HomeMy WebLinkAbout2000-05-08 City CouncilTO:
City of Palo Alto
C ty Manager’s Report
HONORABLE CITY COUNCIL 12
FROM:
DATE: ¯
CITY MANAGER
MAY 8, 2000
DEPARTMENT: ADMINISTRATIVE
SERVICES
CMR: 134:00
SUBJECT:LEASES WITH SPRINT SPECTRUM L.P. FOR PLACEMENT OF
TELECOMMUNICATIONS FACILITIES AT THE PALO ALTO FIRE
STATIONS LOCATED AT 799 EMBARCADERO ROAD AND 3600
MIDDLEFIELD ROAD
RECOMMENDATION
Staff recommends that Council hold a public hearing and approve the attached two leases
between the City of Palo Alto and Sprint Spectrum L.P. (Sprint) for the development and
operation of telecommunications facilities at the Rinconada fire station and the Mitchell Park
fire station (fire stations #3 and #4), located at 799 Embarcadero Road and 3600 Middlefield
Road, respectively.
BACKGROUND
On November 17, 1997, Council approved a set of four telecommunications policy
statements as a first step in the development and implementation of a comprehensive
telecommunications policy for Palo Alto. On January 8, 1999, Sprint Spectrum L.P.
(Sprint), submitted to staff a proposal to lease space for the construction and operation of
Personal Communications Service (PCS) wireless antenna facilities at the Rinconada Park
and Mitchell Park fire stations. On October 21, 1999, following a public hearing before the
Zoning Administrator, Sprint was granted a conditional use permit for each facility.
DISCUSSION
Attachment A lists the telecommunications policy statements approved by Council in
November 1997. Policy 4, which addresses the use of City-owned and leased property for
telecommunications 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
telecommunications infrastructure when these are compatible with the primary use of the
CMR:134:00 Page 1 of 3
property, and are used in a manner that is consistent with City real estate policy, zoning,
legal, environmental and other requirements as necessary. As yet, specific sites have not
been designated; however, pending the completion of a comprehensive telecommunications
policy, staff has worked with Sprint under current City policy to facilitate its request for use
of City property to improve service to its customers. Sprint has also agreed to relocate its
facilities if their location turns out to be incompatible with the telecommunications policy
when adopted.
The Personal Communications Service (PCS) wireless antenna facilities proposed at the
Rinconada and Mitchell Park fire stations consist of an array of antennas mounted on,
respectively, 65 foot high and 51 foot high stealth towers (flag poles), and associated ground
equipment. These are placed in an area of approximately 20 by 25 feet, consisting of
enclosed equipment pads and cabinets. The base equipment is located on the ground behind
landscaping and a wood fence to match existing fencing on the site. The equipment cabinets
are fully self serviced, containing an independent air conditioning unit, heating unit,
electrical supply telephone hook up and back up power supply. The fence securing the leased
premises containing Sprint facilities will be locked, and the Fire battalion chief at each
station will be provided with a key for emergency access. In accordance with the intent of
Policy #4 to reduce adverse impacts of telecommunications infrastructure, each facility has
been designed to accommodate another telecommunications provider, which will eliminate
the need for an additional site in the area.
On October 21, 1999, the Zoning Administrator granted Sprint conditional use permits for
the proposed use at the proposed locations after making the required determinations that the
use 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 accord with the Palo Alto Comprehensive Plan and
Title 18 of the Palo Alto Municipal Code.
Lease
The attached leases, which are identical except for the sites involved, are the result of
extensige negotiations between staff and Sprint and may serve as the model for future leases
with telecommunications providers. The terms of the leases are summarized in Attachment
A. Major terms include a 5 year term with the option to renew for two additional terms of
five years each; annual rent of $15,600 to be adjusted annually by the 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.
CMR: 134:00 Page 2 of 3
RESOURCE IMPACT
The proposed leases will each generate annual income to the City in the amount of $15,600
per year, adjusted annually by changes in the Consumer Price Index. In addition to the
monetary compensation, Sprint will provide the City with up to 10 PCS telephones and
service at no charge for the City’s temporary use in the event of an emergency in which the
fire chief requires the temporary use of PCS telephones.
POLICY IMPLICATIONS
The proposed lease is consistent with Policy #4 of the Telecommunications Policy
Statements approved by Council on November 17, 1997 and with City Policies and
Procedures 1-11, Leased Use of City Land/Facilities, Section C, paragraph la, which
provides for the awarding of a lease of city property following a notice of intent to award
the lease and a public hearing before the Council.
TIMELINE
Construction and operation of the facility will begin as soon as the City executes the Leases.
ENVIRONMENTAL REVIEW
During the conditional use permit process, an environmental impact assessment as required
by the California Environmental Quality Act was prepared and a~negative declaration was
approved by the Zoning Administrator.
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Telecommunication Policy Statements
Summary of Terms of the Lease
Lease with Sprint for 799 Embarcadero Road with Addendum
Lease with Sprint for 3600 Middlefield Road with Addendum
PREPARED BY: Janet Freeland, Senior Financial Analyst
DEPARTMENT HEAD:
CARL yA~ATS
Director, Administrative Services
CITY MANAGER APPROVAL:
Assistant City Manager
cc: Sprint Spectrum, L.P.
CMR:134:00 Page 3 of 3
ATTACHMENT A
TELECOMMUNICATIONS POLICY STATEMENTS
General - It is the policy of the City of Palo Alto to facilitate the competitive delivery of
conventional and advanced telecommunications services throughout Palo Alto in an
environmentally sound manner, while ensuring cost recovery and enhancement of
revenues derived from the use of the City’s assets.
Siting and installation of New Telecommunications Facilities - The city is the owner
of the public fight-of-way over which it has control and the regulatory body for the
development of facilities within its jurisdictional boundaries. It is the policy of the City
to regulate the location and manner of construction, manage the safe, orderly and efficient
use of Palo Alto’s public fight-of-way, and to facilitate timely installation of
telecommunications infrastructure in environmentally sound manner.
o Use of Utilities Infrastructure .- The City allows the use of Utilities infrastructure and
Utilities-owned or-leased facilities to promote the delivery of telecommunications
services provided that any telecommunications use does not impinge upon the City’s
ability to provide safe and reliable electric, gas, water, wastewater, and storm drainage
services and does not interfere with the City’s planned use of the facility or property.
Use of City Facilities and Property - The City owns and leases property and facilities,
in addition to Utilities facilities, that could be used to support the deployment of
affordable telecommunications services while limiting the potential adverse impacts
associated with ~e development of the necessary infrastructure. It is the policy of the
City to encourage qualified outside parties to use designated City-owned or -leased
property and facilities for siting of telecommunications infrastructure that is compatible
with the primary use of the property, and in a manner that is consistent with City real
estate policy, zoning, legal, environmental, and other requirements as necessary.
Approved by the Palo Alto City Council on November 17, 1997
ATTACHMENT B
Summary of Terms of the Lease
Lessor:
City of Palo Alto
Tenant:
Sprint Spectrum L.P.
Premises:
799 Embarcadero Road and 3600Middlefield Road, commonly known as Fire Stations #3 and #4
respectively.
Purpose:
The purpose of the lease is to provide for the installation, maintenance and operation, at Tenant
expense, of a personal communications service (PCS) system facility.
Term:
Five years with option to renew for two additional terms of five years each.
Consideration/Rent:
Monetary:
Non-monetary:
$15,600/year, adjusted annually in proportion to the Consumer Price Index
In the event of an emergency, Tenant to provide City up to 10 PCS
telephones at no charge for temporary use.
Required Use:
Tenant shall use the Premises as a PCS site for furnishing telephone,
telecommunications services to the public, subject to the following conditions:
1.
radio and
Use to comply with applicable laws and regulations regarding electromagnetic emissions
and shall meet all other applicable federal, state and local laws and regulations regarding
environmental and occupational safety.
Tenant shall not permit any unreasonable odors, smoke, dust, gas, substances, or noise or
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vibration so emanate from the facility nor take any action which would constitute a
nuisance or disturb occupants or neighbors of the site.
3.City may enter the Premises in the event of an emergency~
4.fenant shall install a fire extinguisher on the Premises and post a notice listing its
emergency procedures, warnings and contacts.
5.Tenant shall install fencing around the facility to blend in with the Fire Station and its
surroundings, and tenant shall provide to each Fire Captain a key to the lock on the fence.
6.City shall raise and take down the flag each day.
Co-location
Tenant shall construct and operate its antenna tower so as to accommodate co-location by one or
more other telecommunications providers, and shall make such facilities available on
commercially reasonable terms.
Construction or Alteration by Tenant:
Tenant may not make any changes to the property without prior City review and approval.
Maintenance and Repair:
Tenant shall maintain all improvements on the leased premises; City to maintain common areas
serving the premises but outside the premises.
Assignment/Subletting:
Any assignment or encumbrance of the lease must receive prior City approval, except for
assignments or subleases to any of tenant’s subsidiaries, affiliates or successor legal entities or
any entity acquiring all of Tenant’s assets.
Taxes, Assessments and Utilities:
Tenant shall be responsible for all utilities supplied to the PCS facility and for taxes and
assessments for the Premises.
Insurance:
Tenant shall maintain insurance meeting the City’s standard requirements for insurance
protection.
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Sprint Reference No. :
SF-13-XC-825 (A)
ATTACHMENT C
LEASE #
This Lease (LEASE) is made this day of , 2000 by and
between the City of Palo Alto, a municipal corporation, (CITY) and
Sprint Spectrum L.P., a Delaware limited partnership (TENANT).
RECITALS
CITY owns the property located at 799 Embarcadero Road, Palo
Alto, California 94303, commonly referred to as Fire Station No.
