Background
A. Landlord is the owner in fee simple of a parcel of land located in the City of
Poway, San Diego County, State of California, legally described on the attached Exhibit
A (the "Owned Premises" or "Premises" as the context may require), on which a
reseryoir is located. The street address of the Owned Premises is 13472 Celestial
Road.
B. Tenant desires to lease space on the Owned Premises for the installation and
operation of certain antenna facilities and other related equipment and improvements
("Antenna Facilities") for use in connection with Tenant's communications business.
C. Pursuant to Resolution No. P-04-88, Conditional Use Permit No. 04-08 for the
Antenna Facilities (the CUP) was approved by the Poway City Council on November 9,
2004.
E. Accordingly, the parties are entering into this Lease on the terms and conditions
set forth below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord
on a non-exclusive basis a portion of the Owned Premises, including space on the
Reseryoir and Reseryoir Site (the "Reservoir"), as shown on the Site Plan attached as
Exhibit B (the "Leased Premises" or "Premises" as the context may require). Tenant
intends to locate the Antenna Facilities on the Leased Premises as described more fully
on the attached Exhibit C. Tenant may not add additional equipment and/or antennas
from that shown on Exhibit C without the prior written approval of Landlord, which may
include the requirement to amend the CUP.
Landlord reserves the right to require Tenant to relocate its facilities to another
location on the Reseryoir and/or Owned Premises. Any such relocation shall be limited
to one time only during the term of this Lease, including any options. Tenant shall
complete the relocation of its facilities within sixty (60) days after Tenant's receipt of
written notice from Landlord. During such period of relocation, Landlord shall allow
Tenant to install temporary facilities sufficient to maintain Tenant's operations. Tenant
must remove such temporary facilities from the Premises after Tenant's relocation is
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April 26, 2005 Item # l"
complete. In no event will temporary facilities remain on the Premises for more than
sixty (60) days without the written permission of Landlord. The relocation shall be at
Tenant's expense unless Landlord's relocation requirement results from Landlord's
desire to lease space on the Reservoir or Leased Premises to non-governmental third-
party users. In that case, Landlord will promptly reimburse Tenant for the reasonable
relocation costs of Tenant. Relocation shall not result in a lessening of Tenant's ability
to use the Leased Premises for its intended purpose, or the quality of such use.
This Lease is not a franchise pursuant to Chapter 5.60 of the Poway Municipal
Code nor is it a permit to use the rights-of-way under Chapter 12.04 of the Poway
Municipal Code. Any such franchise or permit must be obtained separately from
Landlord. This Lease shall not be interpreted as imposing, elevating validation,
invalidating or in any way modifying any franchise license or permit requirement
imposed, restricted, pre-empted or otherwise affected by local, state or federal law.
2. Term. The term of this Lease shall be five (5) years, commencing on the first day
of the month following both (i) City Council approval of the CUP and (iI) execution of this
Lease by the parties hereto (The "Commencement Date"). So long as Tenant is in
compliance with the terms and conditions contained herein and the terms and
conditions of the CUP, Tenant shall have three (3) five-year options to extend this
Lease on the same terms and conditions, excluding Rent which shall be adjusted
annually as set forth in Section 3.b. below. Each option shall be deemed exercised
unless Tenant provides written notice of intent not to exercise the option at least ninety
(90) days prior to the expiration of the then current five-year term.
Notwithstanding such extension options, Tenant understands and acknowledges
that conditions of approval of the CUP are subject to review and modification at any
time by the City Council, after publiC hearing.
3. Rent.
a. Tenant shall pay Landlord as annual initial rent for the Premises the sum
of Twenty Six Thousand Two Hundred Fifty Six Dollars ($26,256) ("Rent"). Tenant shall
pay Landlord Rent for the first year on the Commencement Date. Tenant shall pay
Landlord Rent annually in advance on each annual anniversary of the Commencement
Date. Rent shall be as follows:
Year 2
Year 3
$27,569
$28,947
Year 4
Year 5
$
$
30,395
31,915
b. Upon extension of this Lease a cost of living adjustment shall be applied
to the rent, calculated as follows:
2
25 of 45
April 26, 2005 Item #
\'1
Beginning with Year 6 following the Commencement Date, and annually thereafter on
the anniversary of the Commencement Date, Rent shall be calculated by multiplying the
amount of rent for the prior year by a fraction, the numerator of which is the Revised
Consumer Price Index for All Urban Consumers, published by the U.S. Department of
Labor, Bureau of Labor Statistics for the Los Angeles-Riverside-Orange County Area,
All Items (1982-84 = 100), the ("CPI"), and the denominator of which is the CPI for the
same calendar month of the prior year. Each such adjustment shall apply to the rent to
be paid for that year until the next adjustment occurs. In no event shall the cost of living
increase be less than three percent (3%) per year nor greater than eight percent (8%)
per year. If the index is discontinued or revised during the 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, as determined by the Director of Administrative Seryices of the
Landlord.
