HomeMy WebLinkAboutItem No. 09 AT&T Cellular Rosetta Canyon ParkText File
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 17-468
Agenda Date: 1/9/2018 Status: Consent AgendaVersion: 1
File Type: ReportIn Control: City Council / Successor Agency
Agenda Number: 9)
Page 1 City of Lake Elsinore Printed on 1/4/2018
REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by: Grant Taylor, Community Development Director
Date:January 9, 2018
Subject:AT&T Cellular Communication Site Lease Agreement Rosetta Canyon
Park – 39423 Ardenwood Way
Recommendation
Authorize the City Manager to execute the agreement in such final form approved by the
City Attorney.
Background
In late 2013, staff received an application from Smartlink on behalf of AT&T to install a
cellular antenna structure at Rosetta Canyon Park located at 39423 Ardenwood Way.
AT&T has a gap in reception coverage in this area of the City and after receiving City
Council direction on March 11, 2014 staff proceeded with processing entitlements. On
July 17, 2014 the Planning Commission unanimously granted approval of a Conditional
Use Permit (CUP) application for the location and use of the antenna structure, a Variance
to increase the height to 70 feet that exceeds the maximum 35 feet in the Park zone
district, and a Minor Design Review for a clock tower, ground mounted equipment and
fencing.
Prior to City Council consideration of the Communication Site Lease Agreement the
applicant notified the City that AT&T had suspended development of new cellular facilities.
Discussion
The applicant had submitted proposals for a faux eucalyptus tree and a bell tower for the
antenna structure. Staff and the applicant agreed upon a clock tower with the stipulation
that the City “E” Logo would be installed on the façade.
The subject property is located within the Ramsgate Specific Plan and cellular facilities
are permitted subject to a conditional use permit. The Park zoning district within the
Specific Plan authorizes structures up to 35 feet in height so a Variance was approved for
the antenna structure to be 70 feet in height. Due to the height of the structure, staff and
the Planning Commission determined that the clock tower would be the most appropriate
antenna structure within a public park that was reflected in the Minor Design Review
Approval. Conditions of approval were set forth in Planning Commission Resolutions
2014-26 (CUP), 2014-25 (VAR) and 2014-27 (MDR).
AT&T Lease at Rosetta Canyon Park
January 9, 2018
Page 2
This is an opportunity for the City to provide gap coverage to its residents, obtain an
ongoing revenue source and regulate the structure to be aesthetically pleasing and non-
obtrusive to the general public while not impacting park activities. The antennas will be
placed inside the clock tower to conceal the antennas from view. Collocation can be
allowed for other carriers and reduce the potential impact that any future additional
telecommunications facilities would have on this area. The equipment cabinets will be
located within an approximate 1,000 square foot lease area and screened by an eight foot
high block wall painted to match the adjacent Fire Station and park buildings. There will
be virtually no increase in traffic in the area as AT&T technicians will visit the facility every
four to six weeks for regular maintenance and no increase in the ambient noise level is
anticipated.
Analysis
The Planning Commission approval is valid for a period of two years unless construction
work is commenced or an extension of time granted. Prior to project expiration the City
began construction on Rosetta Canyon Park approximately two years ago and installed
the pad and electrical conduits to accommodate the cellular facility prior to expiration,
therefore, the zoning entitlements had been used and are valid.
Due to the location of park amenities, the actual location of the facility was moved
approximately 850 feet (see attached maps) and AT&T confirmed the new location would
not impact coverage.
Deal points for the Communication Site Lease Agreement include:
5-year lease with four 5-year extensions (total 25 years)
Rent $2,450 per month first year paid annually ($29,400)
Rent to automatically increase 2.5% per year paid annually
All construction costs and maintenance to be bourne by the applicant (except City
will perform graffiti removal if necessary)
City to retain ownership of clock tower after lease expires
Tenant must install the “E” logo on the tower.
Environmental Determination
The project is exempt from the California Environmental Quality Act (CEQA) Guidelines
(California Public Resources Code 21000 et. Seq.) and the State CEQA Guidelines (14
California Code of Regulations 14000 et. Seq.), specifically pursuant to CEQA Categorical
Exemption Section 15303 (New Construction or Conversion of Small Structures) because
the project consists of the construction and location of a limited number of new small
facilities and structures.
AT&T Lease at Rosetta Canyon Park
January 9, 2018
Page 3
Fiscal Impact
The costs of entitlement and the cost of construction will be bourne by the applicant.
Annual revenue will start at $29,400 for the first year and increase 2.5% each year (i.e.
$30,135.00 year two, $30,888.38 year three, etc.).
Exhibits
A – Rosetta Park AT&T Cellular Lease
B – Rosetta Park Site Plan & Lease Agreement
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@BCL@000DEE31.doc
Site: Rosetta Canyon Park
Address: 39423 Ardenwood Way, Lake Elsinore CA 92532
COMMUNICATION SITE LEASE AGREEMENT
THIS COMMUNICATION SITE LEASE AGREEMENT (the “Lease”), made this
___ day of ______________, 2018, is entered into by and between the CITY OF LAKE
ELSINORE, a California municipal corporation, (hereinafter referred to as “Landlord”) and
NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, (hereinafter
referred to as “Tenant”).
