Item 1.6 - Amendment to Lease for Telcomm at 12700 Sagecrest Dr: Pomerado ReservoirG`,�q OF Ppl0g1
City of Poway
_ - COUNCIL AGENDA REPORT
DATE: April 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Tina M. White, City Manager
CONTACT: Wendy Kaserman, Assistant City Manager
Nicole Murphy, Senior Management Analyst/ x U/
858-668-4505 or nmurphy@poway.org �/
APPROVED
APPROVED AS AMENDED
❑
(SEE MINUTES)
DENIED
❑
REMOVED
❑
CONTINUED
RESOLUTION NO.
SUBJECT: Approval of First Lease Amendment between the City of Poway and
New Cingular Wireless PCS, LLC for the Operation of a
Telecommunications Facility at 12700 Sagecrest Drive, Poway CA
92064 (Pomerado Reservoir)
Summary:
In May 1997, the City Council approved a lease with New Cingular Wireless PCS, LLC (AT&T
Wireless) for the installation of a wireless telecommunications facility (cell site) at Pomerado
Reservoir. The agreement is set to expire in January 2020. The City was contacted by New
Cingular and advised of its interest in renegotiating and extending the terms of the lease
agreement. Staff has negotiated the terms and conditions to amend the lease agreement. The
amendment has been reviewed and approved by the City Attorney and by legal counsel for New
Cingular Wireless PCS, LLC.
Recommended Action:
It is recommended that the City Council approve the attached first amendment to the lease
agreement with New Cingular Wireless PCS, LLC and authorize the City Manager to execute the
agreement on behalf of the City.
Discussion:
City staff has been working with MD7, authorized representatives of New Cingular Wireless PCS,
LLC (New Cingular), to negotiate an amendment to the cell site lease agreement at Pomerado
Reservoir. The initial term of the agreement was five years, with three additional five-year
extensions. The initial rent for the first year of the agreement was $21,600 and has been adjusted
by five percent (5%) annually. The rent charged in 2018 was $54,584. The agreement expires
on January 16, 2020 with no further options to extend the agreement.
The new terms of the lease amendment would be effective starting on January 17, 2020. The
initial term is five years with up to five (5) additional five-year extension terms. With the execution
of the lease amendment, a one-time aggregate payment of $10,000 is due from New Cingular.
Rent payments are to be paid annually on the anniversary of the commencement date, which will
be January 17 of each subsequent year.
During lease renegotiations, New Cingular requested a review of the annual rent as it believed
the rent for this location escalated above current market values for the area including similar cell
sites in Poway. Under the current agreement, rent has increased annually at a rate of five percent
(5%). This is a higher rate than most of the City's cell site agreements which utilize the Consumer
Price Index (CPI) to calculate annual rent increases. The amendment revises the rental terms to
1 of 32 April 2, 2019 Item #I-L—
Approval of First Lease Amendment with New Cingular Pomerado (Reservoir)
April 2, 2019
Page 2
increase the annual rent by a factor of three percent (3%), rather than the CPI, for ease of
administration and tracking of revenue. The City executed six cell site lease extensions over the
last two years with an average rent of $41,920 in 2018. Based on this information, the City and
New Cingular agreed to a reduction in rent, with the execution of the lease amendment, in the
amount of $44,473 for the first year of the new lease term in 2020.
The proposed lease amount is consistent with the average rates charged to other wireless
telecommunication vendors located at the similar sites within the City. Historically, the City has
used the Annual Base License Fee Matrix of Rates (Fee Matrix) from the Caltrans
Telecommunications (Wireless) Licensing Program as a benchmark to determine rents for cell
sites. The rent proposed in the lease amendment is consistent with the published rates of the
Fee Matrix.
The City Attorney and New Cingular's legal counsel have reviewed and approved the proposed
amendment to the lease agreement. Staff recommends approval of the first lease amendment.
Environmental Review:
This item is not subject to CEQA review.
Fiscal Impact:
With the one-time aggregate payment, this lease agreement will generate no less than $246,113
in revenue for the initial five-year term of the agreement
Public Notification:
Additional notification was sent to New Cingular Wireless PCS, LLC, and MD7, representing New
Cingular Wireless PCS, LLC.
Attachments:
A. First Lease Amendment between the City of Poway and New Cingular Wireless
PCS
B. Original Lease Agreement between the City of Poway and New Cingular
Wireless PCS, LLC (New Cingular). Terms only, exhibits on file with the city
Clerk's Office.
Reviewed/Approved By: Reviewed By: Approve
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
2 of 32 April 2, 2019 Item #I -L
Cell Site No.: SDO171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / HI
Address: 12700 Sagwrest Drive
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment"), dated
as of the latter of the signature dates below (the "Effective Date"), is by and between the City of
Poway, having a mailing address of 13325 Civic Center Drive, Poway, CA 92064 (hereinafter
referred to as "Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, successor by merger to AT&T Wireless PCS, LLC, having a mailing address of 575
Morosgo Drive NE, Atlanta, GA 30324 (hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant (or its respective predecessor -in -interest) entered into
a Lease Agreement dated January 17, 2000, (hereinafter, the "Lease"), whereby Landlord leased
to Tenant certain Premises therein described, that are a portion of the property ("Owned
Premises") located at 12700 Sagecrest Drive, Poway, CA, 92064; and
WHEREAS, the term of the Lease will expire on January 16, 2020, and the parties
mutually desire to extend the term of the Lease, memorialize such renewal period and modify the
Lease in certain other respects, all on the terms and conditions contained herein; and
WHEREAS, Landlord and Tenant desire to amend the Lease to adjust the Rent in
conjunction with the modifications to the Lease contained herein; and
WHEREAS, Landlord and Tenant desire to amend the Lease to modify the notice section
thereof; and
WHEREAS, Landlord and Tenant desire to amend the Lease to permit Tenant to add,
modify and/or replace equipment in order to be in compliance with any current or future federal,
state or local mandated application, including but not limited to emergency 911 communication
services; and
WHEREAS, Landlord and Tenant, in their mutual interest, wish to amend the Lease as set
forth below accordingly.