c. Tenant shall pay Landlord a late payment charge equal to five percent
(5%) of the Rent for any Rent not paid when due. Any amounts not paid when due shall
bear interest until paid at the lesser of the rate of two percent (2%) per month or the
highest rate permitted by law.
d. For each additional antenna installed by Tenant beyond the initial array
described in Exhibit C and approved by Landlord pursuant to Section 8 below, Tenant
shall execute an amendment to this Lease and shall pay Landlord as additional Rent
$200 per month for each additional antenna. The additional Rent shall increase
annually under the same terms provided in this Lease and shall become part of the
annual Rent.
e. If this Lease is terminated at a time other than on the last day of the term,
Rent shall be prorated as of the date of termination and, in the event of termination for
any reason other than nonpayment of Rent, the balance of all prepaid Rents shall be
refunded to Tenant within thirty (30) days of the date of termination.
4. Taxes. This Lease may result in a taxable possessory interest and be subject to
the payment of property taxes. Tenant agrees to and shall pay before delinquency all
taxes and assessments of any kind assessed or levied upon Tenant or the Premises by
reason of this Lease or of any buildings, machines, or other improvements of any nature
whatsoever erected, installed or maintained by Tenant or by reason of the business or
other activities of Tenant upon or in connection with the Premises. Such taxes and
assessments shall be in addition to Rent.
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April 26, 2005 Item # 1'1
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5. Use of Premises. Tenant shall use the Premises for the installation, operation,
and maintenance of the Antenna Facilities for the transmission, reception and operation
of a communications system and uses incidental thereto and for no other uses. Tenant
may not add additional equipment and/or antennas from that shown on Exhibit C
without the prior written approval of Landlord, which may require the amendment of the
CUP, pursuant to Section 8 below. Landlord reserves the right to enter into agreements
with other parties, including, but not limited to, wireless communication carriers
(hereinafter "Carrier") for use of the Owned Premises. The Carrier will provide
Landlord and Landlord will deliver to Tenant a certified evaluation indicating the antenna
and other facilities will not interfere with Tenant's existing antennas, and the Reservoir
and/or Reservoir Site can structurally support the additional antennas. If Carrier's plans
and specifications are approved by Landlord, Landlord shall notify Tenant in writing as
to the scheduled date and time of commencement of construction and installation of
Carrier's transmittinglreceiving equipment not less than ten (10) business days prior to
such date. Any change to the Carrier's approved antenna type and location andlor
change in transmitter types and power output shall be made compatible with Tenant's
use of the Reseryoir at Carrier's sole expense.
In the event Tenant experiences interference with a Carrier in the use of the
Premises and the Antenna Facilities, Landlord will make its best effort to assist Tenant
in resolving such interference.
Tenant shall, at its expense, comply with all applicable present and future
federal, state, and local laws, ordinances, rules and regulations (including laws and
ordinances relating to health, radio frequency emissions, other radiation and safety) in
connection with the use, operation, maintenance, construction and/or installation of the
Antenna Facilities and/or the Owned Premises. Landlord agrees to reasonably
cooperate with Tenant in obtaining, at Tenant's expense (including reimbursement of
Landlord's reasonable attorney and administrative fees), any federal, state and local
licenses and permits required for or required by Tenant's use of the Leased Premises.
Tenant shall exercise due diligence in utilizing the Owned Premises so as to not
interfere with utilization of the Owned Premises by Landlord, and Tenant agrees to
comply with the terms and provisions of this Lease and the CUP. It is understood by
Tenant that Landlord's principal use of the Owned Premises is as a water storage
reseryoir and as a part of the water transmission system of Landlord and that it is
necessary to maintain adequate security at all times for the primary utilization of the
Owned Premises by Landlord.
Tenant has been advised and understands that Landlord has a radio controlled
telemetry system for the Reseryoir and Tenant agrees not to create any interference of
any kind with Landlord's signals and further agrees to promptly, upon receipt of written
notice and supporting evidence from Landlord, correct any interference that may result
from Tenant's equipment or to promptly cease all operations of Tenant's equipment
(except for intermittent testing) until non-interference with Landlord's telemetry
equipment has been obtained.
