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HomeMy WebLinkAbout2006-07-26 STAFF REPORTS 2M MINUTE ORDER NO. APPROVING A LEASE AGREEMENT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, WITH OMNIPOINT COMMUNICATIONS, INCORPORATED (DBA T-MOBILE COMMUNICATIONS), A DELAWARE BASED CORPORATION, FOR CERTAIN PUBLIC PROPERTY LOCATED AT 450 SOUTH SUNRISE WAY (PALM SPRINGS STADIUM) FOR THE PURPOSE OF CONSTRUCTING AND OPERATING A WIRELESS COMMUNICATION FACILITY. -------------- I HEREBY CERTIFY that this Minute Order, approving a lease agreement, in a form acceptable to the City Attorney, with Omnipoint Communications, Incorporated (dba T- Mobile Communications), a Delaware Based Corporation, for certain public property located at 450 South Sunrise Way (Palm Springs Stadium)for the purpose of constructing and operating a wireless communications facility was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 19t' day of July, 2006. James Thompson City Clerk ' ITEM NO. �� IF04859D S W87_Pahn_Spnnes_SWdmin LEASE OF SITE FOR COMMUNICATIONS FACILITIES This Agreement for Lease of Site for Communications Facilities ("Lease") is made on the day of 2006, by and between the City of Palm Springs, a municipal corporation (hereinafter called "City") and Omnipoint Communications, Inc, a Delaware corporation, a subsidiary of T-Mobile USA, Inc., a Delaware corporation ("Tenant")- Hereinafter, City and Tenant may be referred to individually as "Party" and collectively as "Parties_" The Parties agree as follows: Condition Precedent. This Lease is conditioned upon Tenant, or Tenant's assigns, obtaining all governmental licenses, permits and approvals enabling Tenant, or its assigns, to construct and operate mobile/wireless communications facilities on the Leased Premises (as defined below)_ Section 1. Leased Premises. City hereby leases to Tenant and Tenant hereby leases from City a portion of the Property, described in Exhibit "A". The City is fee owner of real property located within the City of Palm Springs, State of California ("State"), commonly referred to as the Palm Springs Stadium ("Property"). The legal description of the Property is set forth in Exhibit "A" hereto_ Subject to the terms and conditions of this Lease, the City leases to Tenant that portion of the Property described and depicted in Exhibit "B" ("Leased Premises"). The rights granted to Tenant pursuant to this Lease shall include the right of ingress and egress to and from the Leased Premises along, over and across the Property, as described and depicted in Exhibit"C". Section 2. Use of Leased Premises. To the extent provided in this Lease, Tenant may use the Leased Premises to facilitate provision of wireless communication services, including the transmission and the reception of communication signals of various frequencies ("Communication Services"). Subject to the terms and conditions of this Lease, Tenant may construct, maintain, repair, replace and operate on the Leased Premises the communications and Other facilities depicted and/or described in general in Exhibit "C" ("Tenant's Facilities"), as approved by the City's Planning Commission. To the extent reasonable, the City shall cooperate with Tenant in applying for and obtaining all licenses, permits, and any and all other necessary approvals that maybe required for Tenant's use of the Leased Premises. Section 3. Additional Consideration. As consideration to the City for entering into this ]Lease, in addition to the rental payments specified in Section 3, within thirty (30) days of the Commencement Date of this Lease (as defined below), Tenant shall pay to the City the one-tune sum of FIVE THOUSAND DOLLARS ($5,000), which shall be deemed the cost to the City of the legal fees and administration required to consider, negotiate and enter into this Lease. Such payment shall not be refunded or reimbursed to Tenant for any reason, regardless of whether Tenant terminates the Lease pursuant to its provisions or proceeds with construction of the Tenant's Facilities. IE04859D SB33 7_Paim_Sp3ings Stadium Section 4. Due Diligence Period. Tenant shall have one-hundred and eighty (180) days from execution by the City of this Lease ("Due Diligence Period") to determine the suitability of the Leased Premises for Tenant's intended purposes, including any soil, geological, environmental or other site test or document review that Tenant deems necessary ("Due Diligence Inspections"). During the Due Diligence Period, Tenant shall also obtain all federal, State, and local governmental or other approvals required for construction of the Tenant's Facilities. If necessary, the Due Diligence Period shall be automatically extended until the City has issued a building permit. At any time during the Due Diligence Period, Tenant may, in its sole discretion, determine that it is not possible, practical or feasible for Tenant to proceed with construction of the Tenant's Facilities on the leased Premises, in which case, Tenant may provide to the City written notice of the termination of the Lease ("Notice of Tenmination"). Upon receipt of any such Notice of Termination within the Due Diligence Period, this Lease shall terminate and, except as otherwise provided herein, neither Party shall have any continuing obligations under the Lease. Section 5. Effective Date of Lease. The effective date shall be the date this Lease was executed by the City. Section 6. Term of Lease. The tern of this Lease ("Lease Term") shall be five (5) years commencing on the date of issuance of a local building permit allowing Tenant to construct its wireless communications facilities on the Leased Premises ("Commencement Date"). Tenant may extend the Tenn of this Lease for five (5) additional five (5) year terms (hereinafter "Renewal Term"). This Lease shall automatically renew for each successive Renewal Term unless Tenant notifies City in writing of Tenant's election not to renew this Lease at least thirty (30) days prior to the expiration of this Lease or any Renewal Term- Each Renewal Term shall be on the same terms and conditions as set forth herein, except that Rent (as defined below) shall be increased as provided in Section 8 (Rent). Notwithstanding the above, upon a finding by City's City Council that the Leased Premises are needed for other public purposes City shall have the right, after the expiration of the second Renewal Tenn, to terminate this Lease without liability upon one(1) year's written notice of termination to Tenant. Section 7. Termination Prior to Expiration of Term. In addition to any other bases for termination specified herein, this Lease may be terminated: (i) by either Party upon a default of any covenant, condition, or term hereof by the other Party, which default is not cured within thirty(30) days of receipt of written notice of default (provided, however, that if the nature of the defaulting party's obligation is such that more than thirty(30) days are required for performance, then the defaulting party shall not be in default, and there is no basis for termination, if the defaulting party commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion), (ii) immediately by Tenant if Tenant is unable to obtain and/or maintain any required approval or if Tenant determines in its reasonable discretion that it will be unable to utilize the Leased Premises for its intended purposes, (iii) by Tenant if the Property, the Leased Premises or the Tenant's Facilities are, or become unacceptable under Tenant's design or engineering specifications for its Tenant's Facilities or the communications system to which the Tenant's Facilities belong, or (iv) by Tenant if Tenant determines that the Property or Tenant's Facilities are inappropriate or unnecessary for Tenant's operations due