HomeMy WebLinkAbout2003-12-01 City CouncilCity of Palo Alto
City Manager’s Report
TO:
FROM:
HONORABLE CITY COUNCIL ~k~
CITY MANAGER DEPARTMENT: ADMINISTRATIVE
SERVICES
DATE:DECEMBER 1, 2003 CMR: 523: 03
SUBJECT:LEASE WITH CINGULAR WIRELESS, FOR PLACEMENT OF
TELECOMMUNICATIONS FACILIT~S AT THE PALO ALTO FIRE
STATION LOCATED AT 2675 HANOVER STREET
RECOMMENDATION
Staff recommends that Council approve the attached lease from the City of Palo Alto to
Pacific Bell Wireless, LLC, dba Cingular Wireless, LLC (Cingular Wireless) for the
development and operation of telecommunications facilities at the Mayfield fire station (fire
station #2), located at 2675 Hanover Street.
BACKGROUND
On November 17, 1997, Council approved a set of four telecommunications policy
statements (Attachment A). Policy 4, which addresses the use of City-owned and leased
property for telecormnunications infrastructure, recognizes that City land and facilities could
be used to support the competitive delivery of telecommunications services and also reduce
the adverse impacts associated with the development of the necessary infrastructure by
reducing the total number of sites needed by wireless service providers. This policy
encourages qualified outside parties to use designated City-owned or leased property and
facilities for siting telecomrnunications infrastructure when these are compatible with the
primary use of the property, and are used in a manner that is consistent with City real estate
policy, zoning, legal, environmental and other requirements as necessary.
On May 8, 2000, Council approved leases with Sprint Spectrum L.P. (Sprint), for the
construction and operation of Personal Communications Service (PCS) wireless antenna
facilities at the Rinconada Park and Mitchell Park Fire Stations. On December 19, 2000,
Council approved a license with Bay Area Cellular Telephone Company for placement of
telecommunications facilities on property located under a Pacific Gas & Electric Tower on
the south side of Colorado Avenue near the intersection of Colorado Avenue and Simkins
Court.
CMR: 52~.0~Page 1 of 3
DISCUSSION
The Personal Communications Service (PCS) wireless antenna facility proposed at the
Mayfield fire station consist of (1) a 65 foot high fiberglass treepole; (2) three pairs of
antennas, each 51" tall x 13" wide x 3" deep, mounted on a the fiberglass treepole; (3) four
base transceiver stations (BTS), each 5’-7" tall by 4’-3" wide by 3’-1" deep, located at the
base of the treepole; and (4) coaxial cables connecting Cingular Wireless ground equipment
to the antennas mounted on the fiberglass treepole. These are to be placed in an area of
approximately 174 square feet. The land is owned by the City with a deed restriction that,
should the property cease to be used for municipal purposes, the property will revert to
Stanford University. Stanford University has approved the proposed facility as to its
reversionary rights. In accordance with the intent of Telecommunications Policy #4 to
reduce adverse impacts of telecommunications infrastructure, the facility has been designed
to accommodate another telecommunications provider, which will eliminate the need for an
additional site in the area.
Lease
The terms of the lease are summarized in Attachment B. These include a 5-year term with
the option that both parties agree to renew for two additional terms of five years each; annual
rent of $18,600 to be adjusted annually according to the Consumer Price Index, all urban
consumers for San Francisco/Oakland/San Jose CMSA published by the U.S. Department of
Labor (CPI); the requirement that the tenant allow co-location by at least one other
telecommunications provider; and conditions of use to accommodate both the needs of the
tenant and the fire station personnel and operations.
RESOURCE IMPACT
The proposed lease will generate annual income to the City General Fund in the amount of
$18,600 per year, adjusted annually with changes in the Consumer Price Index.
POLICY IMPLICATIONS
The proposed license is consistent with Policy #4 of the
Statements approved by Council on November 17, 1997
Procedures 1-11, Leased Use of City Land/Facilities.
Telecommunications Policy
and with City Policies and
TIMELINE
Construction and operation of the facility will begin shortly following execution of the Lease
by the City.
ENVIRONMENTAL REVIEW
The project is categorically exempt from the requirements of the California Environmental
Quality Act (CEQA) pursuant to Section 15303 (New Construction) of the CEQA guidelines.
On November 18, 2003, the Zoning Administrator approved a conditional use permit for the
proposed use at the proposed !ocation, after making the required determination that the use
CMR: 523:03 Page 2 of 3
will not be detrimental or injurious to property or improvements in the vicinity, or to the
public health, safety, general welfare or convenience; and that the proposed use will be
located and conducted in a manner in accordance with the Palo Alto Comprehensive Plan and
Title 18 of the Palo Alto Municipal Code.
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
Attachment D:
PREPARED BY:
Telecommunication Policy Statements
Summm’y of Terms of the Lease
Lease with Cingular Wireless
Photo Simulation of Proposed Cingular Treepole
DONNA HARTMAN
Financial Analyst
DEPARTMENT HEAD:
CARL YEAT
Director,Services
CITY MANAGER APPROVAL:
HARRISON
Assistant City Manager
cc: Cingular Wireless, LLC
CMR: 523:03 Page 3 of 3
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sendces ~d does no~ ~teffere ~4~ ~e CiD~’ s pi~td use of ~e fac~D, or pzope~<
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........~SS~ v.
An.~roved by th~ Palo ~Jto CiD’ Co’~cH on November ! 7, !997
Lessor:
SummaD, of Terms of the Lease
City of P alo Alto
Tenant:
Pacific Bell Wireless, LLC, d!b/a Cingular Wireless
Premises:
168 square feet of land at the Mayfield fire station (fire station ~_), located at 2675 Hanover
Street.
Purpose:
The purpose of the lease is to provide for the installation, maintenance and operation, at
Tenant expense, of a local personal communications system (PCS).
Term:
Five years with option to extend for two additional terms of five years each.
ConsideratiomrRent:
$18,600iyear, adjusted annually in proportion to the Consumer Price Index.
Allowable Use:
Tenant shall use the Premises as a communications site for furnishing telephone, radio and
telecommunications services to the public, subject to the fo!lo~4ng conditions:
1.Use to comply ~4fl~ applicable laws and rega~lations regarding electromagztetic.
emissions and shall meet all other applicable federal, state and local laws a~d
regulations regarding environmental and occupational safety.
Tenant shall not permit any unreasonable odors, smoke, dust, gas, substances, or
noise or vibration to emanate z%om the facility nor take any action wkich would
disturb, obstruct or endanger any ocher occupants or use of the site or interfere wi~
their use.
Operation of site shall not cause interference to city or other users of the sit~,
including any irrigation system installed by city’. Tenant shall repair any damage
city’s property cause by construction of facilities.
Operations to be conducted in compliance with FCC requirements and al! laws ~d
regulations regarding em4ronmental and occupational safeb~ requirements.
Prior to construction on the site, Tenant shall provide the Real Property manager
evidence that all permits from any and all agencies having pre-construction
jurisdiction are authorized and are available, including but not limited to building
permits and street opening permits.
Tenant shM1 promptly abate any interference problems which occur on e-~sfing Cii7
radio systems or equipment resulting from Tenant equipment located on the
premises.
7.Tenant to maintain all improvements it places on the Premises.
Construction or Alteration by Tenant:
Tenant may not make any changes to the property without prior Ci~- review and approval.
Maintenance and Repair:
Tenant shall maintain al! improvements on the leased premises.
Assi~amenffSubletting:
Any assignment or encumbrance of the Lease must recehre prior CitT approval, except for
assig-aments or subleases to any of Tenant’s subsidiaries, ~ates or successor lega!
entities or any entity acquiring all of Tenant’ s assets.
Taxes, Assessments and Utilities"
Tenant shall be responsible for a!l utilities supplied to the faciiity and for taxes and
assessments for the Premises.
Insurance:
Tenant shall maintain insurance meeting the City’s standard requirements for insurance
prmection.
CiD- Teleeommunieations Poiiey:
Tenant agrees it will abide by all lawful terms and conditions of the Telecommunications
Policy adopted by City to the extent it relates to Licensee’s communications facility on the
Premises.
ATTACHMENT C
Cingular Wireless Reference No:
BA-351-02
LEASE #
This LEASE is entered into this day of ,2003 between the City of Palo Alto, a
municipal corporation, (CITY) and Pacific Bell Wireless, LLC, a Nevada limited liability
company; d/b/a Cingular Wireless, (TENANT).
RECITALS
CITY owns property located at 2675 Hanover Street, Palo Alto, commonly referred to as
Fire Station No. 2 and/or "May-field" Station (PROPERTY).
TENANT desires to lease the PREMISES (as defined in Clause I) to operate a Local
Personal Communications System (PCS).
CITY agrees to permit TENANT’s use of the PREMISES, under the terms and conditions
set forth below.
