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Staff Report 2.D 06/20/2011
r rasa DATE: June 20, 2011 s' TO: Honorable Mayor and Members of the City .Council through City Manager FROM: Pamela Tuft, 'lnterim'Director of Water Resources and Conservat on l �,._- -- -=-- SUBJECT: Introduce (First Reading) Ordinance approving First Amendment to ptio and Site Lease Agreement with AT &T Mobility Wireless Operations Holdings, Inc. RECOMMENDATION It is recommended that the City Council_ introduce the attached Ordinance approving the first amendment to option and site lease agreement between the City of Petaluma dated October 22, .1991 and AT&T Mobility Wireless Operations Holdings, Inc successor in interest to /Cagal to execute all documents g r, Cellular Communication Corpor , and authorizing C ity Manage to effect first amendment to ,option' and site lease agreement.,, BACKGROUND A portion of the City LaCresta water reservoir site was leased under the terms and conditions set forth in the Option and Site,Lease Agreement dated October 22 199'1, by and between the City of Petaluma ( "Landlord') and; Cagal'Cellular Communications Corp..(` °T.enant "). AT &T Mo e g a Delaware Limned. Liability Company is the suc cessor in interest to Ca al Cellular Wireless O p eratigns� Ho ' Communications Corp: AT &T Mobility Wireless Operations: Holdings, Inc. as'the current ( "Tenant ") desires to enter into a First Amendment to Option and Site Lease Agreement to increase the size of the lease area by almost 2,000 square c feet n o . to allow for the installatio assoc iated, cables and other _, , communications. instruments as ,described a ,antennas, a ition in Exhibit B -1 to the lease amendment. The proposed additions will not :interfere with the operation of the City reservoir facility. DISCUSSION The First Amendment. to Option and Site Lease Agreement, Attachment 2 (Exhibit B' - 1),, includes a:plan to the :City by AT &T in January of 2011. AT &T has applied for a Conditional Use '' P& `mi men, , nd,buildi , , n g permit. Sheet A-2 of this plan 'set shows the existing a" building,labeled��� equip' plan ,and also the new lease area to allow a conduit :run >and` new antenna. Prior to issuance of a building permit the applicant must meet ,att the requirements of the Minor "Conditional Use Permit issued by`the City November. 23,2010 (see_ attachment 4) and successfully negotiate the First,Amendment to Option and Site Lease Agreement with the City. Agenda Reiew: City Attorney Finance Director_ City Manager Attachment 3 ,(Exhibt,B) includes a plan from 1991 that shows `the, facilities installed at that time as; authorized byl`Ordinance No 871 N. C. S. and is further described in the Option and Site Lease Agreement the City ity entered into with Cagal Cellular Communications :Corporation. FINANCIAL IMPACTS t Ci staff has negotiate additional $12;000 per year plus !annual CPI adjustments for he hon,an d Site Lease. otia e an y enttito.0 p . + added lease�area This �mcrease is included in "First Amendm Agreement. The additional $12,000 "isl in addition to the $15,000 we will continue to. receive under the 1994 "Option and Site Lease Agreement and under the same terms. The total' revenue from this amended lease agreement will now be $2,250 per,month plus annual CPI adjustments. The 2007 Cal ifornia,Societyof Municipal Finance Officer& (CSMF©) 2007 Cell Tower Lease Survey average North Marin Wa b strict for cell tower was leased for $1°,,250 perfmonth Staff hand by rent pe t installlatior ' was $2,113 per month.' onth The last inst_allation�allowe 'ter Di" r.contaeted several' other water systems in the. area and this lease amount, is in fine with what other organizations are getting for comparable facilities. This revenue'is deposited in° the'City's Water Fund. ATTACHMENTS 1. Ordinance 2. First Amendment to ;Option and Site Lease Agreement (Exhibit A) with Plan Set (Exhibit B -1) and Memorandum , of First Amendment of Lease (Exhibit C) 3. Option and Site Lease4Agreement (1991) 4. California Society of Municipal !Finance Officers 2007 `Cell Tower Lease Survey 5. Minor Conditional Use Permit I, I ORDINANCE NO.. Introduced By Councilmembe'r. Attachment 1 N.C.S. Seconded: by Seconded By ORDINANCE APPROVING FIRST AMENDMENT'TO'OPTION AND SITE LEASE AGREEMENT` WITHIN THE CITY OF PETALUMA DATED" OCTOBER 22, 1991 AND. AT&T MOBILITY WIRELESS OPERATIONS'HOLDINGS, INC. 'SUCCESSOR IN INTEREST TO CAGAL CELLULAR "COMMUNICAT.IONS CORPORATIONAND AUTHORIZING THE CITY MANAGER TO EXEC.1TE''AL'L DOCUMENTS' TO AMENDMENT TO OPTION AND SITE LEASE AGREEMENT WHEREAS, Certain real property located in the City of Petaluma was leased under .the terms and conditions set forth in the Option and .Site Lease Agreement dated October 22, 1991, by and between the City of Petaluma a 'municipal corporation having a mailing address of P O Box 61, Petaluma, CA 94953-0061 ("Landlord") and' Cagal Cellular Communications Corp. ("the Agreement "), a copy of which is attached as Exhibit A and incorporated herein by reference; and WHEREAS, AT &T Mobility Wireless Operations Holdings, Inc., a Delaware limited liability company is the successor in interest to Cagal Cellular .Communications Corp., a California corporation, having a 4 mailing address of 12555 Cingplhr Way;. Suite 1300, Alpharetta, 30004; and WHEREAS, Landlord and AT &T Mobility Wireless Operations Holdings, Inc. ( "Tenant ") desire to enter into a First Amendment ao Option and Site Lease Agreement (`First Amendment ") to increase the size of the Premises, allow for the installation of additional antennas, associated cables and other communications instruments, adjust: compensation and make other _modifications as described in the First Amendment attached hereto as Exhibit A and incorporated' herein.. NOW', THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS: Section 1. The City Manager is hereby ,authorized to' execute the First Amendment To Option And Site Lease Agreement attached hereto as Exhibit A and all documents required to effect the First Amendment. 3 a Section 2. , The City Clerk hereby is directed to publish this ordinance for tl eyeriod and 'in the,l manner required by the City Charter. INTRODUCED and ordered posted this _day of 201'1. ADOPTED this day of 2011 by the following vote: AYES: NOES: ABSENT' ABSTAIN: David Glass, Mayor' ATTEST: APPROVED AS TO FORM: Claire Cooper, City Clerk Eric Danly, City Attorney 1634944.2 4 Attachment 2 Exhibit A Market: Northern California Cell Site Number_: SF0308 CeII Site Name: Downtown Petaluma Fixed Asset Number: 1009395/ FIItST AMENDMENT TO OPTION. AND SITE LEASE AGREEMENT THIS FIRST AMENDMENT TO; OPTION AND SITE LICENSE AGREEMENT (!!Amendment"), dated as of the latter of the signature dates below, is by and between the City of Petaluma a;municipal corporation, having a mailing address of P.O Box 61', Petaluma, CA 94953 - 0061(" Landlord ") and AT &T Mobility Wireless Operations Holdings Inc., a Delaware corporation, successor in interest to„ Cagal' Cellular Communications Corp., a California corporation, having a mailing address of 12555 Cingular Way; Suite 1300, Alpharetta, GA 30004 ("Tenant"). WHEREAS, Landlord,and Tenant entered into an Option and Site Lease Agreement dated October 22 1991, whereb Landlord leased to Tenant certain Premises therein desc , y gibed, that are a port ion of the 'Property located at 601 Hayes Ave., Petaluma, CA 94952 ("Agreement"); and WHEREAS Landlord a. nd Tenant desire to amend the Agreement. to, allow for the installation of additional antennas associated cables and _other communications instruments; and WHEREAS, Landlord an'dTenant desire to amend the Agreement to increase the size of the Premises; and WHEREAS, Landlord land 'Tenant: desire to adjust the rent ' in conjunction with the modifications to the Agreement contained' herein; and WHEREAS, Landlord' and °Tenant desire to amend the Agreement to modify the notice section thereof; and WHEREAS, Landlord and Tenant desire; to amend the, .Agre,ement,.to. permit Tenant to add, modify and /or .replace equipment in order to be 'in compliance with any current or future federal, state or ;local mandated application, including but not limited to emergency 91 1 communication g y services; and WHEREAS, Landlord and Tenant, in their mutual interest, wish to amend the Agreement as set forth below accordingly. