HomeMy WebLinkAboutOrdinance 1871 N.C.S. 10/21/1991\.
'1
2
4
5
7
R
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
1 y, Y .
r~ ~~~~~ ~ ~~ ~~
~~~ ~ 0 1991
ORDI1~lANCE NO
Introduced by Councilmember
Jack Cavanagh
3onnie Nelson
AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALLIMA
AUTHORIZING AN OPTION AND LEASE OF REAL PROPERTY
LOCATED WITHIN THE CITY OF PETALLIMA
CAGAL CELLULAR COMMUNICATIONS
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALLIMA AS FOLLOWS:
28 Section 1. Certain real property located in the City of Petaluma, County of Sonoma, State of
29 California. is hereby authorized t~ be leased under the terms and conditions set forth in the Option
30 and Site .Lease Agreement by and between the City of Petah~ma and Caga1 Cellular Communications
31 Corp.. , which Option and Site Lease Agreement is attached hereto as Exhibit A and incorporated
32 herein by reference. The City Manager is .hereby authorized to sign said ~Option and Site Lease
33 Agreement which is for use as a cellular communications facility located at the La Cresta water tank
34
35
36
37
38
39
40
41
42
43
44
45
4b
47
48
49
facility site fiirther described .in Exhibits A and B to the Option and Site Lease Agreement.
Section 2. The City Clerk be, and she hereby is directed to publish this ordinance for the
period and in the manner required by the City Charter.
INTRODUCED and ordered posted/published this 7th day of October , 1991.
ADOPTED this 21st day of October , 1991 by the following vote:
AYES: Read, Davis, Cavanagh, Sobel, Vice Mayor Woolsey, Mayor Hilligoss
NOES: None /1
ABSENT: Nelson
1871 N,C.S.
Seconded by Councilmember
iv~ay ui
Ord. 1871 N.C.S.
ATTES
.' , Clerk
c:\word_5\or~i.doc
10/1/91 (fmk)
APPROVED:
~,~~.~.e.l'.
City Attorney
Ord. 1871 N.C.S.
Cellular Communications 704-09
October 3, 1991
After recording
return to:
Cagal Cellular
1750 Howe. Ave.,
Sacramento, CA
ATTN: Director
between CITY_OF
CAGAL CELLULAR
("TENANT).
please. State: California
System: Santa Rosa
Communications Corp. Cell ID: SR-26
Ste. 300 5453-92-002
9582.5 West Petaluma
of Operations
MEMORANDi7M OF LEASE OPTION
PETALUMA;, a municipal corporation, ("LANDLORD") and
COMMUNICATIONS CORP., a California corporation,
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 (thee "Property") legally
described in Exhibit A attached hereto and incorporated herein by
this reference. The portion of the Property (the "Premises") which
is subject~to the Option is more particul°arly described and/or
depicted in Exhibit B attached hereto and incorporated herein by
this reference.
2. The Option is for a term of twelve (12) months and shall
commence on the Z Z day of ~cT~c3C~, 19~ and shall terminate on
the ~ day of Ucr[ol]ct~.. , 19~
3. This Memorandum is prepared for ,purposes of recordation
only and does not set forth all the terms and conditions set forth
in the Option Agreement. The Option Agreement and this Memorandum
shall be construed to be but one agreement and in the event that
there~s any, conflict between the. terms and conditions of the
Option Agreement and this Memorandum, the Option Agreement shall.
control.
Rev. 5/ 1 S/91
dRfl ~8~1 NC~S
DATED as of the date first set forth above.