RECITALS
The following Recitals are a substantive part of this Lease:
A.Landlord owns certain real property legally described in Exhibit “A” attached
hereto and commonly known as Rosetta Canyon Park generally located at 39423 Ardenwood
Way, Lake Elsinore, CA, 92532; Assessor’s Parcel Number 347-120-050 (the “Property”).
B.Tenant desires to construct and operate a wireless communications facility on a
portion of the Property.
C.Subject to the foregoing terms and conditions, Tenant desires to lease a portion of
the Property along with any necessary easements over other portions of the Property and/or
shared use of Landlord’s easements over other real property necessary for Tenant’s access and
utilities to the Lease Area (as defined below) for the purpose of constructing and operating a
wireless communication facility.
AGREEMENT
The parties agree as follows:
1.LEASE OF PREMISES. Landlord hereby leases to Tenant a portion of the Property,
which portion generally consists of (i) approximately one thousand (1,000) square feet of
exterior ground space (the “Lease Area”) located on the Property, which Lease Area will be
improved with an eight foot (8’) perimeter wall constructed of concrete masonry units with
stucco finish (the “CMU Wall”) and a seventy foot (70’) tall clock tower (the “Clock Tower”);
(ii) a non-exclusive right for ingress and egress from a public right-of-way, seven (7) days a
week, twenty four (24) hours a day, over the Property (the “Access Route”) for the purpose of
installation, operation and maintenance of communications equipment; (iii) the right to install,
maintain, replace and repair communication related wires, cables, conduits and pipes
underground and along a right-of-way extending from the Verizon Wireless manhole for
approximately 175 linear feet to the Lease Area (the “Underground Telco Trench”); and (iv) the
right to install, maintain, replace and repair electrical power related wires, cables, conduits and
pipes underground along a right-of-way extending from the Edison manhole for approximately
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630 linear feet to the Lease Area (the “Underground Power Trench”). The Lease Area (including
the CMU Wall and Clock Tower), the Access Route, the Underground Telco Trench, and the
Underground Power Trench are hereinafter collectively referred to as the “Premises” and are
depicted on Exhibit “B” attached hereto. In the event any public utility is unable to use either the
Underground Telco Trench and/or the Underground Power Trench, Landlord hereby agrees to
grant an additional right-of-way either to Tenant or to the public utility at no cost to Tenant,
provided, however, that such additional right-of-way shall be approved by Landlord, which
approval will not be unreasonably withheld, conditioned or delayed, and shall not unreasonably
interfere with the primary purpose of the Property as a public park.
2.PERMITTED USE/ALTERATIONS AND ADDITIONS.
(a)Tenant shall use the Premises exclusively for the transmission and reception of
communications signals and the installation, maintenance, operation, repair and replacement of
its communications fixtures which includes the CMU Wall and Clock Tower as generally
depicted in Exhibit “C” along with the related equipment, cables, accessories and improvements
(collectively, the “Communication Facility”) and uses incidental thereto in accordance with this
Lease and in compliance with all applicable laws and for no other purpose. Before commencing
any subsequent material alterations or improvements to the Premises (except for upgrades or
replacements of “like-kind” equipment which is comparable in dimensions and weight, or
equipment which is comparable in dimensions and weight and wholly contained within the Lease
Area, Tenant shall submit plans and specifications to Landlord for Landlord's written approval,
which approval shall not be unreasonably withheld, conditioned or delayed.
(b)Prior to commencing any work (except for (i) routine maintenance or repairs, or
(ii) responding to an emergency) related to the Communication Facility improvements or any
other improvements approved by Landlord, Tenant shall endeavor to notify Landlord in writing
of the expected commencement date. Landlord shall have the right thereafter to post and
maintain on the Premises such notices as Landlord deems necessary to protect Landlord and the
Premises from mechanics’ liens, materialmen’s liens or any other applicable liens. Tenant shall
pay, when due, all claims for labor and materials furnished to or for Tenant for use in improving
the Premises. Tenant shall pay, when due, all claims for labor or materials furnished to or for
Tenant at or for use on the Premises, which claims are or may be secured by any mechanics’ or
materialmen’s lien against the Premises or any interest therein. If Tenant, in good faith, contests
the validity of any such lien, claim or demand, then Tenant shall, at its sole expense, defend itself
and Landlord against the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof against Landlord or the Premises.
(c)Tenant’s performance under this Lease is conditioned upon Tenant obtaining, at
its sole expense, all governmental licenses, permits and approvals enabling Tenant to construct
and operate wireless communications facilities on the Premises. Prior to the commencement of
construction of any improvements on the Premises, Tenant shall, without limitation, apply for
and secure the following, and pay all costs, charges and fees associated with any permits and fees
required by the City of Lake Elsinore, the County of Riverside, and any other governmental
agency having jurisdiction. Landlord agrees to cooperate with Tenant’s reasonable requests for
Landlord’s signatures as real property owner on permit applications, for allowing site inspections
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by governmental agencies required in connection with reviewing permit applications, and for
cooperative assistance in obtaining such necessary approvals, provided that such cooperation and
assistance shall be at no expense to Landlord and upon the express understanding that the
execution of this Lease does not constitute the granting of or a commitment to obtain any
required land use permits, entitlements or approvals required by the City of Lake Elsinore.
3.TERM.