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree that the recitals set forth above are incorporated herein as if set forth in their entirety and
further agree as follows:
1. Extension of Term. The term of the Lease shall be amended to provide that commencing
on January 17, 2020 ("New Commencement Date"), the Lease will automatically renew, upon
the same terms and conditions of the Lease, as amended herein, for up to six (6) separate
consecutive additional periods of five (5) years each (each such five (5) year additional period is
hereinafter referred to as an "Additional Extension Term", without further action by Tenant
unless Tenant notifies Landlord in writing of Tenant's intention not to renew the Lease at least
sixty (60) days prior to the expiration of the current term or the then current Additional Extension
Category r, 4, & 5 Amendment ftrm
3 of 32 Attachment A April 2, 2019 Item #,l(—
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego I Las Vegas / HI
Address: 12700 Sagecrest Drive
Term. The current term and the Additional Extension Term are collectively referred to as the
"Term".
2. Rent. Commencing on January 17, 2020, the current Rent payable under the Lease shall
be Forty -Four Thousand Four Hundred Seventy -Three and No/100 Dollars ($44,473.00) per year,
and shall continue during the Term, subject to adjustment as provided herein. Paragraph 3(a) of
the Lease shall be amended to provide that Rent shall be adjusted as follows: on each anniversary
of the New Commencement Date, including throughout any Additional Extension Term exercised,
the annual Rent will increase by three percent (3%) over the Rent paid during the previous year.
3. Aggregate Payment. Tenant shall pay Landlord a one-time payment of Ten Thousand
and No/100 Dollars ($10,000.00) to reimburse Landlord for its costs in negotiating this First
Amendment and administering the Lease ("Aggregate Payment"). The Aggregate Payment shall
not be considered Rent and is due forty-five (45) days after the New Commencement Date.
4. Insurance. If Tenant subcontracts any work under the Lease, Tenant shall require that
each subcontractor includes Landlord as an additional insured as their interest may appear under
the subcontractor's general liability insurance policy and any excess liability insurance
policy. Tenant is solely responsible to ensure that all of its subcontractors, or anyone else acting
on its behalf or at its direction, complies with the insurance requirements set forth in the Lease.
5. Emergency 911 Service. In the future, without the payment of additional Rent, or any
other consideration, and at a location mutually acceptable to Landlord and Tenant, Landlord agrees
that Tenant may add, modify and/or replace equipment in order to be in compliance with any
current or future federal, state or local mandated application, including but not limited to
emergency 911 communication services.
6. Right of First Refusal. Notwithstanding any other provisions contained in the Lease, if
at any time after the date of this First Amendment, Landlord receives a bona fide written offer
from a third party seeking any sale, conveyance, assignment or transfer, whether in whole or in
part, of any property interest in or related to the Premises, including without limitation any offer
seeking an assignment or transfer of the Rent payments associated with the Lease or an offer to
purchase an easement with respect to the Premises ("Offer"), Landlord shall immediately famish
Tenant with a copy of the Offer. Tenant shall have the right within ninety (90) days after it receives
such copy to match the financial terms of the Offer and agree in writing to match such terms of
the Offer. Such writing shall be in the form of a contract substantially similar to the Offer, but
Tenant may assign its rights to a third party. If Tenant chooses not to exercise this right or fails to
provide written notice to Landlord within the ninety (90) day period, Landlord may sell, convey,
assign or transfer such property interest in or related to the Premises pursuant to the Offer, subject
to the terms of the Lease. If Landlord attempts to sell, convey, assign or transfer such property
interest in or related to the Premises without complying with this Paragraph 6, the sale,
conveyance, assignment or transfer shall be void. Tenant's failure to exercise the right of first
refusal shall not be deemed a waiver of the rights contained in this Paragraph 6 with respect to any
future proposed conveyances as described herein. Nothing in this Paragraph 6 requires Landlord
Category 3, 4, & 5 Amendment Fonn
4 of 32 April 2, 2019 Item #_WL
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Nixed Asset No.: 10085088
Market: San Diego / Las Vegas / HI
Address: 12700 Sagecrest Drive
to sell the any portion of the Premises to either a third party or a Tenant when an Offer is received.
Further, Tenant acknowledges that Landlord must follow all applicable provisions of law relating
to the sale of publically owned property, and therefore, in some cases (and in particular, depending
on the type of entity that has made an Offer), the Landlord may be prohibited from selling the
Premises to Tenant. Where Landlord has a legal obligation to sell, convey, assign or transfer in
portion of the Premises to a third party, this Paragraph 6 shall have no force and effect.
7. Charges. All charges payable under the Lease such as utilities and taxes shall be billed
by Landlord within one (1) year from the end of the calendar year in which the charges were
incurred. The foregoing shall not apply to monthly Rent which is due and payable Without a
requirement that it be billed by Landlord. The provisions of this subparagraph shall survive the
termination or expiration of the Lease.
8. Acknowledgement. Landlord acknowledges that: 1) this First Amendment is entered
into of the Landlord's free will and volition; 2) Landlord has read and understands this First
Amendment and the underlying Lease and, prior to execution of this First Amendment, was free
to consult with counsel of its choosing regarding Landlord's decision to enter into this First
Amendment and to have counsel review the terms and conditions of this First Amendment; 3)
Landlord has been advised and is informed that should Landlord not enter into this First
Amendment, the underlying Lease between Landlord and Tenant, including any temilnation or
non -renewal provision therein, would remain in full force and effect.
9. Notices. Paragraph 30 of the Lease is hereby deleted in its entirety and replaced with the
following:
"(a) NOTICES. All notices, requests, demands and communications hereunder will be given by
first class certified or registered mail, return receipt requested, or by a nationally recognized
overnight courier, postage prepaid, to be effective when properly sent and received, refused or
returned undelivered. Notices will be addressed to the parties as follows:
If to Tenant:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT (CA); Fixed Asset No.:
10085088
575 Morosgo Drive NE
Atlanta, GA 30324
With a required copy of the notice sent to the address above to AT&T Legal at:
New Cingular Wireless PCS, LLC
Attn: Legal Department — Network Operations
Re: Cell Site #: SDO171
Category 3, 4, & 5 Amendment Form
6 of 32 April 2, 2019 Item #Lp_
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas/ HI
Address: 12700 Sagecrest Drive
Cell Site Name: POWAY WATER TANK SAGECREST WT (CA); Fixed Asset No:
10085088
208 S. Akard Street
Dallas, Texas, 75202-4206
A copy sent to the Legal Department is an administrative step which alone does not constitute
legal notice.