LANDLORD: CITY OF PETALUMA,
a municipal corporation
Tax ID#.: 94-6Q003'92
By: Jo L. Scharer
Its: C ty Manager
1.,~,~ . ~,~~
By: W. Patrick Miller
Its: Director of Public Works
APPROVED AS' TO FORM:
~ ~~~ P~ ~
By: David pitman
Its: Finance Director
APPROVED AS~O F RM:
By: Michael Acorne
Its: Director 'of Personnel
APPROVED TO FORM:
By: Richard Rudansky
Its: City"Attorney
ATT~E'ST
By: Patricia .~;~r~.~ CLERK
Its: City Cler
'TENANT: CAGAL CELLULAR COMMUNICATIONS CORP.
a California corporation
By: .McCaw Communications
of Santa Rosa, Inc.
a California corporation
By: Michael D. Brink
Its: Regional Site Development Manager
OR,a 18`1 ~ ~C~S ~.
State o€ California
County of
On 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 tome that he executed the same in his
authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf pf which the person acted,
executed the instrument.
WITNESS my hand and official seal.
('SEAL)
Notary Public
My commission expires:
State of California,
County of Sacramento
On ~C~~~Z~i~~, ~`-f'~ !'~ `~ ~1, before me, Penny- Riggs, Notary Public,
personably 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 on the instrument, the person, or the entity upon
.behalf of which the person acted, executed the instrument.
WITNESS my hand and offieia'l,seal.
Notary Publ,~.
My commission expires: ~ ~ ~
Rev. S/IS/91
(SEAL)
oFaCw. s~
PEPttVY ROCCS
Notcay. Public-C~cmta
SgGRAMENTO 'COUNTY
'' 'i My C~nrt ExPUea .
pecembe~ 7. 1993.
pQ D ~ g'7 I ~ C,S
October 3, 1991
State: California
Market: Santa Rosa
RECORDLNG REQUESTED BY AND ~Cel1.ID: SR-26
WHEN RECORDED RETURN TO: 5.453-92-002
Cagal Cellular Communications Corp. West Petaluma
1750 Howe Avenue, Ste. 30D
Sacramento, CA 95'825
ATTN: Director of Operations
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE-(the "Memorandum") is executed this Z ~
day of October, 19'91 by and between the City of Petaluma, a
municipal corporation, ("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 consideration., the receipt
and sufficiency of which are hereby acknowledged, Landlord leases
to Tenant a portion of the real property described in Exhibit A
attached hereto and. incorporated herein by thus 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 "Premis'es") is described and/or depicted in Exhibit
B attached hereto and incorporated herein by''this reference. The
Lease is for a term commencing ~Tv~ cf'2 ZZ., 19~ and. terminating
UGTyS~'L~, 19~, with five (5) additional options to extend for
five (5)-years each.
2. De`f`inition of Terms. All capitalized terms not otherwise
defined "herein shall have the same meaning as set forth in the
Lease.
3. -Purpose of Memorandum.. This Memorandum is prepared for
purposes of"recordation only and does not set forth all the terms
and conditions set forth in the Lease. The Lease and this
Memorandum shall: be construed to be but one. Lease and in the event
there is a~ny.conflct between the terms and conditions of the Lease
and-this Memorandum, 'the Lease shaT_1 control.
Rey, S/]S/91
~~D 1~7 I N~C S
DATED as of the date first set forth above.
LANDLORD: CITY OF PETALUMA,
a municipal-corporation
Tax ID# : ,~4a-6000392
By: J hn L. .Scharer
Its: .City Manager
By: W: Patrick Miller
Its: Director of Public Works
APPROVED AS TO FORM:
~u,~r-ccQ S~mQ.,~ P~ e
By: David Spilman
Its:, Finance Director
APPROVED AS TO FORM:
~`By: .Michael' Acorne
Its: Director of Personnel
APPROVED AS TO .FORM:
~~~
Byc'Richard Rudansky
Its: City .Attorney
ATT
By: Patricia CITY CLERl~
Its: City Clerk
TENANT.: CAGAL CELLULAR COMMUNICATIONS CORP.
a California corporation
By: McCaw 6ommun~eations
of Santa Rosa, Inc.
a California corporation
~GC~i'?C~d`y
By: Michael D.iBr.ink
'Its: Regional Site Development Manager
v~o ~~~i recs.
