HomeMy WebLinkAboutItem 1.K Attachment-A (A3467)X
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CITY OF PALM SPRINGS
AMENDED AND RESTATED
WIRELESS COMMUNICATIONS FACILITIES SITE LEASE
This Amended and Restated Wireless C mmunications Facilities Site Lease (the "Lease") is made
and entered into this l �4day of , 2020, by and between the CITY OF PALM
SPRINGS, a charter city under the laws of the State of California (herein "LESSOR" or "City"), and
NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, by and through
CCATT LLC, a Delaware limited liability company, its attorney in fact (herein "LESSEE").
LESSOR and LESSEE are at times hereinafter collectively referred to as "Parties" or individually
as the "Party".
RECITALS
WHEREAS, LESSOR is the fee title owner of property located at 1901 East Baristo Road
in the City of Palm Springs, County of Riverside, California (the "Property") described more
particularly in Exhibit A attached hereto, which description is fully incorporated herein by this
reference; and
WHEREAS, LESSOR and Los Angeles Cellular Telephone Company, a California
partnership ("Original Lessee") entered into a Ground Lease Agreement dated December 22, 1994
("Original Lease Agreement") whereby Original Lessee leased certain real property, together with
access and utility easements, all located within the Property as more particularly described and
depicted in Exhibit B attached hereto and incorporated by this reference (the "Premises"), which
Original Lease Agreement expired as of December 22, 2019; and
WHEREAS, New Cingular Wireless PCS, LLC is successor in interest to Original Lessee
and occupies the Premises as a holdover tenant under the terms of the Original Lease Agreement
with LESSOR's consent and such holdover tenancy expires on the Commencement Date of this
Lease; and
WHEREAS, LESSOR and LESSEE agree that effective as of the Commencement Date of
this Lease, the Original Lease Agreement is hereby amended by deleting it in its entirety and
restating the Original Lease Agreement as provided for in this Lease; and
WHEREAS, LESSEE desires to lease the Premises from LESSOR on the terms and
conditions herein in order to install, maintain, repair, replace, remove and operate communications
facilities, including tower structures, equipment shelters, cabinets, meter boards, utilities, antennas,
equipment, any related improvements and structures and uses incidental thereto, as more fully
described herein and Exhibit C (the "Facilities').
LEASE
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants,
conditions, and agreements contained herein, the receipt and sufficiency of which is hereby
acknowledged, the Parties to this Lease do hereby agree as follows:
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PREMISES:
1.1 DEMISE: LESSOR leases to LESSEE the Premises.
1.2 LESSEE ACCESS: LESSOR shall provide LESSEE, LESSEE's employees, agents,
and subcontractors access to the Premises after LESSEE provides LESSOR with
twenty-four (24) hours' notice. Provided, however, that in the event of an
"emergency or special circumstance", which would leave the Facilities inoperable
during normal non -business hours, LESSEE may access the Property to make
necessary repairs and shall provide notice to LESSOR as soon as reasonably
practicable. For purposes of this Lease, the phrase "emergency or special
circumstance" shall be interpreted to mean automobile accidents and natural
disasters, including, but not limited to flooding, wind, and earthquakes, or any
condition impacting the wireless services provided by the Facilities that could
endanger the property, life, health, or safety of any individual or entity.
Notwithstanding the foregoing, LESSEE may access the Premises without notice to
LESSOR to perform routine maintenance, repairs and inspections that do not require
heavy machinery used for executing major construction operations.
2. USE OF THE PREMISES: To the extent provided in this Lease, LESSEE may use the
Premises to facilitate provision of wireless communication services, including the
transmission and the reception of communication signals of various frequencies. Subject to
the terms and conditions of this Lease, LESSEE may install, construct, maintain, repair,
replace, remove and operate on the Premises the communications and other facilities
depicted and/or described in general in Exhibit C, attached hereto and incorporated herein
by reference, as approved by LESSOR in writing prior to taking such actions, which
approval shall not be unreasonably withheld, conditioned or delayed. In the event LESSOR
fails to respond to a written request to modify, alter, add, replace, remove or maintain the
communications facilities located within the Property within thirty (30) days following the
request, the request shall be deemed approved. If requested by LESSEE, LESSOR shall, at
LESSEE's sole cost and expense, reasonably cooperate with LESSEE in LESSEE's efforts
to obtain or maintain all documents required by any governmental authority in connection
with any development of, or construction on, the Premises, including documents necessary
to petition the appropriate public bodies for certificates, permits, licenses and other approvals
deemed necessary by LESSEE to utilize the Premises for the purposes authorized herein.
3. LEASE TERM:
3.1 INITIAL TERM: The initial term of this Lease shall commence as of December 22,
2019 (the "Commencement Date") and shall continue for five (5) years from that
date (the "Initial Term") unless terminated earlier pursuant to Section 8 herein.
LESSOR and LESSEE acknowledge and agree that as of the date of full execution
of this Lease, the Original Lease Agreement shall be of no further force or effect.
Retroactive to the Commencement Date, this Lease supersedes and replaces that
Original Lease Agreement. LESSOR and LESSEE acknowledge that
notwithstanding the full execution of this Lease, LESSEE may continue to make, and
LESSOR may continue to receive, rental and other payments pursuant to the Original
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Lease Agreement. In such event, any rental or other payments made pursuant to the
Original Lease Agreement for the period on or after the Commencement Date shall
be applied and credited against any rentals or other payments due under this Lease.