Now, therefore, in consideration of these covenants, terms and conditions, the parties hereto
mutually agree as follows:
I. PREMISES
Subject to the terms and conditions set forth in this LEASE, CITY leases to TENANT that
portion (PREMISES) of the PROPERTY consisting of approximately 174 square feet of land
located at the north west side at the rear of the PROPERTY upon which TENANT will install:
(1) three pairs of antennas, mounted on a fiberglas TREEPOLE; (2) four base transceiver
stations, located at the base of the TREEPOLE; and (3) coaxial cables connecting TENANT’s
ground equipment to the antennas mounted on the fiberglas TREEPOLE. The PREMISES are
described and shown in "Exhibit B". Exhibit B is attached to and, by this reference, made a part
of this LEASE. Unless specifically provided elsewhere in the LEASE, TENANT accepts the
PREMISES "as-is" on the date of execution of this LEASE. CITY hereby grants TENANT
reasonable rights of ingress/egress as shown on Exhibit B.
In addition to the leased PREMISES, CITY hereby grants to TENANT non-exclusive easements
(EASEMENT) in and through that portion of the PROPERTY, which is also described and
shown in Exhibit B, for the sole purpose of constructing, installing and maintaining cabling and
associated hardware incidental to the purposes of this LEASE, together with the right to ingress
9906301~ C8142982.1 1
and egress thereon. Except as otherwise noted in this LEASE, all terms and conditions of this
LEASE shall apply to the EASEMENT. The EASEMENT shall be effective during the term of
this LEASE and shall terminate without further notice as of the date of termination of the
LEASE.
II.PURPOSE
The purpose of this LEASE is to provide for the installation, maintenance, and operation, at
TENANT expense, of a local personal communications system (PCS) (as defined in Clause III,
A).
III.ALLOWABLE SERVICES AND USES
In furtherance of the purposes stated above, the following services and uses shall be permitted:
Throughout the term of this LEASE, TENANT shall use the PREMISES as one of
TENANT’s local personal communications system (PCS) facilities for furnishing
telephone, radio and telecommunications services to the public that TENANT is legally
authorized to provide during the term of this Lease. TENANT shall use the PREMISES
for the purpose of installing, removing, replacing, maintaining, modifying and operating,
at its expense, a (PCS) facility, including an antenna structure (TREEPOLE), base
equipment, back-up power sources, cable, wiring and fixtures. TENANT’s use shall be
subject to the following conditions:
TENANT’s operations on the PREMISES shall comply at all times with all
applicable federal laws and regulations regarding electromagnetic emissions.
TENANT shall conduct all necessary tests after its PCS facility is constructed on
the PREMISES to ensure that its facilities are in compliance with those laws and
regulations. The tests shall be conducted by a licensed professional engineer, and
the results shall be provided to CITY.
o In constructing and operating its PCS Site facilities, TENANT shall include the
following items in its plans and operating procedures for its facilities:
TENANT shall not permit any unreasonable odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the PREMISES, nor take
any action which would constitute a nuisance or would disturb, obstruct or
endanger any other occupants, tenants or users of the PROPERTY or
interfere with their use of their respective premises.
TENANT shall operate its facilities on the PREMISES in a manner that
will not cause interference to CITY, or other tenants or lessees of the
PROPERTY present as of the COMMENCEMENT DATE (defined
below) of this LEASE, including but not limited to any irrigation system
990630 Isj C8142982.1 2
installed by CITY. Prior to construction on the site, TENANT shall
coordinate TENANT’s placement of its facilities to ensure that placement
does not conflict with CITY’s irrigation systems. TENANT shall repair
any damage to CITY’s property caused by construction of TENANT’s
facilities, including but not limited to any damage caused to CITY’s
irrigation system and landscaping.
TENANT’s operations shall at all times be conducted in compliance with
all applicable federal, state and local laws and regulations, including but
not limited to laws and regulations regarding environmental and
occupational safety and all Federal Communications (FCC) requirements.
TENANT shall submit all required hazardous materials filings and obtain
all required approvals prior to installing its batteries or any other
hazardous materials.
Prior to construction on the site, TENANT shall have provided CITY’s
Real Property Manager, evidence that any and all permits including, but
not limited to, building permits, electrical permits and street opening
permits from any and all agencies having pre-construction jurisdiction
over the proposed development have been authorized and are available.
TENANT shall install a fire extinguisher inside its structure on the
PREMISES.
TENANT shall post a prominent notice on the PREMISES listing its
emergency procedures, warnings and emergency contacts.
TENANT shall maintain all improvements that it places on the
PREMISES. Maintenance shall not occur between the hours of 9 p.m.
and 9 a.m. (change of shift at 8 a.m. and maintenance to be performed
after change of shift) except in cases of emergency.
TENANT’s use shall not have a permanent impact on existing parking at
the Fire Station.
TENANT shall install fencing around the PCS facility, which shall be
designed and constructed in a manner to blend in with the Fire Station and
the surroundings on the PROPERTY. Such fencing shall be subject to
CITY’s prior approval, which approval shall not be unreasonably
withheld, conditioned, or delayed. CITY shall provide TENANT a written
list of the Fire Captains of the station, and TENANT shall provide to each
such Fire Captain the combination of TENANT’s lock (or a key, as
appropriate) on its fence surrounding the PCS facility.
990630 lsj C8142982.1 3
CITY agrees that its personnel shall only enter the PREMISES in the
event of an emergency. CITY agrees that except as required by an
emergency, its personnel shall not touch, tamper with, alter or attempt to
open TENANT’s equipment shelter or any of TENANT’s other equipment
ancillary thereto on the PREMISES.
TENANT must coordinate with Public Works - Facilities Management
the construction of the proposed facility. TENANT shall provide to and
receive approval of its plans from the City’s Public Works Department
describing the connection between the equipment on the Property and
TENANT’s offsite network and utilities.
Any work on public property (other than on the PREMISES pursuant to
this LEASE ) or in the public right- of-way requires a "Permit for
Construction in the Public Street" from CITY’s Public Works Dept.
TENANT shall provide as-built record drawing to Public Works -
Engineering of any new infrastructure installed in the public right-of-way
or on public property.
TENANT shall promptly abate any interference problems which occur on
existing City radio systems or equipment resulting from TENANT
equipment located at the PREMISES. TENANT shall perform and
provide to City a radio frequency interference (RF) study of CITY
frequencies at that location. The radio frequency interference study shall
be performed by TENANT no later than the date that TENANT’s PCS
system is installed and operational.
Co-location. TENANT shall construct and operate its antenna Treepole on the
PREMISES so as to accommodate co-location by one or more other telecommunications
providers, and shall make such facilities available to one or more other
telecommunications providers on commercially reasonable terms. Any sublease or
license between TENANT and another telecommunications provider shall be subject to
CITY approval, which approval shall not be unreasonably withheld, conditioned, or
delayed.
Restricted Uses. The above listed services and uses, both required and optional, shall be
the only services and uses permitted upon or from the PREMISES. TENANT agrees not
to use the PREMISES for any other purpose nor to engage in, or permit, any other
bu;iness activity within or from the PREMISES.
IV. TERM
990630 1~C8142982.1 4
The term of this LEASE shall be for a period of (5) years, commencing on the date TENANT
receives the last permit required for installation of the PCS telecommunications facility,
"Commencement Date".
V. OPTION TO EXTEND
The term of this LEASE shall be automatically extended for two (2) additional terms of five (5)
years each (each a RENEWAL TERM), unless TENANT provides CITY notice of its intention
not to renew not less than ninety (90) days prior to the expiration of the TERM or any
RENEWAL TERM, and provided TENANT is not in default hereunder (beyond any grace or
cure periods) at the time TENANT would be required to notify CITY of its intent not to renew.
The automatic extension pursuant to this CLAUSE V shall be void if TENANT has received
from CITY more than five notices of TENANT’s default hereunder during any five (5) year
TERM or RENEWAL TERM, even if the defaults were corrected during the 30-day period
allowed under CLAUSE XIX (DEFAULT 1N TERMS OF THE LEASE BY TENANT).
VI. CONSIDERATION/RENT
Rent. As consideration for use of the PREMISES, TENANT agrees to pay to
CITY an annual rent of eighteen Thousand Six Hundred Dollars ($18,600) per
year, subject to adjustment as provided in Clause VII, payable in advance in
accordance with Clause VIII (RENT PAYMENT PROCEDURE).
VII.REVISION OF RENT
The rental specified in Clause VIA (CONSIDERATION/RENT) shall be subject to automatic
annual adjustments in proportion to changes in the Consumer Price Index, All Urban Consumers,
(base years 1982-1984 = 100) for San Francisco-Oakland-San Jose CSMA published by the U.S.