State of California.
County of
On , 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 ~t.:~c~~.iL~, 7, ~~~~ , .before me, Penny Riggs, Notary Public,
personally appea ed 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 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 Pub`l_:
My commis"ion -expires: ~ %~~
Rev. 5/15/91
(SEAL)
OfFICIAI ;SEAL
•• '"" PENPIY RIGCS
Notary Public-Col~omla
' ® SACRAMENTO COUNTY
~ nAy Cornrrd~Ion Expkes
. ,. December 7. 1993
d12.D x$71 NCB
October 3, .1991
State: California
Market: Santa Rosa
Cell ID: SR-26
5453-92-002
West Petaluma.
OPTION AND SITE LEASE AGREEMENT
THIS OPTION AND SIDE LEASE AGREEMENT (this "Agreement")
is entered into this ~ day of October, 1991~between the City
of Petaluma, a municipal corporation, ("Landlord") and Cagal
Cellular Communications Corp., a California corporation
("Tendnt11) .
For Tenant supplying to Landlord:'s Option Fee provided in
paragraph 3 below, ("Option Fee") and other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
A. OPTI.OPT
1. Premises. Subject to the following terms and
conditions:, Landlord grants to Tenant an option (the "Option")
to lease a portion (the 11Premises") of the real property (the
"Property") described. in Exhibit A _attached hereto and
incorporated herein by this reference. The Premises, located
at the end of Hayes Avenue in Petaluma, comprise 2,000 square
feet (4Q'x50') and are situated within the Property as
described and/br depicted in .Exhibit B attached hereto and
incorporated herein by this reference.
2. Option Term. The Option shall be for a term of
twelve (12).months comi_nencing upon the date set forth above
(the "Option Period").
3. Obtion'Fee. In consideration for Landlord granting
to Tenant the option, Tenant agrees to provide to. Landlord
within. thirty ('3°0') days of the execution of this Agreement.,
the sum .of One Thousand Dollars ($1,000.0.0) and three (3)
cellular telephones: 2 Motorola Tough Talker III portable
cellular telephones': (Model 012-02.2885) and two (2) carry bags
(Model. 300-47Or2SN); and one (1) Motorola Model PC-500 flip
phone. (Model 0;11-8405XT), with an extra battery Model 350-
4059XT') and a cigarette lighter adapter (,Model 470-4292SK) at
no cost to Landlord for such equipment, provided that Landlord
executes a' Subscriber Agreement -with Cagal Cellular
1
U R a 181 ~ TICS
Communications Corp. for each phone (or collectively for all
the phones) and pays al'1 customary servicecharges connected
with the use of said cellular telephones, including, but not
limited to,, activation, access, air time, long distance and
toll charges.
4. Cooperation. During the Option 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 .permits required
for Tenant's 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
Premises- will be acceptable to Tenant's engineering
specification, system design, and Governmental Approvals.
5. Exercise of Option.. Tenant may exercise this Option
by notifying Landlord in writing prior fio 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 exercising 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 Date shall have
occurred.. Tenant shall :have the right to. extend this Lease
for five additional five-year terms ("Renewal Terms"). Each
Renewal Term shall be on the same terms and conditions as set
forth herein... This Lease shall automatically 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 expiration of the term or
any Renewal Term.
7. Use.. The Premises may be used by Tenant for the
transmission .arid reception of radio communication signals in
any and ah frequencies, for the construction and maintenance
of related facilities, towers, antennas, or buildings and for
related aet'ivities.