And as to Landlord:
City of Poway
13325 Civic Center Drive
Poway, CA 92064
(b) In the event of a change in ownership, transfer or sale of the Owned Premises, within ten
(10) days of such transfer, Landlord will send the below documents to Tenant. In the event Tenant
does not receive such appropriate documents, Tenant shall not be responsible for any failure to
pay the current landlord
(i) New deed to Owned Premises
(ii) New W-9
(iii) New Payment Direction Form
(iv) Full contact information for new Landlord including all phone numbers
Either party hereto may change the place for the giving of notice to it by thirty (30) days
prior written notice to the other as provided herein."
10. Memorandum of Lease. Either party will, at any time upon fifteen (15) days prior
written notice from the other, execute, acknowledge and deliver to the other a recordable
Memorandum of Lease substantially in the form of the Attachment 1. Either party may record this
memorandum at any time, in its absolute discretion.
11. Other Terms and Conditions Remain. In the event of any inconsistencies between the
Lease and this First Amendment, the terms of this First Amendment shall control. Except as
expressly set forth in this First Amendment, the Lease otherwise is unmodified and remains in full
force and effect. Each reference in the Lease to itself shall be deemed also to refer to this First
Amendment.
12. Capitalized Terms. All capitalized terms used but not defined herein shall have the same
meanings as defined in the Lease.
[NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE]
Category 3, 4, & 5 Amendment Form
6 of 32 April 2, 2019 Item #-Lill—
Cell Site No.: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / Ii!
Address: 12700 Sagecrest Drive
IN WITNESS WHEREOF, the parties have caused their properly authorized
representatives to execute this First Amendment on the dates set forth below,
LANDLORD: TENANT:
City of Poway New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By:
Print Name:
Title:
Date:
By: AT&T Mobility Corporation
Its: Manager
By:
Print Name:
Title:
Date:
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
5
Category 3, 4, & 5 Amendment Fom
7of32
April 2, 2019 Item #1(4z—
Cell Site Na: SDO171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / HI
Address: 12700 Sagecrest Drive
LANDLORD ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of
G'11
before me,
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature
Category 3, 4, & 5 Amendment Farm
8 of 32
(Sear)
April 2, 2019 Item #i.10_
Cell Site No.: SDO171
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: San Diego / Las Vegas / H1
Address: 12700 Sag=est Drive
TENANT ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of
in
before me,
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/herhheir authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature
Category 3, 4, & 5 Amendment Form
9 of 32
(Seal)
April 2, 2019 Item #-U—
Cell Site No.: SDOl71
Cell Site Name: POWAY WATER TANK SAGECREST WT
Fixed Asset No.: 10085088
Market: Sao Diego / Las Vegas / HI
Address: 12700 Sageerest Drive
Attachment 1
Memorandum of Lease
Category 3, 4, & 5 Amendment Pmm
10 of 32 April 2, 2019 Item #1-6—
Recording Requested By
& When Recorded Return To:
New Cingular Wireless PCS, LLC
575 Morosgo Drive
Atlanta, GA 30324
Attn: Network Real Estate Administration
APN: 314-371-21-00
(Space Above This Line For Recorder's Use Only)
Re: Cell Site #: SD0171
Cell Site Name: POWAY WATER TANK SAGECREST WT (CA)
Fixed Asset Number: 10085088
State: CA
County: San Diego
MEMORANDUM OF LEASE
This Memorandum of Lease is entered into on this _ day of , 201, by and between
City of Poway, having a mailing address at 13325 Civic Center Drive, Poway, CA 92064 (hereinafter referred to as
"Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor by merger to
AT&T Wireless PCS, LLC, having a mailing address of 575 Morosgo Drive NE, Atlanta, GA 30324 (hereinafter
referred to as "Tenant").
1. Landlord and Tenant (or their predecessors in interest) entered into a certain Lease Agreement dated
January 17, 2000, as amended by that certain First Amendment to Lease Agreement dated
201_, (hereinafter, collectively, the "Lease') for
the purpose of installing, operating and maintaining a communications facility and other
improvements at Landlord's real property located in the City of Poway, County of San Diego,
commonly known as 12700 Sagecrest Drive. All of the foregoing are set forth in the Lease.
2. Commencing on January 17, 2020, the Lease shall extend with six (6) successive five (5) year
options to renew, and the Rent shall be modified in the manner set forth in the First Amendment.
3. The portion of the land being leased to Tenant (the "Premises") is described in Exhibit 1 annexed
hereto.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the Lease, all of
which are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum of Leese and the provisions of the Lease, the provisions of the Lease shall control.
The Lease shall be binding upon and inure to the benefit of the parties and their respective heirs,
successors, and assigns, subject to the provisions of the Lease.
[NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE]
-1-
11 of 32 April 2, 2019 Item #1�—
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year
first above written.
LANDLORD:
City of Poway
By:
Print Name:
Title:
TENANT:
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
Print Name:
Title:
Date: Date:
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
.2.
12 of 32 April 2, 2019 Item # (• �o
LANDLORD ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
before me,
(insert name and title of the
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature
(Seal)
-3-
13 of 32 April 2, 2019 Item #1-6_
TENANT ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
before me,
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct
WITNESS my hand and official seal.
Signature
-4-
(Seal)
14 of 32 April 2, 2019 Item #1,(,L—
EXHIBIT 1
DESCRIPTION OF PREMISES
Page 1 of 1
to the Memorandum of Lease dated 20_, by and between the City of Poway, as
Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability company, as Tenant.
The Premises are a portion of the Property described and/or depicted as follows:
Property Legal Description:
THE LAW REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN
DIEGO, AND IS DESCRIBED AS FOLLOWS;
ALL THAT PORTION OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF SECTION 20
TOWNSHIP 14 SOUTH, RANGE 2 NEST, SAN BERNARDINO 8ASE AND MERIDIAN, IN THE COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, LYING WITHIN THAT CERTAIN PARCEL OF LAND SHOWN
ANO DELINEATED IN THE CITY OF POWAY TRACT NO. 12880 AM FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID SAN DIEGO COUNTY ON OCT08ER 17, 1991 AS FILE NO. 91-
0538753 OF OFFICIAL RECORDS AS:
NOT A PART `MHOS OF THE CITY OF POWAY` PER DOC. REC. 11-21-80 F/P 80-392581.