3 and/or "Rinconada" Station (PROPERTY).
TENANT desires to lease the PREMISES (as defined in Clause I) to
operate a personal-communications service (PCS) system facility.
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 (RL 3.0) S
Subject to the terms and conditions set forth in this LEASE, CITY
leases to TENANT ~that portion (PREMISES) of the PROPERTY 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 this.LEASE, TENANT accepts the PREMISES "as-is" on the
date ’of execution of this LEASE. CITY hereby grants TENANT
reasonable rights of ingress and egress as shown on Exhibit B.
In addition to the leased PREMISES, CITY hereby grants to TENANT a
non-exclusive easement (EASEMENT) in and through that portion of the
PROPERTY, which is also described and shown in Exhibit B, for the
sole purpose of constructing and installing cabling and associated
hardware incidental to the purposes of this Lease, together with the
right to ingress ~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
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Lease and shall terminate without further notice as of the date of
termination of the Lease.
II.PURPOSE (RL 4.0) S
The purpose of this LEASE is to provide for the installation,
maintenance,and operation, at TENANT expense, of a personal
communications service (PCS) system facility.
III.
REQUIRED AND OPTIONAL SERVICES AND USES (RL 5.0) S
In furtherance of the purposes stated above, the following required
and optional services and uses shall be provided, permitted or
prohibited:
Required Services and Uses. Throughout the term of this LEASE
TENANT shall use the PREMISES as one of TENANT’s PCS sites 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 system facility,
including without limitation an antenna structure, base
equipment, back-up power sources (including generators and fuel
storage tanks), cable, wiring and fixtures (P~S FACILITY).
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 antenna facilities are
constructed on the PREMISES to ensure that its PCS FACILITY
is in compliance. The tests shall be conducted by a
licensed professional engineer, and the results shall be
provided to CITY. After the installation of the PCS
FACILITY, TENANT shall conduct safety training classes for
CITY personnel as reasonably required to inform them about
working safely with the PCS FACILITY.
In constructing and operating the PCS FACILITY, TENANT
shall include the following items in its plans and
operating procedures:
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TENANT shall not permit any unreasonable odors, smoke,
dust, gas, substances, noise or vibrations to emanate
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from the PCS FACILITY, nor take any action which would
constitute a nuisance or would disturb, obstruct or
endanger any other tenants or occupants of the site or
interfere with their use of their respective premises.
TENANT’s operation of the PCS FACILITY 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.
TENANT shall submit all required hazardous materials
filings and obtain all required approvals prior to
installing its batteries or any other hazardous
materials.
CITY agrees that its personnel shall only enter the
PREMISES in the event of an emergency. CITY agrees
that its personnel shall not touch, tamper with, alter
or attempt to open the PCS FACILITY or any of TENANT’s
other equipment ancillary thereto on the PREMISES.
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 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
approval, which approval shall not be unreasonably
withheld, conditioned, or delayed. CITY shall provide
TENANT a written list of the Fire Captains of each
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.
TENANT shall maintain all improvements that it places
on the PROPERTY, including the fence, flagpole, and
the mounting equipment for the flag. CITY shall be
-responsible for raising and taking down .the flag each
day
TENANT’s service lights in the PREMISES shall remain
off unless its service personnel are in the area and
require the lights to be turned on to conduct their
operations.
Co-location. TENANT shall construct and operate its antenna
tower 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
provi4ers on commercially reasonable terms. Any sublease or
lice~.se 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 optiona!, 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 business activity within or from the PREMISES.
IV.TERM (RL 6.0) S
The term of this LEASE shall be for a period of five (5) years,
commencing on the date TENANT receives the last permit required for
installation of the PCS FACILITY (COMMENCEMENT DATE).
V.OPTION TO EXTEND (RL 6.2) S
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 it’s intent not to renew. The automatic extensions
pursuant to this Clause V shall be void if TENANT has received from
CITY more than three 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 XX (DEFAULT
IN TERMS OF THE LEASE BY TENANT).
VI. CONSIDERATION/RENT (RL 7.2) S
Rent. As partial consideration for use of the PREMISES, TENANT
agrees to pay to CITY annual rent of Fifteen Thousand Six
Hundred Dollars ($15,600) per year, subject to adjustment as
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provided in Clause VII, payable in advance in accordance with
Clause VIII (RENT PAYMENT PROCEDURE).
Non-Monetary Consideration. In addition to the rent set forth
in subparagraph A above, TENANT agrees to perform the following
services or provide the following public benefits on behalf of
CITY:
In the event of an emergency which the CITY’s Fire Chief deems
requires the temporary use of PCS telephones by CITY
(EMERGENCY), TENANT shall provide CITY up to (ten) I0 PCS
telephones (PHONES) and service, at no charge, for CITY’s
temporary use. In the event of an EMERGENCY, CITY’s Fire Chief
(or other agent previously designated in writing) shall, during
normal business hours, contact the acting Manager of TENANT’s
store located at 499 University Avenue, Palo Alto, CA 94301
(PALO ALTO STORE) (telephone (650) 614-9140), which Manager
shall provide CITY with up to ten (I0) of the highest quality
PCS telephones available at the PALO ALTO STORE at the time of
the EMERGENCY. As soon as is practical following the EMERGENCY,
CITY shall return the PHONES to the PALO ALTO STORE and
reimburse TENANT for any loss or damage thereto. CITY
acknowledges that it shall be entitled to a cumulative total of
not more than ten (i0) PHONES in the event of an EMERGENCY,
regardless of the number of lease or other agreements it enters
into with TENANT or of the number of PCS Facilities TENANT may
be installing, operating, or planning to install or operate in
the city of Palo Alto, California.
TENANT’s-liability to CITY for any breach of the obligation set
forth in this Clause VI.B. shall be limited to the sole and
exclusive remedy of liquidated damages in an amount equal to
TENANT’s cost of the PHONES. CITY shall not be entitled to any
consequential or incidental damages from TENANT as a result of
any such failure. The parties agree that the provision for
liquidated damages set forth above is a reasonable remedy given
that the obligation to provide the PHONES to the CITY will arise
only in the event of an emergency situatibn, the circumstances
of which are uncertain, and therefore it is difficult to
ascertain TENANT’s ability to provide the PHONES should the need
arise. Furthermore, CITY shall indemnify, defend, and hold
TENANT harmless from and against any and all costs (including
attorney’s fees) and claims of liability or loss arising from
CITY’s use of the PHONES (including without limitation any loss
or interruption of service) or TENANT’s failure to provide the
PHONES to CITY pursuant to this Clause VI.B. This indemnity
obligation shall survive the termination of this LEASE.
TENANT’s indemnity obligation set forth in Clause 12 of Exhibit
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A hereto (HOLD HARMLESS) shall not apply to any claims for costs
or liability arising from CITY’s use of the PHONES (including
without limitation any loss or interruption of service) or
TENANT’s failure to provide the PHONES to CITY pursuant to this
Clause VI.B.
VII. REVISION OF RENTALS (RL 7.3) S
The rental specified in Clause VI (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
= i00) 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:
X =Adjusted rental.
A =Rental at the Commencement of the LEASE.
B =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)
C = 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.
A.
mo
RENT PAYMENT PROCEDURE (RL I0.0) S
Until the COMMENCEMENT DATE, rent hereunder shall be a one-time
aggregate payment of one hundred dollars ($I00), receipt of
which CITY hereby acknowledges. On the COMMENCEMENT DATE,
TENANT shall pay to CITY rent for the first year of the term as
set forth in Clause VI (CONSIDERATION/RENT).
Commencing on the first anniversary of the COMMENCEMENT DATE, on
or before each anniversary of the COMMENCEMENT DATE, TENANT
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shall pay to CITY rent as set forth in Clause
(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 ten (i0) days written notice to TENANT.
Rental payments may be made by check made payable to the City of
Palo Alto.
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 any
remedy provided in this LEASE.
IX.MAINTENANCE AND REPAIR (RL 14.1) NS
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 of TENANT’s related
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 all applicable laws, throughout the term of this LEASE. In
@ddition, 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. 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 within ten (I0) 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 ~o make repairs or perform maintenance
as provided in this clause.
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X.MAINTENANCE OBLIGATIONS OF CITY (RL 14.2) S
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.
XI.CONSTRUCTION AND/OR ALTERATION BYTENANT (RL 15.1) S
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 CITY’s City Council if required by City of Palo Alto
procedures or ordinances, or otherwise by CITY’s City Manager or
designee), which consent shall not be unreasonably withheld,
conditioned, or delayed. 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 thoug~ originally stated herein.
TENANT may, at any time and at its sole expense, install and
place business fixtures and equipment within any building on the
PREMISES, provided such fixtures and installation have been
reviewed and approved by CITY’s City Manager.
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 CITY’s City Council if required by City
of Palo Alto procedures or ordinances, or otherwise by CITY’s
City Manager or designee, and which approval shall not be
unreasonably withheld, conditioned., or delayed) and applicable
City of Palo Alto codes and ordinances.
Certificate of Inspection. Upon completion of construction of
any building, TENANT shall submit to CITY’s Real Property
Manager, a Certificate of Inspection, verifying that the
construction was completed in conformance with Title 20 of the
California Code of Regulations for residential construction, or
in conformance with Title 24 of the California Code of
Regulations for non-residential construction.
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XII.OWNERSHIP OF IMPROVEMENTS (RL 16.0) NS
A.Improvements to Realty.