Department of Labor, Bureau of Labor Statistics or any replacement index published by said
Bureau (INDEX).
The automatic adjustment shall be effective on each anniversary of the commencement date of
the term of this LEASE and shall be calculated in accordance with the following formula:
X = A (B/C)
Where:
Adjusted rental.
Rental at the Commencement of the LEASE.
INDEX for the second calendar month prior to the month in which that rental rate
adjustment is to become effective (or, if the INDEX is not published for that
month, the INDEX for the third calendar month prior to the month in which the
rental rate adjustment is to become effective)
990630 lsj C8142982.1 5
Monthly index for the second calendar month prior to the date of this LEASE (or,
if the INDEX was not published for that month, the INDEX for the third calendar
month prior to the date of this LEASE).
VIII. RENT PAYMENT PROCEDURE
Concurrently with the full execution of this LEASE, TENANT shall pay to CITY rent for
the first year of the term as set forth in Clause VI (CONSIDERATION/RENT).
No Commencing on the ftrst anniversary of the COMMENCEMENT DATE, and thereafter,
on or before each anniversary of the COMMENCEMENT DATE TENANT shall pay to
CITY rent as set forth in Clause VIA (CONSIDERATION/RENT), as revised pursuant
to Clause VII.
Rental payments shall be delivered to the Revenue Collections Division, 250 Hamilton
Avenue, PO Box 10250, Palo Alto, CA 94303. The designated place of payment may be
changed at any time by CITY upon thirty (30) days written notice to TENANT. Rental
payments may be made by check made payable to the City of Palo Alto, however,
TENANT assumes all risk of loss if payments are made by mail.
Acceptance of Late or Incorrect Rent: TENANT specifically agrees that acceptance of
any late or incorrect rentals submitted by TENANT shall not constitute an acquiescence
or waiver by CITY and shall not prevent CITY from enforcing Clause IX (CHARGE
FOR LATE PAYMENT) or any other remedy provided in this LEASE.
IX. CHARGE FOR LATE PAYMENT
If any payment of rent as specified in Clause VI (CONSIDERATION/RENT) or of any other
sum due CITY is not received by CITY, a late charge equal to two percent (2%) of the payment
due and unpaid plus an administrative fee of $ 45.00 shall be added to the payment, and the total
sum shall become immediately due and payable to CITY.
Acceptance of late charges and/or any portion of the overdue payment by CITY shall in no event
constitute a waiver of TENANT’S default with respect to such overdue payment, nor prevent
CITY from exercising any of the other rights and remedies granted hereunder or by any
provision of law.
X. MAINTENANCE AND REPAIR
TENANT at its expense, shall perform all maintenance and repairs, including all painting, and all
maintenance of landscaped areas necessary to keep the PREMISES and all improvements thereto
in first-class order, repair and condition, and shall keep the PREMISES in a safe, clean,
wholesome, and sanitary condition to the complete satisfaction of CITY, and in compliance with
990630 lsj C8142982.1 6
all applicable laws, throughout the term of this LEASE. In addition, TENANT shall maintain, at
its expense, all equipment, trade fixtures and any other improvements installed by TENANT
upon the PREMISES required for the maintenance and operation of the PCS facility installed on
the PREMISES. TENANT waives the right to make repairs at the expense of CITY and the
benefit of the provisions of Sections 1941 and 1942 of the Civil Code of California relating
thereto; and further agrees that if and when any repairs, alterations, additions or betterments shall
be made by it as required by this paragraph, it shall promptly pay for all labor done or materials
furnished and shall keep the PREMISES free and clear of any lien or encumbrance of any kind
whatsoever. Should TENANT fail to make any repairs or perform any maintenance work for
which it is liable, CITY shall have the option to make the repairs, and TENANT shall within
fifteen (15) days of receipt of a bill therefor from the Real Property Manager, reimburse CITY
for the cost of such repairs, including a fifteen percent (15%) administrative overhead fee. The
making of such repairs or performance of maintenance by CITY shall in no event be construed as
a waiver of the duty of TENANT to make repairs or perform maintenance as provided in this
clause.
XI.MAINTENANCE OBLIGATIONS OF CITY
CITY shall maintain or cause to be maintained, including repair and replacement as necessary,
common areas serving the PREMISES but outside the PREMISES, including public roadways,
and main utility facilities.
Except for the main utility facilities, CITY shall not be required to maintain, repair, or replace
improvements constructed within the PREMISES, provided, however, CITY may, at its sole
discretion, repair other CITY-constructed facilities in order to protect the PREMISES or other
CITY-owned property.
XII.CONSTRUCTION AND/OR ALTERATION BY TENANT
CITY’S Consent. No structures, improvements, or facilities shall be constructed, erected,
altered, or made within the PREMISES without the prior written consent of the CITY (by
action of the City Council if required by City of Palo Alto procedures or ordinances, or
otherwise by the City Manager or designee). Any conditions relating to the manner,
method, design, and construction of the structures, improvements, or facilities established
by CITY shall be conditions of this clause as though originally stated herein. TENANT
may, at any time and at its sole expense, install and place business fixtures and equipment
within any structure on the PREMISES.
Strict Compliance with Plans and Specifications. All improvements constructed by
TENANT within the PREMISES shall be constructed in an efficient and workmanlike
manner and in strict compliance with detailed plans and specifications approved by the
CITY (by action of the City Council if required by City of Palo Alto procedures or
ordinances, or otherwise by the City Manager or designee), and applicable City of Palo
Alto codes and ordinances.
990630 lsj C8142982.1 7
Co Certificate of Inspection. Upon completion of construction of any building, TENANT
shall submit to the Real Property Manager, a Certificate of Inspection, verifying that the
construction was completed in conformance with Title 24 of the California Code of
Regulations for non-residential construction.
XIII.OWNERSHIP OF IMPROVEMENTS
A.Improvements to Realty.
All improvements constructed, erected or installed upon the PREMISES site must be free and
clear of all liens, claims, or liability for labor or material. Upon expiration or termination of the
LEASE, CITY may at its option require TENANT to remove TENANT constructed
improvements on the PREMISES including, but not limited to, the foundations, and may further
require TENANT to repair to the satisfaction of CITY any damage to the PREMISES caused by
such removal; provided, that TENANT may, but shall not be required to, remove underground
conduit installed by it during the term of this LEASE.
B. Personal Property.
Title to all equipment, furniture, furnishings and trade fixtures placed by TENANT upon the
PREMISES (including without limitation the antenna structure (TREEPOLE), base equipment,
and appurtenances associated with the operation of a PCS facility) shall remain in TENANT, and
replacements, substitutions and modifications thereof may be made by TENANT throughout the
term of this LEASE. TENANT may remove such fixtures and furnishings upon expiration of
this LEASE, provided that TENANT shall repair to the satisfaction of CITY any damage to the
PREMISES and improvements caused by such removal.
XIV. AS BUILT PLANS
Upon completion of any major TENANT-constructed improvements, TENANT shall provide the
Real Property Manager with a complete set of reproducible "as built plans" reflecting actual
construction within or upon the PREMISES.
XV. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS
If the PREMISES are, in whole or in part, damaged or destroyed then: (1) if wholly damaged or
destroyed so that the PREMISES are rendered permanently unusable for reconstruction of a PCS
facility, this LEASE shall then terminate and TENANT shall be liable for the rent only up to the
time of such destruction and any rent prepaid by TENANT shall be returned to TENANT; but (2)
if only partially destroyed and still usable for construction of a PCS facility, TENANT shall,
within a reasonable time, not to exceed thirty (30) days from the date of the damage or
destruction, notify CITY in writing of its intent to either (i) to terminate the LEASE, in which
case a proportional amount of any rent prepaid by TENANT (prorated from the date notice is
990630 lsj C8142982.1 8
received by CITY) shall be returned to TENANT, or (ii) to continue operating under the LEASE,
in which case, TENANT shall, within a reasonable time, repair the PREMISES and the PCS
facility, with a reasonable reduction of rent from the date notice is received by CITY until the
date the PREMISES and the facility are usable.
XVI. UTILITIES
TENANT shall be responsible for and shall pay, prior to delinquency, all charges for utilities
supplied to the PREMISES.
XVII. INSURANCE
TENANT shall maintain insurance acceptable to CITY in full force and effect throughout the term
of this LEASE.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1)
2)
3)
4)
Insurance Services Office Commercial General Liability coverage (occurrence form
CO 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile
Liability, code 1 (any auto).
Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
Course of Construction insurance form providing coverage for "all risks" of loss.