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and suffi,c'iency,of which are hereby acknowledged, Landlord and Tenant agree as.follows: 1. Additional Antennas: In addition'to the other antennas permitted in the Agreement, . Landlord consents to. the installation. and operation of.`addiii'onal antennas; associated�cables and equipment as more c'ompletely'described on_ attached Exhibit B 71. Landlord's execution of'`this Amendment will signify Landlord's approval of Exhibit 13=1. Exhibit 134 hereby amends Exhibit B to the Agreement. 2. Lease of Premises. Landlord agrees,to increase the size of the Premises leased to Tenant'to accommodate Tenant's needs. Upon the execution of this Amendment, Landlord leases to Tenant the Premises as more completely described on attached Exhibit B- l..Landlord's execution of this Amendment will signify Landlord's approval of Exhibit B -1. Exhibit B -1 hereby amends Exhibit B to1he "Agreement. 5 I Rent:, Commencing on the first day of the: month following the date ihat Tenant commences construction of the modifications„ set , forth inathis Amendment, Rent shall be increased by One Thousand and No/ 100 Dollars ($1,000.00) per month, "in addition to monthly reef payable under the terms of the .Agreement prior; toN`thi's ^;Amendment, subject to further adjustments as provided in the Agreement. Upon Tenant's removal of additional antennas, associated cables and other communication instruments installed under this first amendment Rent will revert to original. 'rate, subject to adjustments as provided in the Agreement, upon thirty (30)' days' prior written notice to Landlord, Removal of any antenna associated cable and other communication instruments on the Premises shall comply with all conditions of Conditional Use Permit #10- CUP-0003 pertaining to removal. 4. Notices. Section 18 of'the Agreement is hereby deleted in its, entirety and replaced with the following: NOTICES All notices „ requests demands and corni iunications hereunder will be given by first class certified or registered mail, return receipt requested, or by a "recognized overnight courier, postage' prepaid, to be effective when properly sent and received, refused or returned undelivered: Notices will be addressed to the parties as follows. If to LANDLORD: City of Petaluma If to TENANT: AT &T'Mobility Wireless Operations Holdings inc. Office of the City Attm Network Real Estate Administration Clerk PO Box 61 Re Cell Site # SF0308 Petaluma, CA 94952 Cell Site Name: Downtown Petaluma Fixed'. Asset #:= 10093951 12555•Cingular, Way, Suite 1300 "Alpharetta, GA 30004 With copy to: AT &T Mobility Wireless: Operations Holdings Inc. Attn Legal Department Re: Cell Site# SF0308 Cell Site Name: Downtown Petaluma Fixed Asset #: 10093951 (U.S. Mail) P O' Box 97061 Redmond, WA 98073 -9761 (overnight 16331 NE`72nd Way, RTCI courier) Redmond, WA 98052 py g Department is an adni' p Mute legal notice., Either,party hereto The co � "sent'to:.the,Le al D p inistrative -ste .that'alone does- notconst" may change the place for the giving,of notice to it by thirty (30) days prior, written notice to the other as provided herein. 5. Emergency 9,11 Service.`'In `the 'future, without the payment of additional rent" and within the lease area., at a'location mutually acceptable to Landlord and Tenant Landlord agrees that Tenant may add modify and /or replace equipment in order to be in compliance with. any current or future federal, state or local mandated application, including ,but not limited to emergency 9.11 communication "services. Any addition, modification or replacement of.equipmen''t pursuant to this section i . shall comply`with all app,licablc�City law and regulation including but not limited to conditional use permit review. 6. Memorandum of Lease. Either party will,,at any time upon fifteen (15) days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease substantially in the form of the Exhibit C. Either party may record this memorandum at any time, in its absolute discretion. 0 '7: Other Terms and Conditions Remain.'ln ;the. event of any inconsistencies.between4he Agreement and 'this Amendment, the terms of this Amendment shall control-. Except as expressly set forth in this Arnend'ment, the Agreement otherwise is unmodified and remains in full force and Each - reference in the 'Agreeii ent °to itself shall be deemed also to refer to this Amendment. 8.. Capitalized Terms. All capitalized terms fused but not defined herein shall 'have the same meanings as defined in the Agreement'-. IN WITNESS WHEREOF the arties have this Agreement to be. effective as p of the'last date, written below. LANDLORD: TENANT: The. City of Petaluma AT &T Mobility Wireless Operations Holdings Inc. a municipal corporation. Successor in interest °,to Cagal Cellular Communications Corp. By: By: _ Print Name: John C. Brown Print Name: Its: ,City Manager.. Its' Date: Date: ATTEST: By: Print Name: Claire Cooper. Its: City Clerk Date: APPROVED AS TO FORM: By: Print Name: Eric W. Danly Its: City Attorney Date: APPROVED: By. Print Name-: Pamela Tuft its: Interim Director.of Water Resources Date: 7 APPROVED: By Prin_t.Name: Ronald Blanquie Ifs: Risk Manager Date: APPROVED: By: Print;Name: Susan Mahoney Its:. Interim.' Finance Director Date: M Attachment 2 Exhibit B -1 DESCRIPTION OF' PRETWSES Page of to the First Amendment toy;, Option and Lease Agreement'dated 2011, by and between the City of Petaltima, as Landlord, and AT &T Mobility Wireless Operations Holdings Inc., as Tenant. I 'The Premises are described and /or depicted, as follows: Property Legal Description: Lease Area Sketch or Survey:, 0 c� 5' N BASl6Y�'NO1M5Y31d� am ma- sin�.+w xs!�wH Ue � Y 11 " - T, s omnv�'w ooz iMe •cawwcae�c' a �'�; 'f� - __ r gg, t _ m o N a �4- p #r d � ® r a �e . 4 I A 1' f R R- all yy e' 3w � s. Y Q'd W �.4 is fie. g i :. >7 y 8 �q 2 ph. `s d $€ Z O ff ! a� J Q > 0 z •.. _' F V � Ea p Z Q x QI `O Q ¢ •rTTT� a 7 W � p w W qq pp yy � 3 a - a W a w a az ¢,o w �w.z V w Q U Z c, G O'N w Z F }}!! U) Z _. CL U W s0 CC @ gal, is a Sg Y; W e Pz ^ a���bb2z� g �3 O V � Ea p Z Q QI `O r1 � o •rTTT� 7 W � p e qq pp yy � W X �. Z W O- a WR 7 _ sQ O. cr pp 'd b O W U�. 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Attn: Network Real Estate Administration 12555 Cingular -Way, Suite-130,0 Alpharetta, GA 30004 APN. 008 -490 -028 Cell Site No-:; SF0308 Cell Site Name:'' Downtown Petaluina Fixed Asset Number: 10093951 State: California County; Sonoma Attachment 2 Exhibit C (Space Above This Line For Recorder's Use Only) MEMORANDUM' 'OF FIRST AMENDMENT TO LEASE This Memorandum of First Amendment to Lease is entered into on this day of , 20,1_, by and between the City' of Petaluma' a municipal corporation, having a mailing address of P O Box 61,'Petaluma, CA 94953 =0061 ( ",Landlord ") and AT &T Mobility Wireless Operations `Holdings Inc., a Delaware corporation, successor in interest to Cagal Cellular Communications Corp., a California corporation,, having a mailing, address of 12555.Cingular Way, Suite 1300, Alpharetta', GA 30004 ( "Tenant "). 1. Landlord and Tenant entered into a certain Option and,Site Lease Agreement ( "Agreement ") on the 22 day of October, 1991 As amended by that certain FIRST' Amendment to Option and Site Lease Agreement . for the purpose of installing, operating and yndihtaining a communications facility and other improvements. A11 of the foregoing are set forth in the Agreement. 2. The portion of the land being leased to Tenant the "Premises ").is described in Exhibit 11-1 annexed hereto. 3 This Memorandum of Lease' is not intended to am odi end or m fy „and1shall not be.dee med or construed. as �ame riding or modif of the terms Condit are hereb 'ratified and affirmed. lons or provisions of the Agreement; all ,of which __. m an y In the event of a confiict l'etween'the provisions ofthis Memorandum Agreement shall be binding upon and inure to the benefit of the the es and respective control. The of Lease and the provisions of the Agreement, the provisions g s p respective heirs; successors, and.assigns, subject to the provisions of the Agreement. 