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April 26, 2005 Item #~
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Tenant's installation, operation, and maintenance of the Antenna Facilities shall
not damage or interfere in any way with Landlord's operations or related repair and
maintenance activities. Tenant agrees to cease all such actions which materially
interfere with Landlord's use of the Reservoir or Owned Premises promptly upon
Tenant's receipt of actual written notice of such interference, provided, however, in such
case, Tenant shall have the right to terminate this Lease pursuant to the provisions of
Section 6 herein. Landlord, at all times during this Lease, reserves the right to take any
action it deems necessary, in its sole discretion and for any reason, to repair, maintain,
alter or improve the Owned Premises of which the Reseryoir is a part, in connection
with its operations as may be necessary including leasing parts of the Reservoir or
Owned Premises to others as provided herein.
6. Termination. This Lease may be terminated, without liability to either party, (a)
by Tenant upon ninety (90) days' written notice if it is unable to obtain or maintain any
license, permit, or other Governmental Approval necessary for the construction and/or
operation of the Antenna Facilities or Tenant's business; or (b) by Landlord if Landlord
decides, in its sole discretion and for any reason, to discontinue use of the Reservoir
and/or Owned Premises and provides Tenant with a one hundred eighty (180) day
notice of termination; or (c) by Landlord upon thirty (30) days' written notice if it
determines, in its sole discretion and for any reason, that the Reservoir and/or Owned
Premises is not safe for Tenant's use; or(d) immediately by Landlord if it determines in
its reasonable and qualified discretion that continued use of the Reservoir or Owned
Premises by Tenant is in fact a threat to health, safety or welfare or violates applicable
laws or ordinances and ten (10) days after receiving written notice from Landlord,
Tenant fails to resolve issue; or (e) by Tenant upon sixty (60) days' prior written notice if
Tenant determines that interference by or to Tenant's use of Premises cannot be
resolved to Tenant's reasonable satisfaction; or (f) by Landlord upon ninety (90) days'
prior written notice if Landlord determines that interference by or to Landlord's use of
Premises cannot be resolved to Landlord's reasonable satisfaction; or (g) by Tenant
upon ninety (90) days' written notice if, due to technological changes, Tenant
determines that it is no longer practical to use the Premises for Tenant's intended
purposes, provided Tenant has removed Antenna Facilities from the Premises by that
time.
If the Reservoir, Owned Premises or Leased Premises, or any portion thereof, is
altered, destroyed or damaged so as to materially hinder effective use of the Antenna
Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this
Lease upon thirty (30) days' written notice to Landlord. Landlord shall have no
obligation to undertake any repair to the Reseryoir or Owned Premises.
If this Lease is terminated by Landlord due to a material breach by Tenant of one
of Tenant's obligations herein, the termination shall be effective thirty (30) calendar days
from the date of delivery of written notice of termination.
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April 26, 2005 Item # 1"1
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Upon termination of this Lease for any reason, Tenant shall remove its
equipment, personal property, Antenna Facilities, and leasehold improvements from the
Premises within 30 days after the date of termination, and shall restore the Leased
Premises to the same condition as existed prior to this Lease, ordinary wear and tear
excepted; all at Tenant's sole cost and expense. Any such property, equipment or
Antenna Facilities not removed within thirty (30) days of Lease termination, may be
removed by Landlord and stored on behalf of Tenant at Tenant's sole expense and
Tenant may be charged for the reasonable, actual and documented cost of removal.
Notice of Termination of this Lease for any reason shall be given pursuant to
Section 25 below.
7. Construction Standards. The Antenna Facilities shall be installed on the
Premises in a good and workmanlike manner, without the attachment of any
construction liens, and in compliance with the terms and conditions of the CUP and this
Lease.
8. Installation of Eauipment.
a. Tenant shall have the right, at its sole cost and expense, to install, operate
and maintain on the Premises, in accordance with good engineering practices and with
all applicable FCC and CPUC rules and regulations, the Antenna Facilities as described
in Exhibit C. Tenant may not add additional equipment and/or antennas from that
shown on Exhibit C without the prior written approval of Landlord, which may require an
amendment of the CUP.
b. Tenant's installation of the Antenna Facilities shall be done according to
plans approved by Landlord and in compliance with the conditions of approval for the
CUP. Any damage done to the Reservoir or Owned Premises during installation andlor
during operations shall be repaired or replaced promptly at Tenant's expense. In
connection with the installation and operation of the Antenna Facilities, Tenant shall not
locate or attach any antennas or other equipment to the Reservoir tank except that
approved by the CUP. The installation methods for the Antenna Facilities or other
equipment to the Reseryoir tank must be done in a manner that will be compatible with
the cathodic protection of the Reservoir tank and all other City facilities and equipment
located on the Owned Premises and in compliance with the terms and conditions of the
CUP.
c. Within thirty (30) days after final inspection of the Antenna Facilities,
Tenant shall provide Landlord with as-built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual location of all
equipment and improvements consistent with Exhibit C.