(a)The initial term of this Lease (“Initial Term”) shall be five (5) years commencing
on the date Tenant begins construction of the Communication Facility on the Premises or three
(3) months from the date of full execution of this Lease, whichever occurs first
(“Commencement Date”). Tenant shall promptly deliver written notice to Landlord of the
Commencement Date.
(b)Tenant shall have the right to extend the Initial Term of this Lease for four (4)
additional terms (each a “Renewal Term”) of five (5) years each. The terms and conditions for
each Renewal Term shall be the same terms and conditions as in this Lease, except that the
Annual Rent shall be increased as set forth herein below. This Lease shall automatically be
extended for each successive five (5) year Renewal Term unless Tenant notifies Landlord in
writing of Tenant’s intention not to extend this Lease at least thirty (30) days prior to the
expiration of the Initial Term or then existing Renewal Term.
(c)The Initial Term, and the Renewal Term(s) are collectively referred to as the
“Term.”
4.RENT.
(a)Upon the Commencement Date, Tenant shall pay Landlord in advance, as annual
rent, the sum of Twenty-Nine Thousand Four Hundred and No/100 Dollars ($29,400.00) per
year, which is subject to annual adjustment by Landlord as provided below (the “Annual Rent”).
The Annual Rent shall be due and payable from Tenant to Landlord, and Tenant shall pay such
Annual Rent, in full on the Commencement Date and thereafter on each anniversary of the
Commencement Date without offset, in advance. The initial Annual Rent payment will be
forwarded by Tenant to Landlord within forty-five (45) days after the Commencement Date.
Tenant shall make all payments to City at the following address:
City of Lake Elsinore
Administrative Services Department
130 South Main Street
Lake Elsinore, CA 92530
(b)Throughout the Term on each anniversary of the Commencement Date, the
Annual Rent shall increase by an amount equal to two and one-half percent (2.5%) of the Annual
Rent paid in the immediately preceding year. By way of example, the Annual Rent due on the
first anniversary of the Commencement Date shall be $30,135.00, the Annual Rent due on the
second anniversary of the Commencement Date shall be $30,888.38, and so on.
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(c)Any and all sums in addition to the Annual Rent payable by Tenant to Landlord
pursuant to the provisions of this Lease or arising from Tenant’s use and occupancy of the
Premises shall be deemed additional rent under this Lease and default by Tenant, after its receipt
of written notice and the expiration of all applicable cure periods, in the payment of any such
sums shall entitle Landlord to all the same remedies as would be applicable in the case of
nonpayment of Annual Rent hereunder.
(d)If Tenant fails to make any payment of Annual Rent, or other charges when due
and the failure is not cured within thirty (30) days after Tenant's receipt of written notice of such
failure, it would be impracticable or extremely difficult to fix the actual damage to Landlord
resulting from such nonpayment and the collection efforts of Landlord necessitated thereby.
Therefore, Landlord and Tenant estimate that such damage shall be ten percent (10%) of the
unpaid amount, and Tenant shall pay, as additional rent, that sum, in addition to all other sums
owing. In addition, Tenant shall pay to Landlord, as additional rent, a fee of $45.00 for any
check presented by Tenant that is dishonored by the banking institution.
5.TERMINATION. This Lease may be terminated, without penalty or further liability, as
follows:
(a)by thirty (30) days’ prior written notice from the non-defaulting party, if the
defaulting party remains in default under Paragraph 15 of this Lease after its receipt of written
notice and the expiration of the applicable cure periods;
(b)by Tenant upon written notice if, for any reason other than Tenant’s lack of
reasonable diligence, Tenant is unable to obtain or maintain, any required approval(s) or the
issuance of a license or permit by any agency, board, court or other governmental authority
necessary for the installation and operation of the Communication Facility; or
(c)by Tenant on sixty (60) days written notice for any reason, other than (a) or (b)
above, or in paragraphs 19 or 20, below, so long as Tenant pays Landlord a termination fee equal
to half of the Annual Rent, at the then current rate.
6.INSURANCE. Tenant shall procure and maintain for the duration of the Term insurance
against claims for injuries to persons or damages to property which may arise from or in
connection with the Tenant’s operation and use of the Premises in accordance with the terms and
conditions of this Section 6. The cost of such insurance shall be borne by Tenant.
(a)Minimum Scope of Insurance. The insurance required to be maintained by
Tenant shall provide coverage at least as broad as:
i.Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001) or substantial equivalent.
ii.Workers’ Compensation insurance as required by the State of California
and Employer’s Liability insurance (for tenants with employees).
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iii.Property insurance against all risks of loss to any the Communciation
Facility and any and all other Tenant's other improvements or betterments
at the Premises. Tenant may self insure this coverage.
iv.Automobile liability insurance covering bodily injury and property
damage, including owned, hired and non-owned vehicles coverage (ISO
form CA 0001 [ed. 12/90] Code 1 [“any auto”]) or substantial equivalent.
(b)Limits of Insurance. Tenant shall maintain limits of:
i.General Liability:$2,500,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance
or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
ii.Employer’s Liability: $1,000,000 per accident for bodily injury or disease,
policy limit.
iii.Property Insurance: Full replacement cost with no coinsurance penalty
provision.
iv.Automobile: $1,000,000 combined single limit for each occurrence.