All improvements constructed, erected or installed upon the PREMISES
must be free and clear of all liens, claims or liability for labor or
material. Upon expiration or termination of this Lease, CITY may at
its option require TENANT to remove TENANT constructed improvements
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 donduit 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
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 if TENANT is not then in default under this
LEASE, provided that TENANT shall repair to the satisfaction of CITY
any damage to the PREMISES and improvements caused by such removal.
XIII.AS BUILT PLANS (RL 15.5) S
Upon completion of any major TENANT-constructed improvements, TENANT
shall provide CITY’s Real Property. Manager with a complete set of
reproducible "as built plans" reflecting actual construction within
or upon the PREMISES. TENANT shall also provide CITY’s Real Property
Manager with a statement signed by TENANT under penalty of perjury
certified as to accuracy and of actual construction costs for all
such improvements.
XIV. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS (NS)
If the PREMISES are, in whole or in part, damaged or destroyed, then:
(I) 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
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reasonable time, repair the PREMISES with a reasonable reduction of
rent from the time of such partial destruction until the PREMISES are
again .as fully usable by TENANT as they were before such partial
damage or destruction; provided, however, that TENANT shall not be
required to rebuild the PCS FACILITY or repair the PREMISES if: (i)
such partial damage or destruction shall occur with~in one (i) year
prior to the expiration of the LEASE, and (ii) TENANT continues to
pay the rental amounts due hereunder and the PREMISES are maintained
in a safe and sanitary condition. A decision as to whether partially
destroyed or partially condemned PREMISES is still usable for
reconstruction of a PCS FACILITY shall be made jointly by CITY and
TENANT, and, if they cannot agree, by an arbitrator reasonably
acceptable to both parties. TENANT shall have the right to operate
a temporary PCS FACILITY on the PROPERTY during any repair or
reconstruction of the PREMISES, including the right to operate suc~h
generators or other back-up power supply sources as TENANT determines
may be required.
XV. UTILITIES (RL 17.0) S
TENANT shall be responsible for and shall pay, prior to delinquency,
all charges for utilities supplied to the PCS FACILITY.
XVI. INSURANCE (RL 18.0) S
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 CG 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.
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The policy or policies of insurance maintained by TENANT shall provide
the following limits and coverages:
POLICY MINIMUM LIMITS OF LIABILITY
(I)WORKERS’
COMPENSATION Statutory
(2) COMPREHENSIVE Bodily Injury $I,000,000
AUTOMOBILE $I,000,000
LIABILITY,Property Damage $I,000,000
including owned,
hired, and non-owned
automobiles
ea. person
ea. occurrence
ea. occurrence
(3) COMPREHENSIVE Bodily Injury $I,000,000
GENERAL $I,000,000
LIABILITY "$I,000,000
including Property Damage $1,00D,000
products and Personal Injury $I,000,000
completed operations,
broad form contractual,
and personal injury.
ea. person
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 o’f the term of this LEASE. Each insurance policy required by
this LEASE shall contain the following clauses:
"Each insuranc~ 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
by certified mail, return receipt requested, has been given
to the CITY."
000120 sdl 0032305
"All rights of subrogation are hereby waived against the
CITY OF PALO ALTO and the members of the City Council and
ii
elective or appointive officers or employees, when acting
within the scope of their employment or appointment."
"The CITY OF PALO ALTO is named as a loss payee on the
property and course of construction insurance policies
described above."
"The CITY, its officers, officials, employees, agents and
volunteers are to be covered as 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."
"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-:X.
XVII.INSURANCE (RL 18.2)
TENANT agrees to deposit with CITY’s 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
000120 sdl 0032305
12
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
CITY’s Risk Manager, the insurance provisions in this LEASE do not
provide adequate protection for CITY, CITY’s Real Property Manager
may require TENANT to obtain insurance sufficient in coverage, form,
and amount to provide adequate protection as determined by CITY’s
Risk Manager and TENANT. CITY’S requirements shall be reasonable 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.
CITY’s Real Property Manager shall notify TENANT in writing of
changes in the insurance requirements. If TENANT does not deposit
adequate evidence of insurance 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.
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
obligat@d 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 (RL 19.0) S
Any mortgage, pledge, hypothecation, 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 approved 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 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
000120 sdl 0032305
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 fort~ above,
CITY agrees that it wil! not arbitrarily withhold consent to any
encumbrance, but. CITY may withhold consent at its sole discretion if
any of the following conditions exist:
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;
Intentionally Omitted;
The processing fee required by CITY and set forth in the then
current Palo Alto Municipal Fee Schedule has not been paid to
CITY;
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; or
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 (RL 20.0) S
Should TENANT default in the performance of any covenant, condition,
or agreement contained in this LEASE and such default is not
000120 sdl 0032305
14
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, stemming from this LEASE, shall end at the
time of such termination;
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;
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 right to 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 rights
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.
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XX. NOTICES (RL 23.0). S
All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments or designations
hereunder gJ e by either party to the other, shall be in writing and
shall be sui..~ciently given and served upon the other party if (i)
personally served, (2) sent by United States Certified mail, postage
prepaid, (3) sent by express delivery service, or (4) in the case 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 (i), (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: (650) 329-2468
with a copy to:
City Clerk, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
FAX: (650) 329-2646
and
Sprint Spectrum, L.P.
4683 Chabot Drive, Suite i00
Pleasanton, CA 94588
Attn: Property Specialist,
Palo Alto
Cascade NO.
FAX: (925) 468-7313
Sprint Spectrum, L.P.
4900 Main Street, 12th Floor
Kansas City, MO 64112
City Attorney, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto CA 94303
FAX: (650) 329-2646
Robbins, Palmer & Allen, LLP
1901 Harrison St., Suite 1550
Oakland, CA 94612
Attn: John Boat
FAX: (510) 446-1946
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XXI. ATTACHMENT TO LEASE (RL 24.0) S
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 PREMISES and EASEMENT
Exhibit C - Memorandum of LEASE
The inclusion of clauses in Exhibit A (GENERAL CONDITIONS) is not in
any way intended to lessen the importance of such clauses, but rather
is merely done to enhance the organization of this LEASE. In the
event of a conflict between the foregoing Clauses and the provisions
of Exhibit A, the foregoing Clauses shall prevail.
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IN WITNESS WHEREOF, the parties have executed this LEASE the day and
year first above written.
CITY:TENANT:
CITY OF PALO ALTO (LESSOR)
By:
Its: Mayor
ATTEST:
SPRINT SPECTRU~/L~P., a Delaware
limited~~ip /[’ , ~-~’_°"7
Print ~e.~f" k
~/~ Lawrence moherty
Its: ~egional Director of
Site Development, We~t
By:
Print Name:
Its: City Clerk
APPROVED AS TO FORM:
By:
Print Name:
Its: Senior Asst. City Attorney
PROPERTY DESCRIPTION APPROVED:
By:
Print Name:
Its: Public Works/Engineering
RECOMMENDED FOR APPROVAL:
By:
Print Name:
Its: Asst. City Manager
By:
Print Name:
Its:Fire Chief
By:
Print Name:
Its:
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Real Property Manager
18
EXHIBIT A
GENERAL CONDITIONS
i.DEFINITIONS (RL 27.1) S
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 (RL 27.2) S
If TENANT is a partnership, each general partner:
Bo
represents and warrants that the partnership is a duly qualified
partnership authorized to do business in Santa Clara County; and
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 represen~ts and warrants that;
A°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
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, conGessionaires, or licensees, 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 licenses not authorized or permitted elsewhere in this
LEASE.
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3.TIME (RL 27.3) S
Time is of the essence of this LEASE.
4.SIGNS (RL 27.4) S
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 (RL 27.5) S
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 (RL 27.6) S.
TENANT shall at all times indemnify and save CITY harmless from all
claims for labor or materials supplied in connection with TENANT’S
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 (I0) 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 postingNotices of Non-Responsibility.
In the event a lien is imposed upon the PREMISES as a result of such
construction, repair, alteration, or installation by TENANT, TENANT
shall either:
A.Record a valid Release of Lien; or
Co
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
Procure and record a bond in accordance with Section 3143 of the
Civil Code, which releases the PREMISES from the claim of the
lien from any action brought to foreclose the lien.
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2O
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 (RL 27.7) S
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 of 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 (RL 27.8) S
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’ (RL 27.9) S
TENANT shall not erect, place upon, operate, or maintain any
improvements 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.
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I0.NONDISCRIMINATION (RL 27.10) S Revised 8-19-93
TENANT and its ~mployees 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, 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.
II.INSPECTION (RL 27.11)
CITY’s employees and agents shall have the right at all reasonable
times to inspect the PREMISES to determine if the provisions of this
LEASE are being complied with.
12.HOLD HARMLESS (RL 27.12) S
CITY and TENANT each indemnifies the other against and holds the
other harmless from any and all costs (including reasonable
attorneys’ fees) and claims of l~ability or loss which arise out of
the ownership, use and/or occupancy of the PREMISES by the
indemnifying party. This indemnity does not apply to any claims
arising from the Sole negligence or intentional misconduct of the
indemnified party. Tenant’s obligation under this Cl~use shall not
apply to any claims arising from CITY’s use of the PHONES (including
Without limitation any !oss or interruption of service) or TENANT’s
failure to provide the PHONES to CITY pursuant to Clause VIoB. The
indemnity obligations under this Clause will survive the termination
of this LEASE.
13.TAXES AND ASSESSMENTS (RL 27.13) S
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
000120 sdl 0032305
22
the possessory interest tax) which become due and payable upon the
PREMISES or upon fixtures, equipment or other property installed or
constructed by Tenant thereon, shall be the full responsibility of
TENANT and TENANT shall pay the taxes and assessments prior to
delinquency.