to economic reasons. Except as otherwise provided in this Lease, any termination of this Lease shall be effective thirty(30) days after delivery by the terminating Party to the other Party of the 2 i Inn„r .,l1q^n^•n3 1r. 1 cA7k7 P . . . IE04859D sa387_P9hu_springs_scndium Notice of Termination- Except as may otherwise be provided in this Lease, upon termination, neither Party shall have any further obligation to the other Party pursuant to this Lease- Section 8. Rent. The minimum monthly rent, without deduction, setoff, prior notice, or demand, for the Leased Premises pursuant to this Lease ("Rent") shall be the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) per month in advance by the fifth day of each month, commencing on the date the Term commences, and continuing during the Term. Rent for the first month or portion thereof shall be paid within twenty (20) days following the Commencement Date. Rent for any partial month shall be prorated at the rate of 1/30`h of the rent per day- All Rent shall be paid to City at the address to which notices to City are given as provided for in Section 44 of this Lease. The minimum monthly Rent shall be automatically adjusted on each anniversary of the Effective Date in an amount equal to the increase in the Consumer Price Index published by the United States Department of Labor, Burcau of Labor Statistics (1982-1984 = 100) [the "CPI"] for "All Items - All Urban Consumers", for the Los Angeles-Anaheim-Riverside Metropolitan Statistical Area, during the preceding one (1) year period. The base month for increases under this Paragraph shall be the most recently measured twelve (12) month period prior to the commencement of each annual anniversary of the Commencement Date. Landlord shall send Tenant written notice of the applicable Rent increase for each Lease year along with documentation evidencing the calculation used to arrive at that figure no less than thirty(30) days prior to the date the increase becomes effective. Notwithstanding the foregoing, in no event shall Rent be increased by more than five percent(5%) of the Rent paid during the previous year. Section 9. Security Deposit- Within one hundred twenty (120) days of the Effective Date of this Lease, Tenant shall provide City with, and at all times thereafter maintain, a refundable security deposit in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500). Section 10. inspection and Entry, Access for Due Diligence inspections. City and/or its authorized representatives shall have the right to enter the Leased Premises upon reasonable prior notice to Tenant (which shall not be less than twenty-four (24) hours unless the City Manager determines that exigent circumstances warrant a sborter period of time) (so long as such entrance does not unreasonably interfere with Tenant's use): a. To determine whether the Leased Premises is in good condition and whether Tenant is complying with its obligations under this Lease. b. To do any necessary maintenance and to make any restoration to the Leased Premises that City 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. d. To nun electric or telephone conductors, pipes, conduits, or ductwork where necessary or desirable over, under, or through the Leased Premises in a manner which will not unreasonably interfere with Tenant's use of the Leased Premises. 3 1nm omra 11 M �. . IE04859D SB387_Pahn_Springs Smdi= City shall not be liable in any manner for any incoDvenience, disturbance, loss of business, nuisance arising out of City's entry on the Leased Premises as provided in this Section, except damage resulting from the acts or omissions of City or its authorized representatives_ Tenant shall not be entitled to an abatement or reduction of Kent if City exercises any rights reserved in this Section. Tenant shall have the right during the Due Diligence Period to enter the Leased Premises for the purpose of conducting the Due Diligence Inspections, as specified in Section 4. Tenant shall provide reasonable notice to the City (which in any event shall not be less than twenty-four(24) hours) prior to entering the Leased Premises for purposes of conducting the Due Diligence Inspections, and shall coordinate the scheduling of same with the City to avoid any interference with the City's operations, educational programs or recreational programs. Section 11. Construction of Tenant's Facilities. Tenant shall have the right to construct, maintain, and operate the Tenant's Facilities on the Leased Premises that is depicted in Exhibit C. The Parties intend that the antennas and appurtenances related thereto which are a part of Tenant's Facilities shall be constructed on a stadium light standard ("Light Standard") in such manner as to provide the appearance and function of stadium lights and that the City shall use the Tenant's Facilities for such purpose_ Therefore, construction by Tenant of any improvement, structure or work on the Leased Premises, other than as specified in Exhibit C shall be permitted only upon the express written consent of the City, which City may either grant or withhold in its reasonable discretion_ Notwithstanding anything to the contrary, Tenant shall have the right to modify its ground equipment, provided that such modification shall not exceed the Leased Premises. The construction of the Tenant's Facilities shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner. Tenant shall provide reasonable notice to the City prior to entering the Leased Premises for purposes of constructing the Tenant's Facilities, and shall coordinate the scheduling and logistics of same with the City to avoid any interference with the City's operations, educational programs or recreational programs. Tenant shall construct a block wall around the perimeter of Tenant's Facilities to conceal such facilities from public view. The wall shall be identical to the existing block wall with respect to design, color, and materials. Altennatively, if approved by City's Planning Department, Tenant may construct a chain link fence that shall be concealed with a green canopy to match the existing green fences surrounding the ball field. Section 12. Mechanic's Lien. Tenant shall pay all costs for construction done by it or caused to be done by it on or relating to the ]Leased Premises as permitted by this Lease. Tenant shall keep the Leased Premises free and clear of all mechanics' liens resulting from construction done by or for Tenant. Tenant shall have the right to contest the correctness or the validity of any such lien if, promptly on demand by the City Manager, Tenant procures and records a lien release bond issued by a corporation authorized to issue surety bonds in Cali forma in an amount equal to one the claim of lien. The bond shall meet the requirements of Civil Code Section 3143 and shall provide for the payment of any sum that the claimant may recover on the claim (together with costs of suit, if it recovers in the action). Section 13. Utilities. Tenant shall have the right to install underground utilities, at Tenant's expense, and to improve the present utilities on or near the Leased Premises (including, but not limited to, the installation of emergency backup power). Subject to City's approval of the location, which approval shall not be unreasonably withheld, conditioned, or delayed, Tenant 4 nnr IE04859D SB387_pahtt Springs Stadium shall have the right to place utilities on (or to bring utilities across) City's Property in order to service the Leased Premises and Tenant's Facilities. Upon Tenant's request, City shall execute recordable easement(s) evidencing this right. Tenant shall .fully and promptly pay for all utilities furnished to the Leased Premises for the use, operation and maintenance of Tenant's Facilities. As