3.2 RENEWAL TERM: LESSOR grants LESSEE an option to renew this Lease for two
(2) additional terms of five (5) years each (each a "Renewal Term"). This Lease shall
automatically renew for the Renewal Term unless LESSEE provides LESSOR
written notice of its intention not to renew not less than thirty (30) days prior to the
expiration of the Initial Term. To exercise the option to renew this Lease for the
second Renewal Term, LESSEE shall provide LESSOR with written notice of its
intention to renew this Lease not less than sixty (60) days prior to the expiration of
the first Renewal Term, in accordance with Section 4.3 below. The Initial Term and
the Renewal Terms shall be collectively referred to herein as the "Term."
4. PAYMENT OF RENT: At the Commencement Date, LESSEE agrees to pay to LESSOR,
the amounts set forth in this Section, each month in advance, on the first of each month, as
rental for the Premises for the Term of this Lease, payable to the City of Palm Springs, 3200
East Tahquitz Canyon Way, Palm Springs, California 92262, Attn: Accounts Receivable,
Finance Department. In addition, LESSEE agrees to do and perform all other covenants and
agreements contained in this Lease.
4.1 BASE RENTAL PAYMENT: LESSEE shall pay LESSOR Three Thousand Two
Hundred and 00/100 Dollars ($3,200.00) per month (the "Base Rental"). If the
Commencement Date is a date other than the first day of the month, the Base Rental
for the first calendar month shall be paid on the Commencement Date and prorated
on the basis of the number of actual days in such partial month.
4.2 COST OF LIVING ADJUSTMENT: The Base Rental shall be automatically
adjusted on each anniversary of the Commencement Date ("Adjustment Date") in an
amount equal to (i) the increase in the Consumer Price Index published by the United
States Department of Labor, Bureau of Labor Statistics (the "CPI-U") for "All Items
- All Urban Consumers", for the Riverside -San Bernardino -Ontario CA Statistical
Area and shall be determined by dividing the CPI-U indicator published three (3)
months prior to the Adjustment Date, by the CPI-U indicator published one (1) year
and three (3) months prior to the Adjustment Date, and multiply the resultant number
by the monthly lease rental amount of the most recent Base Rental; or (ii) three
percent (3%), whichever is greater.
4.3 RENEWAL TERM RENT: If LESSEE elects to renew this Lease for the second
five-year Renewal Term in accordance with Section 3.2 above, LESSOR shall obtain
an independent valuation of the Premises to determine the fair market value (the
"Appraisal"). The Appraisal of the Premises shall be made by a professional
independent real estate appraiser selected by mutual consent of the Parties. In the
event the Parties cannot reach agreement upon the selection of a mutually acceptable
appraiser, within fifteen (15) days, then LESSOR and LESSEE shall within fifteen
(15) days thereafter, each select an appraiser who in turn will select a third
independent appraiser who will be employed to make the Appraisal. In the event
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that the two selected appraisers fail to mutually select a third appraiser within fifteen
(15) days, then the third appraiser shall be promptly determined in accordance with
the rules of the American Arbitration Association. LESSOR and LESSEE will share
equally in the cost of the Appraisal. LESSOR may, in its discretion, elect to make
use of the appraised value as the new rent amount, effective upon the commencement
of the second Renewal Term ("Rent Escalation Date"), in lieu of the then -existing
rent amount and in lieu of the annual rent increase scheduled to occur on that date.
In the event LESSOR elects to make use of the appraised value as the new rent, then
at any time during the remaining Term of this Lease, LESSEE may terminate this
Lease upon ten (10) days' prior written notice to LESSOR.
4.4 LATE CHARGE: LESSEE acknowledges that late payment by LESSEE to LESSOR
of Base Rental will cause LESSOR to incur costs not contemplated by this Lease,
the exact amount of such costs being extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges.
Therefore, if any installment of Base Rental due from LESSEE is not received by
LESSOR within ten (10) days of becoming due, LESSEE shall pay to LESSOR an
additional sum of three percent (3%) per month of the overdue Base Rental as a late
charge. The Parties agree that this late charge represents a fair and reasonable
estimate of the costs that LESSOR will incur by reason of such late payment by
LESSEE. Acceptance of any late charge shall not prevent LESSOR from exercising
any of the other rights and remedies available to LESSOR.
4.5 ADDITIONAL CONSIDERATION: As consideration to LESSOR for entering into
this Lease, in addition to the rental payments specified above, within sixty (60) days
following the Commencement Date of this Lease, LESSEE shall pay to the LESSOR
the one-time sum of Two Thousand Five Hundred and 001100 DOLLARS
($2,500.00), which shall be deemed the cost to LESSOR of the legal fees and
administration required to consider, negotiate, and enter into this Lease. Such
payment shall not be refunded or reimbursed to LESSEE for any reason, regardless
of whether LESSEE terminates this Lease pursuant to its provisions or proceeds with
construction of the Facilities.
4.6 VERIFICATION OF RENT: Once per calendar year, LESSOR may submit a
written request to LESSEE for a business summary report pertaining to LESSEE's
rent obligations for the prior twelve (12) month period, and LESSEE shall provide
such written accounting to LESSOR within sixty (60) days after LESSEE's receipt
of such written request.
4.7 RETROACTIVE RENT ADJUSTMENT: The monthly base rent payable under the
Original Lease Agreement shall continue to be payable by LESSEE to LESSOR for
the period between the Commencement Date through the date of full execution of
this Lease. Within sixty (60) days following full execution of this Lease, LESSEE
shall pay LESSOR any back rent payments due to reconcile the increase in rent due
upon the Commencement Date and actual rent paid under the Original Lease
Agreement during the holdover period between the Commencement Date of this
Lease and the full execution of this Lease.