-5-
75 of 32 April 2, 2019 Item #I-_
LEASE AGREEMENT
This Lease Agreement (•Lease') is entered into this 17th day of January, 2000, by
and between the City of Poway (`landlord') and AT&T Wirers ('Tenanto).
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), on which a reservoir ithe'Ressmirh is located. The sueeet address of
the Owned Premises is 12700 Sagecrest Drive.
B. Tenant desires to lease space on the Owned Premises for the installation and
operation of certain antenna facilities ('Antenna Facilites] for use In connection with its
communications business.
C. Accordingly, the parties are entering into this Lease on the terns and condkions set
forth below.
In consideration of their mutual eovenaMs, the partes agree as follows:
1. L Landlord leases to Tenant and Tenant leases from Landlord a
portion of the Owned Premises, including space (the'Prernlm9 on the Reservoir and
Reservoir Site ('Resevoirff), as shown on the Site Plan attached as Exhibit a. Tenant
Intends to locate its Antenna Fadlites as described more fully on the attached Exhibit C on
the Premises. Tenant may not add additional equipment and/or antennas from the shown
on Exhibit C without the prior written approval of the Landlord.
Landlord reserves the right to require Tenant to relocale its facilities to another
location on the Reservoir and/or Reservoir Site. Tenant shall complete the relocation of its
facilites within sixty (60) days after written notice from Landlord. The relocation shall be
at Tenant's expense, unless the Landlord's relocation requifhment results from Landlord's
desire to lease space on the reservoir to nongovetmttertal third -party uses. In that case,
the Landlord will require the third -party user to reimburse Tenant for the reasonable
relocation costs of Tenant. Relocation shall not result in a lessening of Tenant's ability to
use the site 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.
-•16ot32 - Attachment B April 2, 2019 Item #-LL
2• 1=. The term of this Lease shall be five (5) years, commencing on January 17,
2000, (The 'Commencement Date9 and ending January 16, 2oo5. This Lease will be
renewable for three (3) successive fivwoNw terms contingent upon both parties mutually
agreeing on the terns, conditions, and the annual rent, sixty (60) days prior to the
anniversary of the 'Commencement Date' for each successive five jur term.
Tenant understands and agrees that this lease agreement may be revoked at any
time in the future if the Landlord determines for any reason at any time in the future that
this lease agreement is not in the best interest of the Landlord. The determination of lease
revocation shall be within the sole discretion of the Landlord. In the event the Landlords
revocation of a lease is not due to a breach by Tenant of one of tate conditions or
obligations provided for in this Lease Agreement, the Landlord shall give Tenant written
notice of the necessity of removal of the said facilities ninety (90) calendar days prior to the
effective date of the removal. Such removal or relocation shall be at the expense of the
Tenant.
If this Lease is revoked by the Landlord due to a breach by Tenant of one of its
obi illations herein, the revocation shall be effective thirty (30) calendar days from the date
of delivery of the notice of revocation and Tenant shall remove all of IIs personal property
and equipment from the Property by that time or the landlord may remove it and charge
Tenant for der cost of removal.
ff, due to technological changes, Tenant determines that It is no longer practical to
use the Premises for Taunt's Intended purposes, therm Tenant shall have the right to
terminate this lease agreement, which termination shall be effective no sooner than ninety
(90) days from delivery of written notice from Tenant to Landlord provided Tenant has
removed all of Its property and equipment from the premises by that time.
3. Rea
a. Tenant shall pay Landlord as annual initial rent for the Premises the sum of
Twen4&one Thousand Six Hundred Wlars ($21,600) ("Rent). Tenant shall pay
Landlord Rent for the first year on the Commencement Date. Tenant shall pay
Landlord Rent annually in advance on each anniversary of the Commencement
Date. Rent shall be increased annually as follows:
#1 Year 2 $22,680.00 ori Year 4 $25,004.76
VV Year 3 $23,814.00 4 Year 5 $26,256.00
b. Tenant shall pay Landlord a late payment change equal to five percent (s%)
of the late payment for any Payment not paid when tore. Any amounts not paid
when due shall bear interest urti I paid at the lesser of the rate of two percent (2%)
per month or the highest rate permitted by law.
17 of 32 April 2, 2019 Item #16-
C. For each additional antenna installed by Tenant beyond the initial array
described in Exhibit G, Tenant shall negotiate amendment of this Lease and shall
Pay the Landlord an additional $200 per moth for each additional antenna The
additional Rerrt shall increase annually under the same terms provided in this Lease
and shall become part of the annual Rent
d. H this Lease is terminated at a time other than on the last day of the year,
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 mftrnded to the Tenant.
e. Upon termination of this Lease for any ream, Tenant shall remove its
equipment, Personal Property, Antenna FadlLties, and leasehold impnovernerrrs from
the Promises on or before the date of termination, and shall repair any damage to
the Premises caused by such equipment, normal wear and tear excepted; all at
Tenant's sole Dost and expense. Any such property or facilities which are not
removed within sixty (60) days of the end of Lease tern shall became the property
of Landlord.
f. Tenant shall reimburse landlord for Its reasonable coats and expenses,
including legal fees, incurred by Landlord in connection with the negotiation of this
Lease, all as additional Rent, payable upon execution of this Lease. The reasonable
costs and expenses shall not exceed $1,000.
4. IAM Tenant agrees to pay any real estate taxes or payments in lieu of taxes
required or contributed to as a result of this Lease.