The policy or policies of insurance maintained by TENANT shall provide the following limits and
coverages:
POLICY
(1)WORKERS’
COMPENSATION
(2)
Business
AUTO
LIABILITY,
including owned,
hired, and non-owned
automobiles
MINIMUM LIMITS OF LIABILITY
Statutory
Bodily Injury
Property Damage
$1,000,000
$1,000.000
$1,000,000
ea. person
ea. occurrence
ea. occurrence
(3)Bodily Injury $1,000,000 ea. person
990630 lsj C8142982.1 9
Commercial
GENERAL
LIABILITY
including
products and
completed operations,
broad form contractual,
and personal injury.
Property Damage
Personal Injury
$1,000,000
$1,000,000
$1,000,000
$1,000,000
ea. occurrence
aggregate
ea. occurrence
ea. occurrence
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the
option of the CITY either: the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the CITY, its officers, officials, employees and volunteers; or the TENANT
shall procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
Insurance shall be in full force and effect commencing on the first day of the term of this LEASE.
Each insurance policy required by this LEASE shall contain the following clauses:
"Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty (30) days’ prior written notice, has been given
to the CITY."
o
The CITY OF PALO ALTO to be named as an additional insured.
"The CITY, its officers, officials, employees, agents and volunteers are to be covered
as additional insureds as respects: liability arising out of activities performed by or
on behalf of the TENANT; products and completed operations of the TENANT;
premises owned, occupied or used by the TENANT; or automobiles owned, Leased,
hired or borrowed by the TENANT. The coverage shall contain no special
limitations on the scope of protection afforded to the CITY, its officers, officials,
employees, agents or volunteers."
"For any claims related to this LEASE, the TENANT’s insurance coverage shall be
primary insurance as respects the CITY, its officers, officials, employees, agents and
volunteers. Any insurance or self-insurance maintained by the CITY, its officers,
officials, employees, agents or volunteers shall be excess of the TENANT’s
insurance and shall not contribute with it."
"Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the CITY, its officers,
officials, employees, agents or volunteers.
990630 lsj C8142982.!10
o "The TENANT’s insurance shall apply separately to each insured against whom claim
is made or suit is brought, except with respect to the limits of the insurer’s liability."
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-VII
TENANT agrees to deposit with the Real Property Manager, on or before the effective date of this
LEASE, certificates of insurance necessary to satisfy CITY that the insurance provisions of this
LEASE have been complied with, and to keep such insurance in effect and the certificates therefore
on deposit with CITY during the entire term of this LEASE. Should TENANT not provide
evidence of such required coverage at least three (3) days prior to the expiration of any existing
insurance coverage, CITY may purchase such insurance, on behalf of and at the expense of
TENANT for the period of non-compliance.
CITY shall retain the right at any time to review the coverage, form, and amount of the insurance
required hereby. If, in the opinion of the Risk Manager, the insurance provisions in this LEASE do
not provide adequate protection for CITY, the Real Property Manager may require TENANT to
obtain insurance sufficient in coverage, form, and amount to provide adequate protection as
determined by the Risk Manager. CITY’S requirements shall be reasonable, Commercially
available, and shall be designed to assure protection from and against the kind and extent of risk
which exists at the time a change in insurance is required.
The Real Property Manager shall notify TENANT in writing of changes in the insurance
requirements. If TENANT does not deposit copies of acceptable insurance certificates with CITY
incorporating such changes within sixty (60) days of receipt of such notice, or in the event
TENANT fails to maintain in effect any required insurance coverage, TENANT shall be in default
under this LEASE without further notice to TENANT. Such failure shall constitute a material
breach and shall be grounds for immediate termination of this Lease at the option of CITY.
The procuring of such required policy or policies of insurance shall not be construed to limit
TENANT’S liability hereunder nor to fulfill the indemnification provision and requirements of this
LEASE. Notwithstanding the policy or policies of insurance, TENANT shall be obligated for the
full and total amount of any damage, injury, or loss caused by or connected with this LEASE or
with use or occupancy of the PREMISES.
XVIII.ASSIGNING, SUBLETTING, AND ENCUMBERING
Any mortgage, pledge, encumbrance, transfer, sublease, or assignment (collectively referred to as
ENCUMBRANCE) of TENANT’S interest in the PREMISES, or any part or portion thereof, shall
first be apprdved in writing by the City Manager or designee, which approval shall not be
unreasonably withheld, conditioned, or delayed; provided, however, that TENANT shall have the
990630 lsj C8142982.1 1 1
right to sublease or assign its rights under this LEASE to any of its subsidiaries, affiliates, or
successor legal entities or to any entity acquiring substantially all of the assets of TENANT.
Should CITY consent to any ENCUMBRANCE, such consent shall not constitute a waiver of any
of the terms, covenants, or conditions of this LEASE. Such terms, covenants, or conditions shall
apply to each and every ENCUMBRANCE hereunder and shall be severally binding upon each and
every assignee, transferee, subtenant, or other successor in interest of TENANT. Any document to
encumber, transfer, sublet, or assign the PREMISES or any part thereof shall incorporate directly or
by reference all the provisions of this LEASE.
Subject to TENANT’s right to sublease or assign as set forth above, CITY agrees that it will not
arbitrarily withhold consent to any encumbrance, but CITY may withhold consent at its sole
discretion if any of the following conditions exist:
No TENANT or any of its successors or assigns is in default of any term, covenant, or condition
of this LEASE, whether notice of default has or has not been given by CITY;
The prospective ENCUMBRANCER does not indicate in writing that such
ENCUMBRANCE is subject to all the terms, covenants, and conditions of this LEASE;
All the terms, covenants, and conditions of the proposed ENCUMBRANCE including the
consideration therefore of any and every kind, have not been revealed in writing to CITY;
Do The processing fee required by CITY and set forth in the then current Palo Alto Municipal
Fee Schedule has not been paid to CITY;
go If an assignment or sublease is proposed, and TENANT has not provided CITY with
sufficient information to permit CITY to completely evaluate the background, skills,
financial position, proposed operating plan changes and references of the prospective
assignee or subtenant.
The above list is not inclusive but is intended to give TENANT some idea of the types of situation
where CITY may withhold its consent to any ENCUMBRANCE. Hypothecation of the leasehold
interest created by this LEASE is expressly prohibited and any attempted hypothecation shall be
null and void.
XIX. DEFAULT IN TERMS OF THE LEASE BY TENANT
Should TENANT default in the performance of any covenant, condition, or agreement contained in
this LEASE and such default is not corrected within thirty (30) days of receipt of a notice of default
from CITY, CITY may:
Terminate this LEASE and all rights of TENANT, and those who claim under TENANT,
under this LEASE, shall end at the time of such termination;
990630 lsj C8142982.1 12
No At CITY’S sole option, cure any such default by performance of any act, including payment
of money, and the cost thereof, plus reasonable administrative cost, shall become
immediately due and payable by TENANT to CITY;
Co Seek an action or suit in equity to enjoin any acts or things which may be unlawful or in
violation of the rights of CITY;
Seek a mandamus or other suit, action or proceeding at law or in equity to enforce its rights
against TENANT and any of its officers, agents, and employees and its assigns, and to
compel it to perform and carry out its duties and obligations under the law and its covenants
and agreements with CITY as provided herein; or
Pursue any other remedy available by law or specifically provided in other clauses of this
LEASE.
However, in the event of a default which cannot reasonably be cured within thirty (30) days,
TENANT shall have a reasonable period of time (as determined by the City Manager) to cure the
default. Each and all of the remedies given to CITY hereunder or by any law now or hereafter
enacted, are cumulative and the exercise of one right or remedy shall not impair the fight of CITY
to exercise any or all other remedies. In case any suit, action or proceeding to enforce any right or
exercise any remedy shall be brought or taken and then discontinued or abandoned, then, and in
every such case, CITY and TENANT shall be restored to its and their former position and fights
and remedies as if no such suit, action or proceedings had been brought or taken.