a condition For permitting construction of the Tenant's Facilities on the Leased Premises, all utility transmission lines shall be constructed underground from the point of connection to the utility service to the Tenant's Facilities, and no utility transmission lines shall be constructed above ground. All utility services serving the Tenant's Facilities shall be established solely in Tenant's name, and Tenant shall fully and promptly pay for all utilities famished to the Leased Premises for the use, operation and maintenance of Tenant's Facilities. Tenant shall be granted a license over a portion of the Property as may be reasonably required by Tenant to establish connections to and/or between Tenant's equipment and antenna installations, situated substantially as shown on Exhibits B, and/or C, to install, maintain, replace and repair, from time to time, cables conduits and pipes from the Leased Premises to the nearest appropriate utility connections. Section N. Completion of Construction. Tenant shall complete the construction of the Tenant's Facilities in a reasonable period of time, not to exceed ninety (90) days after the Commencement Date. Upon completion of the construction, Tenant shall provide to the City (i) written notice of completion and (ii) "as-built" construction plans and specifications for the Tenant's Facilities. Section 15. Access for Maintenance and Operation of Tenant's Facilities. Upon completion of the Tenant's Facilities, and subject to the provisions of Section 1 G, Tenant shall be, permitted access to the Leased Premises twenty-four (24) hours a day, seven (7) days a week, for purposes of operating and maintaining the Tenant's Facilities, provided that Tenant shall not interfere with the operations, educational programs, or recreational programs of the City_ Section 16. City's Maintenance of Property. Subject to Section 17, City shall maintain its Property and the fight(s) mounted on the Light Standard, including the appearance thereof, in a good and worlanarilike condition. Tenant shall be responsible for repairing any damages to the Leased Premises or to the Property resulting from Tenant's actions pursuant to this Lease, or the cost to the City of repairing same if Tenant has not completed such repairs within a reasonable time or by the completion date reasonably established by the City. Tenant shall also pay, upon request of the City, the reasonable cost for repair of damage to the Property, if any, arising from Tenant's actions pursuant to this Lease. Section 17. Tenant's Maintenance of Leased Premises. Tenant's maintenance of the Leased Premises shall include, but is not limited to: a. Maintenance of all landscaping installed by Tenant, if any; b. Repairs and/or replacements to Tenant'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 Tenant's personal property. All Tenant Facilities on the Property must be 5 IF04859D SB3 R7_Pa Im_Spri)ips_stad ium maintained in a first-class condition without rust, paint, or surface deterioration. All maintenance must conform to the standards utilized by City. d. All work necessary to comply with Federal, State, County, municipal, and other governmental agencies and bodies having or claiming jurisdiction_ Section I.S. Environmental. Tenant and its agents, employees, or contractors subcontractors or other representatives shall not bring upon the Leased Premises, or permit or authorize any other person or entity to bring upon the Property, including the Leased 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, Tenant may bring such fuels and lubricants onto the Leased Premises as may be required for operation of construction vehicles during construction and backup power for generators during, maintenance or repair of the Tenant's Facilities. In addition, Tenant may also bring onto the Leased Premises, any lead-acid batteries, cleaning solvents, and other chemicals necessary for proper utilization and maintenance of the Tenant's Facilities. In bringing any materials or substance onto, or using any materials and substances on, the Leased Premises, the Tenant shall comply with all federal, State, and local govermnent laws, regulations, and rules. Tenant shall be solely responsible for any damages or costs incurred by the City due to any environmental contamination, arising from the presence or use on Tenant's behalf of any hazardous materials or substances that Tenant, its agents, employees, contractors, subcontractors or other representatives bring onto the Leased Premises. Tenant shall indemnify, defend and hold City harmless from and against all claims, losses, liabilities, damages, costs, and expenses, including reasonable attorneys' and consultants' fees, costs and expenses to the extent arising from (i) any breach of its obligations pursuant to this Paragraph and/or (ii) environmental conditions or noncompliance with any environmental law that result from the right to occupy, use, control, or maintain operations in or about, the Leased Premises by Tenant and its respective agents, employees, contractors, tenants, guests or other parties_ The provisions of this Paragraph shall apply as of the Commencement Date of this Lease and survive termination of this Lease. City represents that to the best of its knowledge, the ]Property has not been used for the generation, storage, treatment or disposal of hazardous materials. In addition, City represents that no hazardous materials or underground storage tanks are located on or near the Leased Premises. Notwithstanding any other provision of this Lease, Tenant relies upon the representations stated herein as a material inducement fox entering into this Lease_ City represents and warrants that it will not permit itself or any third party to use, generate, handle, store or dispose of any hazardous material in, on, under, upon, or affecting the ]Property in violation of any environmental law_ City shall indemnify, defend and hold Tenant harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) to the extent arising from (i) any breach of its representation or warranty made in this Paragraph and/or (ii) environmental conditions or noncompliance with any environmental law that result from the ownership or control of, or operations in or about, the Property by City and its respective agents, employees, contractors, tenants, guests or other parties. The provisions of this Paragraph shall apply as of the Commencement Date of this Lease and survive termination of this Lease. Section 19. City Operations, Educational and Recreational Programs. Tenant shall conduct all of its activities on the Leased Premises, including but not limited to Due Diligence 6 1E0a85`)n $W87_Pan_Spnngs_Stadium Inspections and construction, operation and maintenance of the Tenant's Facilities, in a manner that does not materially interfere with the City's operations, or use of the Property by the City or third parties. In the event such interference occurs and, upon request, Tenant fails to promptly cease such interference, or if Tenant ceases and subsequently recommences such interference, the City may deliver a Notice of Termination to Tenant, in which case this Lease shall terminate in accordance with Section 7. Section 20. Interference with City's Communications. Tenant shall ensure that the construction, operation and maintenance of Tenant's Facilities shall not disturb or interfere with the communications configurations, equipment and frequencies that exist on the Leased Premises on the Effective Date ("Pre-existing Communications")_ Tenant shall, in the construction, operation and maintenance of Tenant's Facilities, and in the provision of Communication Services, comply with all non-interference rules of the Federal Communications Commission ("FCC"). Tenant acknowledges