S. t lar(P_,r�rusas Tenant shall use the Premises for the installation, operon, and
maintenance of its Antenna Facilities for the transmission, reception and operation of a
communications system and ups incidental thereto and for no other uses. The 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 Pomemdo Reservoir
She. In the event that an additional Carrier is licensed to use the site, it shall be the new
Carrier's responsibility, at its expense, to ensure that such installation is constructed and
operated In accordance with applicable regulations Issued by the Federal Communications
Commission (FCC) and the CPUC. The new Carrier will provide the Landlord and existing
tenants with a certified evaluation indicating its antenna and otter facilities will not
Interfere with existing antennas or proposed antennas, and the Keservoir and/or Reservoir
Site can structurally support the additional antennas. If Carriers plans and specifications
are approved by Landlord, Landlord shall notify existing tenants of the reservoir site i n
writing as to the scheduled date and time of commencement of construction and
Installation of Carriers transmitting/receiving equipment not less than ten (10) business
days prior to such date. Any change to the additional Carrier's approved antenna type and
location and/or change in transmitter types and power output shall be made
April 2, 2019 Item #LL
compatible with existing tenants at Carver's sole expense. Landlod does not warrant to
Tenant that Tenant's use shall be free of interference resulting from other tenant's uses, and
such interference "I not constitute breach hereof by Landlord, except as provided in this
section.
Tenant shall exercise due diligence in utilizing the Property of the Landlord so as to
not Interfere with utilization of the Property by the Landlord, and Tenant agrees to comply
with any rules and regulations that the Landlord may promulgate at any time In reference
to utilization of the Property by any party other than the Landlord. Itis understood by
Tenant that the Property is used by the Landlord as a water storage reservoir and as a part
of the water transmission system of the Landlord and that it is necessary to maintain
adequate security at all times for the primary utilization of the property by the landlord.
Tenant shall, at Its expense, comply with all present and future federal, state, and
local laws, ordinances, odes 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 Premises. Landlord agrees to reasonably cooperate with Tenant in obtaining, at
Tenant's expanse (including reimbursement of Landlord's reasonable atiomey and
administrative fees), any federal licenses and permits required for or substantially required
by Tenant's use of the Premises.
6. . The Antenna Facilities shall be installed on the Premises in
a good and workmanlike manner without the attachment of any corstrwion liens.
Landlord will require Tenant to paint the Antenna Facilities in a manner consistent with the
color of the reservoir or to otherwise shield the Antenna Facilities from view.
a. Tenant shall have the right, at Its sok cost and expense, to insndt, operate
and maintain on the Premises, in accordance with good engineering practices and
with all applicable FCC CPUC rules and regulations, Its Antenna Facilities as
described on Exhibit r,
b. Tenant's installation of all such Antenna Facilities shall be done according to
plans approved by Landlord. Any damage done to the Reservoir or Reservoir Site
during installation and/or during operations shall be repaired or replaced
irmnediately at Tenant's expanse and to Landlord's We satisfaction. In connection
with the installation and operation of the Antenna Facilites, Tenant shall not locate
or attach any antennas on other equipment to the Reservoir tank without the prior
written approval of the Director of Public Services or his designee. The installation
methods for attaching antennas or other equipment to the reservoir tank must be
done in a manner that will ensure the cathodic protection of the Reservoir tank and
all other City facilities and equipment located on the Pomerado Reservoir Site.
Tenant shall pay all costs and expenses in relation to maintaining the integrity of
Landlord's Reservoir in connection with tenant's Installation and operations of the
Antenna Facilities.
— M9 of S2 I • - ---- April 2, 2019 Item #-L�_
0 0
C. Within thirty (30) days after the Commencement Date, 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. Said drawings shall be accompanied by a
complete and detailed Inventory of all equipment, personal property, and Antenna
Facilities.
d. Any change to Tenants approved antenna type, number of antennas,
antatrta location and(or change in transmitter type and power output shall, at the
We expense of Tenant, be made in accordance with applicable regulations issued
by the FCC and/or the California Public Utilities Commission (CPUC). If Tenant's
pians and specifications are approved by the Landlord, Tenant shall notify all other
tenants of the Pomerado Reservoir site in writing as to the scheduled data and time
of commencement of construction on Installation of Tenant's modified equipment
not less than ten (10) business days prior to such date.
8. Equipment t tagger.
a. Tenant may update or replace the Antenna facilities from tune to time with
the prior written approval of Landlord, provided that rhe replacement facilities are
not greater in number or size chum the existing facilities and that any change in their
kxatlm on the Reservoir or Reservoir Site Is approved In writing by Landbnd.
Tenant shall submit to Landlord a detailed proposal for any such replacement
WI and any supplemental materials as may be requested, for Landlord's
evaluation and approval. As technology advances and improved Antenna are
developed and reasonably available, Landlord will require the replacement of
existing Antennas with the improved Antennas, as long as the Installation and use of
the Improved Antennas are practical and technically feasible and retain the same
functionality.
b. Tenant may replace any portion of Its Communication Facility without
Landlord's consent only if the replacement does not alter the location or appearance
of AUT's installation as approved by Landlord.
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 Reservoir Site by Landlord. Terant shall not interfere with the use of
the Reservoir or Reservoir Site and other related facilities or other equipment or
other tenants.
b. Tenant shall have sole responsibility for the maintenance, repair, and
security of Its equipmwA, Personal property, Antenna Facilities, and leasehold
Improvements, and shall keep the same In good repair and condition during the
Lease term.
20 of 32 April 2, 2019 Item #1.6-
• 0
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 the landlord or any other tenant undertakes painting,
construction or other alterations on the Reservoir or Reservoir Site, Tenant shall take
reasonable measures at Tenant's cost to cover Tenant's equipment, personal
property or Anmma Facilities and protect such from paint and debris fallout which
may occur during the painting, construction or alteration process. The Landlord
and/or Tenant that is undertaking the work on the Reservoir or Owned Premises will
give each Tenant at least fifteen (15) days written notice price to commencing such
work.
WELL- -:J4
a. Tenant shall have access to the Premises by means reasonably designated by
Landlord, subject to notice requirements to Landlord in 10b., below.
b. Tenant shall have reasonable access to the Premises in order to install,
operate, and maintain Its Antenna Facilities. Tenant shall have access to such
facilities only with the prior written approval of Landlord. Tenant shall request
access to the Pre nises twenty-four (24) hones In advance, except in an emergency.
c Landlord shall be allowed and granted acoass to the Premises at reasonable
times to examine and Inspect the Premises for sakty reasons or to ensure that the
Tenant's covenants are being met, as long as Tenant's equipment, technoldgy and
proprietary hft remain secure and the operation of the Antenna Facilities is not
adversely affected.