6
April 26, 2005 Item # 11
29 of 45
d. Any change to Tenant's approved antenna type, number of antennas,
antenna location andlor change in transmitter type and power output shall require the
prior written approval of Landlord, which may include an amendment of the CUP, and
shall, at the sole expense of Tenant, be made in accordance with applicable regulations
issued by the FCC and/or the CPUC. If Tenant's plans and specifications are approved
by Landlord, Landlord shall notify all other tenants of the Reseryoir in writing as to the
scheduled date and time of commencement of construction on installation of Tenant's
modified equipment not less than ten (10) days prior to such date.
9. Equipment Upqrade. Tenant may update or replace the Antenna Facilities from
time to time with the prior written approval of Landlord, provided that the replacement
facilities are not greater in number or size than the existing facilities and that any
change in their location on the Reservoir or Premises is approved in writing by Landlord.
Such equipment upgrades may also require an amendment of the CUP. Tenant shall
submit to Landlord a detailed proposal for any such replacement facilities and any
supplemental materials as may be reasonably requested, for Landlord's evaluation and
determination.
10. Maintenance and Operations.
a. Tenant shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in good repair and in a
manner suitable to Landlord so as not to conflict with the use of or other leasing of the
Reservoir and Owned Premises by Landlord.
b. Tenant shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, Antenna Facilities, and leasehold
improvements, and shall keep the same in good repair and condition during the Lease
term.
c. Tenant shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or undue
vibration, heat, noise or interference.
d. In the event Landlord or any other tenant undertakes painting,
construction or other alterations on the Reservoir or Owned Premises, Tenant shall take
reasonable measures at Tenant's cost to cover Tenant's equipment, personal property
or Antenna Facilities and protect such from paint and debris fallout which may occur
during the painting, construction or alteration process. Landlord and/or any tenant that
is undertaking the work on the Reseryoir or Owned Premises will give each other tenant
at least fifteen (15) days written notice prior to commencing such work.
7
April 26, 2005 Item # \ '1_
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11. Premises Access.
a. Tenant shall have both pedestrian and vehicular access to the Premises
by means reasonably designated by Landlord, subject to notice requirements to
Landlord in 11 b., below.
b. Tenant shall have access to the Premises in order to install, operate,
maintain and remove the Antenna Facilities only with the prior written approval of
Landlord. Said written approval shall not be unreasonably withheld and may be
obtained by fax. Tenant shall notify Landlord twenty-four (24) hours in advance of
Tenant's access to the Premises, except in an emergency, in which case Tenant shall
notify Landlord within twenty-four (24) hours after such emergency access.
c. In the event Tenant requires access to the Premises outside of City's
regular business hours (7:00 a.m. to 3:30 p.m., Monday through Friday), Tenant shall
be billed for City's costs to provide such access. Costs shall include any overtime or
call-out compensation to which an employee facilitating Tenant access may be entitled,
the cost of the vehicle, as well as an overhead charge. Tenant shall reimburse City for
these costs within thirty (30) days of billing.
d. Landlord shall be allowed and granted access to the Premises at
reasonable times to examine and inspect the Premises for safety reasons or to ensure
that Tenant's covenants are being met, as long as Tenant's equipment, technology and
proprietary interests remain secure and the operation of the Antenna Facilities is not
adversely affected.
12. Utilities. Tenant shall, at its expense, separately meter charges for the
consumption of electricity and other utilities associated with its use of the Leased
Premises and shall timely pay all costs associated therein.
13. Approvals: Compliance with Laws. This Lease, Tenant's obligations under this
Lease and Tenant's use of the Premises is contingent upon Tenant's ability to obtain
and maintain all necessary governmental licenses, permits, and approvals and pay all
fees in connection therewith that may be required by any federal, state or local authority
("Governmental Approvals"), including Landlord. Landlord makes no representation,
commitment or obligation, as to Tenant's success in obtaining the required
Governmental Approvals. Tenant shall erect, maintain and operate the Antenna
Facilities in accordance with statutes, ordinances, rules and regulations now in effect or
that may be issued thereafter by the FCC or any other governing bodies.
8
31 of 45
April 26, 2005 Item #-fl-
14. Interference.
Before approving the placement of Antenna Facilities, Landlord may obtain from
Tenant, at Tenant's expense an interference study indicating whether Tenant's intended
use will interfere with any existing communications facilities on the Reservoir or Owned
Premises and an engineering study indicating whether the Reservoir or Premises is
able to structurally support Tenant's Antenna Facilities without prejudice to Landlord's
primary use of the Reservoir. After review of Tenant's study, Landlord may, in its sole
discretion, determine that a third party study is necessary and Landlord may obtain such
study at Tenant's expense.