14.SUCCESSORS IN INTEREST (RL 27.14) S
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)
RL 27.15) S
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 (RL 27.16)S
If any term, covenant, condition, or provision of this LEASE is
determined to be invalid, void, or unenforc.eable, 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 (RL 27.17) S
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.
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18.COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT(RL 27.18 S
In the event either CITY or TENANT commences legal actionagainst the
other claiming a breach or default of this LEASE, theprevailing
party in such litigation shal! 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 (RL 27.19) S
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. In
exercising the rights reserved in this Clause, CITY shall take all
reasonable steps to ayoid any physical encroachment onto the
PREMISES. In the event CITY’s exercise of the rights reserved in
this Clause results in either of the two occurrences described in
clause (a) or (b) of Provision 33, which is not cured by CITY within
a reasonable time following written notice from TENANT, TENANT may
terminate this LEASE upon written notice to CITY.
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 (RL 27.20) S
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.
000120 sdl 0032305
24
21.CONDITION OF PREMISES UPON TERMINATION (RL 27.21) S
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 (RL 27.22) S
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
to CITY if not removed by TENANT within fifteen (15) days after CITY
gives written notice of such abandonment to TENANT. 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 UPONTERMINATION (RL 27.23) S
Upon termination of this LEASE for anyreason, including but not
limited to termination because of defaultby 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 fail 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 (RL 27.24 S
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 termina[ion 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
000120 sdl 0032305
25
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 (RL 27.25) S
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: (I) 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 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 immediately terminate such
employment.
26.EMINENT DOMAIN (RL 27.26) S
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
000120 sdl 0032305
26
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 (RL 27.27) S
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:
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;
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 (RL 27.28) S
TENANT hereby acknowledges that its occupancy of the PREMISES is
subsequent to acquisition of the PREMISES by CITY. TENANT further
000120 sdl 0032305
27
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.
HAZARDOUS SUBSTANCES (RL 27.29) S
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 Industria! 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.
TENANT’s Use of PREMISES. During the term of this LEASE, TENANT
shall abide and be bound by all of the following requirements:
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 TENANT shall not contaminate the
PREMISES, or its subsurface, with any Hazardous Materials.
ii.TENANT shall restrict its use of Hazardous Materials at the
PREMISES to those kinds of materials that are normally used
in constructing personal telecommunications systems.
Disposal of any Hazardous Materials at the Premises is
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.
000120 sdl 0032305
28
iii.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.
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.
iv.TENANT shall be solely and fully responsible and liable for
any such releases which are caused by TENANT at the
Premises, 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.
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 five
(5) days of CITY’s .demand for payment.
000120 sdl 0032305
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 in violation Of any applicable law. CITY ~shall
indemnify and hold TENANT harmless from and against all
claims, actions, damages, fines, 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 onto 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, removal or
restoration related to the presence of any substance. This
indemnity shall survive the expiration or termination of
this LEASE. TENANT shall indemnify and hold CITY harmless
from and against all claims, actions, damages, fines,
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 during the LEASE term, unless said materials
were actually deposited onto the PREMISES by CITY;
provided, however, that this indemnity obligation shall not
29
apply to claims, actions, damages, fines, liabilities,
costs and expenses, (including attorneys’ and expert fees)
arising from vandalism to the PREMISES by third parties.
This obligation to indemnify CITY shall include damages,
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 (RL 27.30) S
All provisions of the LEASE are expressly made conditions.
31.PARTIES OF INTEREST (RL 27.31) S
NDthing 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 (RL 27.32) S
Neither CITY nor TENANT shall record this LEASE; however, upon
request CITY and TENANT agree to execute and deliver to the other a
recordable Memorandum of this LEASE in a form substantially identical
to the one attached as Exhibit D hereto.
33 INTERFERENCE
TENANT will resolve technical interference problems with other
equipment located at the PREMISES as of the commencement date of this
LEASE or with any equipment 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.
000i20 sdl 0032305
3O
34.TERMINATION
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
(I) month 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 the 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 ~wnership
of the PREMISES or PROPERTY or authority to en£er 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.
000120 sdl 0032305
31
SURVEYING, iNC.EXHIBIT B
LEGAL DESCRIPTION
SPRINT PCS
SITE NUMBER: SF13XC825
SITE NAME: RINCONADA
A PORTION OF RINCONADA PARK, WITHIN THE GROUNDS OF FIRE STATION #3 OF THE CITY OF
PALO ALTO, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
UTILITY EASEMENT
A STRIP OF LAND 5 FEET WIDE, 2.50 FEET EACtt SIDE OF THE FOLLOWING DESCRIBED
CENTERLINE:
STRIP .4
COMMENCING AT A POINT ON TIlE CENTER.LINE OF EMBARCADERO ROAD. OCCUPIED BY A 1"’
IRON PIPE AT TflE INTERSECTION OF ENBARCADERO ROAD & NEWELL ROAD; THENCE ALONG
THE CENTERI.INE OF EMBARCADERO ROAD $71°00’20"W, 8.81 FEET THENCE NOR’HI ALONG THE
CENTERI.tNE OF NEWELL ROAD N00°46’47"E, 61.98 FEET; THENCE LEAVfNG SAID CENTE!U_INE
N89°I3’I3"W, 26.64 FEET; THENCE NSl°26’35"W, 13.48 FEET TO TIIE TRUE POINT OF BEGINNING;
THENCE N81 °26’35"W, 13.83 FEET TO A POINT HEREINAFTER REFERRFD TO AS POINT "A"; THENCEoN. 0 18 06 x;¢, 11.40 FEET TO A POINT HEREINAFFER REFERRED ’FO AS POINT "’B".
THE SIDEI ;’N~S AR}] TO., ’-’" ’ ;"w "’ t’-~ ...., ....~- ~~:.~ -.,_:,t,GFLr~,,,.I-.~,._-. OR bHORTENED TO MEET THE WE~ t ERI., ~: R!GHT-OF-
WAY OF NEWELL RCA.,~., .,at.. , ,-~.=. ~L:,,~.:,~ ARE.,\ AS DESCRIBED ,,r. t
STRIP B
BEGINNING A’F POINT "A" AS DESCRIBED ABOVE; "I’ttENCE $25~06’!3"E, 30.30 FEET TO THE END OF
SAID STRIP.
THE SIDELINES ARE TO BE LENGTHENED OR SHORTENED TO MEET THE WESTERLY RIGHT-OF-
WAY OF NEWELL ROAD AND "’STRIP A" AS DESCRIBED ABOVE.
LEASE AREA
BEGINNING AT POIN’F ?BZ’ AS DESCRIBED ABOVE; THENCE $88°55’21"E, 3.98 FEET; THENCE
N0°46’46"E, 12.25 FEET; THENCE N88°55"21"W, 29.50 FEET; THENCE S0°46’46"W. 12.25 FEET: THENCE
$88°55’21"E, 6.00 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "C": THENCE
$88°55"21"E. i9.52 FEET TO THE POINT OF BEG1Nq’4ING.
CONTAINING 361 SQUARE FEET OF LAND, MORE OR LESS. ’
ACCESS EASEMENT
A STRIP OF LAND 12 FEET WIDE, 6.00 FEET EACH SIDE OF THE FOLLOWING DESCRIBED
CENTERLINE:
BEGINNING AT POINT "C" AS DESCRIBED ABOVE; THENCE S00°46’46"W, 27.16 FEET; THENCE
$39°06’43"W, 38.22 FEET; THENCE S00°46’46"W, 18 FEET MORE OR LESS TO THE NORTHWESTERLY
RIGHT-OF-WAY OF EMBARCADERO ROAD AND THE END OF SAID STRIP.
108 Business Center Drive ¯ Corona, CA 91720
Phone (909) 2B0-9960 ¯ Fax (909) 280-9746
Page 1 of 2
99~75o~/o7/oo
7905 East Greenway Road, Suite 207, Seottsdale, AZ 85260
Phone (602) 596-6514 o Fax (602) 596-2674
THE SIDELINES ARE TO BE LENGTHENED OR SHORTENED TO MEET THE NORTHWESTERLY RIGHT-
OF-WAY OF EMBARCADERO ROAD AND THE LEASE AREA AS DESCRIBED ABOVE.
CONTAINING 1,003 SQUARE FEET OF LAND, MORE OR LESS.
SAID DESCRIPTIONS ARE SHOWN ON EXHIBIT B-1 ATTACHED HEREIN AND MADE A PART
THEREOF.
EDWARD L. SCHENET
P.L.S. 4240
Phone (909) 280-9960 ,, Fax (909) 280-9746
Page ;z of 2
99175o~,/o7/oo
7905 East Greenway Road, Suite 207 ¯ Scottsdale, AZ 85250
Phone (602) 596-6514 = Fax (602) 596-2674
EXHIBIT
SITE NUMBER:RINCONADA
SITE NAME:SF13XC825
PLAT TO ACCOMPANY
1
HOPKINS ~ ~ ROAD
SITE ADDRESS: 1120 HOPKINS AVE,
PALO ALTO, CA 94301
SANTA CLARA COUNTY
DESCRIPTION
0rophic Sc01e
L_-_-~’ L_~,"
i SCt~_E:
P.O.C.
LINE
LINE
LI
L2
L3
L4
L5
L6
L7
TABLE
BEARING
N81’26’35"W
N81’26’35"W
N30’18’36"W
$88’55’21 "E
N00’46’46"E
S00"46’46"W
$88’55’21 "E
LENGTH
13.48’
13.83’
11.4-0’
3.98’
12.25’
12.25’
6.00’
Job No 99175
108 Business Center Drive Corono~ CA 92880-1782 Phone: (909/ 280-9960 Fox: (909~__280-9746
EXHIBIT C
TO
LEASE
Site Name:Site I.D. No.:
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT is made and entered into as of
, 2000, by and between , a
("Owner") and SPRINT SPECTRUM L.P., a Delaware
limited partnership ("SSLP").