2
~~ i~'11 ~(GS
8. Rent.
' a. Upon the Commencement Date, Tenant shall pay
Landlord', as rent, the sum of Eight Hundred Dollars ($800.00)
per month ("Rent"~) . Rent ,shall be payable on the first day of
each, month in advance to the City of Petaluma and sent to the
City of Petaluma Finance Department, P.O. Box 61, Petaluma,
California 94953-00.61. If the Lease is commenced other than
on the first day of a month, the Rent shall be prorated for
that first month for the number of days from the Commencement
Date to the end of the month.
b. Rent shall be increased as of the annual
anniversary of the Commencement Date ("Adjustment Date") by a
percentage equal to the percentage increase in the Consumer
Price Index .("CPI") ..for the San Francisco/Oakland/San Jose
Metropolitan Statistical Area on the Adjustment Date over the
CPI for the month in which the Commencement Date or the last
Adjustment Date, as the case may be, occurred. However, Rent
shall not be increased by more than eight percent (8~) of the
Rent in effect for the previous year. Rent shall not be
decreased below the rent for the previous year. Landlord
shall be responsible for communicating the amount of the
rental adjustment to Tenant and shall provide Tenant with
supporting data-.upon 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 nonpayment of Rent, all prepaid Rents shall
be refunded to'Tenant.
9. .Interference:. Subject to Landlord°s right of
condemnation, Landlord shall not use,,, nor shall Landlord
permit its employees, `tenants, licensees, .invitees or agents
to use any portion of Landlord's properties in any way which
interferes with the operations of Tenant.. Such interference
shall be deemed a material breach by Landlord, and Landlord
shall have the responsibility to terminate said interference.
In the event any such interference does- not cease promptly,
the parties acknowledge that .continuing interference will
cause-irreparable ,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.
C~-~ ~ 1 g 7 ~~. ,acs ,,
10. -Improvements; Utilities; Access.
a. Tenant shall have the 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 transmitt-ng and' receiving
antennas, and an electronic equipment shelter (collectively
the "Antenna Faeli.tes"). 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 Tenant,'s expense, and to improve the present
utilities on the. Premises (including,~but not limited to the
installation of emergency power generatorsj.. 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
an easement evidencing 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 & Electric Company .for such service to be
installed at the tme~~required by Tenant.
c. Landlord shall provide, Tenant ingress, egress,
and access from ari open and improved public road to the
Premises adequate to service the Premises and the Antenna
Facilities at all tines'during the term of this Lease or any
renewal thereof at no additional charge. to Tenant. Landlord
shall execute an,~easement evidencing this r-fight upon Tenant's
request. Tenant agrees. to install a gravel aggregate surface
at its•~sole expense, on the present route of Landlord's right
of way easement from. the .cul-de-sac at the end of Hayes Avenue
to the Property and 'as depicted in Exhibit B. After Tenant
installs such gravel aggregate surface. Landlord 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 repair,• at its sole expense, any
damage to•the City's streets caused. by Tenant's construction
or operations.
d. Tenant shall require its contractors to obtain
payment and; performance bonds guaranteeing the contractor's
work and. naming the City of Petaluma as obligee thereon.
Tenant shall prov%de copies, of all bonds .obtained to the City
prior to the commencement of construction.
4
O+~D 1~7 i NCaS
11. Termination. Except as. otherwise provided herein,
this Lease may ,be termr-ated, without; -:any penalty or further
liability, on thirty ( 3 0 ) 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 (60) days
of receipt ofwritten 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 unable to obtain or maintain any license,
permit or other Governmental Approval necessary to the
construction and/~or operation~~of the Antenna Facilities br
Tenant's business; or (c) by Tenant if the Premises are or
become unacceptable under Tenant's design or engineering,
specifications for its Antenna Facilities or the
communications system to~whch the Antenna Facilities belong.
Upon termination, Tenant will return the Premises to its
original condition, normal wear and tear and casualty
excepted. However, Tenant will not ~be responsible for the
replacement. of any trees, vegetation and/or shrubs or for the
r-eduction of any-found'ation 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 wfien due all real
property taxes and alI other fees and assessments attributable
to the Property. However, Tenant shall pay, as additional
Rent, any increase in-real property taxes. .levied against the
Premises which is directly attributable. to Tenant's use of the
Premises, andLand ord agrees to furnish proof of such
increase to Tenant.