Tenant shall be responsible for installing any equipment, at its own expense,
reasonably required by Landlord to eliminate any interference that may be caused by
the location of the radio transmitting or other equipment of all parties existing on the
Reservoir prior to the Commencement Date including, but not limited to, Landlord and
other Carriers on the Owned Premises.
Tenant's use and operation of the Antenna Facilities shall not interfere with the
use and operation of other communication facilities on the Reseryoir or Owned
Premises which pre-existed the Antenna Facilities. If the Antenna Facilities cause
interference, Tenant shall take all measures reasonably necessary to correct and
eliminate the interference. If the interference cannot be eliminated in a reasonable time,
Tenant shall immediately cease operating its facility (other than intermittent testing) until
the interference has been eliminated. If the interference cannot be eliminated within
thirty (30) days after Tenant receives written notice from Landlord of such interference,
Landlord or Tenant may terminate this Lease pursuant to Section 6 herein.
15. Lease and Landlord's Remedies. It shall be a default if Tenant fails to pay Rent
or any other sums to Landlord when due, and does not cure such default within ten (10)
business days after receipt of written notice from Landlord; or if Tenant fails to obtain
the necessary Governmental Approvals; or if Tenant defaults in the performance of any
other covenant or condition of this Lease and does not cure such other default within
thirty (30) days after receipt of written notice from Landlord specifying the default
complained of; or if Tenant abandons or vacates the Premises; or if Tenant is
adjudicated bankrupt and the bankruptcy proceeding is not dismissed within ninety (90)
days from its commencement or makes any assignment for the benefit of creditors; or if
Tenant becomes insolvent.
In the event of a default and following the applicable cure period if the default
remains uncured, Landlord shall have the right, at its option, in addition to and not
exclusive of, any other remedy Landlord may have by operation of law, without any
further demand or notice, to reenter the Premises and eject all persons therefrom, and
either (a) declare this Lease at an end, in which event Tenant shall immediately pay
Landlord a sum of money equal to the total of (i) the amount of the unpaid Rent accrued
through the date of termination; (ii) the amount by which the unpaid Rent reseryed for
the balance of the term exceeds the amount of such rental loss that Tenant proves
9
April 26, 2005 Item # \ 1
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could be reasonably avoided (net of the costs of such reletting); and (iii) any other
amount necessary to compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease, or (b) without terminating
this Lease, relet the Premises, or any part thereof, for the account of Tenant upon such
terms and conditions as Landlord may deem advisable, and any monies received from
such reletting shall be applied first to the expenses of such reletting and collection,
including reasonable attorneys' fees, and thereafter toward payment of all sums due or
to become due Landlord hereunder, and if a sufficient sum shall not be thus realized to
pay such sums and other charges, Tenant shall pay Landlord any deficiency monthly,
notwithstanding that Landlord may have received rental in excess of the rental
stipulated in this Lease in previous or subsequent months, and Landlord may bring an
action therefor as such monthly deficiency shall arise.
No reentry and taking of possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease, regardless of the
extent of renovations and alterations by Landlord, unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
16. Cure bv Landlord. In the event of any default of this Lease by Tenant, Landlord
may at any time, after delivering at least thirty (30) days' prior written notice to Tenant,
cure the default for the account of and at the expense of Tenant. If Landlord incurs any
expense to cure such default, Tenant shall reimburse Landlord for such expense.
17. Condemnation. In the event the Premises are taken by eminent domain by the
City of Poway or any other governmental agency, this Lease shall terminate as of the
date possession of the Premises is taken by the condemning authority. In the event a
portion of the Premises is taken by eminent domain, either party shall have the right to
terminate this Lease as of the date of transfer of possession, by giving thirty (30) days'
written notice to the other party. In the event of any taking under the power of eminent
domain, Tenant shall not be entitled to any portion of the award paid for the taking
(except for relocation expenses) and Landlord shall otherwise receive the full amount of
such award. Except as herein provided, Tenant hereby expressly waives any right or
claim to any portion thereof, including any claim for loss of business or goodwill. All
damages, whether awarded as compensation for diminution in value of the leasehold or
to the fee of the Premises, shall belong to Landlord.
18. Indemnitv and Insurance.
a. Disclaimer of Liabilitv: Landlord shall not at any time be liable for injury or
damage occurring to any person or property from any cause whatsoever arising out of
Tenant's construction, maintenance, repair, use, operation, condition or dismantling of
the Premises or the Antenna Facilities.