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5. PROPERTY TAXES: LESSEE recognizes and understands that this Lease may create a
possessory interest subject to property taxation pursuant to Revenue and Taxation Code
Section 107.7 and that LESSEE may be subject to the payment of property taxes levied on
such interest. LESSEE shall timely pay all property taxes and assessments directly
attributable to LESSEE's possessory interest. In no event shall LESSOR be liable for any
taxes owed as a result of this Lease. If LESSEE fails to make property taxes and assessments
when due, LESSOR may, but shall not be obligated to, pay such amounts, and LESSEE shall
reimburse LESSOR all such amounts plus LESSOR's reasonable administrative costs of
such payments and collection costs, if any.
6. LESSOR INSPECTION AND ENTRY, ACCESS FOR INSPECTIONS:
6.1 LESSOR and/or its authorized representatives shall have the right to enter the
Premises upon reasonable prior notice to LESSEE (which shall not be less than
twenty-four (24) hours unless LESSOR determines that exigent circumstances
warrant a shorter period of time, so long as such entrance does not unreasonably
interfere with LESSEE's use of the Premises) in order for LESSOR:
A. To determine whether the Premises are in good condition and whether
LESSEE is complying with its obligations under this Lease;
B. To do any necessary maintenance and to make any restoration to the Premises
that LESSOR has the right or obligation to perform;
C. To serve, post, or keep posted any notices required or allowed under the
provisions of this Lease; or
D. To run electric or telephone conductors, pipes, conduits, or ductwork where
necessary or desirable over, under, or through the Premises in a manner which
will not unreasonably interfere with LESSEE's use of the Premises.
6.2 LESSOR shall not be liable in any manner for any inconvenience, disturbance, loss
of business, or nuisance arising out of LESSOR's entry on the Premises as provided
in this Section, except for damage resulting from the acts or omissions of LESSOR
or its authorized representatives. LESSEE shall not be entitled to an abatement or
reduction of rent if LESSOR exercises any rights reserved in this Section.
7. CONSTRUCTION AND MAINTENANCE OF FACILITIES AND PREMISES:
7.1 LESSEE'S CONSTRUCTION: LESSEE shall have the right to install, construct,
maintain, repair, replace, remove and operate the Facilities on the Premises that are
depicted in Exhibit C. The Parties intend that the antennas and appurtenances related
thereto which are a part of the Facilities shall be constructed and maintained: (1) a
light pole; (2) in such manner as to make the cabinetry reasonably blend into the
surroundings; and (3) in such a manner that the Facilities will not unreasonably
interfere with the LESSOR's use of the Property for LESSOR's purposes as a
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municipal park/baseball field. Therefore, construction by LESSEE of any
improvement, structure or work on the Premises shall be permitted only upon the
express written consent of the LESSOR, which consent shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, LESSEE shall
have the right to perform routine maintenance and make "like -for -like" or
substantially similar replacements, modifications or upgrades to the Facilities at any
time during the term of this Lease.
7.2 CONSTRUCTION OF IMPROVEMENTS: All improvements to the Premises shall
be made in a good and workmanlike manner, at LESSEE's expense, in accordance
with the requirements of all laws, ordinances, and regulations applicable thereto,
including zoning requirements and building code requirements of the City of Palm
Springs, and any municipal or other governmental agency having jurisdiction over
the Premises and Facilities at the time the improvements are constructed. LESSOR
agrees to cooperate with LESSEE in connection with applying for any municipal
permits for the construction of the aforementioned improvements. It is understood
and agreed that such cooperation shall not be implied to include any expenditures of
funds on the part of LESSOR or any implied promise or warranty that such permits,
discretionary, or otherwise, will be issued to LESSEE. LESSEE shall provide
reasonable notice to LESSOR prior to entering the Premises for purposes of
constructing the Facilities, and shall coordinate the scheduling and logistics of same
with the LESSOR to avoid any interference with LESSOR's operations. Once
construction commences, any and all improvements made by LESSEE with respect
to the installation of the Facilities shall be diligently pursued to completion.
7.3 MECHANIC'S LIENS: LESSEE shall not allow or permit to be enforced against the
Premises, or any part thereof, and shall defend, indemnify, and hold LESSOR
harmless from any mechanic's, material suppliers', contractors', tax, or
subcontractors' liens arising from any claim, for damage, or growing out of the work
of any construction, repair, restoration, replacement, or improvement made by or
alleged to have been made by or on behalf of LESSEE. LESSEE shall pay or cause
to be paid all of such liens, claims, or demands before any action is brought to enforce
the same against the Premises. If LESSEE shall in good faith contest the validity of
any such claim, lien, or demand, then LESSEE shall, at its expense, defend itself and
LESSOR against same and shall pay and satisfy any settlement or adverse judgment
that may be entered thereupon prior to the execution thereof. In the event of any
such contest, LESSEE shall provide LESSOR with a security bond in a form and
amount LESSOR deems sufficient to allow the lien of record to be discharged as a
matter of law.
7.4 CARE DURING CONSTRUCTION: LESSEE shall exercise due care during
construction. All applicable City standards and specifications shall be followed.
LESSOR's Public Works Director shall approve all work in writing prior to
commencement of construction.