13.~ Insurance..T;enant will provde,:Commercial Liability
insurance- in an aggregate amount of $:1-,0,00,00.0.00 .and name
Landlord as an additional insured~on the policy or policies..
Tenant may satisfy this requirement by obtaining an
appropriate endorsement which is xeasonably satisfactory to
Land-ford to any master policy of liability insurance Tenant
may maintain.' .
14 Destruction of Property. I;f the Property or the
so as to -hinder the
Premises. are destroyed or damaged
effective use ~of the Antenna Facilities, errant"may elect to
terminate this Lease as of the date of the damage or
destruct°ion .by so notifying Landlord not more than 45 days
following the date of damage. In such event:, all rights and
obligatons~of the parties shall cease as of the date of the
damage or destruction and Tenant shall be entitled to the
reimbursement of any Rent prepaid by Tenant.
5
0-~ D I~~'l N~GS
15. Condemnation. I~f a condemning authority other than
Landlord takes all of the Property., or a portion sufficient to
render the Premises unsu°table for the use which Tenant was
then making of the Premises, this Lease shall terminate as of
the date the title vests .in the condemning authority. The
parties shall be entitled to share in the condemnation
proceeds in proportion to the values of their respective
interests in the Property (which for T-errant shall include,
where applicable, the value of its Antenna Facilities, moving
expenses, prepaid rent and business dislocation expenses).
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 condemnation.
16. Indemnity and._Hold Harmless.. Tenant. agrees to
defend. indemnify and hold Landlord. harmless from any and all
claims arising from the installation, use, maintenance, repair
or removal of °Tenant':s Antenna Facilities, except to the
extent such claims ar-ise from the negligent or intentional
acts or omissions~of Landlord, its agents or independent
contractors. Tenant agrees to defend;, indemnify and hold
harmless any property owner from. which Tenant obtains an
easement to cross that owner's property from any and all
claims arising from the use of the owner's property by Tenant
or its employees, agents or contractors.
17. Right. of-First Refusal. This paragraph deleted.
18. Notices. A11 notices, requests, demands and other
communications hereunder shall be in writing and shall be
deemed given if. personally delivered or mailed, certified
mail, return receipt requested, or sent by overnight carrier
to the following addresses:
If to Landlord,. to:
City of Petaluma
Office of the City Attorney
Post and. .English .Street
Petaluma, CA 94953
If to Tenant, to:
Caga1 Cellular Communications Corp.
1'75A~Howe Avenue, Suite 300
Sacramento, CA 95.825
Attn: Director of Operations
6
o ~ -~ i 8~ ~ -~ ~s
With a copy toc
McCaw~Ceilular Communications, Inc.
Legal Department
5.40O~Carllon Point
Kirkland, Washington 98033
Attention: Scott Morris
19. Title and Quiet Enjoyment.
a. :Landlord warrants that it (i) has full right,
power and authority to execute this Agreement; (ii) has good
and unencumbered title 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 Pr-emises during the term of this Lease
or any renewal thereof.
b. Tenant has the right to obtain a title report or
commitment for a leasehold title policy from a title insurance
company of its choice. If, in the opinion of Tenant, such
title report shows any defects of title or any liens or
encumbrances which may adversely affect Tenant's use of the
Premises or Tenant's ability to obtain leasehold financing,
Tenant sha1T 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 Tenant'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 represents 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. beem transported. to or over the Premises. "Hazardous
Substance01 shall be interpreted broadly to mean any substance
or material defined or. designated as hazardous or toxic waste,
hazardous=. or toxic material, hazardous or toxic or radioac=five
substance, or other similar. term by any .federal, state or
local environmental law., regulation or rule presently in
effect or promulgated in the futur-e as such laws, regulations.
or rules may be amended from time to time; and it shall be
interpreted to include, but not be .limited to, any substance
which after release into the environment will or may
reasonably be anticipated to cause sickness, death or disease.