In addition to a violation or breach of any other provision of this LEASE, TENANT shall be
considered to be in default under this LEASE should TENANT:
voluntarily file or have involuntarily filed against it any petition under any bankruptcy or
insolvency act or law; or
B. be adjudicated a bankrupt.
CITY TELECOMMUNICATIONS POLICY
TENANT acknowledges that CITY has commenced evaluation and preparation of comprehensive
telecommunications policies, procedures and implementation materials related to
telecommunications uses within the CITY (collectively referred to herein as the
"Telecommunications Policy"). TENANT acknowledges receipt of the City Manager’s report dated
March 6, 2000 which recommended for approval a consultant contract between the CITYand an
independent finn for preparation of documents related to the Telecommunications Policy, and
understands that the City Council approved that contract. TENANT acknowledges that the
Telecommunications Policy may include (among other things) the establishment of guidelines
990630 lsj C8142982.1 13
and/or ordinances governing the siting of telecommunications facilities within the City of Palo Alto,
including facilities on private land and on City-owned land. In light of the pending
Telecommunications Policy, TENANT and CITY agree as follows:
No TENANT agrees that it will abide by all lawful terms and conditions of the
Telecommunications Policy adopted by CITY to the extent they relate to TENANT’s
communications facility on the PREMISES. In this regard, the following procedures shall
apply:
Within ninety (90) days of the adoption of the Telecommunications Policy, if CITY
finds that TENANT’s facility on the PREMISES is not in compliance with the
Telecommunications Policy, then CITY shall deliver to TENANT a written notice
(compliance notice") specifying the items of non-compliance. Such notice shall
include reasonably detailed items of non-compliance, a copy of the applicable
provision of the Telecommunications Policy and, if appropriate, actions required to
be undertaken by TENANT to bring its facility into compliance. TENANT
acknowledges that such notice may include a requirement to relocate TENANT’s
facility, if required, under the Telecommunication s Policy. If CITY fails to deliver
such compliance notice within said ninety day period, TENANT’s communications
facility on the PREMISES shall thereafter be deemed compliant with all of the terms
and conditions of the Telecommunications Policy, unless later actions of TENANT
cause its communications facility to become non-compliant.
o TENANT shall have six (6) months after its receipt of the compliance notice to bring
its facility into compliance under the Telecommunications Policy. If TENANT fails
or refuses to bring it facility into compliance within such six month period, CITY
may terminate the LEASE on thirty (30) days written notice to TENANT,
whereupon, TENANT shall remove its PCS facility as required under the LEASE
and the parties shall have no further obligations under the LEASE, except for those
obligations which expressly survive the termination of the LEASE.
Condemnation Proceedings. TENANT agrees that, if TENANT’s facility must be relocated
or modified to comply with the Telecommunications Policy or if the LEASE is terminated
due to TENANT’s failure or refusal to comply with the Telecommunications Policy, as set
forth above, TENANT shall not initiate condemnation proceedings against the CITY for the
purpose of acquiring a leasehold interest, fee interest or other right to use the PREMISES
previously permitted for use by TENANT under the LEASE.
XXI. NOTICES
All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements,
appointments or designations hereunder give by either party to the other, shall be in writing and
shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by
United States Certified mail, postage, prepaid, (3) sent by express delivery service, or (4) in the case
990630 lsj C8142982.1 14
of a facsimile, if sent to the telephone number(s) set forth below during normal business hours of
the receiving party and followed within 48 hours by delivery of hard copy of the material sent by
facsimile, in accordance with (1), (2) or (3) above. Personal service shall include, without
limitation, service by delivery service and service by facsimile transmission. Delivery of notices
properly addressed shall be deemed complete when the notice is physically delivered to the Real
Property Manager or the City Clerk.
All notices pursuant to this LEASE shall be addressed as set forth below or as either party may
subsequently designate by written notice.
TO: CITY TO: TENANT
Real Property Manager
City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
FAX: (415) 329-2468
Cingular Wireless
6100 Atlantic Boulevard
Norcross, GA 30071
Attn: Network Real Estate
with a copy to:with a copy to:
City Clerk, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
FAX: (415) 329-2646
And
Cingular Wireless
4420 Rosewood Drive
Bldg. 2 - 3ra Floor
Pleasanton, CA 94588
Attn: Mgr Network Deployment
(925) 227-4356
City Attomey, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto CA 94303
FAX: (415) 329-2646
XXII.ATTACHMENT TO LEASE
This LEASE includes the following exhibits, which are attached hereto and by this reference
incorporated into this LEASE:
Exhibit A - General Conditions
Exhibit B - Description of Leased Premises and Easement
990630 Isj C8142982.1 1 5
_,~,..,e inclusion ofclatmes in :Exhibit A (GEN~P, AL CONDITIONS) is not in ~ny way fntcnd¢d to
lessen the import.mace of these clauses, but is merely done to e.rthance fl~e organization of vm’ious
2fzu,~es and this LEA~.qE; provided, however, that in the event of a conflici between the foregoing
:2ia,a~s ~-~d t.he provisions of Exhibit A, the foregoing Clauses shall prevail.
!N W~NESS "~rflEREOF, the parties have executed this LEASE the day mad year first above
C!TY:TENANT:
CiTY OF PALO ALTO (LESSOR)
Mayor
PACIFIC BELL WIRELESS, LLC (LESSEE)
By:
By:
By:
Title:
Date:
GSM Facilities, LLC, its
sole member
Ckngular Wireless, LLC i~
Agent ,
APPROr~q~D AS TO FORM:
By:
Asst, City Attorney
N~COMM~NDED FOR APPR.OV.~d.~:
Assistant City Manager
Manager, Real Property
Fire Chief
EXHIBIT A
GENERAL CONDITIONS
1.DEFINITIONS
CITY shall mean the City Council of the City of Palo Alto, a municipal corporation.
The City Manager is hereby authorized to take any actions under this LEASE on behalf of CITY
except for termination of this LEASE.
Clauses in this LEASE refer to specific officers or employees of CITY. Should these positions be
eliminated or the title changes, it is understood and agreed that such references shall be considered
to be to the new title for renamed positions or to the replacement official designated with the
responsibilities of any eliminated position. Any reference to a City officer or employee includes a
reference to the officer’s or employee’s designated representative.
2.PARTNERSHIP/CORPORATE AUTHORITY & LIABILITY
If TENANT is a partnership, each general partner:
No represents and warrants that the partnership is a duly qualified partnership authorized to do
business in Santa Clara County; and
B°shall be jointly and severally liable for performance of the terms and provisions of this
LEASE.
If TENANT is a corporation, each individual signing this LEASE on behalf of TENANT represents
and warrants that;
No he is duly authorized to do so in accordance with an adopted Resolution of TENANT’S
Board of Directors or in accordance with the Bylaws of the corporation; and
990630 lsj C8142982.1 17
B.TENANT is a duly qualified corporation authorized to do business in State of California.
As used in this LEASE, the term "TENANT" shall include TENANT, its
agents, sublessees, concessionaires, or TENANTS, or any person acting under contract with
TENANT; however, the definition of TENANT used herein, shall not be construed to authorize or
permit any sublease or leases not authorized or permitted elsewhere in this LEASE.
3. TIME
Time is of the essence of this LEASE.
4,SIGNS
TENANT agrees not to construct, maintain, or allow any sign to be placed upon the PREMISES
except as may be approved by CITY. Unapproved signs, banners, etc., may be removed by CITY.
5.PERMITS AND LICENSES
TENANT shall be required to obtain any and all permits and/or licenses which may be required in
connection with the operation of the PCS facility, and any approved TENANT construction upon,
the PREMISES as set forth in this LEASE.
6.MECHANICS LIENS
TENANT shall at all times indemnify and save CITY harmless from all claims for labor or
materials supplied in connection with construction, repair, alteration, or installation of structures,
improvements, equipment, or facilities within the PREMISES, and from the cost of defending
against such claims, including attorney fees. TENANT shall provide CITY with at least ten (10)
days written notice prior to commencement of any work which could give rise to a mechanics lien
or stop notice. CITY reserves the right to enter upon PREMISES for the purposes of posting
Notices of Non-Responsibility.
In the event a lien is imposed upon the PREMISES as a result of such construction, repair,
alteration, or installation, TENANT shall either:
A.Record a valid Release of Lien; or
B. Deposit sufficient cash with CITY to cover the amount of the claim on the lien in question
and authorize payment to the extent of said deposit to any subsequent judgment holder that may
arise as a matter of public record from litigation with regard to lienholder claim; or
C. Procure and record a bond in accordance with Section 3143 of the Civil Code, which
releases the PREMISES from the claim of the lien and from any action brought to foreclose the lien.
990630 lsj C8142982.1 18
Should TENANT fail to accomplish one of the three optional actions within fifteen (15) days after
the filing of such a lien, the LEASE shall be in default.
7.LEASE ORGANIZATION AND RULES OF CONSTRUCTION
Words of the masculine gender shall be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context otherwise indicates, words importing the singular
number shall include the plural number and vice versa, and words importing persons shall include
corporations and associations, including public bodies, as well as natural persons.
The terms "hereby", "hereof", "hereto", "herein", "hereunder" and any similar terms, as used in this
agreement, refer to this agreement.
All the terms and provisions hereof shall be construed to effectuate the purposes set forth herein,
and to sustain the validity hereof.
The titles and headings of the sections of this agreement have been inserted for convenience of
reference only, are not to be considered a part hereof and shall not in any way modify or restrict any
of the terms or provisions hereof or be considered or given any effect in construing this agreement
or any provision hereof in ascertaining intent, if any question of intent shall arise.
8.AMENDMENTS
This LEASE sets forth all of the agreements and understandings of the parties and any
modifications must be written and properly executed by both parties.