7.5 LESSEE MAINTENANCE OF FACILITIES AND PREMISES: LESSEE's
maintenance of the Facilities and Premises shall include, but is not limited to:
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A. Maintenance of all landscaping installed by LESSEE, if any;
B. Repairs and/or replacements to LESSEE's Facilities caused by acts of third
parties, including theft, graffiti, and intentional acts;
C. Maintaining, in good, clean, safe, and sanitary condition and repair, all of
LESSEE's personal property. All Facilities on the Property must be
maintained in a first-class condition without rust, paint, or surface
deterioration. All maintenance must conform to the reasonable standards
utilized by LESSOR; and
D. All work necessary to comply with Federal, State, County, municipal, and
other governmental agencies and bodies having jurisdiction.
7.6 RELOCATION: In the event LESSOR determines in good faith that the Premises
are needed for public purposes, LESSOR shall have the right to require relocation of
LESSEE's Facilities, or any part thereof, to an alternate ground location. Provided
that (i) the relocation shall be performed exclusively by LESSEE or its agents at
LESSEE's sole cost and expense during the Relocation Period, as defined below, (ii)
the relocation shall not result in any interruption of the communications services
provided by LESSEE to its customers, including but not limited to, LESSEE's
continuous access, maintenance and operation of LESSEE's Facilities, until such
time that all tenants, subtenants and sub -licensees that have been permitted by this
Lease are successfully relocated, and (iii) the relocation shall not impair, or in any
manner alter, the quality of communications services provided by LESSEE to its
customers on and from the Relocations Site as defined below.
A. RELOCATION PROCESS. To exercise the relocation rights, LESSOR shall
provide written notice to LESSEE not less than twelve (12) months prior to
the relocation date and shall propose an alternate site to which LESSEE may
relocate LESSEE's Facilities ("Alternate Site Location"). LESSEE shall have
sixty (60) days from the date of the notice to evaluate the Alternate Site
Location, including, but not limited to, conducting tests to determine the
technological feasibility of the Alternate Site Location and obtaining written
approval of all wireless telecommunications providers on the Premises that
have been permitted by this Lease. If LESSEE fails to approve the Alternate
Site Location in writing within said sixty (60) day period, LESSEE will be
deemed to have not approved such Alternate Site Location. If LESSEE does
not approve such Alternate Site Location, LESSOR may then propose
another Alternate Site Location by providing notice to LESSEE in the manner
set forth above. Upon LESSEE's approval of any proposed Alternate Site
Location, both Parties will enter into a written agreement concerning the
relocation of LESSEE's Facilities ("Relocation Agreement") to the Alternate
Site Location ("Relocation Site") on substantially the same terms and
conditions as the operative Lease. LESSOR shall undertake reasonable
efforts to provide an Alternate Site Location acceptable to LESSEE. If no
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Alternate Site Location is available or if LESSEE does not approve an
Alternate Site Location, LESSOR may, upon twelve (12) months' written
notice, terminate this Lease in accordance with the notice requirements set
forth herein.
B. RELOCATION PERIOD. The "Relocation Period" shall mean that period of
time commencing on the date LESSEE has received all required permits and
approvals for the Relocation Site and ending one -hundred eighty (180) days
thereafter. The relocation of LESSEE's Facilities to the Relocation Site shall
be substantially completed within the Relocation Period, to the extent
reasonably feasible. The then -current Base Rental shall be reduced by thirty-
five percent (35%) during the Relocation Period.
C. NO ADDITIONAL TERMS. Upon relocation of LESSEE's Facilities, all
references to the Premises in this Lease shall be deemed to refer to the
Relocation Site (including any access and utility easements). The Relocation
Site shall be surveyed by a licensed surveyor at the sole cost of LESSEE, in
which event such survey shall replace and supersede the description of the
Premises under this Lease. Unless otherwise provided in the Relocation
Agreement or any other written agreement of the Parties, the relocation of
LESSEE's Facilities shall not affect, alter, modify or otherwise change any
of the terms and conditions of this Lease.
7.7 ABANDONMENT: If use of the Facilities is abandoned for at least twelve (12)
consecutive months, LESSEE or its designee shall be responsible for removing the
Facilities and returning the Premises to their original condition as approved by
LESSOR, less ordinary and reasonable wear and tear. LESSOR shall provide notice
to LESSEE of said abandonment. In the event of an undisputed abandonment
whereby LESSEE fails to comply with this provision in regard to the removal of the
Facilities and restoration of the Premises within ten (10) days of said notice,
LESSOR shall have the right to either (a) take possession and ownership of Facilities
as LESSOR's property or (b) remove the Facilities and charge LESSEE the entire
cost of removal and disposal of the Facilities. In either case of undisputed
abandonment, LESSOR shall inform LESSEE in writing of its intention to take
possession and ownership or remove and dispose of the Facilities at LESSEE's
expense.
8. TERMINATION:
8.1 LESSOR'S RIGHT TO TERMINATE:
A. LESSOR may pursue any remedies available to it under applicable law,
including, but not limited to, the right to terminate this Lease, upon the
earliest of any of the following events:
LESSEE's failure to pay rent within fifteen (15) days following the
date such payment is due;
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2. LESSEE's failure to comply with any term, covenant, or condition of
this Lease after LESSEE has been given written notice of the violation
and has had thirty (30) days to cure same or, if such default is not
curable within such thirty (30) day period, has not proceeded to
commence such cure within such thirty (30) day period and has not
diligently proceeded to completion;
Interference by the Facilities with other electrical or radio frequency
equipment installed on or around the Property, which interference is
not cured by LESSEE within ten (10) days following written notice
thereof or, if such default is not curable within such ten (10) day
period, LESSEE has not proceeded to commence such cure within
such ten (10) day period and has not diligently proceeded to
completion; or
4. Interference with LESSOR's operations or use of the Property by
LESSOR or third parties after LESSEE has been given written notice
of the violation and has had thirty (30) days to cure same or, if such
default is not curable within such thirty (30) day period, has not
proceeded to commence such cure within such thirty (30) day period
and has not diligently proceeded to completion.