(c)Self-Insurance. Tenant will have the right to Self-insure (as defined below) with
respect to the coverages set forth in Section 7(a)(i)-(iv) above (“Required
Insurance”), provided the following terms and conditions are met:
i.Tenant shall (1) use an independent third party administrator to manage all
claims; (2) maintain sufficient capital reserves, as approved annually by
Ernst & Young, or any successor auditing firm; (3) assume defense
obligations as required by the indemnification clause; (4) comply with
applicable laws including the timely making all necessary government
filings; and (5) Tenant or any parent company will maintain a minimum
net worth throughout the term of this agreement of $100,000,000.
However, if Tenant or any parent company does not maintain a net worth
of $100,000,000 as evidenced by the AT&T Annual Report, the right to
self-insure shall be revoked, and Tenant shall be required to immediately
purchase commercially available insurance. The coverage afforded to
Landlord shall be identical in form to the insurance required in Section
6(a) above and to the coverage contained in Insurance Services Office
policy form CG 00 01, or its equivalent. Self-insurance for commercial
general liability must be fronted by an insurer with an AM Best rating of
at least “A-:VII; such insurer may be a captive insurer of AT&T.
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ii.“Self-insure” with respect to Tenant means that Tenant (a) is acting as
though it were the insurance company providing the Required Insurance,
and (b) will pay amounts equal to the insurance proceeds which would
have been payable if the Required Insurance policies had been carried by
Tenant, which amounts will be treated as insurance proceeds for all
purposes under this Lease. In the event of a dispute as to the amount
which would have been payable if the Required Insurance had been
carried, the provisions of subpart 6(a) above will control.
iii.All amounts which Tenant pays or is required to pay and all claims
resulting from risks for which Tenant has elected to Self-insure will be
subject to the waiver of subrogation provisions of this Agreement and will
not limit Tenant's waivers and indemnities set forth in this Lease.
iv.In the event Tenant elects to Self-insure, the following additional
conditions apply:
a.Landlord shall promptly and no later than thirty (30) days after
notice thereof provide Tenant with written notice of any claim,
demand, lawsuit, or the like for which it seeks coverage pursuant
to this Section and provide Tenant with copies of any demands,
notices, summonses, or legal papers received in connection with
such claim, demand, lawsuit, or the like;
b.Landlord shall not settle any such claim, demand, lawsuit, or the
like without the prior written consent of Tenant; and
c.Landlord shall fully cooperate with Tenant in the defense of the
claim, demand, lawsuit, or the like.
(d)Other Insurance Provisions. The general liability policy is to contain, or be
endorsed to contain, the following provisions to the effect:
i.Landlord, its officers, elected and appointed officials, employees, agents
and volunteers are to be covered as additional insureds with respect to
liability arising out of Tenant’s Communciation Facility and any and all
other Tenant's other improvements or betterments at the Premises.
Landlord’s additional insured status shall (i) be limited to bodily injury,
property damage or personal and advertising injury caused, in whole or in
part, by Tenant, its employees, agents or independent contractors; (ii) not
extend to claims for punitive or exemplary damages arising out of the acts
or omissions of Landlord, its employees, agents or independent
contractors or where such coverage is prohibited by law or to claims
arising out of the gross negligence of Landlord, its employees, agents or
independent contractors; and, (iii) not exceed Tenant’s indemnification
obligation under this Agreement, if any.
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ii.Tenant’s required insurance coverage shall be primary insurance as
respects Tenant’s operations. Any insurance or self-insurance maintained
by Landlord, its officers, elected and appointed officials, employees,
agents or volunteers shall be excess of Tenant’s required insurance and
shall not contribute with it in this respect.
iii.Tenant shall provide at least thirty (30) days’ prior written notice by mail
to Landlord (10 days notice shall apply to non-payment) of cancellation of
any required coverage that is not replaced.
(e)Acceptability of Insurers. Except as otherwise specficied herein, insurance is to
be placed with insurers with a current A.M. Best’s rating of no less than A-:VII.
(f)Verification of Coverage. Tenant shall furnish Landlord with original
certificates evidencing coverage required by this Section 6. All certificates are to be received by
the Landlord within thirty (30) days after the Commencement Date and annually thereafter.
(f)Subrogation Waiver.Landlord and Tenant hereby waive any rights of recovery
each may have against the other for any loss or damage to Landlord or Tenant, or their respective
property, the Premises or its contents arising from any risk typically insured by fire, extended
coverage and any other property insurance, including is Tenant elects to Self-insure. The
respective insurance policies and/or Self-insurance will also conform to such waivers. Tenant’s
Workers’ Compensation insurance policy shall be specifically endorsed to waive subrogation in
favor of Landlord.
7.INTERFERENCE.
(a)Landlord may grant, after the date of this Lease, a lease, license or any other right
to any third party for the use of that portion of the Property not included in the Premises, if such
use does not adversely affect or does not cause harmful interference which is measurable in
accordance with then existing industry standards to Tenant’s then existing Communications
Facility, and subject to further provisions hereof. Landlord will notify Tenant in writing prior to
granting any third party the right to install and operate communications equipment on the
Property. Provided that Tenant complies with requirements set forth in Section 2, nothing
contained herein will restrict Tenant nor its successors and assigns from installing and modifying
its communications equipment in a manner consistent with Exhibit “B” and in compliance with
applicable Laws.