17 Attachment 2 Exhibit C &WITNESS WHEREOF., the parties h ave caused this Agreemeut to,beeffect&'e.as of the last elate written below. LANDLORD: TENANT: The City-of Petaluma AT &T Mobility Wireless Operations Holdings Inc. Successor in interest to Cagal Cellular Communications Corp., By: Print Name: Its: Date: . Prepared bv: JASON OSBORNE. OSBORNE &ASSOCIATES, INC 755 BAYWOOD DRIVE, SUITE 350 PETALUMA, CA 94954 By: Print Name: Its: Date: 18 Attachment 2 Exhibit C LANDLORD ACKNOWLEDGEMENT State of California County of Oil before me, (insert naive and title of the officer) personally appeared who proved to me on the basis of satisfactory. evidence to be the person(s) whose "name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they'e'xecuted the;"same in his /her /their authorized capacity" (ies), and that by his /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the;person(s)'acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and "correct. WITNESS my hand and official Signature (Seat) 19 : Attachment 2 Exhibit C ' TENANT ACKNOWLEDGEMENT State of California County of ) , On before me, , (insert name and title of'the officer) personally appeared , who proved to me on the basis of satisfactorrevidence to be the persoi (s) whose namc(s). is /are subscribed to the within acit and that b /h er l erlth� si nah re s the he/she/they instru ri �tdthe am'e ,inhis %her /their authorized a p i y (' ), y g p, e n(s), or the entity upon behalf r:o of which the person(s) acted, execrited "the instrument. I certify under PENALTY OF PERJURY under °the laws of the Sfate of:California thatthe foregoing paragraph is true and correct. WITNESS my hand and official. seal. Signature (Seal) u, u . 20 October 3-, .1991 State.: California - Market: Santa Rosa Cell. ID SR-26 5453,9,;2002 West Petaluma OPTf ON 'AN D S I 1 11 TE LEASE AGREEMENT THIS'I!, OPTION AND 'S LEASE AGREEMENT (;this is entered into . th day Pf bctober, 1991 between the City Of Petaluma,..',a mupipip&I., 6ororat ion, ("Landlord") and Cagal 0 IcAt California Cellular C itmun dbfis Corp., a , corporation (!"Tenant"') . For Tbfiaht p provided plyin, g� to Landlord I s Option: Fee in - paragraph 3 below Fee") and other good and valuable consideration th&,T.receipt and suf f icienc Y11 ' of- which are hereby acknowledged, the parties agree as follows: A. OPTION 1 Premises- Subject to th.e following terms and conditions, Landlord grants to Tenant an opt-ion - (the , 'Option ") to lease a:portion (the " Premises ") - emises") of the. real property (the "Property") described in Exhibit A attached hereto and incorporated herein by this reference.1 The Premis'e.s,,. located at the end of Hayes±: in Petaluma,� comprise 2.,000 zquare feet (401x501) I and are situated within the Property as d describe and/or depicted in Exhibit-B attached hereto and incorporated here. in by,thi's reference. 2. Option, Term.. - The Option shall be for a term of twelve (12) tofttfis,_ commencing upon the date set forth above (the "Option Perio&" 3; Opt Fee,` In consideration f or Landlord granting to Tenant- the Option, Tenant agrees to provide to ldhidlord within thirty (10 ) 'days o ' f ' the execution of this Agreement, the sum: of one Thousand Dollars ($1,000.00) and three. (3) cellular I lr tb (2�0 lephon: 2 1. Motorola I Tough Talker III portable cellular llul,ar telephonei,s (Model 012-02.2885) and two ('2) carry bags: (Model and one (1) Motorola 'Model PC-509 flip p hone hone (Model. 0111-18405, 1 XT) , with an extra battery Model 350- 40)59XT) and d-cigatette lighter adapter ( .- -4'2.92'SK) at no cost to.Landlord for such equipmdint, provided that Landlord executes a Subscribet Agreement with Ca4al�* :Cellular 1 21 Communications Corp for each phone (or collectively for all P ea )' " nd "pays all customary service charges, connected with theuse Of' said cellular- telephones, including, but not limited to, activation; access, air time, Tong distance and toll charges. 4. Cooperation During the Op tion Period and any extensions thereto and during the term of this Lease, Landlord agrees to cooperate with Tenant in obtaining and maintaining, at Tenant's sole expense., all licenses and perm -its required for Tenant use of the Premises" (the "Governmental Approvals and Landlord agrees to allow Tenant to perform surveys, soils testing,, and other engineering procedures on, under, and over the Property necessary to determine that the Preft s:es, will be 'acceptable to Tenant '.s engineering specification, system,design, and Governmental Approvals. 5: Exerc se,of Option Tenant may exercise this Option by notifying' Landlord in writing prior - to the expiration of the Option Period' that Tenant is exercising its option. B. LEASE 6. Lease Term In the event that Tenant' exercises the Option, the term of this lease (this "Lease "); shall be five years, commencing ,,upon "the date Tenant gives written. notification to Landlord that Tenant is "exerci sing its Option (the "Commencement 'Date "), which shall in any event be prior to the expiration of the Option Period.',, and terminating at Midnight on the last`� day of the month in which the fifth annual anniversary of the Commencement 7Date shall have occurred. Tenant shall have the right to extend this Lease. o "n `the same terms and ' l Term five ' five-year ) . Each 1. 1 additional Renewal_Term shall be �- � ,conditions as set forth herein. Th s�Lease shall automaticalhy be renewed for each successive Renewal Term unless Tenant shall notify Landlord of Tenant's ,intention not to renew this Lease at least sixty (60) days prior to the expirati'bn.of; the term or any Renewal. Term. transmission and T recep e comm communication, signals, in 7 y. b tion of radio any and all ;frequencies', for the. construction and maintenance of facilities, towers, antennas, or buildings and f.or related. activities._ 2 22 8 . Rent a. Upon the Commencement Date, Tenant shall pay m onth as rent;, the s Eight P _ y of ) Land en all be . Pay ble ohe first "Dollars t da 8 o per m ( "Rent ") t sh , for each month in advance °e � Dep artment, P:. ,O . Box 6 =1 Petal the to the cit of Petaluma and sent to City of 'Petaluma Financ p Petaluma,,, California 9`4'953 -p' d`a If the Lease is'. commended other than on the first day of a 'month,, the Rent shall be prorated for that first month 'f=or the number of days from 'the Commencement Date to the end of the month. b. Rent shall be incre'as'ed as of the annual anniversary of th °e Commencement Dat inc djustment Date ") by a P g , qu - he p timer ercenta Price Index' t, 11 ease in the Cons emen - Da e e e •( ) � the o an the Ad: ustment Date, over Jose al to t Metropolitan 'St t stlfaor sco /Oakl_ / the • cl Area � Iufor t .wh he month inieh the Commencement Date or the last Adjustment Daae,,as the case may be, occurri However, Rent shall not be increased by 'more than eight percent ,(8 %) of the Rent in effect f'or the .previous yea Rent° shall not be decreased below the rent for the, previous year. Landlord shall be responsible for communicating the amount of the re . o"Tenant and shall provide. Tenant with support g data pon which the adjustment is :calculated.. c. If this'Lease is terminated at a time other than on the last day of a month, Rent shall be prorated as of the date of termination, and in the event of termination for any reason other than n=onpayment of Rent, all prepaid Rents shall be refunded to Tenant.. 9. ' Interference . Subject to Landlord's right of condemnation.., Landlord shall not use, not ishall Landlord permit its employees-'tenants, licensees., invitees or agents to use any interferes with • interference shall be deemed, 'a material breach by Landlord, and Landlord shall have the responsibility to terminate sa=id interference. In the event any isuch interference, does; not cease promptly,. the parties acknowledge that continuing interference w ; ill cause irreparabl °e injury to Tenant, and therefore Tenant shall have the right, in. addition to any other rights that it: may have at law or in ,equity, to elect to enjoin such. "interference or to terminate this Lease, upon notice to.Landlord. 