11. Uilitim•, Tenant shall, at its expense, separately meter charms for the consumption
of electricity and other utilities associated with its use of the Premises and shall timely pay
all costs associated therein.
12. License Fere. Tenant shall pay, as they become due and payable, all fees, charges,
taxes and expenses required for licenses and/or permits required for or occasioned by
Tenant's use of the Promises.
13. . Tenant's use of the Premises is contingent upon
its obtaining all certificates, permits, zoning, and other approvals that may be required by
any federal, state or local authority. Tenant shall ereM maintain and operate Its Antenna
Facilities in accordance with site standards, statutes, ordinances, rules and regulations now
in effect or that may be Issued thereafter by the Federal Communications Commission or
any other governing bodies.
14. Interference. Tenam's installation, operation, and maintenance of its transmission
facilities shall not damage or interfere in any way with Landlord's operations or related
repair and maintenance activities or with such activities of other tenants. Tenant agrees to
cease all such actions which materially interfere with Landlord's use of the Reservoir or
Reservoir Site Immediately upon actual notice of such Interference, provided, however, in
such case, Tenant shall have the right to terminate the Lease. Landlord, at all times during
this Lease, reserves the right to take any action it deems necessary, in its sok discretion, to
repair, maintain, after or improve the property of which the Premises is a part in
connection with its operations as may be necessary including leasing parts of the Reservoir
or Reservoir Site to others as provided for in Section 5 of this Agreement.
Before approving the placement of Antenna facilities, Landlord may obtain, at
Tenant's expense, an interference study indicating whether Tenant's intended use will
inteie a with any existing communications facilities on the Reservoir or Reservoir Site, and
an engineering study indicating whether the Reservoir or Reservoir Site is able to
structurally support the Tenant's Antermae Facilities without prejudice to the Landlord's
primary use of the Reservoir.
Tenant shall be responsible for installing any equipment, at its own expense, to
eliminate any interference that may be caused by the location of the radio transmitting or
other equipment of all partes including, but not limited to, the City of Poway, Cox
Communications, PCS, L.P., and AT&T Wireless PCS, LLC on the Property.
Tenant's use and operation of its facilities shall not interfere with the use and
operation of other communication facilities on the Reservoir or Reservoir Site which pre-
existed Tenant's fac(lities. If Tenant's facilites cause interference, Tenant snail take all
measures reasonably necessary to correct and eliminate the interference. If the
Interference cannot be eliminated in a reasonable time, Tenant shall immediately cn>ase
operating its facility until the interference has been eliminated. If the Interference cannot
be eliminated within thirty (30) days after Tenant receives written notice of such
Interference, Landlord or Tenant may terminate this Lease.
15. Lem and Intlord's R.--rihm It shall be a default if Tenant fails to pay Rent or
any other sums to Landlord when due, and does not are such default within tarn (to)
business days after receipt of written notice from Landlord; 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 akar 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 sixty (60) days from its
commencement or makes any assignment for the benefit of creditors; or if Tenant becomes
Insolvent or Landlord reasonably believes itself to be insecure.
In the evert of a default, 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 Promises and eject all person therefrom, and
either (a) declare this Lease at an end, in which event Team shall Immediately pay
Landlord a sum of money equal to the til of (0 the amount of the unpaid rent accrued
22 of 32 April 2, 2019 Item #.f•.p_
through the date of termination; (ti) the amount by which the unpaid rent reserved for the
balance of the term exceeds the amount of such rental loss that the Tenant proves 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 Tenart's failure to perform
its obligations under the 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 altomeys' fees, any real
estate commissions paid, 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 deftedency 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 comms d
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. Notwkhstanding any reletting without termination, Landlord may
at any time thereafter elect to terminate this Lease for such previous breach.
If suit shall be brought by landlord for recovery of possession of the Premises, for
rine recovery of any rent or any other amount due under the provisions of this Leese, or
because of the bored► of any other covenant, the Tenant shall pay to the Lendkxd all
expenses incurred therefor, including reasonable attorney fees.
16. Cure hilamdlad_ in the event of any default of this Lease by Tenant, the Landlord
may at any time, after notice, cure the default for the account of and at the expense of the
TerumL If Landlord Is compelled to pay or elects to pay any sum of money or to do any act
which will require the payment of any sum of money or Is compelled to incur any
expense, including reasonable attorney fees In instituting, prosecuting or defending any
action to'enforce the Landlord's rights under this Agmermernt;, the suns so paid by Landlord,
with all interest, costs and damages shall be deemed to be Additional Rental and shall be
due from the Tenant to Landlord on the first day of the month following the incurring of
the respective expenses.
17. Optional Termination, This Leese may be terminated (a) by Tenant 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; (b) by
Landlord if the Landlord decides, in its sole discretion and for any reason, to discontinue
use of the Reservoir or Owned Premises and provides Tenant with a one hundred eighty
(180) day notice of tanmination; (c) by Landlord if It detem4nes, in Its sole discretion and
for any reason, that the Reservoir and/or Owned Premises is not suitable for Tenant's use,
Including, but not limited to, factors relating to the condition of the Reservoir, or (d) by
Landlord if It determines In Its sole and qualified discretion that continued use of the
Resevoir or Owned Premises by Tenant is in fact a threat to health, safety or welfare or
violates applicable lavas or ordinances and forty-eight (48) hours after recaMng written
23 of 32 April 2, 2019 Item #11—
notice from Landlord, Tenant fails to resolve issue, (e) by Tenant upon ninety (90) days
prior written notice 9 Tenant determines that interference by or to Tenant's use of Premises
cannot be resolved to Tenant's reasonable satisfaction.
K� ars: Tenninadae, Notice of Tenant's termination pursuant to
paragrap ,. q� shall be giver to Landlord in writing by certified mail, return receipt
requested, and shall be effective upon receipt of such notice. All rentals paid for the Lease
of the Premises priorto said termination date shall be retained by Landlord. Upon such
termination, this Lease shall became null and void and the parties shall have no further
obligations to each other, except that rantel payment to the Landlord shall continue as
liquidated damages for the remainder of the Lease tern, not to exceed 150% of the annual
rent for the yeat in which such termination occurs.