WITNESSETH:
That Owner hereby leases to SSLP and SSLP hereby leases from Owner
that certain real property (the "Property")in the State of
California,Cqunty of , City of
,commonly known as
, a legal description of which is
shown in Exhibit C attached hereto and incorporated herein by
reference, under the terms and Conditions of the unrecorded Lease by
and between Owner and SSLP dated , 2000 and
incorporated herein by reference (the "Agreement") for an initial
term of five (5) years, and two (2) subsequent optional extension
terms of five (5) years each, pursuant to the terms of the Agreement.
The Agreement provides for grant of rights of access to the Property
and to electrical and telephone facilities serving the Property.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of
the day and year first above written.
SPRINT SPECTRUM L.P.,
a Delaware lim’ited,par~hnership
BY:i . - ~
.v Lawrence \Doherty
Tl~e: Regional Director of
\ Site Development
Owner: City of Palo Alto, a municipal corporation
By:
Print Name:
Its:Mayor
000120 sdl 0032305
32
ACKNOWLEDGMENT ATTACHED
[FORM DOCUMENT -PLEASE INITIAL ONLY -NOT FOR EXECUTION]
CITY Initials
TENANT Initials
000120 sdl 0032305
33
Fiscal Authorization Policy
SPRINT PCS
ATTACHMENT C
TEMPORARY DELEGATION OF APPROVAL AUTHORITY
Title
in accordance with Sprint PCS Financial Policy, paragraph 9.1, do hereby delegate my fiscal approval
authority to :
Employee Name (PrinCryp~)Social Security Number Titl~~ e t~-e (o pv~’e¢~--
for the following department(s):
Department Number(s)
This delegation is effective for the period
(not to exceed 30 days) and is necessary due to
(reason: e.g. absence, vacation, etc.)
Si
whose authority is being legated
Date
Date
A copy of this completed form should accompany all individualfinancial commitments or expenditure
documentation approved under the above temporary delegation.
ADDENDUM TO LEASE
Sprint PCS Reference No. SF.13-XC-82~(A)
This Addendum to Lease (the "Addendum") is entered into concurrently with and is intended
to be made a part of that certain lease (the "LEASE") entered into between Sprint Spectrum L.P., a
Delaware limited partnership ("TENANT") and the City of Palo Alto, a municipal corporation
("CITY") dated as of ., 2000. Under the LEASE, CITY is leasing to TENANT a
portion of CITY’s property located at’799 Embarcadero Road, Palo Alto, California, 94303, commonly
referred to as Fire Station No. 3 and/or "Rinconada" Station, for the purpose of TENANT installing
and operating a communications facility. CITY and TENANT are entering into this Addendum to
include additional provisions to the LEASE; all defined terms contained in the LEASE and used in this
Addendum shall have the same meaning as provided in the LEASE and, except as set forth in this
Addendum, all of the terms and conditions of the LEASE shall remain unchanged and in full force and
effect.
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 CITY
and an independent firm for preparation of documents related to the Telecommunications Policy, and
understands that the City Counsel approved that contract. TENANT acknowledges that the
Telecommunications Policy may include (among other things) the establishment of guidelines 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:
(a) 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 TENANTs communications
facility on the PROPERTY. In this regard, the following procedure shall apply:
(i)Within ninety (90) days of the adoption of the Telecommunications
Policy, if CITY finds that TENANT’s facility at the PROPERTY 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 .~ ~m-(ompliance, a copy of the applicable provisions of the Telecommunications Policy and, if
ap~ ~:opriate, 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 Telecommunications Policy. If CITY fails to deliver such compliance notice
within said ninety day period, TENANT’s communications facility on the PROPERTY 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.
(ii) 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 its facility into compliance within such six month period, CITY may terminate the
G’\CI IFN~fSdSB~PRIN~Northern Czhfornl~dF-13-XCd~251Al~Addtndum,wpd
Sprint PCS Reference No. SF.13.XC.825(A)~
LEASE on thirty (30) days written notice to TENANT, whereupon TENANT shall remove its
communications 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.
2. 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 leased to TENANT
under the LEASE.
SIGNATURE PAGE FOLLOWS
CITY:
CITY OF PALO ALTO (LESSOR)
Its: Mayor
ATTEST:
By:
Print Name:
Its: City Clerk
APPROVED AS TO FORM:
13y:
Print Name:
Its: Senior Asst. City Attorney
PROPERTY DESCRIPTION APPROVED:
By:
Print Name:
Its: Public Works/Engineering
RECOMMENDED FOR APPROVAL:
By:
Print Name:
Its: Asst. City Manager
By:
Print Name:
Its:Fire Chief
By:
Print Name:
Its: Real Property Manager
(;:~CLIEN-fS~/SB~SPRINqkNI~rth~rn Caldt)rnlad)ocs~S|,- 13-X(’*g25~A)~Addendurn wpd
Spdnt PCS Reference No. SF-13-XC-825(A)
TENANT:
SPRINT SPECTRUM L.P.,
a Delaware~
Print Name:.~wrence D~erty
Its:Regional Director of Site
Development - West
Sprint Reference No.:
FS-14-XC-004
ATTACHMENT D
This Lease (LEASE) is made this day of , 2000 by and
between the City of Palo Alto, a municipal corporation, (CITY) and
Sprint Spectrum L.P., a Delaware limited partnership (TENANT).
RECITALS
CITY owns the property located at 3600 Middlefield Road, Palo
Alto, California 94303 commonly referred to as Fire Station No.
4 and/or "Mitchell" Station (PROPERTY).
TENANT desires to lease the PREMISES (as defined in Clause I) to
operate a personal communications service (PCS) system facility.
CITYagrees 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:
PREMISES (RL 3.0) S
Subject to the terms and conditions set forth in this LEASE, CITY
leases to TENANT that portion (PREMISES) of the PROPERTY 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 this LEASE, TENANT accepts the PREMISES "as-is" on the
date of execution of this LEASE. CITY hereby grants TENANT
reasonable rights of ingress and egress as shown on Exhibit B.
In addition to the leased PREMISES, CITY hereby grants to TENANT a
non-exclusive easement (EASEMENT) in and through that portion of the
PROPERTY, which is also described and shown in Exhibit B, for the
sole purpose of constructing and installing cabling and associated
hardware incidental to the purposes of this Lease, together with the
right to ingress 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
000120 sdl 0032306
Lease and shall terminate without further notice as of the date of
termination of the Lease.
II.PURPOSE (RL 4.0) S
The purpose of this LEASE is to provide for the installation,
maintenance, and operation, at TENANT expense, of a personal
communications service (PCS) system facility.
III.
REQUIRED AND OPTIONAL SERVICES AND USES (RL 5.0) S
In furtherance of the purposes stated above, the following required
and optional services and uses shall be provided, permitted or
prohibited:
Required Services and Uses. Throughout the term of this LEASE
TENANT shall use the PREMISES as one of TENANT’s PCS sites 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 system facility,
including without limitation an antenna structure, base
equipment, back-up power sources (including generators and fuel
storage tanks), cable, wiring and fixtures (PCS FACILITY).
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 antenna facilities are
constructed on the PREMISES to ensure that its PCS FACILITY
is in compliance. The tests shall be conducted by a
licensed professional engineer, and the results shall be
provided to CITY. After the installation of the .PCS
FACILITY, TENANT shall conduct safety training classes for
CITY personnel as reasonably required to inform them about
working safely with the PCS FACILITY.
In constructing and operating the PCS FACILITY, TENANT
shall include the following items in its plans and
operating procedures:
000120 sdl 0032306
TENANT shall not permit any unreasonable odors, smoke,
dust, gas, substances, noise or vibrations to emanate
O00120sdl 0032306
So
from the PCS FACILITY, nor take any action which would
constitute a nuisance or would disturb, obstruct or
endanger any other tenants or occupants of the site or
interfere with their use of their respective premises.
TENANT’s operation of the PCS FACILITY 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.
TENANT shall submit all required hazardous materials
filings and obtain all required approvals prior to
installing its batteries or. any other hazardous
materials.
CITY agrees that its personnel shall only enter the
PREMISES in the event of an emergency. CITY agrees
that its personnel shall not touch, tamper with, alter
or attempt to open the PCS FACILITY or any of TENANT’s
other equipment ancillary thereto on the PREMISES.
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 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
approval, which approval shall not be unreasonably
withheld, conditfoned, or delayed. CITY shall provide
TENANT a written list of the Fire Captains of each
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.
TENANT shall maintain all improvements that it places
on the PROPERTY, including the fence, flagpole, and
the mounting equipment for the flag. CITY shall be
responsible for raising and taking down the flag each
day
TENANT’s service lights in the PREMISES shall remain
off unless its service personnel are in the area and
require the lights to be turned on to conduct their
operations.
Co-location. TENANT shall construct and operate its antenna
tower 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 business activity within or from the PREMISES.
IV.TERM (RL 6.0) S
The term of this LEASE shall be for a period of five (5) years,
commencing on the date TENANT receives the last permit required for
installation of the PCS FACILITY (COMMENCEMENT DATE).
V. OPTION TO EXTEND (RL 6.2) S
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 extensions
pursuant to this Clause V shall be void if TENANT has received from
CITY more than three 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 XX (DEFAULT
IN TERMS OF THE LEASE BY TENANT).