23 1.0. Improvements; Utilities; Access `a'.. Tenant shall have th;e right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities,, including without limitation an antenna tower and. base, radio transmitting and- receiving antennas, and an electronic equipment shelter (collectively the "Antenna Facilities "). The Antenna, Facilities shall remain the exclusive property of Tenant, and Tenant shall have the right to remove the Antenna Facilities during the term and following any termination of this Lease. b. Tenant shall have the right to install utilities, at Ten'ant expense, and to improve the present util,ities'on the Premises (Including', but not limited to the installation of emergency power. generators;). Tenant shall have the right to permanently place utilities on, (or to bring utilities across_); the' Property in order. to service the Premises. and the Antenna Facilities. Landlord shall execute n an easement evidecing this right upon Tenant's request. Tenant shall have installed, at Tenant''s sole ;expense,, new underground electrical service to the Property from Hayes Avenue Landlord shall .make all necessary° °arrangements with Pacific Gas. & E ldctric ;Company for such!.service to be installed at.the time' required by Tenant. and access from an open and improved public ingress, egress, c. Landlord'shall provide Tenant - in road to the Premises" adequate to' service the Premi and the Antenna Facilities at all times during the term -of this Lease or any renewal thereof at no „additional charge to Tenant. Landlord re a ravel aggrrgate surface ht upon Tenant's at th's tight est. Tenant a rees to install g shall execute, an easement evdencin s expense, e, on the resent f Landlord's right of way easement from the cul de -sa he end of °Hayes Avenue to the Property and as depicted in: B.. After Tenant installs such gravel aggregate surface ; LaridlOr d shall maintain the road 'at Landlord's sole. expense. This route shall be Tenant's access to the 'Premises during the term of this Lease. Tenant will :also promptly . repai.r, r,at its sole expense;, any 1 % Cits damage to the y' streets caused 'by 'Tenant's:co,nstructon or operations d. Tenant shall require its contractors to obtain payment . performance - bonds guaranteeing the contractor's work and naming the City of Petaluma as obligee thereof. Tenant shall provide copies all bonds obtained to the�City prior to the commencement of construction. 24 11. Termination Except as otherwise_ provided .herein, this' Lease may be terminated, without any penalty or further liability, on thirty (30) days written notice as follows: (a) by either party upon a default of any covenant or term hereof by the other party,'which;is not cured within sixty (6'0) days of receipt of written. notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions hereof or available under law) ; (b) by Tenant if it is unable! to obtain or maintain any license, permit. or other Governmental Approval necessary to the construction and /or operation of the, Antenna -Facilities or become unacceptable under Tenant's design or en s are or t Premise Tenant s business, or c b Tenant if the :Premises g:ineering specifications for its Antenna Facilities or the communications system: to which the Antenna Facilities °belong. Upon termination: Tenant will return' Premises to its anal wear and tear and casualty e original condition, normal excepted. However, Tenant will not be responsible for the replacement of any trees, vegetation and /ori or -for the reduction of any foundation to a depth greater than,one foot below grade. 12. Taxes Tenant,,shall pay any personal property taxes assessed on., or any portion of such taxes attributable to., the Antenna, Facilities..,.. .,Landlord shall, pay when. due all .real property taxes and- all "other fees and assessments attributable to the Pro perty. However, Tenant shall pay, as additional Rent any increase i.n real property taxes. levied the Premises which is di Y rect`1 attributable to Tenant 'use o� ' the Premises, and Landlord agrees to furnish proof of such increase to Tenant. Tenant will rovde Co 13. Insurance p mmercial,Liabilty insurance in an aggregate amount of $l, 060,'.600.o0 and name Landlord as an additiona -1 insured on the policy or policies. Tenant may satisfy',, this requirement by obtaining an appropriate endorsement which is reasonably. satisfactory to Landlord, to any °master policy of liability insurance Tenant may maintain. 14. Destruction of Property If the Property or the Premises :are ,destroyed or damaged so as to hinder the effective use of�the Antenna Facilities, Tenant may elect to destruction b so notif in Landlord of the damage or y notify in no , more, more, than 4 5 days terminate this Lease as of the a= � following the, date of ,damage,. In such ev e t n,, all . rights and _ obligations of the parties shall cease as of the date of damage o'r destruction and Tenant shall be entitled to the reimbursement of'any Rent prepaid by Tenant. 5 25 15 Ir Condemnation If. a condemning', authority other than Land- lord - 'takes all. p y,, p ufficient to Tender the Premi „ ses f unsu table for the us,e w1Ad ”' was or a ortion s g se shah ant then makn of th'e Premises., ` Ten o this Lea to rminate a the date the title. vests in the condemning authority The parties , "!sha11 b,e'P enti:tl'ed to share in . the condemnat °ion , . proceeds; in proportion to `the values "of " the ir• respective interests in the 'Property (which for Tenant shall include,,, where appli p e t rent a and business dislo ate n l expenses) oving ex enses pr ep a i d Sale of' all or part of. the Property to'a purchaser with :the, power of eminent domain in the face of the exercise of ; the power, shall be treated as a taking by condemha.tion.. 16. Indemnity and Hold Harmless - Tenant agrees to defend,. indemnify and hold Landlord ha•r-mles's from any and all claims arising from the .installation, use;, maintenance, repa'i`r or removal of Tenant's Antenna Facilities, except to the extent such claims :arise from the negligent _.or Antenti.onal acts or omissions" of Landlord its agents or independent. contractors;.. Tenant agrees to defend, indemnify and 'hold harmless any property owner from which T`e'nant obtains. an easement to cross that owner's property from any and all claims arising from the use of the ownerls property by Tenant or its employees, agent s or contractors.: 1.7. Right of• Frst.Refusal . 'This paragraph deleted. 18. Notices All notices, requests, demands and.other communict aioiis hePeun -' ha b delivered or l hall be deemed g " iven if erpopall y deli Mal ,e d a nd c s certified mail, return receipt requested, or sent by overnight to the following addresses: If to Landlord, to City of P Office'of the City Attorney Post and English,Street Petaluma,, CA 94953 I'f to. T.eilant, to,: Ca gal Cellular�Communications Corp. 1750 Howe. Avenue;, Suite 30 'Sacramento.,, CA 95825 Attn: , of Operations R G. With a qo py to: McCav Cellular Communications, Inc. Legal Department_ 540'0 Carillon, Point Kirkland, Washington 980:3'3 Attention: Scott Morris 19. Title and Qu'iet.Enjoyment a. Landlord warrants that it O has full right, power and authority to execute. this Agreement; (ii) has good and unencumberedititle to the Property free and clear of any liens or mortgages, except as set forth in 'Exhibit C attached hereto. Landlord_ further warrants that 'Tenant shall have the quiet enjoyment of the Prem during the term of this Lease or any renewal thereof-.' b. Terra right to obtain: a title report or `nt ,has the. ,,, commitment for a leasehold title policy from,a title insurance company of its choice,, If, in the opinion''' of Tenant, such title report shdws any defects of title or° any liens or encumbrances ^wYi'ieh :may adversely af:f.ect Tenant's use of the Premises or Tenant's ability to obtain' leas hold f "inancing, Tenant shall -have the right to cancel this Lease immediately upon written notice to Landlord. C. Tenant shall also have the .right to have the Property surveyed, and, in the event -.that any defects are shown by the survey which, in the opinion of Tenant, may adversely affect Venant''s use of the Premises or Tenant's ability to obtain leasehold financing„ Tenant shall have the right to. terminate this Lease immediately upon written notice to Landlord:. d. Landlord..rePr-esents and "warrants. to Tenant, that to the best of Landlord s! knowledge that since Landlord has owned the Property hazardous substances have not been generated, stored or disposed of on. the Premises nor have the same be tran en' sported to or over the Premises '!Hazardous Substance" shall be in t .a terpreed broadly to mean..ny substance or material defined or des'=ignated= as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive' substance,.,or other similar term by any federal, state or local environmental law,, regulation or rule presently in effect or promulgated, in the future .as .such° laws „' 'regulations or rules may''' be - amended from time to time; and it shall be nterpraftertorel!clude, but not be limited to a y ,substance wh i ease into, the env. ronment,� w n su ed to cause sickness death ili or ^d reasonabl be ant' ;ci at _ , se ” Landlord will hohd Tenant' from and ind;emni.fy Tenant 7 27 against g fr-om brew h of this ntat s or abrranty li resuT °tin-' y� ion and w. y includng'all attorneys' fees and costs incurred as a result thereof. e. Tenant represents and warrants to Landlord that Tenant will not generate, store, release or dispose of hazardous substances on the Premises nor,,; fTenant tran'sp'ort same to or acros's,the Premises, except for fuel and batteries to be used in Tenant';�s emergency power 'system. Tenant will hold harmless and .indemnify Landlord from and against any damage, loss expenses, or liability resulting from any breach of this representation and warranty including all attorneys' fees :and costs incurred as a result thereof;. 