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April 26, 2005 Item # \ '1
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b. Indemnification: Tenant shall, at its sole cost and expense, indemnify and
hold harmless Landlord and all associated, affiliated, allied and subsidiary entities of
Landlord, now existing or hereinafter created, and their respective officers, boards,
employees, agents, attorneys, and contractors (hereinafter referred to as
"Indemnitees"), from and against:
i. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any act or omission of Tenant, its personnel, employees, agents, contractors
or subcontractors, resulting in personal injury, bodily injury, sickness, disease or
death to any person or damage to, loss of or destruction of tangible or intangible
property, libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name, copyright, patent, seryice mark or any other right of any
person, firm or corporation, which may arise out of or be in any way connected
with the construction, installation, operation, maintenance, use or condition of the
Owned Premises, Leased Premises or Antenna Facilities or the Tenant's failure
to comply with any federal, state or local statute, ordinance or regulation.
ii. Any and all liabilities, obligations, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitations, reasonable
fees and expenses of attorneys, expert witnesses and other consultants), which
are imposed upon, incurred by or asserted against the Indemnitees by reason of
any claim or lien arising out of work, labor, materials or supplies provided or
supplied to Tenant, its contractors or subcontractors, for the installation,
construction, operation, maintenance or use of the Premises or Antenna
Facilities, and, upon the written request of Landlord, Tenant shall cause such
claim or lien covering Landlord's property to be discharged or bonded within
thirty (30) days following such request.
iii. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any financing or securities offering by Tenant or its affiliates which results in
any violations of the common law or any laws, statutes, or regulations of the
State of California, or United States, including those of the Federal Securities and
Exchange Commission.
iv. Tenant's obligation to indemnify Indemnitees under this Lease shall
not extend to claims, losses, and other matters covered hereunder that are
caused by the negligence of one or more Indemnitees.
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April 26, 2005 Item # \ rt.
34 of 45
c. Assumption of Risk. Tenant undertakes and assumes for its officers,
agents, affiliates, contractors and subcontractors and employees (collectively "Tenant"
for the purpose of this section), all risk of dangerous conditions, if any, on or about the
Premises, and Tenant hereby agrees to indemnify and hold harmless the Landlord
against and from any claim asserted or liability imposed upon the Indemnitees for
personal injury or property damage to any person (other than from Indemnitee's gross
negligence) arising out of the Tenant's installation, operation, maintenance, condition or
use of the Premises or Tenant's Antenna Facilities or Tenant's failure to comply with
any federal, state or local statute, ordinance or regulation.
d. Defense of Landlord. In the event any action or proceeding shall be
brought against the Landlord by reason of any matter for which the Landlord is
indemnified hereunder, Tenant shall, upon receipt of written notice from Landlord, at
Tenant's sole cost and expense, resist and defend the same with legal counsel mutually
selected by Tenant and Landlord; provided however, that Tenant shall not admit liability
in any such matter on behalf of the Landlord without the prior written consent of
Landlord and provided further that Landlord shall not admit liability for, nor enter into
any compromise or settlement of, any claim for which it is indemnified hereunder,
without the prior written consent of Tenant.
e. Notice, CooDeration and Expenses. Landlord shall give Tenant prompt
written notice of the making of any claim or the commencement of any action, suit or
other proceeding covered by the provisions of this Section. Nothing herein shall be
deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses
incurred by Landlord in response to any such actions, suits or proceedings. These
expenses shall include all out-of-pocket expenses such as attorney fees and shall also
include the reasonable value of any seryices rendered by the Landlord's attorney, and
the actual expenses of Landlord's agents, employees or expert witnesses and
disbursements and liabilities assumed by Landlord in connection with such suits,
actions or proceedings but shall not include attorneys' fees for services that are
unnecessarily duplicative of services provided Landlord by Tenant.
If Tenant requests Landlord to assist it in such defense then Tenant shall pay all
expenses incurred by Landlord in response thereto, including defending itself with
regard to any such actions, suits or proceedings. These expenses shall include all out-
of-pocket expenses such as reasonable attorney fees and shall also include the
reasonable costs of any services rendered by the Landlord's attorney, and the actual
and documented expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits,
actions or proceedings, but shall not include attorneys fees for services that are
unnecessarily duplicative of services provided Landlord by Tenant.
f. Insurance. During the term of this Lease, Tenant shall maintain, or cause
to be maintained, in full force and effect and at its sole cost and expense, the following
types and limits of insurance:
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April 26, 2005 Item # \ '1
35 of 45
i. Workers' compensation insurance meeting applicable statutory
requirements and employer's liability insurance with minimum limits of One
Hundred Thousand Dollars ($100,000) for each accident.
ii. Comprehensive commercial general liability insurance with
minimum limits of Three Million Dollars ($3,000,000) as the combined single limit
for each occurrence of bodily injury, personal injury and property damage. The
policy shall provide blanket contractual liability insurance for all written contracts,
and shall include coverage for products and completed operations liability,
independent contractor's liability; coverage for property damage from perils of
explosion, collapse or damage to underground utilities, commonly known as XCU
coverage.