B. Additionally, upon a finding by LESSOR's City Council that the Premises
are needed for other public purposes, LESSOR shall have the right, after the
expiration of the Initial Term, to terminate this Lease without liability upon
one (1) year's written notice of termination to LESSEE.
8.2 LESSEE'S RIGHT TO TERMINATE: LESSEE may terminate this Lease due to
LESSOR's failure of proper ownership or authority, or in the event of LESSOR's
default hereunder.
8.3 RETURN OF PREMISES UPON TERMINATION: Upon expiration or earlier
termination of this Lease, LESSOR may, upon written notice to LESSEE, elect to
either retain the light pole tower ("Tower") on the Premises or require LESSEE to
remove the Tower. In the event LESSOR elects to retain the Tower, LESSEE may,
at its option, leave the Tower in place or remove and replace the Tower with a light
pole of similar size and dimension that substantially conforms to the design of other
light poles then on the Property. Except as otherwise provided herein, LESSEE shall
at its sole expense, remove all of LESSEE' Facilities within sixty (60) days
following expiration or termination of this Lease. Upon the expiration or termination
of this Lease, LESSEE shall surrender the Premises to LESSOR in a condition at
least as good as existed on the date LESSEE executes this Lease, less ordinary and
reasonable wear and tear.
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9. INTERFERENCE:
9.1 LESSEE'S OBLIGATIONS: Prior to occupancy of the Premises and operation of
the Facilities by LESSEE or its agents, assigns or LESSEE's employees, LESSEE
agrees to:
A. Submit to LESSOR, within forty-five (45) days prior to operation, proposed
plans for antenna type and size, along with operating frequencies, effective
radiated power, and other necessary on -air technical data at LESSOR's
discretion for LESSOR's review and approval. If LESSOR does not respond
in writing to LESSEE within ten (10) days following LESSEE'S request for
approval, such request will be deemed to have been approved by LESSOR.
B. InstalI or cause to be installed, all equipment according to generally accepted
standard engineering practices and in a good and workmanlike manner.
C. Use all feasible efforts to investigate the cause of, and mitigate, any
interference caused by LESSEE on existing radio frequency equipment of
LESSOR following written notification of interference from LESSOR.
9.2 SUBSEQUENT PROPERTY LEASES: LESSOR agrees to include in all leases
between LESSOR and future lessees of the Property a covenant that such future
lessees shall not interfere with other electrical or radio frequency equipment
previously installed on the Property and that if future lessees are not able to mitigate
the interference, the lease shall provide for termination thereof. Likewise, LESSOR
will not permit or allow the installation of any future equipment which (i) results in
technical interference problems with LESSEE' then existing equipment or (ii)
encroaches onto the Premises.
9.3 NON-INTERFERENCE: The communication equipment and the use thereof shall
not interfere with the use of any other communication or similar equipment of any
kind and nature owned or operated by LESSOR or other occupants of the Property
existing as of the Commencement Date of the Original Lease Agreement, except as
may be permitted by applicable laws; provided, however that subsequent to the
installation by LESSEE of the Facilities, LESSOR agrees not to install and to
exercise commercially reasonable effort to not allow installation of new equipment
on the Premises if such equipment causes interference with LESSEE's operations.
All interference claims shall be settled in accordance with the then prevailing
interference rules and regulations promulgated by the Federal Communications
Commission.
10. DESTRUCTION OF PREMISES: If either the Premises or the Property is destroyed or
damaged as a result of a catastrophic event to the extent that, in LESSEE's reasonable discretion,
LESSEE may no longer use the Premises for the intended purposes, LESSEE may elect to either:
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10.1. Terminate this Lease, effective upon the date of the damage or destruction, by
delivering written notice within ninety (90) days of the date of the damage or
destruction and request to terminate; or
10.2. Upon consent of LESSOR, which shall not be unreasonably withheld, conditioned
or delayed, use a portion of the Premises specified by LESSOR for provision of
communication services on a temporary basis until such time as the LESSEE's
Facilities on the Premises are repaired or reconstructed so that LESSEE can resume
the provision of communication services from the Premises. If LESSEE elects to
continue this Lease and in the event that LESSOR unreasonably delayed its consent
for LESSEE to install the temporary facility in order for LESSEE to continue its
operation, Base Rental shall abate for the period of non-use. Any such repair or
reconstruction shall be completed in an expeditious manner.
11. ACCESS, UTILITIES AND PROVISION OF SERVICE:
11.1 LESSOR grants to LESSEE a non-exclusive easement to install and maintain utility
wires, cables, conduits and pipes over, under and along a five (5) foot wide right of
way as depicted in Exhibit B. LESSEE shall determine the availability of and shall,
at its sole cost and expense, cause to be installed in, on, and about the Premises all
facilities necessary to supply thereto all electricity, telephone, and other similar
services required to service the Premises. LESSOR shall allow LESSEE to have its
own electrical metering equipment installed. LESSEE shall obtain all necessary
approvals for the installation of the meter. An electrical plan shall be submitted to
LESSOR for approval, which approval shall not be unreasonably withheld,
conditioned or delayed prior to commencement of such work. LESSOR agrees to
cooperate with LESSEE in its efforts to obtain such utility service. During the Initial
Term and the Renewal Term, LESSEE agrees to pay directly to the servicing utility
when due all charges for electricity, telephone and all other utility services of every
kind and nature supplied to and used by LESSEE on the Premises or for the Facilities.