VI.CONSIDERATION/RENT (RL 7.2) S
Rent. As partial consideration for use of the PREMISES, TENANT
agrees to pay to CITY annual rent of Fifteen Thousand Six
Hundred Dollars ($15,600) per year, subject to adjustment as
000120 sdl 0032306
provided in Clause VII, payable in advance in accordance with
Clause VIII (RENT PAYMENT PROCEDURE).
Non-Monetary Consideration. In addition to the rent set forth
in subparagraph A above, TENANT agrees to perform the following
services or provide the following public benefits on behalf of
CITY:
In the event of an emergency which the CITY’s Fire Chief deems
requires the temporary use of PCS telephones by CITY
(EMERGENCY), TENANT shall provide CITY up to (ten) I0 PCS
telephones (PHONES) and service, at no charge, for CITY’s
temporary use. In the event of an EMERGENCY, CITY’s Fire Chief
(or other agent previously designated in writing) shall, during
normal business hours, contact the acting Manager of TENANT’s
store located at 499 University Avenue, Palo Alto, CA 94301
(PALO ALTO STORE) (telephone (650) 614-9140), which Manager
shall provide CITY with up to ten (I0) of the highest quality
PCS telephones available at the PALO ALTO STORE at the time of
the EMERGENCY. As soon as is practical following the EMERGENCY,
CITY shall return the PHONES to the PALO ALTO STORE and
reimburse TENANT for any loss or damage thereto. CITY
acknowledges that it shall be entitled to a cumulative total of
not more than ten (I0) PHONES in the event of an EMERGENCY,
regardless of the number of lease or other agreements it enters
into with TENANT or of the number of PCS Facilities TENANT may
be installing, operating, or planning to install or operate in
the city of Palo Alto, California.
TENANT’s liability to CITY for any breach of the obligation set
forth in this Clause VI.B. shall be limited to the sole and
exclusive remedy of liquidated damages in an amount equal to
TENANT’s cost of the PHONES. CITY shall not be entitled to any
consequential or incidental, damages from TENANT as a result of
any such failure. The parties agree that the provision for
liquidated damages set forth above is a reasonable remedy given
that the obligation to provide the PHONES to the CITY will arise
only in the event of an emergency situation, the circumstances
of which are uncertain, and therefore it is difficult to
ascertain TENANT’s ability’to provide the PHONES should the need
arise. Furthermore, CITY shall indemnify, defend, and hold
TENANT harmless from and against any and all costs (including
attorney’s fees) and claims of liability or loss arising from
CITY’s use of the PHONES (including without limitation any loss
or interruption of service) or TENANT’s failure to provide the
PHONES to CITY pursuant to’ this Clause VI.B. This indemnity
obligation shall survive the termination of this LEASE.
TENANT’s indemnity obligation set forth in Clause 12 of Exhibit
000120 sdl 0032306
5
A hereto (HOLD HARMLESS) shall not apply to any claims for costs
or liability arising from CITY’s use of the PHONES (including
without limitation any loss or interruption of service) or
TENANT’s failure to provide the PHONES to CITY pursuant to this
Clause VI.B.
VII. REVISION OF RENTALS (RL 7.3) S
The rental specified in Clause VI (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
= I00) 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:
X =Adjusted rental.
A =Rental at the Commencement of the LEASE.
B =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)
C = 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.
A.
RENT PAYMENT PROCEDURE (RL I0.0) S
Until the COMMENCEMENT DATE, rent hereunder shall be a one-time
aggregate payment of one hundred dollars ($i00), receipt of
which CITY hereby acknowledges. On the COMMENCEMENT DATE,
TENANT shall pay to CITY rent for [he first year of the term as
set forth in Clause VI (CONSIDERATION/RENT).
Commencing on the first anniversary of the COMMENCEMENT DATE, on
or before each anniversary of the COMMENCEMENT DATE, TENANT
000120 sdl 0032306
shall pay to CITY rent as set forth in Clause
(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 ten (I0) days written notice to TENANT.
Rental payments may be made by check made payable to the City of
Palo Alto.
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 any
remedy provided in this LEASE.
IX.MAINTENANCE AND REPAIR (RL 14.1) NS
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 of TENANT’s related
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 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. 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 shal! 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 within ten (I0) 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.
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X.MAINTENANCE OBLIGATIONS OF CITY (RL 14.2) S
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.
XI.CONSTRUCTION AND/OR ALTERATION BY TENANT (RL 15.1) S
CITY’s Consent. No structures, improvements, or facilities
shall be constructed, erected, altered, or made within the
PREMISES without the ~rior written consent of the CITY (by
action of CITY’s City Council if required by City of Palo Alto
procedures or ordinances, or otherwise by CITY’s City Manager or
designee), which consent shall not be unreasonably withheld,
conditioned, or delayed. 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 building on the
PREMISES, provided such fixtures and installation have been
reviewed and approved by CITY’s City Manager.
Strict Compliance with Plans and Specifications. All
improvements constructed by TENANT within the PREMISES shal! be
constructed in an efficient and workmanlike manner and in strict
compliance with detailed plans and specifications approved by
the CITY (by action of CITY’s City Council if required by City
of Palo Alto procedures or ordinances, or otherwise by CITY’s
City Manager or designee, and which approval shall not be
unreasonably withheld, conditioned, or delayed) and applicable
City of Palo Alto codes ahd ordinances.
Certificate of Inspection. Upon completion of construction of
any building, TENANT shall submit to CITY’s Real Property
Manager, a Certificate of Inspection, verifying that the
construction was completed in conformance with Title 20 of the
California Code of Regulations for residential construction, or
in conformance with Title 24 of the California Code of
Regulations for non-residential construction.
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XII.OWNERSHIP OF IMPROVEMENTS (RL 16.0) NS
A.Improvements to Realty.
All improvements constructed, erected or installed upon the PREMISES
must be free and clear of all liens, claims or liability for labor or
materia!. Upon expiration or termination of this Lease, CITY may at
its option require TENANT to remove TENANT constructed improvements
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
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 if TENANT is not then in default under this
LEASE, provided that TENANT shall repair to the satisfaction of CITY
any damage to the PREMISES and improvements caused by such removal.
XIII.AS BUILT PLANS (RL 15.5) S
Upon completion of any major TENANT-constructed improvements, TENANT
shall provide CITY’s Real Property Manager with a complete set of
reproducible "as built plans" reflecting actual construction within
or upon the PREMISES. TENANT shall also provide CITY’s Real Property
Manager with a statement signed by TENANT under penalty of perjury
certified as to accuracy and of actual construction costs for all
such improvements.
XIV. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS (NS)
If the PREMISES are, in whole or in part, damaged or destroyed, then:
(i) 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
000120 sdl 0032306
9
reasonable time, repair the PREMISES with a reasonable reduction of
rent from the time of such partial destruction until the PREMISES are
again as fully usable by TENANT as they were before such partial
damage or destruction; provided, however, that TENANT shall not be
required to rebuild the PCS FACILITY or repair the PREMISES if: (i)
such partial damage or destruction shall occur within one (I) year
prior to the expiration of the LEASE, and (ii) TENANT continues to
pay the rental amounts due hereunder and the PREMISES are maintained
in a safe.and sanitary condition. A decision as to whether partially
destroyed or partially condemned ~PREMISES is still usable for
reconstruction of a PCS FACILITY shall be made jointly by CITY and
TENANT, and, if they cannot agree, by an arbitrator reasonably
acceptable to both parties. TENANT shall have the right to operate
a temporary PCS FACILITY on the PROPERTY during any repair or
reconstruction of the PREMISES, including the right to operate such
generators or other back-up power supply sources as TENANT determines
may be required.
XV. UTILITIES (RL 17.0) S
TENANT shall be responsible for and shall pay, prior to delinquency,
all charges for utilities supplied to the PCS FACILITY.
XVI. INSURANCE (RL 18.0) S
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:
i)
2)
3)
4)
Insurance Services Office Commercial General Liability
coverage (occurrence form CG 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.
000120 sdl 0032306
10
The policy or policies of insurance maintained by TENANT shall provide
the following limits and coverages:
POLICY MINIMUM LIMITS OF LIABILITY
(I)WORKERS’
COMPENSATION Statutory
(2) COMPREHENSIVE Bodily Injury $I,000,000
AUTOMOBILE $I,000,000
LIABILITY,Property Damage $I,000,000
including owned,
hired, and non-owned
automobiles
ea. person
ea. occurrence
ea. occurrence
(3) COMPREHENSIVE Bodily Injury $I,000,000
GENERAL $I,000,000
LIABILITY $I,000,000
including Property Damage $I,000,000
products and ’Personal Injury $i,000,000
completed operations,
broad form contractual,
and personal injury.
Deductibles and Self-Insured Retentions
ea. person
ea. occurrence
aggregate
ea. occurrence
ea. occurrence
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 polfcy 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
by certified mail, return receipt requested, has been given
to the CITY."
o
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"All rights of subrogation are hereby waived against the
CITY OF PALO ALTO and the members of the City Council and
ii
elective or appointive officers or employees, when acting
within the scope of their employment or appointment."
"The CITY OF PALO ALTO is namedas a loss payee on the
property and course of construction insurance policies
described above."
"The CITY, its officers, officials, employees, agents and
volunteers are to be covered as 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."
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-:X.
XVII.INSURANCE (RL 18.2)
TENANT agrees to deposit with CITY’s 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
000120 sdl 0032306
12
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
CITY’s Risk Manager, the insurance provisions in this LEASE do not
provide adequate protection for CITY, CITY’s Real Property Manager
may require TENANT to obtain insurance sufficient in coverage, form,
and amount to provide adequate protection as determined by CITY’s
Risk Manager and TENANT. CITY’S requirements shall be reasonable 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.