19. If the Reservoir or Reservoir Site 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' wripen notice to landlord. In such event, Tenant shall
promptly remove the Tower and all other of its property from the Premises and shall
restore the Premises to the sane condition as exiated prior to this Lease. Upon the
completion of such removal and restoration all rights and obligations of the parties shall
cease as of the date of the alteration, damage or destruction and Tenant shall be entfiled to
the reimbursement of any rent prepaid by Tenant, as set fads in section 3d. Landlord shall
have no obligation to undertake any repair to the Reservoir or Reservoir Site.
20. Cmidnodo. 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 title
to the Premises vests in the condermning authority. In the event a porton of the Premises is
taken by eminent domain, either party shall have the right to terminate this Lease as of said
date of title transfer, by giving thirty (30), days' written notice to the other party. In the
event of any taking under the power of eminent domain, Tenant "I riot be entitled to
any portion of the award paid for the taking and the Landlord shall receive full amount of
such award. Tenant hereby expressly waives any right or claim to any portion thereof,
Including any claim for loss of business or goodwill. All damages, whetter awarded as
compensation for diminution in value of the leasehold or to the fee of the Premises, shall
belong to Landlord.
Va 41U
a. Disclaimer of I WhIft Landlord shall not at any time be liable for injury or
damage occurring Yo any pion or PmPertY from any muse whatsoever arising out
Of Tenants construction, maintenance, rWW r, use, operation, condition or
dismantling of the Premises or Tenants Antenna Facilites.
24 of 32 April 2, 2019 Item #L(Q--
b. IndemnifigWon: 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 cheated, and their respective officers, boards,
commissions, employees, agents, attorneys, and contractors (hereinafter referred to
as "Indenniteesm), from and against
i. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, wftwut limitation,
reasonable fees and experses 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 Tennant, 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,
eopyrisk patent, service marc or any odrer right of any person, firm or
corporation, which may arse out of or be in any way connected with the
construction, Installation, operation, maintenance, use or Condition of the
Prem lses or Tenant's Argema Facilities or the Tenant's failure to comply
with any federal, state or local statute, ordinance or regulation.
fl. Any and all liabilities, obligations, damages, panldes, claims, liens,
costs, charges, loses and expenses (Including, w*xm limitations,
reasonable fees and expenses of atsomeys, expert witnesses and other
consult), which are imposed upon, incurred by or asserted against the
Indemnitees by reason of any claim or liar arising out of work, labor,
materials or supplies provided or supplied to Tenarn, its contractors or
subcontractors, for the Installation, constnick n, opwation, maintenance or
use of the Premises or Tenant's Antenna Fad Itties, 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
M. Any and all liability, obligation, damages, penalties, claims, liens,
cats, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed neon, incurred by or be asserted against the Indemnitees by
reason of any financing Or senmities offelmg by Tenant or its affiliates for
violations of the common law or any laws, statutes, or regulations of the
State of California, or United States, including time of the Federal Securities
and Exchange Commission, whether by Tenant or otherwise.
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 Indemnkees.
to
26 of 32 April 2, 2019 Item #-L-L
• 6
G Au motion of Risk: Tenant undertakes and assumes for its officers, agents,
affiliates, contractors and subcontractors and employees (colle lively "Tenare 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 Lardkrd
against and from any claim asserted or liability imposed upon the IndemnNees 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. Defratse of Lndlrxd; I n the event any action or proceeding shall be brought
against the Landlord by reason of any maw for which the Landlord is indemnified
hereunder, Tenant shall, upon notice from Landlord, at Terrent'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 or behalf of the Landlord without the written consent of Landlord and
provided further that Landlord shall not admit liability for, nix enter into any
compromise or settlement of, any claim for which it is indemnified herander,
without the prior written consent of Tenant.
: Landlord shall give Tow prompt notice
of the making of any claim or the comnermement of any action, suit or other
Proceeding covered by the provisions of this paragraph. 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 arty such actions, suits or proceedings. These
expenses shall Include all out-o4ocket expenses such as attorney fees and shall
also include the res M66 value (lorry 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 Womeys' fees for
services that are umrersssally duplicative of services provided Landlord by Tenant.
If Tenant requests Landlord to assist it in such del ease 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 exposes shall include all
out-o4odcet expenses such as attorney fees and shall also include the costs of any
services rendered by the Landlord's attorney, and the actual expenses of Landlord's
agents, employees or expeR•witnesses, and disbudsernem and liabilities assumed
by Landlord In connection with such suits, actions 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
acxrdal expenses of Landlord's agents, employees or expert witnesm, 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 Tenam.
11
26 of 32 April 2, 2019 Item #_l,
0
f. Ins : During the term of the Lease, Tenant shall maintain, pr cause to
be maintained, in full force and effect and at its sole coat and expense, the following
types and limits of insurance:
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 Ilabilily 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 coves.
Hi. Automobile liability Insurance covering all owned, hired, and
norrowned vehicles in use by Tenant, its employees and agents, with
personal protection insurance and property protection Insuranewto 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 alert 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 suppler of any nature
whatsoever which are to be used in or inddertal to the installation of the
Antenna Facilities. Upon completion of the installation of the Antenna
Facilities, Tenant shelf substitute for the foregoing insurance policies of fire,
extended coverage and vandalism and malicious mischief insurance on the
Antenna Facilities. The amount of insurance at all times shall be
representative of the insurable values Installed or constructed.
V. Business interruption insurance coverage In an amount sufficient to
cover such lass of revenues, for the period of time which It would take,
under normal circumstances, to repair or replace that part(s) of the Antenna
Facilities which is damaged and caused the Mss of revenue.
A. All policies other than those for Workers Compensation shall be
written an an occurrence and not on a claims made basis. .
vii. 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.
12
27 of 32 April 2, 2019 Item #
viii. Tenant shall furnish certificate of insurance to Landlord before
commencement of wodc.