9.UNLAWFUL USE
TENANT agrees that no improvements shall be erected, placed upon, operated, nor maintained
within the PREMISES, nor any business conducted or carried on therein or therefrom, in violation
of the terms of this LEASE, or of any regulation, order of law, statute, or ordinance of a
governmental agency having jurisdiction over TENANT’S use of the PREMISES.
10.NONDISCRIMINATION
TENANT and its employees shall not discriminate against any person because of race, color,
religion, ancestry, age, sex, national origin, disability or sexual preference. TENANT shall not
discriminate against any employee or applicant for employment because of race, color, religion,
ancestry, sex, age, national origin, disability or sexual preference. TENANT covenants to meet all
requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment. If
TENANT is found in violation of the nondiscrimination provision of the State of California Fair
Employment Practices Act or similar provisions of federal law or executive order in the conduct of
its activities under this LEASE by the State of California Fair Employment Practices Commission
or the equivalent federal agency or officer, it shall thereby be found in default under this LEASE,
990630 lsj C8142982.1 19
and such default shall constitute a material breach of this LEASE. CITY shall then have the power
to cancel or suspend this LEASE in whole or in part.
11.INSPECTION
CITY’S employees and agents shall have the right at all reasonable times, upon 48 hours written
notice to TENANT except in case of emergency, to inspect the PREMISES to determine if the
TENANT is in compliance with provisions of this LEASE.
12.HOLD HARMLESS
TENANT hereby agrees to indemnify, hold harmless and defend CITY, its officers, agents and
employees against any and all claims, liability, demands, damages and costs (including reasonable
attorneys’ fees) arising out of TENANT’s occupancy of the PREMISES or TENANT’s installation,
operation or maintenance of the facilities placed thereon pursuant to this LEASE excepting claims
arising from the sole negligence of CITY.
13.TAXES AND ASSESSMENTS
This LEASE may create a possessory interest which is subject to the payment of taxes levied on
such interest. It is understood and agreed that all taxes and assessments (including but not limited
to the possessory interest tax) which become due and payable upon the PREMISES or upon
fixtures, equipment, or other property installed or constructed thereon, shall be the full
responsibility of TENANT and TENANT shall pay the taxes and assessments prior to delinquency.
14. SUCCESSORS IN INTEREST
Unless otherwise provided in this LEASE, the terms, covenants, and conditions contained herein
shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties
hereto, all of whom shall be jointly and severally liable hereunder.
15.CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (FORCE MAJEURE)
If either party hereto shall be delayed or prevented from the performance of any act required
hereunder by reason of acts of God, restrictive governmental laws or regulations, or other cause
without fault and beyond the control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the period of such delay.
16.PARTIAL INVALIDITY
990630 lsj C8142982.1 20
If any term, covenant, condition, or provision of this LEASE is determined to be invalid, void, or
unenforceable, by a court of competent jurisdiction, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.
17.WAIVER OF RIGHTS
The failure of CITY or TENANT to insist upon strict performance of any of the terms, covenants,
or conditions of this LEASE shall not be deemed a waiver of any right or remedy that CITY or
TENANT may have, and shall not be deemed a waiver of the right to require strict performance of
all the terms, covenants, and conditions of the LEASE thereafter, nor a waiver of any remedy for
the subsequent breach or default of any term, covenant, or condition of the LEASE.
18.COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT
In the event either CITY or TENANT commences legal action against the other claiming a breach
or default of this LEASE, the prevailing party in such litigation shall be entitled to recover from the
other cost of sustaining such action, including reasonable attorney fees, as may be fixed by the
Court.
19.RESERVATIONS TO CITY
The PREMISES are accepted "as is" and "where is" by TENANT subject to any and all existing
easements, and encumbrances. CITY reserves the right to install, lay, construct, maintain, repair,
and operate such sanitary sewers, drains, storm water sewers, pipelines, manholes, and connections;
water, oil, and gas pipelines; telephone and telegraph power lines; and the applications and
appurtenances necessary or convenient for connection therewith, in, over, upon, through, across and
along the PREMISES or any part thereof, and to enter the PREMISES for any and all such
purposes. CITY also reserves the right to grant franchises, easements, rights of way, and permits,
in, over, upon, through, across, and along any and all portions of the PREMISES. No right reserved
by CITY in this clause shall be so exercised as to interfere unreasonably with TENANT’S operation
hereunder.
CITY agrees that rights granted to third parties by reason of this clause shall contain provisions that
the surface of the land shall be restored as nearly as practicable to the original condition upon the
completion of any construction.
20. HOLDING OVER
In the event TENANT shall continue in possession of the PREMISES after the term of the LEASE,
such possession shall not be considered a renewal of this LEASE but a tenancy from month to
month and shall be governed by the conditions, and covenants contained in this LEASE.
21.CONDITION OF PREMISES UPON TERMINATION
990630 lsj C8142982.1 21
Upon termination of this LEASE, except as otherwise agreed to herein, TENANT shall redeliver
possession of the PREMISES to CITY in substantially the same condition that existed immediately
prior to TENANT’S occupancy, reasonable wear and tear, flood, earthquake, war, and any act of
war excepted.
22.DISPOSITION OF ABANDONED PERSONAL PROPERTY
If TENANT abandons the PREMISES or is dispossessed thereof by process of law or otherwise,
title to any personal property belonging to TENANT and left on the PREMISES forty-five (45) days
after such abandonment or dispossession shall be deemed to have been transferred CITY. CITY
shall have the right to remove and to dispose of such property without liability therefor to TENANT
or to any person claiming under TENANT, and shall have no need to account therefor.
23.QUITCLAIM OF TENANT’S INTEREST UPON TERMINATION
Upon termination of this LEASE for any reason, including but not limited to termination because of
default by TENANT, TENANT shall, at CITY’S request execute, acknowledge and deliver to CITY
within five (5) days after receipt of written demand thereof, a good and sufficient deed whereby all
rights, title, and interest of TENANT in the PREMISES, is quitclaimed to CITY. Should TENANT
fall or refuse to deliver the required deed to CITY, CITY may prepare and record a notice reciting
the failure of TENANT to execute, acknowledge and deliver such deed and the notice shall be
conclusive evidence of the termination of this LEASE, and of all right of TENANT or those
claiming under TENANT in and to the PREMISES.
24.CITY’S RIGHT TO RE-ENTER
TENANT agrees to yield and peaceably deliver possession of the PREMISES to CITY on the date
of termination of this LEASE, whatsoever the reason for such termination.
Upon giving written notice of termination to TENANT, CITY shall have the right to re-enter and
take possession of the PREMISES on the date such termination becomes effective without further
notice of any kind and without institution of regular legal proceedings. Termination of the LEASE
and re-entry of the PREMISES by CITY shall in no way alter or diminish any obligation of
TENANT under the LEASE terms and shall not constitute an acceptance or surrender.
TENANT waives any and all rights of redemption under any existing or future law or statute in the
event of eviction from or dispossession of the PREMISES for any reason or in the event CITY re-
enters and lawfully re-takes possession of the PREMISES.
25. CONFLICT OF INTEREST
TENANT warrants and covenants that no official or employee of CITY nor any business entity in
which any official or employee of CITY is interested: (1) has been employed or retained to solicit or
aid in the procuring of this agreement; or (2) will be employed in the performance of this agreement
990630 lsj C8142982.1 22
without the divulgence of such fact to CITY. In the event that CITY determines that the
employment of any such official, employee or business entity is not compatible with such official’s
or employee’s duties as an official or employee of CITY, TENANT upon request of CITY shall
ilnmediately terminate such employment.
26.EMINENT DOMAIN
In the event the whole or any part of the PREMISES are condemned by a public entity in the lawful
exercise of its power of eminent domain, this LEASE shall cease as to the part condemned. The date of
such termination shall be the effective date of possession of the whole or part of the PREMISES by the
condemning public entity.
If only a part is condemned and the condemnation of that part does not substantially impair the capacity of
the remainder to be used for the purposes required by this LEASE, as determined by TENANT, TENANT
shall continue to be bound by the terms, covenants and conditions of this LEASE. However, the then
current minimum annual rent shall be reduced in proportion to the relationship that the compensation paid
by the condemning public entity for the portion condemned bears to the value of the entire PREMISES as
of the date of possession of the part condemned. If the condemnation of a part of the PREMISES
substantially impairs the capacity of the remainder to be used for the purposes required by this LEASE,
TENANT may:
Terminate this LEASE and thereby be absolved of obligations under this LEASE which have not
accrued as of the date of possession by the condemning public entity; or
No Continue to occupy the remaining PREMISES and thereby continue to be bound by the terms,
covenants and conditions of this LEASE. If TENANT elects to continue in possession of the
remainder of the PREMISES, the then current annual minimum rental shall be reduced in
proportion to the relationship that the compensation paid by the condemning public entity for the
part condemned bears to the value of the entire leased PREMISES as of the date of possession by
the condemning public entity.