CITY’s Real Property Manager shall notify TENANT in writing of
changes in the insurance requirements. If TENANT does not deposit
adequate evidence of insurance 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.
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 (RL 19.0) S
Any mortgage, pledge, hypothecation, 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 approved 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 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
000120 sdl 0032306
13
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:
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;
D.Intentionally Omitted;
The processing fee required by CITY and set forth in the then
current Palo Alto Municipal Fee Schedule has not been paid to
CITY;
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; or
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 (RL 20.0) S
Should TENANT default in the performance of any covenant, condition,
or agreement contained in this LEASE and such default is not
000120 sdl 0032306
14
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, stemming from this LEASE, shall end at the
time of such termination;
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;
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 right to 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 rights
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 consideZed 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.
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15
XX.NOTICES (RL 23.0) S
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 (i)
personally served, (2) sent by United States Certified mail, postage
prepaid, (3) sent by express delivery service, or (4) in the case 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 (i), (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: (650) 329-2468
with a copy to:
City Clerk, City Of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
FAX: (650) 329-2646
Sprint Spectrum, L.P.
4683 Chabot Drive, Suite I00
Pleasanton, CA 94588
Attn: Property Specialist,
Palo Alto
Cascade No. ~14~d-OO4
FAX: (925) 468-7313
Sprint Spectrum, L.P.
4900 Main Street, 12th Floor
Kansas City, MO 64112
and
City Attorney, City of Palo Alto
P.O. Box 10250
250 Hamilton Avenue
Palo Alto CA 94303
FAX: (650) 329-2646
Robbins, Palmer & Allen, LLP
1901 Harrison St., Suite 1550
Oakland, CA 94612
Attn: John Boat
FAX: (510) 446-1946
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16
XXI. ATTACHMENT TO LEASE (RL 24.0) S
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 PREMISES and EASEMENT
Exhibit C - Memorandum of LEASE
The inclusion of clauses in Exhibit A (GENERAL CONDITIONS) is not in
any way intended to lessen the importance of such clauses, but rather
is merely done to enhance the organization of this LEASE. In the
event of ~a conflict between the foregoing Clauses and the provisions
of Exhibit A, the foregoing Clauses shall prevail.
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000120 sdl 0032306
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IN WITNESS WHEREOF, the parties have executed this LEASE the day and
year first above written.
CITY:TENANT:
CITY OF PALO ALTO (LESSOR)
By:
Its: Mayor
ATTEST:
SPRINT SPECTRUM ~L.P., a Delaware
limited par~n~hip
Print Name:
/~ Lawrence Doherty
Its: Re~ional Director of
Si~e Development, West
By:
Print Name:
~Its: City Clerk
APPROVED AS TO FORM:
By:
Print Name:
Its: Senior Asst. City Attorney
PROPERTY DESCRIPTION APPROVED:
By:
Print Name:
Its: Public Works/Engineering
RECOMMENDED FOR APPROVAL:
By:
Print Name:
Its: Asst. City Manager
By:
Print Name:
Its:Fire Chief
By:
Print Name:
Its:
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Real Property Manager
18
EXHIBIT A
GENERAL CONDITIONS
I.DEFINITIONS (RL 27.1)S
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 (RL 27.2) S
If TENANT is a partnership, each general partner:
represents and warrants that the partnership is a duly qualified
partnership authorized to do business in Santa Clara County; and
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;
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
Be 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 licensees, 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 licenses not authorized or permitted elsewhere in this
LEASE.
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3. TIME (RL 27.3 S
Time is of the essence of this LEASE.
4. SIGNS (RL 27.4) S
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, egc., may be removed by CITY.
5.PERMITS AND LICENSES (RL 27.5) S
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 (RL 27.6) S
TENANT shall at all times indemnify and save CITY harmless from all
claims for labor or materials supplied in connection with TENANT’S
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 (i0) 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 by TENANT, TENANT
shall either:
Record a valid Release of Lien; or
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
Procure and record a bond in accordance with Section 3143 of the
Civil Code, which releases the PREMISES from the claim of the
lien from any action brought to foreclose the lien.
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Should TENANT fail to a~ccomplish 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 (RL 27.7) S
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 sustai~ 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 of 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 (RL 27.8) S
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 (RL 27.9) S
TENANT shall not erect, place upon, operate, or maintain any
improvements 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.
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I0.NONDISCRIMINATION (RL 27.10) S Revised 8-19-93
TENANT and its employees shall not discriminate against any person
because of sace, 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 sexua! 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, 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.
II.INSPECTION (RL 27.11) S
CITY’s employees and agents shall have the right at all reasonable
times to inspect the PREMISES to determine if the provisions of this
LEASE are being complied with.
12.HOLD HARMLESS (RL 27.12] S
CITY and TENANT each indemnifies the other against and holds t~he
other harmless from any and all costs (including reasonable
attorneys’ fees) and claims of liability or loss which arise out of
the ownership, use and/or occupancy of the PREMISES by the
indemnifying party. This indemnity does not apply to any claims
arising from the Sole negligence or intentional misconduct of the
indemnified party. Tenant’s obligation under this Clause shal! not
apply to any claims arising from CITY’s use of the PHONES (including
without limitation any loss or interruption of service) or TENANT’s
failure to provide the PHONES "to CITY pursuant to Clause VI.B. The
indemnity obligations under this Clause will survive the termination
of this.LEASE.
13.TAXES AND ASSESSMENTS (RL 27.13) S
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
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the possessory interest tax which become due and payable upon the
PREMISES or upon fixtures, equipment or other property installed or
constructed by Tenant thereon, shall be the full responsibility of
TENANT and TENANT shall pay the taxes and assessments prior to
delinquency.
14.SUCCESSORS IN INTEREST (RL 27.14) S
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)
RL 27.15) S
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 (RL 27.16)S
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 (RL 27.17) S
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.
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18.COSTS OF SUSTAINING AN ACTION FOR BREACH OR DEFAULT(RL 27.18)S
In the event either CITY or TENANT commences legal actionagainst the
other claiming a breach or default of this LEASE, theprevailing
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 (RL 27.19) S
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 al! 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. In
exercising the rights reserved in this Clause, CITY shall take all
reasonable steps to avoid any physical encroachment onto the
PREMISES. In the event CITY’s exercise of the rights reserved in
this Clause results in either of the two occurrences described in
clause (a) or (b) of Provision 33, which is not cured by CITY within
a reasonable time following written notice from TENANT, TENANT may
terminate this LEASE upon written notice to CITY.
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 nearlyas practicable to the original condition upon the
completion of any construction.
20.HOLDING OVER (RL 27.20) S
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.
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21.CONDITION OF PREMISES UPON TERMINATION (RL 27.21) S
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 (RL 27.22) S
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
to CITY if not removed by TENANT within fifteen (15) days after CITY
gives written notice of such abandonment to TENANT. 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 UPONTERMINATION (RL 27.23) S
Upon termination of this LEASE for anyreason, including but not
limited to termination because of defaultby 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 fail 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 (RL 27.24) S
TENANT agrees to yield and peaceably deliver possession of the
PREMISES to CITY on the date oftermination 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
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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 (RL 27.25) S
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: (I) 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 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 immediately terminate such
employment.
26.EMINENT DOMAIN (RL 27.26) S
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
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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 (RL 27.27) S
Clauses contained in this LEASE may provide for adjustment based on
the tonsumer Price Index, component indices, or other indices.
Should these indices be changed, altered or cease to be published,
the following conditions shall apply:-
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;
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 (RL 27.28) S
TENANT hereby acknowledges that its occupancy of the PREMISES is
subsequent to acquisition of the PREMISES by CITY. TENANT further
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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.
HAZARDOUS SUBSTANCES (RL 27.29) S
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 ~f
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.
TENANT’s Use of PREMISES. During the term of this LEASE, TENANT
shall abide and be bound by all of the following requirements:
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 TENANT shall not contaminate the
PREMISES, or its subsurface, with any Hazardous Materials.
ii.TENANT shall restrict its use of Hazardous Materials at the
PREMISES to those kinds of materials that are normally used
in constructing personal telecommunications systems.
Disposal of any Hazardous Materials at the Premises is
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.
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iiio TENANT shall be solely and fully responsible for the
reporting of al! Hazardous Materials releases to the
appropriate public agencies, when such releases are caused
by or result from TENANT’s activities on the PREMISES.
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.
iv.TENANT shall be solely and fully responsible and liable for
any such releases which are caused by TENANT at the
Premises, 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.
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 five
(5) days of CITY’s demand~for payment.
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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 in violation of any applicable law. CITY shall
indemnify and hold TENANT harmless from and against all
claims, actions, damages, fines, 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 onto 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, removal or
restoration related to the presence of any substance. This
indemnity shall survive the expiration or termination of
this LEASE. TENANT shall indemnify and hold CITY harmless
from and against all claims, actions, damages, fines,
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 during the LEASE.term, unless said materials
were actually deposited onto the PREMISES by CITY;
provided, however, that this indemnity obligation shall not
29
vi.
apply to claims, actions, damages, fines, liabilities,
costs and expenses, (including attorneys’ and expert fees)
arising from vandalism to the PREMISES by third parties.
This obligation to indemnify CITY shall include damages,
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 hermination of
this LEASE.
TENANT’s and CITY’s obligations under this Clause shall
survive the expiration or earlier termination of this
LEASE.
30. ALL COVENANTS ARE CONDITIONS (RL 27.30) S
All provisions of the LEASE are expressly made conditions.
31.PARTIES OF INTEREST (RL 27.31) S
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 (RL 27.32)
Neither’ CITY nor TENANT shall record this LEASE; however, upon
request CITY and TENANT agree to execute and deliver to the other a
recordable Memorandum of this LEASE in a form substantially identical
to the one attached as Exhibit D hereto.