LESSOR shall be responsible for its electrical and other utility service and for the
regular payment of electrical and other utility charges attributable to the Property
other than the Premises.
11.2 LESSOR also grants to LESSEE a twenty (20) foot wide non-exclusive access
easement as depicted in Exhibit B.
12. INDEMNIFICATION AND INSURANCE:
12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of
LESSOR shall be responsible for any damage or liability occurring by reason of any
acts or omissions on the part of LESSEE or its officers or employees under or in
connection with any activities under this Lease. It is also understood and agreed that
to the fullest extent permitted by law, LESSEE shall indemnify, defend, protect and
hold harmless LESSOR and its elected officials, officers, agents and employees
("LESSOR's Parties") from and against any and all claims, demands, judgments,
actions, damages, losses, penalties, liabilities, costs and expenses (including, without
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limitation, attorneys' fees and court costs) arising at any time directly or indirectly
from or in connection with (i) any default in the performance of any obligation by
LESSEE to be performed under the terms of this Lease, (ii) LESSEE's use of the
Premises, or (iii) the conduct of LESSEE's business or any activity, work or things
done, permitted or allowed by LESSEE in or about the Premises, except to the extent
caused by LESSOR or LESSOR's Parties' negligence or willful misconduct. The
obligations of LESSEE under this Section shall survive the expiration or earlier
termination of this Lease.
12.2 ASSUMPTION OF RISK: LESSEE, as a material part of the consideration to
LESSOR, hereby assumes all risk of damage to the Premises, including, without
limitation, injury to persons in, upon or about the Premises during LESSEE's use of
the Premises, arising from any use of the LESSEE's Facilities or other activities of
LESSEE or LESSEE's agents, employees, guests, tenants, subtenants, licensees,
contractors, or invitees (collectively "LESSEE's Parties") on the Premises. LESSEE
hereby waives all claims with respect thereof against LESSOR, except as otherwise
stated in this Lease. LESSOR shall not be liable for any injury to LESSEE's
Facilities, Premises, or injury to or death of any of LESSEE's Parties, or injury to
LESSEE's Facilities, or injury to or death of any other person in or about the Premises
from any cause unless caused by the negligence or willful misconduct of the
LESSOR or LESSOR's Parties.
12.3 INSURANCE:
A. Casualty Insurance: During the term of this Lease, LESSEE shall, at its sole
cost and expense, keep LESSEE's interest in the Premises and the Facilities,
including any improvements thereon both in the course of construction and
through the remainder of any term of this Lease, insured by responsible
insurance companies, authorized to do business in the State of California or
self -insure, against Ioss or damage by fire and other such casualties as are
included in extended coverage. Such coverage shall include replacement
cost, vandalism and malicious mischief endorsements, in such amounts so as
to provide for the then actual replacement cost of all improvements on the
Premises.
B. LESSEE agrees, at its sole expense, and at all times during the term of this
Lease, to maintain in full force, or cause to be maintained in full force, a
policy or policies of commercial general liability insurance in an amount of
Two Million and 00/100 DOLLARS ($2,000,000.00) per occurrence and
$4,000,000.00 general aggregate, including property damage and contractual
liability and shall be broad enough to insure the indemnity obligation set forth
in this Section 12, written by one or more responsible insurance companies
authorized to do business in the State of California. Such policies shall insure
against liability for injury to persons and/or property and death of any person
or persons that may occur as a result of or in connection with the existence of
the Facilities and improvements in, on or about the Premises. LESSEE also
agrees to maintain in full force and effect Commercial Automobile Liability
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coverage in an amount of $1,000,000.00 combined single limit, each
accident, covering all owned, hired and non -owned autos; and Workers'
Compensation insurance as required by the state in which the work or Site is
located and Employer's Liability insurance with respect to all employees, if
any, engaged in the performance of work on the Premises in the amount of
$1,000,000 per accident for bodily injury; $1,000,000 disease for each
employee and $1,000,000 disease -policy limit. Coverage for the Workers'
Compensation and Employer's Liability must include a waiver of
subrogation endorsement in favor of LESSOR.
All insurance required under this Lease shall be primary and non-contributory
with any insurance or License Policy of self-insurance that may be
maintained by LESSOR. LESSEE shall use commercially reasonable efforts
to provide at least thirty (30) days written notice to LESSOR of any change
of scope or cancellation of any required coverage that is not replaced. The
required limits may be met by any combination of primary and excess or
umbrella insurance. LESSOR, its elected officials, officers, agents,
authorized volunteers and employees shall be included as additional insureds
under LESSEE's commercial general and automobile liability policies as
their interests may appear under this Lease, and such additional insured
certificate shall be provided to LESSOR prior to the commencement of any
work. Concurrently with the execution of this Lease, LESSEE will provide
LESSOR with a certificate(s) verifying such insurance and the terms
described herein, and a blanket additional insured endorsement and shall
provide proof of continuing insurance as required herein on an annual basis
thereafter. LESSEE shall ensure that its contractors and any subcontractors
performing any installation of the Communications Facility, including
modifications to the Communications Facility as applicable or other work on
the Premises, will provide substantially the same insurance coverages and
limits as required of LESSEE in this Section 12.
13. DAMAGE OR DESTRUCTION OF IMPROVEMENTS TO PREMISES: LESSOR shall
have no duty or obligation to rebuild the Facilities or the improvements thereon if such
Facilities or improvements are substantially damaged during the Term, in whole or in part
by any casualty. LESSEE shall maintain, and if damaged during the term, shall reconstruct
the Facilities at LESSEE's expense.