TENANT shall provide CITY with written notice advising CITY of TENANT’S choice within thirty (30)
days of TENANT’s receipt of written notice from CITY or from the condemning public entity, whichever
notice TENANT receives first, of possession of the part condemned by the condemning public entity.
CITY shall be entitled to and shall receive all compensation related to the condemnation of all or part of
the PREMISES by the exercise of eminent domain except that TENANT shall be entitled to that portion
of the compensation which represents the value of the TENANT constructed improvements for the
remainder of the LEASE term. The amount to which TENANT shall be entitled shall not exceed the
actual cost of improvements constructed by TENANT reduced in proportion to the relationship of the
remaining LEASE term to the original LEASE term, using a straight-line approach.
27. CHANGES IN PRICE INDICES
990630 lsj C8142982.1 23
Clauses contained in this LEASE may provide for adjustment based on the Consumer Price Index,
component indices, or other indices. Should these indices be changed, altered or cease to be
published, the following conditions shall apply:
No If the subject index is changed so that the base year differs from that used as of the month in
which the term commences, the subject index shall be converted in accordance with the
conversion factor published by the publisher of that index;
No If the subject index is discontinued or revised during the LEASE term, such index shall be
replaced by another government index or computation which will obtain substantially the
same result as would be obtained if the subject index had not been discontinued or revised.
28.POST-ACQUISITION TENANCY
TENANT hereby acknowledges that its occupancy of the PREMISES is subsequent to acquisition
of the PREMISES by CITY. TENANT further understands and agrees that as a post-acquisition
TENANT, TENANT is not eligible and furthermore waives all claims for relocation assistance and
benefits under federal, state or local law: provided howover, that TENANT shall be entitled to
relocation assistance benefits available under federal or state condemnation or eminent domain law
from any public entity other than CIYT taking PREMISES in condemnation proceeding..
29. HAZARDOUS SUBSTANCES
Definition. As used herein, the term "Hazardous Materials" means any substance or
material which has been determined by any state, federal or local governmental authority to
be capable of posing risk of injury to health, safety, and property, including petroleum and
petroleum products and all of those materials and substances designated as hazardous or
toxic by the U.S. Environmental Protection Agency, the California Water Quality Control
Board, the U.S. Department of Labor, the California Department of Industrial Relations, the
California Department of Health Services, the California Health and Welfare Agency in
connection with the Safe Water and Toxic Enforcement Act of 1986, the U.S. Department of
Transportation, the U.S. Department of Agriculture, the U.S. Consumer Product Safety
Commission, the U.S. Department of Health and Human Services, the U.S. Food and Drug
Administration or any other governmental agency now or hereafter authorized to regulate
materials and substances in the environment. Without limiting the generality of the
foregoing, the term "Hazardous Materials" shall include all of those materials and
substances defined as "toxic materials" in Sections 66680 through 66685 of Title 22 of the
California Code of Regulations, Division 4, Chapter 20, as the same may be amended from
time to time.
B.LIMITATIONS ON TENANT’S USE.
During the term of this LEASE, TENANT shall abide and be bound by all of the following
requirements:
990630 lsj C8142982.1 24
ii.
TENANT shall comply with all laws now or hereafter in effect relating to the use of
Hazardous Materials on, under or about the PREMISES and the PROPERTY, and
TENANT shall not contaminate the PREMISES or the PROPERTY, or its
subsurfaces, with any Hazardous Materials.
TENANT shall restrict its use of Hazardous Materials at the PREMISES to those
kinds of materials that are normally used in constructing and operating a PCS
facility. Disposal of any Hazardous Materials at the Premises are strictly prohibited.
Storage of such permissible Hazardous Materials is allowed only in accordance with
all applicable laws now or hereafter in effect. All safety and monitoring features of
any storage facilities shall be approved by CITY’S Fire Chief in accordance with all
laws.
111.
iv.
TENANT shall be solely and fully responsible for the reporting of all Hazardous
Materials releases to the appropriate public agencies, when such releases are caused
by or result from TENANT’S activities on the PREMISES or the PROPERTY.
TENANT shall immediately inform CITY of any release of Hazardous Materials,
whether or not the release is in quantities that would otherwise be reportable to a
public agency.
TENANT shall be solely and fully responsible and liable for any such releases which
are caused by TENANT on the PREMISES or the PROPERTY, or into CITY’S
sewage or storm drainage systems. TENANT shall take all necessary precautions to
prevent any of its Hazardous Materials from entering into any storm or sewage drain
system or from being released on the PREMISES or the PROPERTY. TENANT
shall remove releases of its Hazardous Materials in accordance with all laws. In
addition to all other rights and remedies of CITY hereunder, if the release of
Hazardous Materials caused by TENANT is not removed by TENANT within ninety
(90) days after discovery by TENANT, CITY or any other third party, CITY may
pay to have the same removed and TENANT shall reimburse CITY for such costs
within thirty (30) days of CITY’S demand for payment.
City represents that it has no knowledge of any Hazardous Materials on or under the
PREMISES or PROPERTY. TENANT will not introduce or use any such substance
on the PREMISES or the PROPERTY in violation of any applicable law. CITY shall
indemnify and hold TENANT harmless from and against all claims, actions,
damages, fmes, liabilities, costs and expenses (including attorneys’ and expert fees)
arising, directly or indirectly, from the deposit of any Hazardous Materials on or
under the PROPERTY or the PREMISES prior to the commencement of the LEASE,
unless said materials were actually deposited on the PROPERTY or PREMISES by
TENANT. This obligation to indemnify TENANT shall include damages, costs and
expenses incurred in connection with any investigation, cleanup, remediation,
monitoring, remova! or restoration related to the presence of any substance. This
990630 lsj C8142982.1 25
indemnity shall survive the expiration or termination this LEASE. TENANT shall
indemnify and hold harmless CITY from and against all claims, actions, damage,
frees, liabilities, costs and expenses (including attorneys’ and expert fees) arising,
directly or indirectly, from the deposit by TENANT of any Hazardous Materials on
or under the PREMISES or the PROPERTY during the LEASE term, unless said
materials were actually deposited onto the PREMISES or PROPERTY by CITY;
provided however, that this indemnity shall not apply to claims, actions, damages,
frees, liabilities, costs and expenses, (including attorneys’ and expert fees) arising
from vandalism to the PREMISES or the PROPERTY by third parties. This
obligation to indemnify CITY shall include damage, costs and expenses incurred in
connection with any investigation, cleanup, remediation, monitoring, removal or
restoration related to the presence of any substance. This indemnity shall survive the
expiration or termination of this LEASE.
vi.TENANT’S and CITY’s obligations under this Clause shall survive the expiration or
earlier termination of this LEASE,
30. ALL COVENANTS ARE CONDITIONS
All provisions of the LEASE are expressly made conditions.
31.PARTIES OF INTEREST
Nothing in this agreement, expressed or implied, is intended to, or shall be construed to, confer
upon or to give to any person or party other than CITY and TENANT the covenants, condition or
stipulations hereof. All covenants, stipulations, promises and agreements in this LEASE shall be
for the sole and exclusive benefit of CITY and TENANT.
32.RECORDATION OF LEASE
Neither CITY nor TENANT shall record this LEASE; however, a short-form Memorandum of LEASE
may be recorded at either CITY’S or TENANT’S request.
33.INTERFERENCE
TENANT will resolve technical interference problems with other equipment located at the
PROPERTY as of the commencement date of this LEASE or with any then existing equipment
located at the Property that TENANT attaches to the PREMISES at any future date when TENANT
desires to add additional equipment to the PREMISES. Notwithstanding anything to the contrary
contained herein, CITY will not permit or suffer the installation of any future equipment, which (a)
results in technical interference problems with TENANT’s then existing equipment, or (b)
physically encroaches onto the PREMISES.
34. TERMINATION
990630 lsj C8142982.1 26
Notwithstanding anything to the contrary contained in this LEASE, TENANT may terminate this
LEASE at any time by notice to CITY (i) upon payment of a cancellation fee in the equivalent
amount of one (1) months rent if TENANT, after reasonable effort, does not obtain all permits,
consents, easements, non-disturbance agreements or other approvals (collectively, "approval")
reasonably desired by TENANT or required from any governmental authority or any third party
related to or reasonably necessary to operate a PCS facility, or if any such approval is canceled,
expires or is withdrawn or terminated, or (ii) without further liability if CITY fails to have proper
ownership of the PREMISES or PROPERTY or authority to enter into this LEASE; or (iii) upon
payment of a cancellation fee in the equivalent amount of six (6) months rent if TENANT, for any
other reason, in its sole discretion, determines that it will be unable to use the PREMISES. Upon
termination, CITY shall retain all prepaid rent, unless termination is pursuant to (ii) above is a result
of CITY’s default.