20. Assignment Upon notice to Landlord,, Tenant may assign this Lease to any person or entity with an ownership interest in Tenant;, any affiliate of such person or entity, any partnership In which Tenant is a partner,. or,.any person or entity that acquires Tenant's business.. Except as provided above, Tenant may only assign this lease with the written consent of Landlord Tenant warr that assignee Of Tenant shall Y y f meet the f ions commission. Tenant ma only sublet " riancial res onsibi .± re firemen this Federal lease with the written consent of Landlord, which consent shall not be unreasonably withheld or delayed Any sublease that is entered into by Tenant shall be subject to the provisions of this Lease. 21. ' successors and Assigns -This Lease shall run.with the Property described in Exhibit A. This Lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 22. Waiver'bf_.Landlord's Lien Landlord hereby waives any and all lien rights may have, statutory or otherwise, concerning the Antenna. Facilities or any portion thereof wh ich shall be deemed per property for the purposes of this Lease, regardless of whether or not same is deemed real or personal property. under applicable laws, and Landlord gives Tenant the right to remove all or any port °ion of same from time; to time', in Tenant's sole discretion and without Landlord's, :consent 0 28 23. Miseellaneous a.. —The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. b. Each ' party agrees to furnish to the other such truthful estoppel information as the, other may reasonably request. c. This Agreement constitutes the entire agreement and understanding 'of the parties, and supersedes all : offers, negotiations arid, other agreements. There are no representation or' °understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and executed by both parties. d. If either party is represented ` by a real estate broker in this transaction', that party shall be fully responsible for any, fee d'ue . such broker, and shall hold the other party harmless :from any claims for commission by such broker. e. Landlord agrees to cooperate with Tenant in executing any docume (including but hot T mited to a Memorandum of Optilon' and Site Lease, Agreement and° Nondisturbance. and a __ Attornment Agreement)' necessry to °protect Tenant s rights .hereu_nder or Tenant ' s use of the Premis es . Landlord acknowledge s that a Memorandum of ,the Agreement w ill be recorded in the Official Records of.the'County where: the Property is located.. Upon the expiration 'or- earlier termination - of this: Agreement, Tenant, agrees to record a quitclaim deed: t:o evidence the term'inat'ion of Tenant's interest in the'Property. f . This Lease shall be construed in accordance with the laws of the sti`t-e in which the Property is located. g. If ° "any term of this Agreement is found to be erms invalidity shall, not` affect the remaining void or invalid,, .. such of ��this Agreement, which-shall continue . in full, force, and effect. 0 IZ DATED as of the date first set forth above. LANDLORD -: CITY OF PETALUMA; a municipal corporation Tax ID #: 7 94�- 6000192 By / ity hn L. Scharer its: Manager By W. Patrick, Milder' its: Director of Public APPROVED AS TO FORM: . H By David Spilman Its: Finance Director A'gPROVED AS TO FORMc- !By: Michael/ Acorne Its:.: Director'of Personnel APPROVED AS T FORM': By: Richard Rudansky i;ts: City Attorney ATI T: By` Patricia Its: City Clerks `� Ty, CLERK TENANT: CAGAL CELLULAR COMMUNICATIONS CORP. 'a California 'corporation. By: McCaw Communications of Santa Rosa,, Ind. a California corporation T y: Michael D., Brink Its: Regional Site Development''Manager 10 30 State of California County of On _ ___, before me, Notary Public, personally appeared personally known tome (or proved to me on the basis of satisfactory evidence) to be the person whose name is to the within instrument and acknowledged to, me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person; or the entity upon behalf of which the person acted, executed instrument. `WITNESS my hand and official seal. ( Notary Public My commission expires: State of California County'of Sacramento On O oJ _/!_e' before me. Penny Riggs, Notary Public, personally pea ,ed "Michael D. Brink;,,, personally known to me (or_ proved to on the basis of satisfactory evidence) to t be the person whose name is subscribed to the within rument and acknoAwIledged- to' me that he executed the same in h i s.authorized ca P acity,� and that by his signature on,the i.nstrument,, the person, or the, entity upon behalf, of which., the person,aeted, executed the instrument: WITNESS my ;hand and official seal. ( SEAL) Notary 'Publi ;;; My commission expires: 1 11 FAI SM p� Notary Pubilc= Cglitomla ` SACRAMENTO' COUNTY My Commission 'Expires Docambcr 7: 19.93 31 to the Agreement dated ,October . I 19 'by and 'between C ity o Petaluma,, a municipal corporation, as - �(!I_ _,Landlofdlll ,and CAgal Cellular Communications Corp., a California corporation, 'as VoTenant"). The Property is legally described as follows,: All that real p'ropertq, situate in the 'City of Petaluma, „County of Sonoma, State of California, described as 'fdkllows: FIRST TRACT FIRST PARCEL LYING in the City of 2etaluma, Town'shiPI4 North', Range 7�, West M. D. B. & M., and 'being .more particularly desc ribed aa'f ollows: FOR A PINT OF COMMENEMENT begin at the common southerly corner of Lots O 30 and 3%1, as C saite. are shown - qpq;i , 'that dertain map entitled Hap f . La Cresta, Petaluma, S`QnoMa Co., Calif., filed July it -b'60k 57 of Ma onoma Count' y 8, 1,9 4 6, i _psi pages an 3, S y lands of - Records.; thence along lihabetwe0n, the la ,V, William C a JL i f I nia WAte'r 8e ompany a corpo ration, and ,of Will 8 4 aint and. North V I `C ofiway,�, North s �5 West, 131-:92 feeft'to A P 9 i --I' " 1-1 st,j, 37. to a point; thence ltda S`Aid- division line.., "and, run South. - 46 49" East, 165 fe'et . ... .. to.a,.,point for th:4. 1� act � I oil point f c ommencement. of, the t to' be herein' de scribed ; uA- 0 thence North'; '88 . 