14. ASSIGNMENT AND SUBLEASING:
I4.1 ASSIGNMENT: LESSEE shall not voluntarily assign or transfer its interest under
this Lease or in the Premises without first obtaining the prior written consent of
LESSOR, which consent shall be not unreasonably withheld, delayed or conditioned.
The transfer of the rights and obligations of LESSEE to a parent, subsidiary, or other
affiliate of LESSEE, or to any successor in interest or entity acquiring fifty-one
percent (5 I %) or more of LESSEE's membership interests or assets, shall not be
deemed an assignment and LESSOR's consent shall not be required for such transfer.
Any assignment without LESSOR's consent (when such consent is required) shall be
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voidable and, at LESSOR's election, shall constitute cause for exercise of LESSOR's
remedies under applicable law, including termination of this Lease. No consent to
any assignment shall constitute a further waiver of the provisions of this Section.
Notwithstanding the foregoing, it is understood that LESSEE shall not be released
from liability hereunder by virtue of any assignment. As a condition precedent to
any such assignment which requires LESSOR's consent, LESSEE agrees to provide
written notice to LESSOR of its intention to assign at least thirty (30) days before
the proposed effective date of any such proposed assignment which notice shall
include the identity of the proposed assignee, copies of the proposed assignment
documentation and current financial statements of the proposed assignee. As a
further condition precedent to any assignment, the assignee must assume, in writing,
all of LESSEE's obligations under this Lease.
14.2 SUBLEASING: LESSEE shall not sublease any portion of the Premises without the
prior written consent of LESSOR, which consent may be withheld, conditioned or
delayed in LESSOR's sole and absolute discretion. LESSEE shall be permitted to
sublease portions of the Premises to a wholly -owned subsidiary of LESSEE or any
of its affiliates, provided LESSEE provides LESSOR with express prior written
notice of such sublease.
14.3 COLLOCATION: LESSEE shall reasonably cooperate with future communications
operators that would request collocation as long as there is no adverse impact on
LESSEE from an operational, maintenance, and repair standpoint.
15. RENEWALMOLDING OVER: Upon the expiration or termination of this Lease, LESSEE
shall surrender the Premises to LESSOR. If LESSEE shall remain in possession of the
Premises after the expiration or termination of this Lease, with the consent of LESSOR,
either express or implied, such holding over shall be construed to create a month to month
tenancy subject to all the covenants, conditions, and obligations hereof, and LESSEE hereby
agrees to pay LESSOR, as holdover rent, an amount equal to one hundred twenty-five
percent (125%) of the Base Rental, as theretofore adjusted by the CPI-U increase described
in Section 4.2. Nothing above shall be construed to give LESSEE any rights to so hold over
and to continue in possession of the Premises after the expiration of the Term without the
express consent of LESSOR.
16. ENVIRONMENTAL: LESSEE and its agents, employees, or contractors, subcontractors or
other representatives shall not bring upon the Premises, or permit or authorize any other
person or entity to bring upon the Property, including the Premises, any hazardous materials,
hazardous substances, hazardous wastes, pollutants, asbestos, polychlorinated biphenyls
(PCBs), petroleum or other fuels (including crude oil or any fraction or derivative thereof).
Notwithstanding the foregoing, LESSEE may bring such fuels and lubricants onto the
Premises as may be required for operation of construction vehicles during construction and
backup power for generators during maintenance or repair of LESSEE's Facilities. In
addition, LESSEE may also bring onto the Premises, any lead -acid batteries, cleaning
solvents, and other chemicals necessary for proper utilization and maintenance of the
LESSEE's Facilities. In bringing any materials or substance onto, or using any materials and
substances on, the Premises, LESSEE shall comply with all federal, state, and local
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government laws, regulations, and rules. LESSEE shall be solely responsible for any
damages or costs incurred by LESSOR due to any environmental contamination, arising
from the presence or use on LESSEE's behalf of any hazardous materials or substances that
LESSEE, its agents, employees, contractors, subcontractors or other representatives bring
onto the Premises.
17. MISCELLANEOUS:
17.1 NO WAIVER: No covenant, term, or condition thereof shall be deemed waived,
except by written consent of the Party against whom the waiver is claimed. Any
waiver or the breach of any covenant, term or condition shall not be deemed to be a
waiver of any preceding or succeeding breach of the same or any other covenant,
term, or condition. Acceptance by LESSOR of performance other than full
performance by LESSEE after the time the performance shall have become due shall
not constitute a waiver by LESSOR of the breach or default of any covenant, term,
or condition unless otherwise expressly agreed to by LESSOR in writing.
17.2 ATTORNEYS' FEES AND COSTS: If either Party hereto shall bring any action for
any relief against the other, declaratory or otherwise, arising out of this Lease,
including any suit by LESSOR for the recovery of rent or possession of the Premises,
the prevailing Party shall be entitled to have and recover from the other Party the
prevailing Party's reasonable fees and costs (including attorneys' fees), which shall
be deemed to have accrued on the commencement of such action and shall be paid
whether or not such action is prosecuted to a judgment.
17.3 NO JOINT VENTURE: Neither LESSOR nor any of its employees shall have any
control over the manner, mode or means by which LESSEE, its agents or employees,
use the Premises or Facilities described herein, except as otherwise set forth herein.