9906301sjC8142982.1 27
EXHIBIT B
LEGAL DESCRIPTIONS
C~GL~A_R WIILELESS LE.4~SE AREA
RE~I_. PROPERTY IN THE CITY" OF PALO ALTO, COUNTY OF SANTA CLARA, STATE OF
CAL~O_~N’IA~ BEING A 7.25 FOOT BY 24.00 FOOT RECTANGULAR LEASE AR~A SITUATED
Ehq’LRELY WITI-IIN THAT CERTAIN 0.984+ ACRE P.%RCEL OF LAND OWNED BY THE CITY OF
P~&O _~LTO, SAID PARCEL HAVING THE ADDI~SS OF 2675 HANOVER STREET, AN
A,S~ESSOI<’S P.~/ECEL NUMBER OF 142.20.002, AND AS RECOKDED iN DOCUMEb~ NO.
27503’00, ~! THE RECORDS OF SAID COUN~_; SAID LE~E AREA BEliNG MORE
?_:@~ICUL:~RL5’ DESCRIBED AS FOLLOWS:
CO),,_~.f£12{CING AT A STAN-DARD CFfY MONUMENT FOUND AT THE
iNTERSECTION OF PL~NOVER STREET .aND PAGE MILL ROAD, AND FROM WI-IICH POINT A
{4" IRON PiPE IN A MO.ND-M]ENT~ V~UELL FOUND AT THE CEN ,.--ERLINE INTERSECTION OF
b2ANOVER STREET AND CALIFORNIA AVEhrUE, BE.~S: N 56~24’03’’ W, 1316.75 FEET AS S.~D
~vfO.NUM]~NTS ARE SHOVTN ON THAT CERTAIN P~COI%D OF SURVEY PILED ON APR!L
1969 FN BOOK 252 05 MAPS AT PAGE 5 LN THE I~CORDS OF SAID COUNTY; THENCE .ALONG
SAID HANOVER STREET CENTERL[NE, N 56~24’03" W, 385.06 FEET; THENCE LEAVING SAID
CENTERLINE AT A RIGHT ANGLE, N 33~35’~7’’ E, 30.00 FEET TO THE SOLU’H~-ESTERLY
COtLNER OF SAID 0.984 ACRE PARCEL, SAID COI~NER ALSO BEING ON THE
NORTR~ASTERLY R!GI-1T-OI:-WAY LINg OF SAID K~NOVER STREET; THENCE ALONG
NORT.’~Cv’EST~RUg BOU--~’DARY OF SAID PM-ICEL, N 33°35’57" E, 285.08 FEET;
L~AVI,NG SAiD BOUNDARY AT A R~GlalT ANGLE, S 56~24’03’’ E, 3.00 FEET TO T~
$O,"JT~Y~%~ST~RLY CORNT-R OF, .AND POE~’T OF BEGINh~L-NG FO~ THE LEASE .a2~E.= ~
DESCP/BP.D: SAID POINT HEP~INAFTER REFERRED TO AS POINT "A"; THENCE N A
CLO~.IW~SE DIP, ECTION AROI!ND THE PERIMETER OF SAID LEASE AREA THE FOLLOWING
’.-’O~ (4) COURSES AND DISTANCES:
i) N33°35"57" E, 24.00FEET; THENCE,
2} S 56°24"03’’ E, 7.25 FEET; THENCE,
3’~ S ?3~35’57’’ W, 24,00 FEET; THENCE,
4’) N 56~24~03’" W, 7.25 FEET TO THE POINT OF BEGINNING AND CONT.AIN-ING 174 SQUARE
FEET, MORE OR LESS.
ACCESS EASENIENT
A 20-FOOT WIDE STP/P OF L~_ND SITUATED ENTIRELY WITHIN THAT CERTAIN PARCEL O~
LAND OWNED BY ~ CITY OF P.ALO ALTO AS DESCRIBED .~BOVE AND COMMENCING AT
SAPD POh-NT "A"; THENCE ALONG THE WESTERLY AND NORTHERLY SIDES OF THE LEASE
.~REg_. N 33~ 35’57" E, 24.00 FEET; THENCE, S 56°24’03’’ E, 7.25 FEET; THENCE ONA TIE: S
56~2~I’03’’ E, I0.00 FEET TO TH~ CENTEP, LLNE POINT OF BEGINNING FOP. THE 20-FOOT
WiDE ACCESS EASEMENT HEILEEN" DESCRIBED; SA!D EASEME.N-r BEING 10 FEET ON BOTH
.SZDES OF ~ FOLLOWING DESCRIBED CENTERLINE, S 33~35’57’’ W, 309.08 FEET TO THE
NORTHERLY R!GHT-OF.WAY OF SAID HANOVER STIKE~T AND THE I~OINT O]F TER!VIINVS
FOR TN_E EASEMENT.
PAGE i OF 3
A 5-FOOT "vVE)E STRIP OF LAND SITUATED E.~KTIRELY WITHIN THAT CERTAIN PARCEL OF
LAND OWNED BY THE C1TY OF PALO ALTO AS DESCRIBED ABOVE, SAID EASEMENT
COMMENCING AT SAID POINT "A"; THENCE ALONG THE SOUTHEILLY LINE OF THE
DESCRIBED LEASE AREA, S 56°24’03" E, 4.75 FEET TO THE CENTERLINE POLNT OF
BEG~NI2~G FOR THE 5-FOOT WIDE UTILITY EASEMENT, SAID t~ASEMENT BELNG 2.5 FI~ET
ON BOYH SIDES OF THE FOLLOWING DESCRIBED CENTERL~’qE, S 33°35’57’’ W, 152.50 FEET;
~I~NCE S 41~ 30’39" E, 80.31 FEET TO THE POINT OF T~..RMIh’~S FOR THE EASEM~rT. THE
SFDES OF WHICH TO BE LENGTHENED OR SHORTENED TO TERMINATE AT AN ELECTRICAL
P.~EL ON T_IIE "v’v’.~LL OF ~ EX’IST2¢G FLRE STATION BU]I,DIiWG,
~¢,~ ~TE’E.~.R.LY g-~OOT WIDE UT:LITY EASEMENT
A f-FOOT WIDE STRIP OF LAND S1TUATED ENTIRELY WITH3N THAT CERTAIN PARCEL OF
L#2CD OVv2qt~D BY THE CITY OF PALO ALTO AS DESCRIBED ABOVE, SAID EASEMENT
CO!VLMENCLNG AT SAID POINT "A"; THENCE ALONG T}£E WESTERLY AND NORTHERLY
SLDfiS OF ThE LEASE AREA, N 33° 35~57’’ E. 24.00 FEET; THENCE, S 56°24’03" E, 4.7~ FEET TO
"VHE CEN~ERLIN’E POINT OF BEGINNING FOR THE ~-FOOT WIDE EASEMENT, SAD
EASEMfENT BEING 2,5 FEET ON BOTH SIDES OF THE FOLLOWING DESCR_.~ED CENTERLINrE;
N 33~ 35’~7" E, 2.~ FEET; THENCE, S 56° 24’03" E, 2.4I FEET; T~-~’--NCE, S 60: 3~’~9" E, 54.99
~_=T TO ~ EAS’F~RLY PROPERTY L~qE OF S~_ID PARCEL OF LAND AND THE POINT OF
END OF DESCRIPTI/ONS,
Yl-~ FOREC-OEWG DESCRIPTIONS AR.E SHOWN ON A PLAT IDENTIFIED AS EXt-EIBIT B-1
ATTACH.ED HERETO AND MADE A PART THEREOF.
Expi,"atiom 12/3 U06
~A ~.
DEA ~ob N~ PCBW0000.1~.95
PAGE 2 OF 3
APN: 14_#-02-056
CINGULAR WIRELESS
174. S.F. LEASE~-.
AREA
/
POINT "A"
S33’35"57"W1S2.50’
i//
/
80.31’
2.5’+
2.5’+
SCALE; I" = 50’
LANDS OF
CP( OF PALO ALTO
2575 HANOVER STREET
APN; 142-20-002
\0,984-.+ ACRES /
/P.O,C.
FOUND
MONUMENT
(F’AGE MILL ROAD)
I EXHIBIT ’B-I"
MAYFIELD STATION #2, BA-351-02 ~2575 HANOVER STREET ~PALO ALTO SANTA CLARA COUNTY CALIFORNIA ~
PCBW-~4S5 tORN. B_Y’%R_PS ICHK. i~Y: KMhlDATE’; ili19/05i
PAG~ 3 OF 3
ATTACHMENT D
Existing
cingular"
WIRELESS
Proposed
BA-351-02
proF
Mayfield Station #2 2675 Hanover Street
Palo Alto, CA 94304
O:=
O
O
O
mill=