33. INTERFERENCE
TENANT will resolve technical interference problems with other
equipment located at the PREMISES as of the commencement date of this
LEASE or with any equipment that TENANT attaches to the PREMISES at
any future date when TENANT desires to add additional equipment to
the PREMISES. Notwithstahding 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.
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34.TERMINATION
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
(I) month 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 the 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.
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SURVEYING,INC.
EXHIBIT B
LEGAL DESCRIPTION
SPRINT PCS
SITE NUMBER: SFI4XC004
SITE NAME: MITCHELL PARK
A PORTION OF THE LAND GRANTED TO THE CITY OF PALO ALTO THROUGH EMINANT DOMAIN
PER DEED RECORDED IN BOOK 3715 PAGE 448 RECORDS OF SANTA CLARA COUNTY, STATE OF
CALIFORNIA.
ACCESS EASEMENT
A STRIP OF LAND 12.00 FEET WIDE, 6.00 FEET EACH SIDE OF THE FOLLOWING DESCRIBED
CENTERLINE:
COMMENCING AT THE INTERSECTION OF EAST MEADOW DRIVE AND M[DDLEFIELD ROAD;
THENCE ALONG THE CENTERLINE OF EAST MEADOW RD. $57°31 ’43"W, 201.10 FEET; THENCE
$33 21’18"W, 35.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE $33 21 18 E, 67.70 FEET;
THENCE ~., ~.,.,. _-~ t:, 74.62 FEET TO THE END OF SAID STRIP AND A POINT ftEREINAFTER REFERED
TOAS POINT A.
SPRINT LEASE AREA
BEGINNING AT POINT "A"’ AS DESCRIBED A~.OVE; THENCE N39 24’01%, i3.16 FEE ,; THENCE
$50°35’59"’E, 9.50 ~’EET; THENCE $39°24’01"W, 26.33 FEET; THENCE NS0°35’59"W, 2.50 FEET TO POINT
B , THENCE N50 35’59"’W, 4.50 FEET TO PGINT .....C , THENCE N50 35 .,_, W.. 2.50 FEE’[’: THENCE
N39 24’01"E, 13.17 FEET TO "I-HE POINT OF ,q ~" T
CONTAINING 250 SQUARE FEET OF LAND, MORE OR LESS.
UTILITY EASEMENT
TWO STRIPS OF LAND 5.00 FEET W|DE, 2.50 FEET EACH SIDE OF THE FOLLOWING DESCRIBED
CENTERLINES.
STRIP ONE
BEGINNING AT POINT "B" AS DESCRIBED ABOVE; THENCE $35°27’00"W, 36.56 FEET TO THE END OF
SAID STRIP ONE.
STRIP TWO
BEGINNING AT POINT "A" AS DESCRIBED ABOVE; THENCE N48°06’27"W, 90.23 FEET; THENCE
oN17 24’00"E, 22.74 FEET TO THE END OF STRIP TWO.
SAID DESCRIPTIONS ARE SHOWN ON EXHIBIT B-1 ATTACI-~-[~-II~tR~lgOkl~ MADE A PART
Edward L. Schenet P.L.S. 4240 . .
~i ! 99176
~’,~ ~ : (~ Business Cenl~r Drwe Corona, CA ~1720 _ 7905 East ~reenway Road, Suite 207, Sco~sdale, AZ 85260
~hone (909) 280-9960, Fax (909) 280-9746 Phone (602) 596-6514 , Fax (602) 596-2574
ASSESSOR’S
PARCEL NO.:
SITE ADDRESS:
’"~~ PROPOSED SPRINT PCS’"’ ’
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PROPOSED SPRINT PCSACCESS EASEMENT
DETAIL
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PROPOSED SPRINT PCS
UTILITY EASEMENT
(STRIP 2)
N39"24’O,1~E-13.16 "
~PROPOSED PCS
\ LEASE --~ ~
SUrViVINg3,,108 Business Center Drive Corona CA 92880-1782 Phone:
$39"24’01 ’~/26.33’
SEE DETAIL
"PROPOSED SPRINT PCS
UTILITY EASEMENT
(STRIP I)
Job No 99 176
9960 Fox;280-9746
EXHIBIT C
TO
LEASE
Site Name:Site I.D. No.:
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT is made and entered into as of
, 2000, by and between , a
("Owner") and SPRINT SPECTRUM L.P., a Delaware
limited partnership ("SSLP").
WITNESSETH:
That Owner hereby leases to SSLP and SSLP hereby leases from Owner
that certain real property (the "Property")in the State of
California,County of , City of
,commonly known as
, a legal description of which is
shown in Exhibit C attached hereto and incorporated herein by
reference, under the terms and conditions of the unrecorded Lease by
and between Owner and SSLP dated , 2000 and
incorporated herein by reference (the "Agreement") for an in--~tial
term of five (5) years, and two (2) subsequent optional extension
terms of five (5) years each, pursuant to the terms of the Agreement.
The Agreement provides for grant of rights of access to the Property
and to electrical and telephone facilities serving the Property.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of
the day and year first above written.
SPRINT SPECTRUM L.p.,
a Delaware.~mi}ed partnership
~wrence Doherty
Titld~\Regional Director of
\ Site Development
Owner: City of Palo Alto, a municipal corporation
By:
Print Name:
Its:Mayor
000120 sdl 0032306
32
ACKNOWLEDGMENT ATTACHED
[FORM DOCUMENT -PLEASE INITIAL ONLY -NOT FOR EXECUTION]
CITY Initials
TENANT Initials
000120 sdl 0032306
33
Fiscal Authorization Policy
SPRINT PCS
ATTACHMENT C
TEMPORARY DELEGATION OF APPROVAL AUTHORITY
To : VP, Controller - Sprint PCS
Authorizing Name (Print/Type)Title
in accordance with Sprint PCS Financial Policy, paragraph 9.1, do hereby delegate my fiscal approval
authority to :
Ernl~loyee Name (Print/Type)Social Security Number Titlo-/
for the following department(s):
Department Number(s)
This delegation is effective for the period ~_
(not to exceed 30 days) and is necessary due to
(reason: e.g. absence, vacation, etc.)
Si Date ~
S’~~ person whose authori~ is be~Date
A copy of this completed form shouM accompany all individualfinancial commitments or expenditure
documentation approved under the above temporary delegation.
Sprint PCS Reference No. FS.14.XC.~
ADDENDUM TO LEASE
This Addendum to Lease (the "Addendum") is entered into concurrently with and is
intended to be made a part of that certain lease (the "LEASE") entered into between Sprint
Spectrum L.P., a Delaware limited partnership ("TENANT") and the City of Palo Alto, a municipal
corporation ("CITY") dated as of ,2000. Under the LEASE, CITY is leasing
to TENANT a portion of CITY’s property located at 3600 Middlefield Road, Palo Alto, California,
commonly referred to as Fire Station No. 4 and/or "Mitchell" Station, for the purpose of TENANT
installing and operating a communications facility. CITY and TENANT are entering into this
Addendum to include additional provisions to the LEASE; all defined terms contained in the
LEASE and used in this Addendum shall have the same meaning as provided in the LEASE and,
except as set forth in this Addendum, all of the terms and conditions of the LEASE shall remain
unchanged and in full force and effect.
1. 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 CITY and an independent firm for preparation of documents related to the
Telecommunications Policy, and understands that the City Counsel approved that contract.
TENANT acknowledges that the Telecommunications Policy may include (among other things) the
establishment of guidelines 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:
(a) 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 PROPERTY. In this regard, the following procedure shall apply:
(i) Within ninety (90) days of the adoption of the Telecommunications
Policy, if CITY finds that TENANTs facility at the PROPERTY is not in compliance with the
Telecommunications Policy, then CITY shall deliver to TENANT a written notice ("compliance
notice") specifying theitems of non-compliance. Such notice shallinclude reasonably detailed items
of non-compliance, a copy of the applicable provisions of the Telecommunications Policy and, if
appropriate, actions required to be undertaken by TENANT to bring its facilityinto compliance.
TENANTacknowledges that such notice may include a requirement to relocate TENANT’s facility,
if required, under the Telecommunications Policy. If CITY fails to deliver such compliance notice
within said ninety day period, TENANT’s communications facility on the PROPERTY 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.
(ii) TENANT shall have six (6) monthsafter its receipt of the compliance
notice to bring its facility into compliance under the Telecommunications Policy. If TENANT fails
or refuses to bring its facility into compliance within such six month period, CITY may terminate
Sprint PCS Reference No. FS-14-XC-O04
the LEASE on thirty (30) days written notice to TENANT, whereupon TENANT shall remove its
communications 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.
2. 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 3reviously leased
to TENANT under the LEASE.
SIGNATURE PAGE FOLLOWS
CITY:
CITY OF PALO ALTO (LESSOR)
By:
Its: Mayor
ATTEST:
By:
Print Name:
Its: City Clerk
APPROVED AS TO FORM:
By:
Print Name:
Its: Senior Asst. City Attorney
PROPERTY DESCRIPTION APPROVED:
By:
Print Name:
Its: Public Works/Engineering
RECOMMENDED FOR APPROVAL:
By:
Print Name:
Its: Asst. City Manager
By:
Print Name:
Its: Fire Chief
By:
Print Name:
Its: Real Property Manager
Sprint PCS Reference No. FS.14.XC~
TENANT:
SPRINT SPECTRUM L.P.,
a Delaware~
By: ~
Print~__~m .~Lawrence Doherty
Its:Regional Director of Site
Development - West