(b)Landlord will not use, nor will Landlord permit its employees, tenants, licensees,
invitees or agents to use, any portion of the Property in any way that (i) unreasonably interferes
with the operations of Tenant or the rights of Tenant under this Lease or (ii) causes harmful
interference which is measurable in accordance with then existing industry standards to Tenant’s
then existing Communications Facility. To the extent possible, Landlord will cause such
harmful interference to cease within seventy-two (72) hours following notice from Tenant.
Notwithstanding the foregoing, Tenant acknowledges and agrees that Landlord’s Fire
Department occupies other portions of the Property and operates communication equipment
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thereon. Tenant has had the opportunity to analyze the effect of such existing uses on its current
use of the Premises and Tenant acknowledges that such existing uses do not currently cause
harmful interference which is measurable in accordance with then existing industry standards to
Tenant’s then existing or proposed Communications Facility. Notwithstanding the foregoing and
in recognition of the critical public safety mission carried out by Landlord’s Fire Department,
under no circumstances shall the use of current or future communication equipment by the Fire
Department constitute a harmful interference with the operations of Tenant irrespective of
industry standards. In such circumstance, Tenant’s sole remedy shall be to terminate this Lease.
8.INDEMNIFICATION.
(a)Tenant agrees to indemnify, defend and hold Landlord, its elected and appointed
officials, officers, employees, agents and independent contractors, harmless from and against any
injury, loss, damage or liability whatsoever (or any claims in respect of the foregoing), costs or
expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in
connection with the negligence or willful misconduct of Tenant, its employees, contractors or
agents, except to the extent attributable to the negligent or intentional act or omission of
Landlord, its employees, agents or independent contractors.
(b)Tenant, as a material part of the consideration rendered to Landlord in entering
into this Lease, hereby waives all claims against Landlord for damages to Tenant’s
Communication Facility improvements and for death of or injury to Tenant, its agents,
employees, invitees or any third person in or about the Premises from any cause except for
Landlord’s willful or negligent misconduct.
(c)Landlord agrees to indemnify, defend and hold Tenant, its employees, contractors
and agents, harmless from and against any and all injury, loss, damage or liability (or any claims
in respect of the foregoing), costs or expenses (including reasonable attorneys’ fees and court
costs) arising out of the willful misconduct or negligence of Landlord or its employees or agents,
except to the extent attributable to the negligent or intentional act or omission of Tenant, its
employees, agents or independent contractors.
9.WARRANTIES.
(a)Tenant and Landlord each acknowledge and represent that it is duly organized,
validly existing and in good standing and has the right, power and authority to enter into this
Lease and bind itself hereto through the party set forth as signatory for the party below.
(b)Landlord represents and warrants and covenants that: (i) as long as Tenant is not
in default under this Lease after its receipt of written notice and the expiration of all applicable
cure periods, Tenant shall have actual, quiet and peaceful use, enjoyment and possession of the
Premises; and (ii) to the best of its current, actual knowledge, without investigation or inquiry,
Landlord's execution and performance of this Lease will not violate any laws, ordinances,
covenants or the provisions of any mortgage, lease or other agreement binding on the Landlord.
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(c)Except as otherwise set forth herein, Landlord makes no warranty, express or
implied, regarding the condition of the Property and/or the suitability of the Premises for the
installation and operation of Tenant’s Communication Facility. Tenant acknowledges and agrees
that the Premises are being leased in an “AS-IS” condition.
10.ENVIRONMENTAL. Landlord warrants and agrees that neither Landlord nor, to
Landlord's knowledge, any third party has used, generated, stored or disposed of, or permitted
the use, generation, storage or disposal of, any Hazardous Material (as defined below) on, under,
about or within Landlord's Property in violation of any law or regulation. Landlord and Tenant
each agree that they will not use, generate, store or dispose of any Hazardous Material on, under,
about or within Landlord's Property in violation of any law or regulation. Landlord and Tenant
each agree to defend and indemnify the other and the other's partners, affiliates, agents and
employees against any and all losses, liabilities, claims and/or costs (including reasonable
attorneys' fees and costs) arising from any breach of any warranty or agreement contained in this
paragraph. “Hazardous Material” shall mean any substance, chemical or waste identified as
hazardous, toxic or dangerous in any applicable federal, state or local law or regulation
(including petroleum and asbestos).
11.SPECIAL CONDITION RELATED TO TECHNOLOGY IMPROVEMENTS.
Tenant agrees that as equipment installed as part of this Lease needs replacement due to
obsolescence or the end of its useful life (as determined by Tenant, based on its sole and absolute
discretion), that Tenant shall endeavor to ensure that such replacement will be done with the least
visually and environmentally impacting equipment readily available on the market.
Accordingly, with respect to equipment replacement within the public view shed of the Property,
Tenant shall submit plans and specification for such equipment replacement to the City for
review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.
Tenant agrees to employ reasonable means to mitigate view and noise impacts of such
equipment.
12.RIGHT TO RETAIN CMU WALL AND CLOCK TOWER. Notwithstanding
Section 13 below, in contemplation of the expiration of the Term, Landlord shall have the right
to request that the CMU Wall and Clock Tower (along with ancillary improvements to the Clock
Tower, including but not limited to utilities improvements necessary for lighting and operation of
the clocks), not be removed from the Leased Area and shall remain upon and be surrendered
with the Premises as a part thereof at the expiration or sooner termination of the Term.