that any interference with the Pre-existing Communications shall be considered a material breach of this Lease. In the event the construction, maintenance or operation of the Tenant's Facilities, or the provision of Communication Services, interferes with the Pre-existing Communications, Tenant shall, upon request by the City, immediately cease all activities resulting in such interference. Tenant may thereafter coordinate with City to perform any tests of its equipment at such times as are approved by the City. Tenant's obligation to nnrnediately cease such activities shall be specifically enforceable in an appropriate court. Section 21. Co Location_ City and/or City's agents shall have the right to install, an omni-directional antenna and other equipment on the Light Standard at the location and in the manner approved by Tenant necessary to facilitate wireless data delivery services to City and the surrounding area. Notwithstanding anything contained in this Lease to the contrary, City shall not construct, or permit the construction of, any improvements (including structures and trees) within twenty feet (20') of Tenant's Facilities or anywhere on the Property which interfere with the communications operations of Tenant. a. Unless otherwise specified, the Tenant's Facilities shall be built to include the following specifications to allow for City's possible use: i. If Tenant will be constructing a monopole or other tower at the Leased Premises for its use, such tower/monopole shall, upon completion of construction, be available to City and/or its agent to use for one (1) 2.3 to 5.5 GHZ omni antenna to specifications approved by the City. iL If Tenant will be constructing a vault or similar facility to house equipment at the Leased Premises, Tenant shall make available, upon completion of initial construction, a 2' x 2' x 7' space for City; if Tenant will be constructing ail equipment pad, Tenant shall make available, upon completion of initial construction, at least 2.5' x 2.5' of space for City's equipment cabinet. iii. Conduit or a cable tray for transmission from equipment area to antenna. iv. Cable access to phone and electrical lines. 7 IE04859D SB387_Palm_Spnngs_SMdiwn b. IF City chooses to occupy the Light Standard built by Tenant, it may engage a contractor to install its equipment on Tenant's Facilities- Tenant reserves the right to approve City's list of contractors prequalified to perform the equipment installation. Contractors utilized by City must all provide proof of adequate insurance coverage and must name Tenant as an additional insured. Tenant shall inspect the installation and advise City of any deficiencies noted. Alternatively, City may request that Tenant install City's equipment. All expenses that Tenant actually incurs for ancillary equipment purchased or installed for the benefit of City, or for radio tower work performed by Tenant for the benefit of City, including review of City's equipment specifications and oversight of construction of City's equipment, shall be at City's expense, provided that such costs are commercially competitive and documented in reasonable detail. C. When City occupies the Light Standard constructed by Tenant, the parties agree to negotiate in good faith issues concerning such occupation by City including, but not limited to, insurance, maintenance, interference and City's indemnification of Tenant for any damage to Tenant's Facilities, and draft an amendment to this Lease to address same_ If parties other than City will co-use Tenant's Facilities, it shall be Tenant's responsibility to ensure, that any space reserved for City pursuant to thus Section remains available and technically feasible with respect to structural and technical interference issues. Section 22. Co-Location—Third PaM. a. Neither the City nor the Tenant shall hinder the co-use of Tenant's Facilities by another company ("Sub-Use"). Tenant may permit third parties to install equipment on the Leased Premises with City's prior written permission, which shall not be unreasonably withheld, conditioned, or delayed. Tenant shall not allow any Sub-Use or installation of additional equipment which, based on industry standards, results in any interference with City's operations, communication systems, microwave antennas, and/or other equipment, or would prevent City from utilizing its reserved space as set forth in Section 21. Tenant may charge a reasonable fee for the use of the Leased Premises by third parties, under written agreements with those third parties. For third-party co-locations requiring land outside of the Leased Premises (each a "Direct-Use"), City will have a separate license agreement with each third party, the term of which may not exceed the duration of this Lease and the monthly rent for which shall be paid to City by the third party. b. Tenant may not refuse to negotiate in good faith to enter into agreements on commercially reasonable terms with any interested third party for the occupation of a facility built by Tenant, unless occupation will result in interference with Tenant's or City's operations, communications systems, microwave antennas, and/or other equipment. Section 23. Interference with Communication Services. Other than as may be specified in this Lease, the City shall not permit the use of any portion of the Leased Premises in a manner that interferes with Tenant's provision of the Communication Services. The City shall, upon request from Tenant, promptly terminate such interference. The City's obligation to cease such interference shall be specifically enforceable in an appropriate court. Pre-existing Communications operating in the same manner as on the Effective Date shall be deemed not to constitute interference for purposes of this Section. S tam 11)m 13^. A nx �. . IE04859D SB387 Palm_sprinrs_Stadium Section 24. Upgrades to City's Communications. Notwithstanding the provisions of Section 23, nothing in this Lease shall be construed to prohibit the City, in its sole discretion, from upgrading or replacing any of its communications, telecommunications, computer or other systems ("Upgraded Systems"), on a City-wide or lesser basis. The City shall not be liable to Tenant for any interference caused by the Upgraded Systems to the Communication Services; if such upgrade is to enhance public safety; however, the City shall make reasonable efforts to provide Tenant with information on the Upgraded Systems and to consult with Tenant prior to and after implementing any such Upgraded Systems and to accommodate, if reasonably possible, Tenant's concerns- In the event that the Upgraded Systems interfere with the Communication Services, Tenant may provide a Notice of Termination to the City- Notwithstanding the foregoing, in interpreting this provision, it shall be deemed the intent of the Parties that the City shall at all times have the ability to acquire and/or utilize the most up-to-date communications or other technology as City, in its sole discretion, deems appropriate. Section 25. Return of Leased Premises. During the Lease Term, Tenant shall retain title to the Tenant's Facilities- Except as provided herein, Tenant shall at its sole expense remove all of Tenant's Facilities, including all utility transmission lines, within sixty (60) days following expiration or termination of this Lease. Upon the expiration or termination of this Lease, Tenant shall surrender the Leased Premises to the City in a condition at least as good as existed on the date Tenant executes this Lease, less ordinary and reasonable wear and tear. The Parties intend that Tenant shall not remove or destroy any improvements to the Leased Premises that, subsequent to surrender of the Leased Premises by Tenant, will benefit or be of use to the