0 - 19 :1 West, 50 feet to a,, �pdln , thence' Sodth 46 South �'O f eet 46 E ast , , feet to a point; tfien66 19 East, a - oint; thend0a North 46* 40' W f eet to t1id,,point of commencement: rrmencement- SECOND, _P AN' E _ ASEMENT of right of way for pipe line., WL_t,h - right of ingress and egress j for th6 : u . "p rp'Oses of installing ;,maintaining j repairing and/ ot replacing the same,, and an easement of -right of way for all general road purposes over and across a -,strip Of land,, 20 feet in width, more particular described as follows:; ws:. southerly FOR ,!'A' 'POINT ',OF COMME - begin at., the common corner certain map o f tdts 30, and_11' As same are shown upd-ri, phoma Co; filed S- Hap� of La Cresta., Petaluma N ETIAL county - and "2" JL'� Jul in Book 57 �o o Maps,' pages 1 , la nd ' s of between the �An then 'ie along the� division lin of W - I 'Water 'Service Com r Cal ffdr-n-3. A. pany, a po poratio�"... and iam. -nt, and North V_ Conway;; , North 45 West, f eet to �A, pcid 'aCtUd. point _ _ Rig 0 1,51: 1 � W e 5 � t'', 37 feet to a point for the . cvmmenceinent of the 20 foot strip to be h descrit bed thence S outh 4 4 165 f eet to a point•; thence North 88 Went, ZO feet to a , Point; thence North 46 40' West, 165 f eet to said division liher thence along said di-vis.i.on line, South 88* 19= East, 20 feet to the point of commencement. page 1 of 3 32 EXHIBIT A INITIAkS .. to the Agreeruent " "dated October —, .l9 by and between City of Petaluma, a, municipal corporation, as (' "Landlord "')` and Cagal Cellular CommunicationsCorp. , a California corporation, as ( "Tenant ") . SECOND TRACT FIRST PARCEL YING in the andtb • of Petaluma, Township 4 North, Range 7 West, M. D be ing more particularly d�e.seribed as follows: FORA POINT OF COMMENCEMEN,TbePin a point on the,,,' bounda ry p of the Roy ro ert described i Deed recorded in Book 1266 of Official ,;Records, page 41.41, Sonoma .County co o Lot I , in Block d , r wh poi i. 2 Lindavi'staSubdivsone r ass map recorded in Book 47 of Maps, page 12, Sonoma County Records +, bears North 16' 13' East, 1 :feet- distant; thence from said ,point of commencement, South, 16* 13'' West, 20.2 feet:; thence curving to the left with a "radius f 110 feet, for distance,, of 172..79 feet; thence curving to the right with 'a radius of 20 feet;, from A tangent which bears-South 73° 47' East,, for a distance of 20.91 feet, thence. South 89 9 5'6 'East , 25.3::6 feet to the, point of beginning of the be o strz of to be .herein described; thence f rom said ' � P_ p g g g t fahlowing described South! 31 centerline,f ,,,. ' 20'" Easta feet,; thence curving. to the' right with a . radius of 3'00 feet.., for a distance of 2,61.89 feet; thence curving to the right with a radius of 75 feet, from a tangent which :bears: South- 41 29 "' 40" Wes6, for a distance of 94.:0;6 feet.;, thence, North. 66 °' 39' ,West :360 feet;; thence curving to the left. with radius of 9`0,0 feet., fot a distance of 304.91 feet; thence 'North_8'6 °'d3' 40' West, '260 feet; thence curving to the right with a radius of 600 feet, for ;a distance -of •141.7`8 feet; North T2° 31' 20'" West=, 3.95 feet; thence curving to the left wit& a radius��o 500 feet, for a distance of 171.58 - feet, terminus of t " center 4. , 9' West 60 feet to a ,,.point which is the thence the, - _ ,=created by znstrinstrument line of a certain 5. 0 foot easement point beari -ncr even date herewith, thence No 25 feet to t of c he ommencement of the tract of land to be herein lde_scribed; thence talonq the north line of the 50 foot easement hereinabove re erred to, North 87 49' East,' '50.04 feet t'o the southwest corner of the tract of land' conveyed to California Water Service;• Company., a corporation,, by William V.. Conway, by Deed dated November 1,, 1951 and recorded 'Novembe'r 14, 1951, under Recorder''s Serial ;No.` .54242, Sonoma County Records thence Northerly along the westerly line of said California'Wa.ter Service Company, tract,., 9:8.09 feet to .the northwest corner the reof; °thence' West 50 feet; thence S 'in ,a d'i'rect line, 100 feet- to, the pgin of commencement. SECOND PARCEL AN EASEMENT of, right o f way for road. purposes, for a11. modes of traveil, and -b easement of right of way for water pipe lines within a strip of land, 50' feet in width, lying 25 feet on each side of a centerline described as follows: page 2 of 3 33 EXHIBIT A to the Agreement dated October _, 19_ by and between City of Petaluma,, a municipal corporation, as ( "Landlord") and Cagal Cellular Communications Corp., a California corporation, as ( "Tenant "). LYING in the City 'ot Petaluma, Township ,4 North, Range 7 West, M. D. B. & M.,, and being a strip of land, 5`0 feet in width, 25 feet on each side of 'the. following described, centerline: COMMENCING at a point on the north boundary of the Roy Keiser property, described in Deed recorded in Book, 12,66 of official Records page 414, Sonoma County Records, and from which point the northeast corner o.f T Lot 1, in Block 2„ Lnda,Vi'sta Subdivision:, as shown on map recorded in Book.47 of Maps, page 12, Sonoma County Records, bears North.16' 'ill East, 124.22 feet distant; thence from said ; poi nt of commencement, South 16`0 13= West, 20.20 €eet 'thence" curving to the:, left - wi'th 'a radius 'of; 110 feet, for a distance of•172.79 feet; thence curving to the right with a -radius of 2,0 feet;, from a tangent, which bears South 73 47' East, for a distance of 20.91 feet; thence South 89* 56' East., 25.36 feet to the point of beginning of the strip of land to be herein described; thence from said point of beginning and along the following described centerline, South 8 31' 20" East, 228.81 feet; thence curving the right with a radius of 300'feet, for a distance of 261.89 feet; thence curving - to the .right with a radius of 75 feet; from a tangent which bears 'South .41° 29' 4a" West, for a distance of 94-G6' feet; thence North 66 39' West, 360' feet; thence currving to the left with; a .radius of 900 feet, for distance of'304.,91 feet; thence - North 86° 03' 40" west, 260.0 feet; 395 West, thence 'curving to the right with a radius of 600 es feetanf 141.78 feet; then N ce'orth 72° 31''20" INITIALS W ce curving to the left with a radius of 50 0 r .0 then feet., for a distance of 1'71.58 feet; thence South 87 49' West, i 60.00 feet, and the terminus of the centerline of the above described 50 foot utility easement. THIRD TRACT LYING IF `t e City of Retaluma:, Township 4 North., Range 7:Wes,t, M. D . B and b eing mare particularly described aq follows: �,. 21, as desc - ribed in Deed, dated Se, temb, er and* re'corded in -Book 1694 of Deed date,, p �, 0 4`6 County Record's; official iRecords, page 485 and 486, Sonoma thence South' ' 40" East 55.00 feet to point; thence North 88. 19' West,: 1103.00 feet to a ,point; thence North 0 46' 40" West, 15,5.00 feet, to a point; thence South 8`8° 19' East,; 110.00 feet to the northwest corner of Parcel 21; thence from said point, South 0` 4"6' 40" East, 100.00 feet to the point of commencement. page 3 of 3 34 I . EXHIBIT B to the Agreement .dated October _, 19_ by and between City of Petaluma, a munic pal- corporation, as ('"Landlord ") and Cagal Cellular Communications Corp.., a Califor',na corporation, as ( "Tenant ") The location. of the. Premises within the Property is more particularly described or depicted as follows: A land survey 'will ,replace this Exhibit B upon receipt thereof by Tenant. (7 1 1 �. k t; r t / f .f !r J i i h �y 35 EXHIBIT C to the Agreement dated October _ , 19_ by and between City of Petaluma., a municipal corporation, as ( ".Landlord ") and Cagal Cellular Communicat =ions Corp.., a* California corporation, as ( "Tenant "). The following is a list of liens and mortgages currently on the Property: lst: (a) GENERAL AND SPECIAL County and City taxes for the fiscal year 1991 =92, a lien'not yet due or` payable_ (b) The lien .of supplemental taxes, if any,, assessed pursuant to the provisions of;Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code of the State of, California. (c) GENERAL AND SPECIAL County and City_ taxes for the fiscal year 1990 -91: AP Number 0'0.8 - 4,90- 0:4; -7 Code Area 3 -022 NOT ASSESSED (d) GENERAL AND SPECIAL County and City taxes for the fiscal year 1990 -91: AP Number 008 - 49:0-0'6 -2 Code Area 3 -022 NOT ASSESSED 2nd.: DISCREPANCIES, conflicts in boundary Ines, shortage in area, encroachments or any other facts which a correct survey would disclose. 36 October 3, 1991 After recording please. State: California return to: System:. Santa Rosa Cagal Cellular Communications Corp. Cell IDs SR -26 1750 Howe Ave., Ste. 300 545 -1 -92 -002. Sacramento, CA 95825 West Petaluma ATTN: Director of operations MEMORANDUM OF LEASE OPTION between .CITY OF PETA LUM a municipal corporation, ("LANDLORD ") and CAGAL CELLULAR COMMUNICATIONS CORP., a California corporation, ("TENANT). For good and valuable consideration, the receipt :and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Landlord grants to Tenant an. option to lease (the "Option' ") a portion of the property (the . "'Property ") legally described in Exhibit A attached hereto and incorporated herein by this reference. the portion of the Property ((`the,i "Premises") which is subject to the is more particularly described and /or depicted in Exhibit , 43 attached hereto and incorporated herein by this reference. 