13.REMOVAL. Except as provided in Section 12, all portions of the Communication
Facility brought onto the Property by Tenant will be and remain Tenant’s personal property and,
at Tenant’s option, may be removed by Tenant at any time during the Term, provided, however,
that Tenant shall repair any damage to the Property caused by such removal and restore the
Premises to substantially the same condition existing prior to Tenant’s installation of such
Communications Facility improvements, reasonable wear and tear and casualty damage by
others excepted. Landlord covenants and agrees that no part of the Communication Facility
constructed, erected or placed on the Premises by Tenant will become, or be considered as being
affixed to or a part of, the Property, it being the specific intention of the Landlord that all
improvements of every kind and nature constructed, erected or placed by Tenant on the Premises
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will be and remain the property of the Tenant and may be removed by Tenant at any time during
the Term. Within thirty (30) days of the expiration or ninety (90) days after any earlier
termination of this Lease, Tenant will remove, at its expense, all of the Communications Facility
improvements and shall surrender the Premises to Landlord in substantially the same condition
as existing prior to Tenant’s installation of such Communications Facility improvements,
reasonable wear and tear and casualty damage by others excepted. Landlord acknowledges that
Tenant may enter into financing arrangements including promissory notes and financial and
security agreements for the financing of the Communications Facility (the “Collateral”) with a
third party financing entity and may in the future enter into additional financing arrangements
with other financing entities. In connection therewith, Landlord (i) consents to the installation
of the Collateral to the extent that the Collateral is part of the approved Communications Facility
and is otherwise in compliance with the terms and conditions hereof; (ii) disclaims any interest in
the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from
execution, foreclosure, sale, levy, attachment, or distress for any Annual Rent due or to become
due and that such Collateral may be removed at any time without recourse to legal proceedings
provided that the Property is returned to substantially the same condition existing prior to
Tenant’s installation of such Communications Facility improvements, reasonable wear and tear
and casualty damage excepted. Notwithstanding the foregoing, prior to entering into any such
financing arrangements, Tenant shall endeavor to notify Landlord in writing of its intention to
enter into such arrangement and shall provide Landlord with all applicable documentation
reasonably requested by Landlord evidencing such arrangements. Tenant shall not enter into any
financing arrangements which would impair the rights of Landlord hereunder and in no event
shall such arrangements apply to the Premises or the Property. In the event that any third party
financing entity forecloses on the Collateral or otherwise takes over Tenant's operation of the
Communications Facility such entity shall be bound by and shall comply with all the terms and
conditions of this Lease and shall execute an agreement reasonably acceptable to Landlord
assuming all of the obligations of Tenant hereunder.
14.MAINTENANCE; UTILITIES.
(a)Except as provided in subparagraph (c), Tenant will keep and maintain the Lease
Area in good condition, subject to reasonable wear and tear and shall ensure that the Clock
Tower is provided regular maintenance due to its exposure to the elements, which maintenance
shall include periodic painting, repair and/or replacement of wood components. The clocks shall
be regularly maintained and replaced as necessary to ensure that they are accurately keeping
time.
(b)Tenant will be solely responsible for and promptly pay all utilities charges for
electricity, telephone service or any other utility used or consumed by Tenant on the Premises.
Landlord will fully cooperate with any utility company requesting a license over, under and
across the Property in order for the utility company to provide service to the Tenant.
(c)In recognition of the Clock Tower’s inherent public landmark qualities and its
location within a public park, Landlord shall be responsible for promptly remediating any graffiti
within the Lease Area in general and the CMU Wall/Clock Tower in particular without
additional cost to Tenant.
11
15.DEFAULT AND RIGHT TO CURE.
(a)The following will be deemed a default by Tenant and a breach of this Lease:
(i) non-payment of Annual Rent (including additional rent) (as set forth in Section 4 hereof) if
such Annual Rent remains unpaid for more than thirty (30) days after Tenant's receipt of written
notice of such failure to pay from Landlord; or (ii) Tenant’s failure to perform any other term or
condition under this Lease within thirty (30) days after Tenant's receipt of written notice from
Landlord specifying the failure. No such failure, however, will be deemed to exist if Tenant has
commenced to cure such default within such period and provided that such efforts are prosecuted
to completion with reasonable diligence. Delay in curing a default will be excused if due to
causes beyond the reasonable control of Tenant. If Tenant remains in default beyond any
applicable cure period, Landlord will have the right to exercise any and all rights and remedies
available to it under law and equity.
(b)The following will be deemed a default by Landlord and a breach of this Lease:
(i) Landlord’s failure to provide access to the Premises as required by this Lease within twenty-
four (24) hours after written notice of such failure; (ii) Landlord’s failure to cure a harmful
interference problem as required by this Lease within seventy-two (72) hours after written notice
of such failure; or (iii) Landlord’s failure to perform any term or condition under this Lease
within thirty (30) days after receipt of written notice from Tenant specifying the failure. No such
failure, however, will be deemed to exist if Landlord has commenced to cure the default within
such period and provided such efforts are prosecuted to completion with reasonable diligence.
Delay in curing a default will be excused if due to causes beyond the reasonable control of
Landlord. If Landlord remains in default beyond any applicable cure period, Tenant will have
the right to exercise any and all rights available to it under law and equity.