City, excepting Tenant's antennas or mechanical, computer or similar equipment. Therefore, upon expiration or termination of this Lease, the City may request that Tenant not remove or destroy all or any portion of the Tenant's Facilities, and, except for any electrical (other than lighting), mechanical, computer, or similar equipment (including antennas), Tenant shall not remove the portion of the Tenant's Facilities that is the subject of the City's request. Tenant shall thereafter execute any and all documents as are reasonably required to evidence that title to such improvements, including the Light Standard, have been transferred to the City, in their "as-is" condition- Section 26. Destruction of Leased Premises. If either the Leased Premises or the Property is destroyed or damaged as a result of a catastrophic event to the extent that, in Tenant's reasonable discretion, Tenant may no longer use the Leased Premises for the intended purposes, Tenant may elect to either' (i) terminate this Lease pursuant to Section 7, 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 a request to terminate; or(ii)upon consent of the City, which shall not be unreasonably withheld, conditioned or delayed, use a portion of the Leased Premises specified by the City for provision of Communication Services on a temporary basis until such time as the Tenant's Facilities on the Leased Premises are repaired or reconstructed so that Tenant can resume the provision of Communication Services from the Leased Premises. If Tenant elects to continue this Lease and in the event that City unreasonably delayed its consent for Tenant to install the temporary facility in order for Tenant to continue its operation, Rent shall abate for the period of non-use. Any such repair or reconstruction shall be completed in an expeditious manner. If Tenant elects to terminate this Lease, Tenant shall be entitled to reimbursement of any Rent prepaid by Tenant during the time period of non-use. 9 inr• -�miaar ^r^ IE04859D SB387_Palm_sprmgs_Stadium Section 27. Condemnation. If a condemning authority takes all of the Leased Premises, or a portion that, in Tenant's reasonable discretion, is sufficient to render the Leased Premises unsuitable for its intended use, then Tenant may deliver a Notice of Termination to the City. Notwithstanding any other provision of this Lease, the Notice of Termination shall be effective as of the date when possession is delivered to the condemning authority. For purposes of this Agreement, upon threat of condemnation by any entity with power of eminent domain, sale of all or part of the Leased Premises to such entity shall be deemed to be a taking by the condensing authority. Without derogating the rights of the City, Tenant shall have the right to pursue its own claims against the condemning authority and shall be entitled to receive all amounts recovered from such claims. Section 28. Taxes, Assessment Fees. Tenant shall pay before delinquency all personal property taxes, assessments, license fees, and other charges (hereinafter called "taxes") that are levied and accessed against Tenant's personal property installed or located in or on the Leased Premises, and that become payable during the Term. On demand by the City Manager, Tenant shall furnish City with satisfactory evidence of these payments_ This Lease may create a possessory interest, as described in the Revenue and Taxation Code of the State of California, in tax-exempt property. If such an interest is created, it may be subject to property taxation. If this occurs, Tenant shall be subject to payment of taxes on such interest. In the event City's real property taxes on the Property are increased as a direct result of the presence of the Tenant facilities thereon, upon sufficient documentation, Tenant shall reimburse City for such increase, provided that City cooperates with Tenant, at Tenant's sole cost and expense, in filing an appeal against such increase. City shall not be entitled to any additional consideration for giving its cooperation. Additionally, Tenant shall be entitled to keep all amounts recovered from such appeal. The payment of any such taxes, fees, or charges shall not constitute cause for reduction of Rent payable by Tenant. If the imposition of any tax, fee, charge, duty or assessment shall be deemed by Tenant to be improper, illegal, or excessive, Tenant may, at its sole cost and expense, dispute and contest the same in any manner provided by law, provided, however, any such taxes, fees, charges, duties, or assessments shall have first been paid_ Section 29. Insurance. Prior to its ability to access the Leased Premises, Tenant shall provide City with proof of insurance, at Tenant's sole cost and expense, to remain in full force and effect during the entire term, of this Lease. The following policies of insurance shall be maintained: a. Workers' Compensation Insurance. Workers' Compensation Insurance in an amount required by the laws of California and Employer's Liability Insurance in an amount not less that ONE MILLION DOLLARS ($1,000,000) combined single limit for all damages arising from each accident or occupational disease. b. Liability Insurance. Commercial general liability insurance, written on an occurrence basis, covering claims for bodily injury, including death, property damage, and consequential damages ("Liability Policy"). The Liability Policy shall provide coverage in an amount not less than TWO MILLION DOLLARS ($2,000,000)per occurrence. c_ Automobile Liability Insurance_ A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than ONE MILLION 10 I001?00lr b4n3 v7 ` .. I I ' rsoass�n I I S5387,PaLn_Spnngs_$radinm I DOLLARS ($1,000,000) combined single limit covering all owned, non-owned, leased, and t hired vehicles used in connection with operations occurring on the Property. d. Other Insurance, Such other policies of insurance including, but not limited to, casualty insurance, business interruption insurance and fidelity insurance, as may be required by t the nature of operations. e. General Provisions. All of the foregoing policies of insurance (except for the Workers' Compensation Insurance) shall name the City as an additional insured and shall be primary insurance and any insurance maintained by City shall be excess and non-contributing- Each insurer of Tenant for property insurance, shall waive all rights of contribution and subrogation against City and its respective insurers. Each of such policies of insurance shall name City and its affiliated entities, and their respective officers, directors, agents, and employees (collectively, "City's Parties") as additional insureds. All policies of insurance i required to be obtained by Tenant hereunder shall be issued by insurance companies authorized i to do business in California and must be rated no less than A-:VII or better in Best's Insurance Guide. Prior to engaging in any operations hereunder, Tenant shall deliver to City certificate(s) of insurance and original endorsements evidencing the coverages specified above. Alternatively, i Tenant shall have the option of providing City with evidence of such coverage electronically by i providing to City a Uniform Resource Locator ("URL") Link to access Tenant's memorandum i of insurance ("MOI") website in order for City to review the coverage required by this Paragraph. Such policies shall not be cancelled or required limits reduced to the detriment of City or Tenant without the insurer providing City with thirty (30) days' written notice. The coverage amounts set forth may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. Section 30. Indemnification by Tenant. To the fullest extent permitted by law, Tenant shall indemnify, defend (with counsel reasonably acceptable to City), protect