Landlord~wll hold ,Tenant harmless from and indemnify Tenant
7
v~ fl ig7 i rocs
against and from any damage, loss, expenses or liability
resulting from any breach of this representation and warranty
including a~I'l 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'substarices on the Premises nor w_11 Tenant transport
same to or across the .Premises, except. for fuel and batteries
to be used in Tenant''s emergency power system. Tenant will
hold harmless and indemnify Landlord fr-om 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 warrants that any assignee. of
Tenant shall meet the.fnancial responsibility requirements of
the Federal Communications Commission. Tenant may only sublet
this lease with the written consent of Landlord, which consent
shall not be unr-easonably withheld or delayed. Any sublease
that is :entered into by Tenant shall be subject to the
provisions of this Lease.
21. Suecessors.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 of Landlord's Lien: Landlord hereby waives
any and all lien rights i-t may'have,_statutory or otherwise,
concerning the Antenna Facilities or any portion thereof which
,shall be. deemed personal 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' portion of same from
time. to;, time in. Tenant's sole discretion and without
Landlord's consent.
8
4~ ~ - ~ 7 ~ acs.
23. NTiscellaneous.
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 furnisY 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 and 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 shah be fully
responsible for any fee due 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 documents (including but not limited to a
Memorandum of Option and Site Lease Agreement and
Nondisturbance and Attornment Agreement) necessary to protect
Tenant's rights Yereunder or Tenant's use of the Premises.
Landlord acknowledges that a Memorandum of the Agreement will
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 to evidence the termination of Tenant's
interest in the Property.
f. This Lease shall be construed in accordance with
the laws of the state in which the Property is located.
g. If any term. of this Agreement is found to be
void. or invalid, such. .invalidity shall not affect the
remaining. terms of this Agreement.., -which shall continue in
full force and effect..
9
d R ~ i 8'1 t Ncs
DATED as of the .date first set forth above...
LANDLORD: CITY OF PETP,LUMA,
a municipal corporation
Tax ID#: „9~+J-6000392
By: J hn L. Scharer
Its: ity Manager
a
By; W. Patrick Miller
Its: Director of Public Works
APPROVED AS TO FORM:
~l~[!~ ,~ R~tJ~ fYt ~,..., Prn ~
By: David. Splman
Its: Finance Director
APPROVED AS TO FORM:
~___
€By: Michaels-Acorne
Its: Director of Personnel
APPROVED AS TO FORM;.
7
~~~~~
By: Richard Rudarisky
Its: City Attorney
P;T T
By: Patricia
Its : City Clerk® (`~~TY C~.~P K
TENANT: CAGAL CELLULAR COMMUNICATIONS CORP.
a;C'a_lifornia corporation
By: McCaw. Communications
of Santa `Rosa, Inc.
a California corporation
~~
.~~ .
y: Michael D. Brink-
Its: Regional Site Development Manager
l0
~Q ~ ~~~.~ ~CS.
;~.
State of California
County of
On ___________________, "before me,
Notary Public, personally
appeared personally known to me
(or proved to me on the basis o'f 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 b"ehalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL)
Notary Public
My commission expires.
State of California
County of Sacramento
On (~~~~fi~,~.Ll ; ~, l ~~,~ before me, Penny Riggs, Notary
Public, personally a~peaf`ed `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 on the
instrument., the. person, or the ent-ty upon. behalf of which the
person acted,, executed the instrument.
WITNESS my hand and official seal.
~~ ~,~~~ (SEAL)
Notary P.`ubl
My commission expires: ~ ~~
11
-_ "
• ~ ~
~~~ Notary'?Public-Ccllfornla
-~~ SACRAMENTO COUPI'1Y
My Commissiori Expires
`':~~:= Dec^rn~cr J, }9.93
..~ -
~+R~ L ~~ I~ ~Nc,S