16.ASSIGNMENT/SUBLEASE. Tenant shall not, without Landlord’s prior, written
consent, which shall not be unreasonably withheld, conditioned or delayed, assign this Lease or
any interest in this Lease or any right or privilege appurtenant hereto or permit use of the
Premises by any person or persons other than Tenant, its employees, agents, contractors and sub-
contractors. Consent by Landlord to any assignment or subletting shall not constitute consent to
any subsequent assignment or subletting. Notwithstanding the foregoing to the contrary, this
Lease may be sold, assigned or transferred by Tenant without any approval or consent of
Landlord to Tenant's principal, affiliates, subsidiaries of its principal or to any entity which
acquires all or substantially all of Tenant's assets in the market defined by the Federal
Communications Commission in which the Property is located by reason of a merger, acquisition
or other business reorganization. Any assignee, sublessee or transferee shall agree for the benefit
of Landlord to be bound by, assume and perform all the terms, covenants and conditions of this
Lease. No change of stock ownership, partnership interest or control of Tenant or transfer upon
partnership or corporate dissolution of Tenant shall constitute an assignment hereunder. Upon
Landlord’s consent to an assignment or upon notification to Landlord of an assignment as
permitted herein, Tenant will be relieved of all future performance, liabilities and obligations
under this Lease to the extent of such assignment.
12
17.NOTICES. All notices hereunder must be in writing and shall be deemed validly given
if sent by certified or registered mail, return receipt requested, or by a recognized overnight
courier, postage prepaid, to be effective upon actual receipt or refusal as shown on the receipt
obtained pursuant to the foregoing. Notice will be addressed to the parties at the addresses set
forth below:
Tenant:New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: ___; Cell Site Name: ___ (CA)
Fixed Asset #.: _____________________
575 Morosgo Drive NE, 13F, West Tower
Atlanta, GA 30324
With a copy to New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept – Network Operations
Re: Cell Site #: ___; Cell Site Name: ___
Fixed Asset #: ___________________
208 S. Akard Street
Dallas, TX 75202-4206
Landlord:City of Lake Elsinore
Attn: City Manager
130 S. Main Street
Lake Elsinore, CA 92530
Either party hereto may change the place for the giving of notice to it by written notice to
the other as provided herein.
18.SEVERABILITY. If any term or condition of this Lease is found unenforceable, the
remaining terms and conditions will remain binding upon the parties as though said
unenforceable provision were not contained herein.
19.CONDEMNATION. In the event Landlord receives notification of any condemnation
proceedings affecting the Premises, Landlord will provide notice of the proceeding to Tenant
within ten (10) days. If a condemning authority takes all of the Property, this Lease will
terminate as of the date the title vests in the condemning authority. If as a result of a partial
condemnation of the Premises or the Property, Tenant determines, in Tenant’s sole discretion,
that it is unable to use the Premises for the purposes intended hereunder, or if such condemnation
may reasonably be expected to disrupt Tenant's operations at the Premises for more than
forty-five (45) days, Tenant may, at Tenant’s option, to be exercised in writing within fifteen
(15) business days after Tenant receives Landlord's written notice of such condemnation (or in
the absence of such notice, within fifteen (15) business days after the condemning authority shall
have taken possession) terminate this Lease as of the date the condemning authority takes such
possession. All awards for the taking of any part of the Premises or proceeds from the sale made
under the threat of the exercise of the power of eminent domain shall be the property of
Landlord, provided that Tenant shall be entitled to any award for loss of or damage to Tenant’s
13
fixtures and removable personal property and reasonable moving and relocation expenses if
awarded against the condemning authority. Tenant will be entitled to reimbursement for any
prepaid Annual Rent.
20. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the
Premises within ten (10) days of the casualty. Consistent with paragraph 6(f) of this Lease,
Landlord shall not be required to repair any injury or damage, by fire or other casualty, to the
property of Tenant, or to make repairs or replacements of any Communication Facility or other
improvements installed on the Premises by or for Tenant. If any part of the Communication
Facility or Premises is damaged by fire or other casualty so as to render the Premises unsuitable,
in Tenant’s reasonable determination, then Tenant may terminate this Lease by providing written
notice to the Landlord no later than thirty (30) days following Tenant's receipt of Landlord’s
notice of casualty (or in the absence of such notice, within thirty (30) days after the casualty
event), which termination will be effective as of the date of Tenant’s notice of termination.
Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to
Tenant on account thereof and to be reimbursed for any prepaid Rent.
21.WASTE, NUISANCE. Tenant shall not use the Premises in any manner that may result
in waste or the creation of a nuisance, and Tenant shall maintain the Premises free of any
objectionable and unreasonable noises, odors or disturbances. Tenant's use as permitted
hereunder shall not be deemed a nuisance or to create unreasonable noises, odors or disturbances.
22.TAXES.
(a)Tenant shall pay prior to delinquency all taxes, assessments, license fees and other
public charges levied, assessed or imposed or which become payable during the Term of this
Lease upon any of Tenant's Communication Facility improvements and all other equipment and
personal property of Tenant installed or located upon or about the Premises. Whenever possible,
Tenant shall cause such property to be separately assessed. If, however, any or all of such items
shall be assessed and taxed with the Landlord's real property, Tenant shall pay to Landlord such
taxes as are attributable to Tenant’s Communication Facility improvements and all other
equipment and personal property of Tenant located at the Premises within thirty (30) days after
receipt of an invoice from Landlord advising Tenant of the taxes applicable to Tenant’s property
together with a copy of the tax bill.