LESSOR shall have no voice in the selection, discharge, supervision or control of
LESSEE's employees, servants, representatives or agents, or in fixing their number,
compensation or hours of service. LESSEE shall perform all covenants herein as a
tenant of LESSOR and shall remain at all times as to LESSOR a tenant with only
such obligations as are consistent with that role. LESSEE shall not at any time or in
any manner represent that it or any of its agents or employees are agents or employees
of LESSOR. LESSOR shall not in any way or for any purpose become or be deemed
to be a partner of LESSEE in its business or otherwise or a j oint venturer or a member
of any joint enterprise with LESSEE.
17.4 INTERPRETATION: The Parties hereto agree that all provisions hereof are to be
construed as both covenants and conditions as though the words imparting such
covenants and conditions were used in each separate section hereof. The captions of
the sections and subsections of this Lease are for convenience only and shall not be
deemed to be relevant in resolving any questions of interpretation or construction.
17.5 INTEGRATION AND GOVERNING LAW: This Lease represents the entire
understanding of LESSOR and LESSEE as to those matters contained herein. No
prior oral or written understanding shall be of any force or effect with respect to those
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matters covered by this Lease. This Lease shall be governed by the laws of the State
of California and construed as if drafted by both LESSOR and LESSEE. Any action,
arbitration, mediation, hearing or other proceeding related to this Lease shall be
conducted only in the County of Riverside.
17.6 LEASE BINDING ON HEIRS AND ASSIGNS: Each of the terms, covenants, and
conditions of this Lease shall extend to, be binding upon, and inure to the benefit of
not only LESSOR and LESSEE, but each of their respective heirs, representatives,
administrators and assigns. Whenever in this Lease reference is made to either
LESSOR or LESSEE, the reference shall be deemed to include, whenever applicable,
the heirs, legal representatives, and assigns of each of the Parties, the same as if in
every case expressed.
17.7 CORPORATE AUTHORITY: Each Party executing this Lease on behalf of a
corporation represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said corporation, in accordance with a duly adopted
resolution of the Board of Directors of said corporation and that this Lease is binding
upon said corporation in accordance with its terms.
17.8 NOTICES: Any written notices required pursuant to this Lease shall be made by
certified or registered mail, return receipt requested, or reliable overnight courier and
delivered to the following address:
To LESSOR: City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Clerk and City Manager
Copy to: Attn: Jeffrey Ballinger, City Attorney
To LESSEE: New Cingular Wireless PCS, LLC
Legal Department
Attn: Network Legal
208 S. Akard Street
Dallas, TX 75202-4206
Copy to: CCATT LLC
Attn: Legal Dept.
2000 Corporate Drive
Canonsburg, PA 15317
17.9 AMENDMENTS: This Lease may not be modified, altered, or amended except in
writing signed by both LESSOR and LESSEE.
17.10 ANTI -DISCRIMINATION: In connection with its performance under this Lease,
LESSEE shall not discriminate against any employee or applicant for employment
because of actual or perceived race, religion, color, sex, age, marital status, ancestry,
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national origin (i.e., place of origin, immigration status, cultural or linguistic
characteristics, or ethnicity), sexual orientation, gender identity, gender expression,
physical or mental disability, or medical condition (each a "prohibited basis").
LESSEE shall ensure that applicants are employed, and that employees are treated
during their employment, without regard to any prohibited basis. As a condition
precedent to LESSOR's lawful capacity to enter this Agreement, and in executing
this Lease, LESSEE certifies that its actions and omissions hereunder shall not
incorporate any discrimination arising from or related to any prohibited basis in any
LESSEE activity, including but not limited to the following: employment, upgrading,
demotion or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and selection for training, including
apprenticeship; and further, that Contractor is in full compliance with the provisions
of Palm Springs Municipal Code Section 7.09.040, including without limitation the
provision of benefits, relating to non-discrimination in city contracting.
18. DELETION OF ORIGINAL LEASE. LESSOR and LESSEE agree that effective as of the
Commencement Date of this Lease, the Original Lease Agreement is hereby amended by
deleting it in its entirety and restating the Original Lease Agreement as provided for in this
Lease.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by
their duly authorized officers.
LESSOR
THE CITY OF PALM SPRINGS,
a charter city under the laws of the State of
GoirQgai e ::��?
By:
David Ready, City Mana
APPROVED AS TO FORM:
Jeffrey Ballfwr, Ci Attorney
APP O Ely CITY COUNCL
10
2 Ujq III ASLILO-1
LESSEE
NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company
By: CCATT LLC,
a Delaware limited liability company
Its: Attorney in Fact!
By: %�Ugpy"
-
Name: Melanie Webb
Title: Senior Transactton MZTFjpr
1 LESSOR to provide Power of Attorney concurrently with execution of this agreement.
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EXHIBIT A
DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HERETO IS SITUATED IN THE CITY OF PALMS SPRING,
COUNTY RIVERSIDE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
LOT 25 AND WESTERLY RECTANGULAR ONE-HALF OF LOT 26 OF PALM VALLEY
COLONY LANDS IN SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN
BERNARDINO MERIDIAN, AS PER MAP ON FILE IN BOOK 14, PAGE 652, OF MAPS,
RECORDS OF SAID COUNTY.
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C�7
EXHIBIT B
DESCRIPTION AND MAP OF THE PREMISES
��� E9UNRISE PARK L.A
CRE88fVIAN 401711 PAVILION WAY
ARCHITecT9 PALM SRPIr . CA CELLULAR
J
DIR4KC7
MEO SITE
IN 1920.5 SOFT
AAF-AS9 R.O.N.
Im 6012.; SOFT
INITIALS
PROPOSED LANDLORD .
SITE PLAN
TENANT
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EXHIBIT C
DESCRIPTION OF THE FACILITIES
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