and hold harmless City and City's Parties from and against any and all claims, demands, judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without 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 Tenant to be performed under the terms of this Lease, (ii) Tenant's use of the Leased Premises, or (iii) the conduct of Tenant's business or any activity, work or things done, permitted or suffered by Tenant in or about the Leased Premises, except to the extent caused by City's, City's Parties' or the City's agents', contractors', tenants', guests', invitees', or licensees' negligence or willful misconduct. The obligations of Tenant under this Section shall survive the expiration or earlier termination of this Lease. Tenant shall not be liable for any consequential or special damages or loss of profits, Tenant, as a material part of the consideration to City, hereby assumes all risk of damage to the Leased Premises, including, without limitation, injury to persons in, upon or about the ]Leased Premises during Tenant's use of the Leased Premises, arising from any use of the Tenant's Facilities or other activities of Tenant or Tenant's agents, employees, guests, or invitees (collectively "Tenant's Parties") on the Leased Premises. Tenant hereby waives all claims with respect thereof against City, except as otherwise stated in this Lease. City shall not be liable for any injury to the Tenant's Facilities, Leased Premises, or injury to or death of any of Tenant's Parties, or injury to the Tenant's Facilities, or injury to or death of any other person in or about 11 rr . Tm ices^ IE04859D S 5397_Palm_SpHngs_Stadium the Leased Premises from any cause except to the extent such is caused by the negligence or willful misconduct of the City, the City's Parties, or the City's agents, contractors, tenants, guests, invitees, or licensees. Section 32. Subcontractor's Insurance. Tenant shall require all subcontractors constructing, operating or maintaining any portion of the Tenant's Facilities or entering upon the Leased Premises or the Property for any other purpose, to obtain and maintain a policy of commercial general liability insurance, written on an "occurrence" basis, covering claims for bodily injury, including death, property damage, and consequential damages that may arise out of or result from that subcontractor's actions on the Leased Premises or the Property, whether such actions are taken by the subcontractor or any person directly or indirectly employed by the subcontractor ("Subcontractor's Policy"). The Subcontractor's Policy shall name the City as an additional insured and shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000) per occurrence and FIVE MILLION DOLLARS ($5,000,000) aggregate. The Subcontractor's Policy shall require that the insurer provide written notice to the City not later than thirty (30) days prior to cancellation, expiration without renewal, termination, or reduction in coverage of the Subcontractor's Policy. Tenant shall require that each subcontractor obtain and maintain Workers' Compensation Insurance in compliance with Section 3700 of the California Labor Code to secure compensation for the subcontractor's employees. Prior to permitting the subcontractor to enter upon the Leased Premises or the Property, Tenant shall provide to the City copies of the insurance certificates required pursuant to this Section along with certificates of insurance evidencing the existence thereof Section 33. Intentionally Omitted. Section 34. Lease Officer. The Lease Officer shall be such person as may be designated by the City Manager of City. It shall be the Tenant's responsibility to assure that the Lease Officer is kept informed of matters relating to the communication services and use of the Leased Premises and the Tenant shall refer any decisions which must be made by City to the Lease Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Lease Officer_ The Lease Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Lease. Section 35, No Joint Venture. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Tenant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Tenant's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Tenant shall perform all services required herein as a tenant of City and shall remain at all times as to City a tenant with only such obligations as are consistent with that role. Tenant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Tenant in its business or otherwise or a joint venturer or a member of any joint enterprise with Tenant. Section 36. Encumbrances. Tenant shall not under any circumstances encumber the fee estate of the City in the Leased Premises or the Property, including by means of any mortgage, deed of trust, or other instrument or device. Except as provided in this Lease, Tenant shall not, 12 1003/001/32024.03 SRI17 ^ ' IE04859D SB397—Pahn_spiings_S WJium by operation of law or otherwise, sell, assign, sublease, lease, or otherwise transfer, dispose of or convey its leasehold interest in the Leased Premises. Section 37. Entire Agreement. This Lease constitutes the entire agreement and understanding between the Parties, and supersedes all prior communications, offers, negotiations and understandings, if any, written or oral, concerning the subject matter of this Lease. Each Party represents and acknowledges that it has conducted an independent investigation of the facts and situations relevant to this Lease, and that neither the other Party nor its agents or attorneys have made any promise, representation, or warranty whatsoever, express or implied, not contained herein to induce the execution of this Lease. Each Party further represents and warrants that it has not executed this Lease in reliance upon any promise, representation or warranty not contained herein. Section 38. Severability. If any court of competent jurisdiction determines that any provision, section, subsection, or clause of this Lease is invalid or unenforceable with respect to any Party, the remainder of this Lease and the application of such provision, section, subsection, or clause to persons other than those as to whom it is held invalid or unenforceable shall not be affected, and each remaining provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. Section 39. Modification of Lease. This Lease may be modified or amended only by a writing approved and executed by both Parties. Section 40. Assignment. Tenant may assign this Lease only upon express written consent of the City, which the City shall not unreasonably withhold. Any purported assignment, or attempted assignment, of this Lease without the prior written consent of the City shall result in immediate termination of this Lease without further action of either Party, and Tenant shall have sixty (60) days thereafter, to the extent provided in Section 25, to remove the Tenant's Facilities and all related improvements, including utility transmission lines, from the Leased Premises_ Notwithstanding the foregoing, Tenant at any time may, without the City's prior written consent, assign or sublease its rights under this Lease to any person or business entity which is authorized pursuant to and FCC licensed to, operate a wireless communications business, is a parent, subsidiary or affiliate of Tenant, is merged or consolidated with Tenant or purchases more than fifty percent (50%) of either an ownership interest in Tenant or the assets of Tenant in the "Metropolitan Trading.Area' or"Basic Trading Area" (as those terms are defined by the FCC) in which the Property is located. Additionally, Tenant may, upon written notice to City collaterally assign or grant a security interest in this Lease and the Tenant's Facilities, and may assign this ]Lease and the