(b)Tenant recognizes and understands that this Lease may create a possessory
interest pursuant to California Revenue and Taxation Code Section 107 and as such this Lease
may result in the assessment of property taxes against the Premises by the County of Riverside.
Tenant shall pay, prior to delinquency, any possessory interest taxes assessed against Tenant’s
interest in the Premises or Tenant's interest in the underlying realty during the Term.
(c)Tenant shall pay any business tax or license fee imposed upon its operation or its
interest under this Lease by any applicable governmental authority.
23.ENTRY BY LANDLORD. Tenant shall permit Landlord and Landlord’s agents to enter
the Premises at all reasonable times after Tenant's receipt of written notice from Landlord (which
14
notice shall not be required in the event of an emergency) and with a representative of Tenant
present (unless Tenant elects not to require the presence of such representative) for the purpose
of inspecting the same, or for the purpose of posting notices of nonresponsibility for alterations,
additions or repairs. Landlord acknowledges and agrees that Tenant's equipment and
improvements are highly sensitive. Accordingly, it is agreed, that only authorized engineers,
employees or properly authorized contractors of Tenant or persons under their direct supervision
will be permitted to handle or touch Tenant's equipment and improvements.
24.HOLDING OVER. If Tenant should remain in possession of the Premises after the
expiration of the removal period described in Section 13 above without executing a new
agreement or unless the parties are negotiating a new lease or lease extension in good faith, then
such holding over shall be construed as a tenancy from year-to-year, subject to all conditions,
provisions and obligations of this Lease insofar as they are applicable to a year-to-year tenancy,
except the Annual Rent shall be increased to one hundred and ten percent (110%) of the Annual
Rent applicable during the year immediately preceding such expiration or earlier termination.
25.ATTORNEYS’ FEES. In the event of any legal action or proceeding between the
parties, the prevailing party shall be entitled to reasonable attorneys’ fees and expenses as a part
of the judgment resulting therefrom.
26.NO PRECEDENTIAL VALUE TO EITHER PARTY. The terms and conditions of
this Lease are specific to this particular transaction and this Lease shall not have any precedential
value to either party.
27.MISCELLANEOUS.
(a)Amendment; Waiver. This Lease cannot be amended, modified or revised
unless done in writing and signed by an authorized signatory of the Landlord and an authorized
signatory of the Tenant. No provision may be waived except in a writing signed by both parties.
(b)Short Form 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 in form reasonably acceptable to both parties. Either party may record
this memorandum at any time, in its absolute discretion.
(c)Successors and Assigns. The terms and conditions contained in this Lease shall
bind and inure to the benefit of the parties, their respective heirs, executors, administrators,
successors and assigns.
(d)Entire Agreement. This Lease and the exhibits attached hereto, all being a part
hereof, constitute the entire agreement of the parties hereto and will supersede all prior offers,
negotiations and agreements.
(e)Governing Law. This Lease will be governed by the laws of the State of
California, without regard to conflicts of law.
15
(f)Interpretation. Unless otherwise specified, the following rules of construction
and interpretation apply: (i) captions are for convenience and reference only and in no way
define or limit the construction of the terms and conditions hereof; (ii) use of the term
“including” will be interpreted to mean “including but not limited to”; (iii) whenever a party’s
consent is required under this Lease, except as otherwise stated in the Lease or as same may be
duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits
are an integral part of the Lease and are incorporated by reference into this Lease; and
(vi) reference to a default will take into consideration any applicable notice, grace and cure
periods.
(g)Estoppel. Either party will, at any time upon thirty (30) days prior written notice
from the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying
that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to such party’s knowledge, any uncured defaults on the part of the other party
hereunder, or specifying such defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the Premises.
(h)No Option. The submission of this Lease for examination or consideration does
not constitute a reservation of or option for the Premises. This Lease will become effective only
upon the legal execution and delivery hereof by Landlord and Tenant.
(i)Time is of the Essence. Time is of the essence in this Lease.
(j)Relationship of Parties. The relationship of the parties hereto is that of Landlord
and Tenant and it is expressly understood and agreed that Landlord is not in any way or for any
purpose a partner of Tenant, or a joint venturer with Tenant in the conduct of Tenant’s business
or otherwise.
(k)Limitation of Liability. Except for the indemnity obligations set forth in this
Lease, and otherwise notwithstanding anything to the contrary in this Lease, Tenant and
Landlord each waives any claims that each may have against the other with respect to
consequential, incidental or special damages, however caused, based on any theory of liability.
16
IN WITNESS WHEREOF, the undersigned have caused this Lease to be executed as of
the dates set forth below.
“LANDLORD”
CITY OF LAKE ELSINORE, a municipal
corporation
Dated: By:
Grant Yates, City Manager
ATTEST:
City CLERK
By:
Susan Domen, City Clerk
APPROVED AS TO FORM:
By:
Barbara Leibold, City Attorney
“TENANT”
New Cingular Wireless PCS, LLC, a
Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
Dated: By:
Print Name:
Its:
EXHIBIT “A”
PROPERTY LEGAL DESCRIPTION
[Attached]
EXHIBIT “B”
PREMISES DEPICTIONS
[Attach Sheets A-1 through A-5]
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