& NaMadInaLmIk All policies, except for business intsrnipflon and worker's
compensation policies, shalt name Landlord and all associated, affiliated, allied and
subsidiary amities 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 tD be endorsed to add Additional
Insureds hereunder, shall contain cross-Ilability wording, as fdlwvs:
9n 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 nude In the some manner as if separate policies had bear
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 paragraph, along with
written evidence of payment of required premiums shall be filed and maintained
with Landlord annually during the tern of the Lease. Tenant shag immediately
advise Landlord of any claim or litigation that may result in liability to landkxd.
i. Cancallariruf of Policies of Insuranow All insurance policies maintained
pursuant to this Lease shall contain the following endorsement:
'At least sixty (60) days prior written notice shall be given ts1 Landlord by the insurer
of any intention not to renew such policy or to cancel, replace or materially alter
same, such notice to be given by registered mail to the parties named in this
paragraph of the Lease.'
j. : 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. : Tenant shall require that each and every one of its contractors
and their subcontractors who perform world on the premises m carry, in full force
and effect, workers' compensation, comprehensive public liability and automobile
liability Insurance coverages of the type which Tenant is required to obtain under
the terns of this paragraph with appropriate limits of insurance.
1. Review of Limits Once during each calendar year during the term of this
Lease, landlord may review the insurance coverages to be carried by Tenant. If
Landlord determines that higher limits of coverage are necessary to protect the
Interests of landlord or the Additional Insureds, Talent shall be so notified and shall
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28 of 32 April 2, 2019 Item #,1L--�—
obtain the additional limits of insurance, at its we cost and expense provided that
the total limits of Tenant's oDvenrge does not exceed Five Million Dollars
($510001000).
22. klammlous 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.
The Tenant shall be allowed to store on site the number of batteries as shown in Exhibits B
and C of this Agreement. The batteries shown on the exhibits are to be used for
emergency backup power. No additional batteries may be stoned on the site without the
prior written approval of the Landlord. Tenant further agrees to told Landlord harmless
from and indemnify Landlord against any release of any such hazardous substance and any
damage, lass, or expense or liability resulting from such release including all attorneys'
fees, costs and penalties inured as a result thereof except any release caused by the
negligence of Landlord, its employees or agents. 'Hazardous substance shall be
interpreted broadly to mean any substance or material defined or designated as hazardous
or toric 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 affect or promulgated in the future, as such laws, regulations or rules may be
amended from time to time; and it shall be ink 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.
23. Electric and blaenMir_ Fields (EMF) Indemnification. Tenant shall comply with all
prheeht and future laws, orders, and regulations relating to Electromagnetic Fields ("EMFs),
and the American National Standards Intimae (ANSti standards. Tenant, on behalf of itself
and its successors and assign, shall defend and Indemnify the Landlord from and against
all claims of injuries due to EMFs to the extent such personal injuries are asserted to be
caused by Lessee's Facilities on the Premises, Including Lessors reasonable allomey fees
and its. Tenant shall have the right to select or approve the attorney to defend Landlord
against all such claims.
24. Cathodle, InterfaMMMMiliggo. Tenant has been advised and understands that the
City of Poway has a radio controlled telemetry system for the Pornerado Reservoir facilities
and Tenant agrees not to create any interference of any kind with the City's signals and
further agrees to immediately correct any interference that may result from Tenant's
equipment or to immediately cease all operations of Tenant's equipment until coo-
Interference with the City's telemetry equipment has been obtained to the satisfaction of
the Director of Public Services or his Designee.
25. Holding over. Any holding over after the expiration of the term hereof, with the
consent old* Landlord, shall be construed to be a tenancy from month to month at two
times the nuts herein specified (prorated on a monthly basis) and shall otherwise be for the
term and on the conditions herein specified, so far as applicable
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29 of 32 April 2, 2019 Item #-L�_
26. Suboidhation to M2dUM 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 the 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, at
Landlord's request, execute any additional documents necessary to indicate this
subordination.
27. M801 Mjbag With the execution of this lease, Tenant shall pay the Landlord
the sum of $2,000 as a signing bonus in lieu of a security deposit.
28. By taking possession of the Premises, Tenant accepts the
Premises in the condition existing as of the Commencement pate. Landlord makes no
representation or warranty with respect to the condition of the Premises and Landlord shall
not be liable for any latent or patent defect in the Premises.
29. EMp tp�C tiAcahn Tenant shall, at any time and from time to time upon not less
than tent 00) days prior rpt by Landlord, deliver to Landlord a statement in writing
certifying that (a) the Lease Is unmodified and in full force (o if there have been
modifications, that the Lease is In full force as modified and identifying the modifications);
(b) the dates to which rent and other dtarges have been paid, (c) far as the person making
the certificate knows, Landlord is not to default under any provisions of the Lease, and (d)
such other matters as Landlord may reasonably request.
30. Nadm All notices, requests, demands, and other communications hereunder shall
be in writing and shall be deemed given if personally delivered or malted, certified mail,
return receipt requested, to the following addresses:
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31. AaWmAM
a. Tenant may assign this Lease and all or arty rights, benefits, liabilities and
obligations hereunder, to (1) 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 peri omrance, liabilities
and obligations under this Lease -to the exumt of such assignment. Tenant may not
otherwise assign or sublet this Lease without Landlord's consent.
b. Nothing in this Lease shall preclude Landlord from leasing *other space for
communieatim equipment to any person or entity which may be in competition
with Tenant, or any other party.
32. SUOMKM and Awkm This Lease shall be binding upon and inure to the benefit
of the parties, their respective successors, personal representatives and assigns.
a. Landlord and Tenant represent that each, respectively, has full right, power,
and authority to execute this Lease.
b. This Lease constitutes the entire agreement and uncle atanding 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
modffications 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 effect the remaining terns of this Lease, which shall continue in full force and
effect
16
April 2, 2019 Item #-L-L
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e. Landlord represents and warrants that (1) it solely owns the Owned Premises
as a lot In fee simple, unencumbered by any lieu, restrictions, mortgages,
covenants, conditions, easements, loam, age, of record or not of record,
which would adversely affect Tenant's use and enjoyment of the Prenises under
this Lease, and (ii) as I as Tenant Is not default, Landlord grants to Tenant sole,
tqur� a ul use, enjoyment and possession of the Premises
This was ex as of the date first set forth above.
LANDLORD
City of POVJMY
Bri
Lo Anne Peoples, CityLo Anne Peoples, lerk�
17
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April 2, 2019 Item # �'r