iii. Automobile liability insurance covering all owned, hired, and non-
owned vehicles in use by Tenant, its employees and agents, with personal
protection insurance and property protection insurance to comply with the
provisions of state law with minimum limits of Two Million Dollars ($2,000,000) as
the combined single limit for each occurrence for bodily injury and property
damage.
iv. At the start of and during the period of any construction, builders
all-risk insurance, together with an installation floater or equivalent property
coverage covering cables, materials, machinery and supplies of any nature
whatsoever which are to be used in or incidental to the construction. Upon
completion of the construction, Tenant shall substitute for the foregoing
insurance policies of fire, extended coverage and vandalism and malicious
mischief insurance. The amount of insurance at all times shall be representative
of the insurable values installed or constructed.
v. All policies other than those for Workers' Compensation shall be
written on an occurrence and not on a claims made basis.
vi. The coverage amounts set forth above may be met by a
combination of underlying and umbrella policies so long as in combination the
limits equal or exceed those stated.
vii. Tenant shall furnish certificates of insurance to Landlord before
commencement of any work on the Leased Premises or Owned Premises.
13
April 26, 2005 Item # \ '1
36 of 45
g. Additional Insureds. All policies, except for business interruption and
worker's compensation policies, shall name Landlord and all associated, affiliated, allied
and subsidiary entities of Landlord, now existing or hereafter created, and their
respective officers, boards, commissions, employees, agents and contractors, as their
respective interests may appear as additional insureds (herein referred to as the
"Additional Insureds"). Each policy which is to be endorsed to add Additional Insureds
hereunder, shall contain cross-liability wording, as follows:
"In the event of a claim being made hereunder by one insured for which another insured
is or may be liable, then this policy shall cover such insured against whom a claim is or
may be made in the same manner as if separate policies had been issued to each
insured hereunder."
h. Evidence of Insurance. Certificates of insurance for each insurance policy
required to be obtained by Tenant in compliance with this Section, shall be filed and
maintained with Landlord annually during the term of this Lease. Tenant shall promptly
advise Landlord in writing of any claim or litigation that may result in liability to Landlord.
i. Cancellation of Policies of Insurance. All insurance policies maintained
pursuant to this Lease shall contain the following endorsement:
"At least sixty (60) days' prior written notice shall be given to Landlord by the insurer of
any intention not to renew such policy or to cancel, such notice to be given by U.S.
registered mail to the Landlord or certificate holder named in this policy."
j. Deductibles. Tenant agrees to indemnify and save harmless Landlord, the
Indemnitees and Additional Insureds from and against the payment of any deductible
and from the payment of any premium on any insurance policy required to be furnished
by this Lease.
k. Contractors. Tenant and Landlord shall each require that each and every
one of its contractors and their subcontractors who perform work on the Owned
Premises or Leased Premises to carry, in full force and effect, workers' compensation,
comprehensive public liability and automobile liability insurance coverages of the type
which the insured is required to obtain under the terms of this Section with appropriate
limits of insurance.
19. Hazardous Substance Indemnification. Tenant represents and warrants that its
use of the Premises herein will not generate any hazardous substance, and it will not
store or dispose on the Premises nor transport to or over the Premises any hazardous
substance in violation of any applicable local, state or federal law or regulation. Tenant
shall be allowed to store on the Premises the number of batteries as shown in Exhibits
Band C of this Lease. The batteries shown on the Exhibits are to be used for
emergency backup power. No additional batteries may be stored on the Premises
without the prior written approval of Landlord. Tenant further agrees to hold Landlord
harmless from and indemnify Landlord against any release of any such hazardous
14
37 of 45
April 26, 2005 Item #
1'1
substance and any damage, loss, or expense or liability resulting from such release
including reasonable attorneys' fees, costs and penalties incurred as a result thereof
except any release caused by the negligence of Landlord, its employees, agents or
contractors. "Hazardous substance" shall be interpreted broadly to mean any
substance or material defined or designated as hazardous or toxic waste, hazardous or
toxic material, hazardous or toxic or radioactive substance or other similar term by any
federal, state or local environmental law, regulation or rule presently in effect or
promulgated in the future, as such laws, regulations or rules may be amended from time
to time; and it shall be interpreted to include, but not be limited to, any substance which
after release into the environment will or may reasonably be anticipated to cause
sickness, death or disease.
20. Radio Frequency (RF) Indemnification. Tenant shall comply with all present and
future applicable laws, orders, and regulations relating to Radio Frequency ("RFs") to
the extent required by current or future Federal Communications Commission
regulations.