Tenant's Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively "Secured Parties"). In such event, City shall execute such consent to leasehold financing as may reasonably be required by such Secured Parties. Any assignment of this Lease shall be in writing and properly authorized by Tenant, and Tenant shall promptly thereafter provide a copy of such assignment to the City. This Lease shall be binding on and inure to the benefit of the authorized successors and assignees of the respective Parties. Section 41, '1Wrd Party Beneficiaries. The Parties intend that this Lease is made solely for the benefit of the Parties and their authorized successors and assigns, and that no other 13 IE04859D SB337_Palm_Springs_Sudimn person shall be entitled, directly or indirectly, to base any claim on, or to have any rights arising from or related to, this Lease. Section 42. Governing Law and Venue. This Lease and all rights and obligations arising therefrom shall be construed in accordance with the laws of the State of California. Any action, arbitration, mediation, hearing or other proceeding related to this Lease shall be conducted only in the County of Riverside ("County"). Section 43. Attorneys' Fees_and Costs. With respect to any legal claim or action related to or arising as a result of this Lease, including any appeal, arbitration, mediation, or other proceeding, the substantially prevailing party shall be entitled, in addition to any judgment or award by the court, to its reasonable attorneys' fees, expenses and court costs. Section 44. Notices. Any notice required or desired to be given relative to this Lease shall be deemed delivered if delivered personally or three (3) days after the same is reduced to writing, sealed in an envelope, and deposited,postage pre-paid, in the regular United States Mail, addressed to the respective parties as follows: Any notice or communication required or given pursuant to this Lease shall be in writing and duly addressed as specified in this Section. Such notice or communication may be made by certified or registered mail, return receipt requested, or reliable private delivery service, such as UPS, Federal Express, or California Overnight, or personal delivery. Any such notice or communication shall be deemed given upon receipt. Either Party to this Lease may change its address or facsimile number by giving notice as specified in this Section. To City.- CITY OF PALM SPRINGS Attention: City Manager PA. Box 2743 Palm Springs, CA 92263 With a copy concurrently to: To Tenant: T-Mobile USA, Inc. 12920 SE 38w Street Eelleview,WA 98006 Attn: PCS Lease Administrator With a copy to: Attn: Legal Dept_ 14 IE04859D SE387_Pahn_spdngs•_Smdium With a copy concurrently to: Omnipoint Couununications Inc, a Subsidiary of T-Mobile USA Inc. 3 Imperial Promenade, # 1100 Santa Ana, CA 92707 (Site#: IE04859D) Atm.- Lease Administration Manager Section 45. Interpretation Guides. In interpreting this Lease, it shall be deemed to have been prepared by the Parties jointly, and no ambiguity shall be resolved against either Party on the premise that the Party or its attorneys was responsible for drafting this Lease or any provision hereof. Section 46. Exhibits. All Exhibits attached hereto or referenced herein are hereby incorporated as an effective and operative part of this Lease. Section 47. Due Authority of Signatories. Each person signing this Lease represents and warrants that he or she has been duly authorized, by appropriate action of the Party that he or she represents, to act on behalf of that Parry and to bind that Party to the terms and conditions of this Lease. Section 48. Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, piles, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. Section 49. 'Waiver_ The waiver of any breach of any provision hereunder by City or Tenant shall not be deemed to be a waiver of any preceding or subsequent breach hereunder. No failure or delay of any Party in the exercise of any right given hereunder shall constitute a waiver thereof nor shall any partial exercise of any right preclude further exercise thereof. Section 50. Intentionally Omitted Section 51. Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the 'Tenant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Tenant or to its successor, or for breach of any obligation of the terms of this Lease. Section 52. Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Lease nor shall any such officer or employee participate in any decision relating to the Lease which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation_ Except for fees paid to its independent contractors, Tenant warrants that it has not paid of given and will not pay or give any third party any money or other consideration for obtaining this Lease. 15 Innv Iv�r m ,I i I LE04859D SB387_P2An_Spnng5_S[adi= Section 53. Covenant Against Discrimination_ Tenant covenants that, by and for I itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Lease in compliance with law. Tenant shall ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry in compliance with law. Section 54. l3iehts and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to he exclusive in this Lease, the Tights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party_ Section 55. Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Lease, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Lease. Section 56. Approvals. Except as otherwise provided in this Lease, any approval required by a Party shall not be.unreasonably withheld, conditioned or delayed. 16 1003/001/32024.03 " IF04859D SB387_Palm_Sprinrs_Stadium IN WITNESS WHEREOF, the Parties have executed this Lease by their authorized representatives as indicated below: it "CITY" CITY OF PALM SPRINGS Dated: By: Mayor APPROVED AS TO FORM ATTEST.- City Attorney City Clerk "TENANT" Omnipoint Communications, Inc, a Delaware corporation, a subsidiary of T- Mobile USA Inc., a Delaware corporation Dated: By: Name: Raj Tank Title: Area Director 17 101 r00v� 07401 JE01859D S B387_Palm_gpdngs_Stadi= EXHIBIT "A" i DESCRIPTION OF CITY'S PROPERTY 1 i Cit 's Pro e y p rry of which Leased Premises are a part is legally described as follows: All that real property located in the State of California, County of Riverside, described as follows: I PARCEL I: Lot 25 and Westerly rectangular one-half of Lot 26 of Palm Valley Colony Lands, In the City of Palm Springs, County of Riverside, State of California, in Section 13, Township 4 South, Range 4 East, San Bernardino Meridian, as per map on File in Book 14, page(s) 652, of Maps, In the office of the County Recorder of San Diego County, PARCEL 2: To be Determined IE04859D S 9387_pahn_sprinss_Smd ium EXIIIBIT "B" ' DESCRIPTION OF LEASED PREMISES i 1. Description. City leases to Tenant and Tenant leases from City the real property located on CITY's i Property as legally described in Exhibit "A," located in the City of Palm Springs as depicted on Exhibit "C" hereinafter collectively referred to as "Leased Premises," and the appurtenant rights i set forth in subsection 2 of this Exhibit with respect to a parcel of land approximately nineteen feet (19') by ten feet (10') and thirteen feet (13') by twelve feet (12') by as designated and outlined in Exhibit"C." The Leased Premises consist of those specific areas shown on Exhibit "C" where Tenant's communications antennas, equipment and cables will occupy City's Property. The i Leased Premises and the associated utility connections and access, including easements, ingress, egress, dimensions, and locations as shown on Exhibit "C," are approximate only and may be. i adjusted or changed by Tenant, subject to approval by the City at the time of construction to i reasonably accommodate sound engineering criteria and the physical features of City's Property. IE04359D SB387_Palm_Springs_Swd ium 2. Appurtenant 14!hts. City leases to Tenant a non-exclusive easement and right of way, Subject to limitations in the Agreement, in and over City's Property to provide physical access by personnel and equipment from the nearest public right of way, and utilities from the nearest service, to or from the Leased Premises; and, a temporary construction easement, as reasonably necessary, to permit the construction and installation of Tenant's Facilities on the Leased Premises. Tenant agrees promptly to repair any areas disturbed within this temporary construction easement. 