2. The .Option is for a term of twelve (12) "months and shall commence on the - 2-7- 'day of oc - ry%ot , 19%_ and shall terminate on the to day of twrtancK:: .19 3. This Memorandum is prepared for purposes of recordation only and does not set forth all the terms and Conditions set - forth Option Agreement and this Memorandum in the Option Agreement,,, The O ion A ree shall be construed "to ,be but one agreement and in the event that p g r n conf1i this 'between t h um, the a condg Lions of the there is y c't ween the terms O ti ,,on A eement. and Option Agreement shall control.. Rev. S /15/91 37 i DATED as of the date first set forth a'bove LANDLORD: CITY OF PETALUMA.' a municipal cgrporation Tax ID# 9 By: Jo L Scharer Its: CA- ty Manager By: W. Patrick.Mill'er Its: Director of Public Works APPROVED AS TO FORM-.: B. David it Its: Finance D m APPROVED AS TO FORK: By: Michael Adorne Its: Director of Personnel APPROVED- S TO FORM': By: Richard Rudansky Its: City Attorney A7T: By: Patricia y Its: City C1er_ 'ITY`CLERK: TENANT: CAGAL. CELLULAR COMMUNICATIONS CORP. a California corporation By: McCaw Communications of Santa ,, Rosa,; Inc. a California corp'b`ration: By: Michael D: Brink Its• Re Tonal Site Deve'lo ment -Mana er 38 State of California County of On before me, Notary Public, personally appeared , personally known tome (,or proved to me son the basis of satisfactory evidence) to be the -person whose name, is subscribed to the within k i nowledged to me that he executed the same in his authorzi "ed capacity 'ty,, that by his nature on the instrument 's sg instrume the person, or the entity upon behalf of which the person acted, executed the instrument., WITNESS my handand official seal. Notary Public My commission expires:_ State of California County of Sa ( SEAL) On �' �Z /._� before me, Penny Riggs, Notary Public, personally appeared Michael D. Brink, personally known to me (or proved to me on the basis of satisfactory evidence) to, be' the person whose 'name,is subscribed to the within instrument and acknowledged to me that he' +executed, the; same in his .authorized capacity,, and that by his signature, the 'instrument, the person,. or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary _ Pub , j+i < 1 _ commi My 'ssion expires: Rev. 5/15/91 ( SEAL) gti 39 October 3, 1991 RECORDING REQUESTED''BY WHEN RECORDED RETURN TO: Cagal .Cellular Communications Corp. 1750 Howe Avenue, Ste. 300 Sacramento, CA 95:825 ATTN: Director of Operations .1 �a 14 C State: California Market: Santa Rosa Cell ID: SR -26 5453` -92 -002 West Petaluma MEMORANDUM OF LEASE THIS MEMORANDUM OF :,LEAS (the "Memorandum ") is executed this Z day of October, 1991 by and between the City of Petaluma, a municipal corporat o'n,, ( "Landlord ") and Cagal Cellular Communications Corp., a California corporation ( "Tenant "). WHEREAS, Landlord and 'Tenant are parties to that certain Lease Agreement dated October, 1991 (the "Lease "), NOW, THEREFORE,; for' good and valuable consideration, the parties agree,as follows: 1. Lease For good and valuable consiaeration., the receipt and sufficiency of which are hereby acknowledged, Landlord leases to Tenant a portion of' -the real property des_crib,ed in Exhibit A attached hereto and, , - incorporated herein .by, this reference (the "Property ") at a rent and on the terms and conditions set forth in the Lease all'of the terms and conditions of which are by this reference incorporated herein. The portion of the Property leased to Tenant (the "Premises"`) is described. and /or depicted in Exhibit B attached hereto and incorporated herein by this reference. The L is - for a te commenc ng U L7 cf'2 `2 -Z 1,9 9 and terminating GT'`r(� arsleaeh, with five (5) additional options to extend for five 2 Defin,ltion� Terms All "ca italized terms not otFii ne erws defined herein shall have the same meanin g as set forth e Lease. 3 Purpose.of;'.Memorandum This Memorandum is prepared for purposes 6- recordation only and does not set forth all the terms and conditions set' forth in the Lease. The Lease and this Memo °randuml ;-hail be construed to be but one Lease and in the event there is n co any , fhict between the terms, and conditions, of the Lease; and "this Memorandum, the Lease shall "control. Rev, 5/15/91 40 DATED as of the date first set forth abovet. LANDLORD: CITY -OF PETALUMA, a municipal corporation Tax ID#*./4-60QO39'2 TENANT: J hn L. Scharei s city Manager By: W. � Millier 4 Its: Director 'of'Public Works APPROVED AS'TO FORM:' BY: David 'Its: Finance Director. APPROVED AS TO FORM; { ;By: Michael /Ador ' n 1 6, Its: Director of Personnel APPROVED AS TO FORM':' By: Richard Rudansky, Its: City Attorney ATT "By: Patricia V"- CLERK Its: City Clerk CAGAL CELLULAR COMMUNICATIONS CORP. a California corpqTation By: McCaw Communi ' cations of Santa, Rosa, Inc. a California corporation - By:, Michael D. rink Its: Regional Site Development Manager ff State of California County of On I , before me, Notary Public, personally appeared personally known "to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is ,subscribed to the within instrument and acknowledged to me that,he executed the same in his authorized capacity,, and 'that by his signature on the instrument, the person, or 'the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public My commission expires: State of California County of Sacramento (SEAL) On before me, Penny Riggs, Notary Public, app p roved a to me on the basis of satisfacto to be the person ' personally known to me (or chael D. Brink p ry evidence) ea e i whose name is subscribed. to the within instrument and acknowledged to me hor,ized capacity, and that by his s a ig ature c on the l um instrument, the person, or the entity upon behalf of which the-person acted, executed the instruiaent. WITNESS my hand and official seal. 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Q /A f6 �'n O W Q U N cu n LL rl_ v ,. a� 'm ' (U z o p � Q m Z �N �. �'c.� a] F- .Q� O I — Q O U Y „ c C' ':ln � a C -• 4 ' ' U) U) >. 'Attachment 5 POST OFFICE Box PETALUMA, CA 94953 -0061 Pamela Torliatt Mayor November - 23,2010 Teresn'Barreft David Glass Mike Harris Mike Healy Jason Osbome David Ralbbitt Tiffany Renee .765 Baywood Drive, Suite 325 Councilineinbers Petaluma, CA 94954 RE: A Minor Cdfiditional Use Permit to upgrade an existing wireless telecommunications - facility located at 601' Hayes Ave, AP-N 608 File' # CUP -0003 1! ' Dear Mt. Osbblne':' Your application for aMinor Conditional Use Permit, or modifications to the existing witelesslteledommunications facility which includes two (2) new antennas mounted on a new IV pole and new coax cables, from the equipment to the anteninas.to be,h4useidjn new underground conduit4t , the Petaluma Water tank 01 Hayes.Ave APN'009-'49'0-'028 has been approve facility 1 o6atedlit `6 d. This Coininunity Devdopmenl approval is based I on the following findings and subject to the following Department 1 1 English street conditions of approval: Pelalu=4 CA 94952 E-mail cdd@ci.petahima.ca.us Findings: 1. The , PT's proposed ed project is exempt from the California Environmental Quality I- Building Act (CEQA) pursuant to Section 15303 (New Construction) and Section Phone (707) 778-4301 Fax (707),778-4498 1 5301 : (Existing Facilities), To Schedule Inspections: Phone (707) 778-4479 1 The, proposed project,,, as conditioned, is consistent with the.Public-Semi Public ia' lndu'se'de designation of the 2025 General Plan. p6nni — . 9 None (7(7) 77 k 3. Tlie"Troposed project, as conditioned,, is consistent with the Implementing Fax(707) 778-"4 4 98 Ofdihaiide in that: Zoning a. Telecommunications facilities (Minor/Major) are a, conditional. use in the Civic Facility"(CF) zoning district. , b. The proposed project is consistent with the development standards - specifield., in the CF zoning district which also refer to the development standards' of the abutting zoning district for setbacks and height requirements. EOUALHOUSING OPPORIURrY 45 4, The proposed p p d antennas and related equipment are consistent with thei provisions for minor telecommunications facilities of the Petaluma Municipal Code, Chapter 14.44 (Telecommunications Facilities) and the Federal Telecommunications Act.. y y ' & Edison Inc, dated October 28 , 2009he proposed antennas 5. Based on a study, °b Hammett , . will comply with the prevailing - standards for` limiting public exposure to radio frequency energy and therefore, will not cause a significant impact to the environment. The. highest calculated, level in publicly accessible areas is much less than the prevailing. standards allowed for exposures of unlimited duration. 