21. HoldinQ Over. Any holding over after the expiration of the term hereof with the
consent of Landlord shall be construed to be a tenancy from month to month at two
times the rents herein specified (prorated on a monthly basis) and shall otherwise be for
the term and on the conditions herein specified, so far as applicable.
22. Subordination to Mortoaoe. Any mortgage now or subsequently placed upon any
property of which the Premises are a part shall be deemed to be prior in time and senior
to the rights of Tenant under this Lease. Tenant subordinates all of its interest in the
leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall,
upon receipt of Landlord's written request, execute any additional documents
reasonably necessary to effectuate this subordination.
23. AOQreQate Payment. With the execution of this Lease, Tenant shall pay Landlord
the sum of Five Thousand Dollars ($5,000). This Aggregate Payment is a one-time
payment and is in addition to Rent.
24. Acceptance of Premises. By taking possession of the Premises, Tenant accepts
the Premises in the condition existing as of the Commencement Date. Landlord makes
no representation or warranty with respect to the condition of the Premises and, except
as provided by applicable law, Landlord shall not be liable for any latent or patent defect
in the Premises.
25. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed given as of the date of such seryice or mailing if
personally delivered, mailed, certified mail, retum receipt requested or sent by a
nationally recognized ovemight courier; to the following addresses:
15
April 26, 2005 Item # \1
38 of 45
If to Landlord, to: James L. Bowersox
City Manager
City of Poway
P.O. Box 789
Poway, California 92074-0789
With a copy to: Tina M. White
Revenue & Business Activity Manager
City of Poway
P.O. Box 789
Poway, California 92074-0789
If to Tenant, to: Sprint PCS Assets, L.L.C.
4683 Chabot Drive, Suite 100
Pleasanton, California 94588-2715
Attn: Lease Management
With a copy to: Sprint Law Department
6391 Sprint Parkway
MailStop: KSOPHT0101-22020
Overland Park, Kansas 66251-2020
Attn: Sprint Real Estate Attorney
26. Assiqnment. Tenant may assign this Lease and all or any rights, benefits,
liabilities and obligations hereunder, to: (i) any person or entity which is a parent,
subsidiary or affiliate of Tenant; (ii) any person or business entity that controls or is
controlled by or under common control with Tenant; or (Iii) any person or business entity
that is merged or consolidated with Tenant or purchases a majority or controlling
interest in the ownership or assets of Tenant. Upon notification to Landlord by Tenant
of any such assignment, Tenant will be relieved of all future performance, liabilities and
obligations under this Lease to the extent of such assignment. Tenant may not
otherwise assign or sublet this Lease without Landlord's written consent, which consent
shall not be unreasonably withheld, conditioned or delayed.
27. Successors and Assigns. This Lease shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and
assigns.
28. Miscellaneous.
a. Landlord and Tenant represent and warrant to each other that each,
respectively, has full right, power, and authority to execute this Lease.
b. This Lease constitutes the entire agreement and understanding of the
parties and supersedes all offers, negotiations, and other agreements of any kind.
There are no representations or understandings of any kind not set forth herein. Any
16
39 of 45
April 26, 2005 Item #
\1
modifications of or amendment to this Lease must be in writing and executed by both
parties.
c. This Lease shall be construed in accordance with the laws of the State of
California.
d. If any term of this Lease is found to be void or invalid, such invalidity shall
not affect the remaining terms of this Lease, which shall continue in full force and effect.
e. Landlord represents and warrants to Tenant that: (i) it solely owns the
Owned Premises as a lot in fee simple, unencumbered by any liens, restrictions,
mortgages, covenants, conditions, easements, leases, agreements, of record or not of
record, which would adversely affect Tenant's intended use and enjoyment of the
Premises under this Lease; and (Ii) as long as Tenant is not in default, Landlord grants
to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the
Premises.
f. Limitation on Applicabilitv. Notwithstanding any language in this Lease,
the terms and conditions herein shall apply only to the Reservoir and the Premises
described above. Nothing in this Lease shall be interpreted to affect the parties' right
and obligations regarding other properties, sites, facilities or proposed projects of
Tenant.
This Lease was executed as of the date first set forth above.
LANDLORD:
City of Poway
TENANT:
Sprint PCS Assets, L.L.C.
By:
By:
Michael P. Cafagna, Mayor
Approved as to form:
By:
Tamara A. Smith, City Attorney
Attest:
By:
L. Diane Shea, City Clerk
17
April 26, 2005 Item # \'1
40 of 45
EXHIBIT A
LEGAL DESCRIPTION OF OWNED PREMISES
41 of 45
April 26, 2005 Item # l'1
EXHIBIT B
SITE PLAN OF RESERVOIR
42 of 45
April 26, 2005 Item # \'1
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