20 n �Immn Ina r. IE04859D SB387_Pnlm-s pring+_S odium I I EXHIBIT "C" LOCATION MAP OF LEASED PREMISES However, it is-expressly agreed and understood by and between the City and 'Tenant that the exact and precise location of the Tenant's Facilities are subject to review and approval by the j planning and/or zoning Boards having jurisdiction over the"Leased Premises". Therefore, it is expressly agreed and understood by and between City and Tenant that the precise location of the Leased Premises as shown on Exhibit "C" may be modified by the Tenant in order to comply with and obtain necessary planning and/or zoning approvals, and any and all other approvals necessary for Tenant's intended use of the property. The Leased Premises as described herein may therefore be modified by the Tenant to reflect the final engineering design. An amended Exhibit "C" (if necessary) will be provided by the Tenant and attached to the lease in place of the existing Exhibit "C", a copy of which will be provided to the City for review prior to being incorporated into the lease. See the attached drawings dated 02/08/06, identified with Site Name: 1E04859-SB387 Palm Springs Stadium and Site Number: IE04859, Sheets T-1, A-1, A-2, and A-3. A final drawing or copy of a property survey depicting the above will replace this .Exhibit "C"when initialed by City. Notes: L This Exhibit may be replaced by a land survey or Site flan of the Leased Premises once it is received by Tenant. 2. Setback of the Leased Premises from the City's boundaries shall be the distance required by the applicable governmental authorities. 3. Width of access road shall be the width required by the applicable governmental authorities, including police and fire departments. 4. The type, number and mounting positions and locations of antennas and transmission lines are illustrative only. Actual types, numbers and mounting positions may vary from what is shown above. i IP04859D S 8387_pnlm_sp`ingc_STadium EXHIBIT "D" RULES & REGULATIONS i 1_ Tenant and its authorized representatives and invitees shall use any roadway, walkway, or driveway only for ingress to or egress from the Leased Premises. Use of the common areas shall be in an orderly manner in accordance with directional or other signs or guides. Roadways shall not be used at a speed in excess of five miles per hour and shall not be used for parking or stopping, except for the immediate loading or unloading of passengers. Walkways shall be used only for pedestrian travel. 2_ No person shall use any utility area, truck loading area, or other area except for the specific purpose for which permission to use these areas has been given. IE04959D SB387 Palm_Springs_Stadnun EXHIBIT 611;" SPECIAL PROVISIONS No demolition nor construction shall be commenced nor be deemed to have commenced at the Leased Premises until Tenant has provided City with a surety bond in the amount of the i total estimated demolition costs and construction costs of the improvements to be constructed by Tenant. The surety bond shall be in a form reasonably acceptable to the City Engineer and shall state the following. I 1. That it is conditioned to secure the completion of the proposed demolition and construction, free from all liens and claims of contractors, subcontractors, mechanics, laborers, and materialmen. 2. That the demolition and construction work shall be fully and faithfully performed ! by Tenant, the general contractor, or, on their default, the surety. 1 That in default of such completion and payment, such part of the amount of the bond as shall be required to complete the work shall be paid to City as liquidated and agreed damages for the non-performance of the Tenant's obligation under this Lease, it being agreed that the amount of City's damages is extremely difficult to ascertain and determine. 4. That the surety will defend and indemnify City against all loss, costs, damage, expense, claims, and liabilities arising out of or connected with the demolition and construction. In lieu of a surety bond, Tenant may provide surety bonds supplied by Tenant's general contractor or contractors, provided such bonds contain the same conditions, are issued jointly to Tenant and City, and are in an amount equal to the total estimated demolition costs and construction cost of the improvements. Should Tenant act as owner/builder then all subcontractors shall provide demolition and construction surety bonds on the same conditions as above stated for surety bonds to be provided by Tenant's general contractor. All surety bonds must be issued by a responsible surety company qualified to do business in the State of California, reasonably acceptable to the City Engineer, and shall remain in effect until the entire cost of the work shall have been paid in full and the new improvements shall have been insured as provided in this Lease. Upon completion of the improvements and any approved modification thereto, City shall execute and deliver to 'Tenant a Certificate of Completion which shall recite that City has inspected and approved all of the improvements and that there exists no default in this Lease v6th respect to the improvements as of the date of the Certificate, if such is the fact. All future construction, structural modifications, alterations, or major or minor repairs shall comply with the provisions of the City's then current Design Criteria - and shall not be commenced without the City Engineer's prior written approval that the plans, specifications and 16048591) S B387_Pa1m_Spnngs•_Swdium schedule for such construction, structural modification or alteration are in conformance therewith, and that all applicable fees and charges due City by Tenant have been paid- City may post upon the Leased Premises a"Notice of Nonresponsibility." Tenant shall at all times indemnify and save City harmless from any and all claims for labor or materials in connection with demolition, construction, repair, alteration, or installation of structures, improvements, equipment, or facilities at the Leased Premises, and from the cost of defending against such claims, including attorney's fees. In the event a lien is imposed upon the Leased Premises as a result of such demolition, construction, repair, alteration, or installation, Tenant shall procure and record a surety bond, naming City as obligee, which frees the Leased Premises from the claim of the lien and from any action brought to foreclose the lien. Should Tenant fail to procure and record said bond within thirty (30) days after written notice of the filing of any such lien, this Lease shall be in default and shall be subject to immediate termination by City, anything in this Lease to the contrary notwithstanding. 1UTILITIES, I. Tenant shall make all arrangements for and pay for all telephone and electric service and connection charges for such services 2- If it is required that the constriction of new or additional utility installations, including without limitation wiring, plumbing, conduits and mains, result from Tenant's changed or increased utility requirements, Tenant shall be solely liable for all costs- 24 tnr -m i¢?n^•m