6. public welfare that�rtas Icon itioned will ot constitute e constructed and.operaied in conformance with the M to the l a nuisance or be detrimen p .will b I Municipal „ . _.. Code, Uniform Building . Code, and the Implementing Zoning Ordinance Performance . Standards. 7. A notice was publi§hed''in the•Argus- Courier and, mailed to` all neighboring properties within 500 feet of the project site. Staff received comments from: a. Trevor Pitts, President. of Victoria Home Owner's Association, 123`6 B St, Petaluma, California b. Catherine E. Edmondson Board Member of the Victoria 'Home Owner's Association, 1237 B Street, Petaluma, California c. Joyce Delano at 186 Windsor Drive, Petaluma, California I Pamela (did not leave an address) 8. The comments; received were due to concerns regarding. the aesthetic impacts and visibility of the proposed antennas from Homes in the Victoria subdivision and the possible negative impacts from the ENE waves generated. that may affect the health and safety of homes in close proximity to the site. In response to the comments, AT &T worked with staff, the Victoria HOA and the City of .Petaluma Water (Department to address these concerns. AT &T proposed ,'a landscape plan lo antennas the homes in the Victoria subdivision. Also, bas on stud :submitted by Hammett & Edison Inc, the proposed antennas com 1 with th p, p radio' energy. Staff p y e p ex limits -t o radio has conditioned the Use'Permit accordingly to address these concerns. These conditions are noted below. Conditions of Approval from the.Planning Division: 9. This conditional use _permit shall be issued exclusively for AT &T for the addition of two (2) new panel antetm asonto a proposed 19' pole as well as add coax cables and three (3) six iiich ) coax (6' co duits, Future co- locators shall be res for rocunri a , p: p g . pp"roval from the"Ci ty of °Petal um I a p r nor to "their use of the pole or the "site. 1 "0'. Prio r,�ao commencemerit�l(if construction or installation of the, antennas, a building pen is required from the Building .Division: On plans submitted for building permit, these conditions of approval `shall be included on the first plan sheet. . 11. The plans.:submitted for building pennit;shall be in substantial conformance with the plans submitted to the Planning Division and date stamped October ,21, 2010 except as modified by the following conditions. 2 we �f! n� 12. The proposed antennas and pole and associated equipment shall be'painted to match/blend in with the other existing structures at the Petaluma Water Tank Facility. "Flat" paint shall be used. Building permit °plans shall make this note.' 13. Prior- to the issuance of 14 building permit, applicant shall file a Telecommunications Maintenance/Facility Removal_ agreement and. a carrier registration form.. with the City and paythe associated fees. The .forms- and fees are attached. These shall be signed and'. approved by all appropriate City, departments prior to the issuance of a building permit. 14. Prior to issuance of building permit, the applicant shall submit revised plans (Sheets A -2, A- 4, A -5 and L -1) that -'addsaL section of 15 gallon Coast Live Oak (Queicus Agrifolia) along the westerly and southerly portions of the site near the new impacted area to act as natural screening in addition to the three, trees that are already shown on the, plans. submitted. The applicant shall be responsible, for on -site monitoring and maintenance of the proposed landscape at least once a month to ensure the proposed trees /landscaping survive, with not only hand watering techniques, but�also through the use of water gel packs. 15. Prior to issuance of a building permit, revise the project description on Page T -1:, Remove the note that states ", (3) (I, .Olive Trees (Olea Europea)''i arid replace 'it with the proposed Live Oak Trees (including themumber.of trees). 16.'' Construction activities shall comply with applicable performance standards specified in the Uniform Building. Code;, the Tanplementing Zoning Ordinance and Municipal 'Code Performance with regards °to:noise, dust, odor, hours of construction, etc. 17. Prior to building permit: final, ,readily visible ex g signs (see H&E study ' explanatory wat7un si page 3 of 4. for details) shall be,po"sted at visible locations: 18. The telecommunication'''fac tyy' and antenna shall andarm comply at- er times with all FCC rules governing construction r`eq, n i ence protection, power and height 'limitations, and radio frequency standards regulations. standards. In addition AT &T will comply with_all FAA rules onsite location. and operation. 19. All prior conditions of approvals for this site (601 Hayes), shall remain in full effect. 20. This Condit ' ay be' recalled by the Planning Division for review at any time due to cornplauitpre 'lack of compliance with the' conditions of approval. At such time, the Planning :Division: may initiate proceedings to revoke the conditional use permit or add/modify conditions of approval. 21. The applicant . shall defend, indemnify and hold harmless the City and,.its officials, boards commissions, agents, ,officers and employees ( "Indemnitees ") from any claim; action or proceeding ,against Indemni'tees to attack, set aside, void or annul. any of the approvals of the project I to the maximum extent permitted by Government Code section 66477.9. To the extent permitted by Government Code section 66477:9; the - applicant's duty to defend, claims, action d hod .in accordance with this condition- shall apply to any and all inde mnify oprocings brought concerning the project, not just such claims actions or proceedings brought within the time period provided for in applicable State and/or local statutes. The City shall promptly notify the subdivider of any. such claim, action or proceeding g ntained.in� prohibit, the subdivision. The City shall cooperate fully in the defense. g condition shall p City " from participating in the defense , roceedm concerning the Nothing co this of any claim, action, or proceeding, and if the City chooses to do so, applicant shall 3 47 reimburse. City for attorneys' fees and costs incurred by the City to the maximum extent permitted by Government Code section 66477.9. From the D of Water Resources & Conservation 22.. The applicant needs to show all existing utilities in the area of the proposed improvements on the plans. 23. Revise. plan sheets 3,, 5, and 7 to show the conduits 4 feet off the fence line. 24. The applicant is required to successfully re- negotiate their current lease with the City prior . to building permit submittal. Within (14) calendar days following the date of a- decisiorrof the - Planning- Division -the - decision may be appealed to; the Planning - Commission by the. applicant or by any interested party. If no appeal is made within that time, the decision shall be final. An appeal shall be addressed to the Planning, Commission in writing and shall be filed. with the City Clerk. The appeal shall state specifically the grounds for the appeal and the relief sought by the appellant. The appeal fee as specified by Resolution as adopted by the City Council shall accompany the appeal. If an appropriate development permit has not been issued for a project Within twelve (12) months of the date of this letter, the: Conditional Use Permit approval shall be void. The Planning Division if requested at least thirty (3 0) days prior to the initial twelve (12) month expiration date may grant a six (6) month extension. If you have any questions,. please feel free to contact me At (707) 778 -4401 or msubhashini @ci.petaluma.ca.iis Sincerely, M ene Subhashini Associate Planner c:;;Trevor Pitts, Owner's Association, 1 B St, Petaluma, California Catherine E.' Edmondson Board Member of the Victoria Home Owner's Association, 1237 B Street, Petaluma, California Joyce•Delaid at Y86 Windsor Drive, Petaluma, California File #.10- CUP - 0003, 601 Hayes Attachments: Telecommunications Maintenance/Facility Removal Agreement (_dated June 2005), section 9 modified June 2009) Carrier Registration Form Fee Schedule s: \planning\letters \cup approval \601 Hayes_AT &T 4 48