HomeMy WebLinkAboutAgenda Report - February 1, 1995 (61)o�
CITY OF LODI
COUNCIL COMMUNICATION
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AGENDA TITLE: Agreement with Cellular One for Lease of Property at 1331 South Ham Lane
MEETING DATE: February 1, 1995
PREPARED BY: Public Works Director
RECOMMENDED ACTION: That the City Council authorize the City Manager to execute the attached
Lease Agreement with McCaw Communications of Stockton, Inc. for the
purpose of installing an antenna and a small equipment building on City
property.
BACKGROUND, INFORMATION: In November 1994, we received the attached letter from
Cellular One, dated November 1, 1994, which indicated
Cellular One was looking for an antenna site in or near Kofu Park.
Upon evaluation of the Park and Municipal Service Center facilities,
it was determined the City did have an unused area within the Municipal Service Center's open storage
area that could be leased or rented out. This area is shown on Exhibit B of the attached Agreement.
The proposed area is within the fenced open storage of the Municipal Service Center. When developed
by Cellular One, this area will be fenced and will have access off of the public access road in Kofu Park
immediately west of the existing tennis courts. The area of ground we will be leasing is approximately
24 feet by 50 feet. The area will contain an 80 -foot antenna and a 12 -foot by 28 -foot equipment
building. The rent for this parcel of land will be $650 per month. The rent is tied to the Consumer Price
Index for annual adjustments. The tenant will obtain all required permits and will pay all costs involved
in the development of this site.
The City Attorney has reviewed and approved the attached Agreement as to form.
FUNDING: Not applicable. This will provide the City with additional General Fund revenues of $7,800
per year.
J k L. Ronsko
P lic Works Director
JLR/Im
Attachments
cc: City Attorney
Parks and Recreation Director
Finance Director
Cellular One
APPROVED: .+✓�""1�+ r--- ��•
THOMAS A. PETERSON recycled paper
City Manager
CCELLONEAOC 01/2&'&C-'
State: California
Market: Stockton
Cell ID: So. Lodi
5573-95-008
OPTION AND SITE LEASE AGREEMENT
THIS OPTION AND SITE LEASE AGREEMENT (this "Agreement") is entered
into this _ day of January, 1995 between City of Lodi ("Landlord") and
McCaw Communications of Stockton, Inc. ("Tenant").
For the sum of Six Hundred Fifty Dollars ($650.00) the ("Option
Fee") to be paid to Landlord by Tenant within fifteen (15) working days
after full execution of this Agreement and other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
A. OPTION
I. Premises. Subject to the following terms and conditions,
Landlord grants to Tenant an option (the "Option") to lease a portion
(the "Premises") of the real property (the "Property") described in
Exhibit A attached hereto and incorporated herein by this reference.
The Premises, located at 1331 S. Ham Lane, Lodi, CA are comprised of
825 square feet and are situated within the Property as described and/or
depicted in Exhibit 3 attached hereto and incorporated herein by this
reference.
2. Option Term. The Option shall be for an initial term of
twelve (12) months commencing upon the date set forth above (the
"Initial Option Period") and may be extended for an additional twelve
(12) months upon notification to Landlord by Tenant and upon payment of
additional consideration in the sum of Six Hundred Fifty Dollars
($650.00) ("Additional Option Fee") prior to the end of the Initial
Option -Period.
3. Cooperation. During the Initial 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 specifications,
system design, and Governmental Approvals.
4. Exercise of Option. Tenant may exercise this Option by
notifying Landlord in writing prior to the expiration of the Initial
Option Period or any extension thereto that. Tenant is exercising its
Option.
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B. LEASE
5. Lease Term. In the event that Tenant exercises the Option,
the term of this lease (this "Lease") shall be five (5) years,
commencing upon the date Tenant gives written notice to Landlord that
Tenant is exercising its Option ("Commencement Date"), which shall in
any event be prior to the expiration of the Initial Option Period or any
extension thereof, 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 (5) additional five (5) 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 ten (10) days prior to the expiration
of the term or any Renewal Term.
6. Use. The Premises may be used by Tenant for the transmission
and reception of radio communication signals in any and all frequencies,
for the construction and maintenance of related facilities, towers,
antennas, or buildings and for related activities.
7. RENT.
a. Upon the Commencement Date, Tenant shall pay Landlord, as
rent, the sum of Six Hundred Fifty Dollars ($650.00) per month ( "Rent") .
Rent shall be payable on the first day of each month in advance to City
of Lodi at Landlord's address specified in Paragraph 17 below. 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. 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.
C. Rent shall be increased as of the term 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 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 more than Twenty -Five percent (2S*) of the rent for the
previous term. Rent shall not be decreased below the Rent for the
previous term. 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.
d. As additional consideration, Tenant agrees to give to Landlord
three (3) cellular telephones, at no cost to Landlord, not to exceed
Five Hundred Dollars ($500.00) in cost, upon execution of Lease.
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Landlord is responsible for any installation fee and all customary
service charges connected with the use of said cellular telephone,
including but not limited to activation, access, air time, long distance
and toll charges.
8. Interference. 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.
9. 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
transmitting and receiving antennas, and an electronic equipment
(collectively the "Antenna Facilities"). The Antenna Facilities shall
remain the exclusive property of Tenant, and Tenant shall have the right
to remove all or any portion of 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
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 an easement
evidencing this right upon Tenant's request.
C. Landlord shall provide Tenant ingress, egress, and access from
an open and improved public road to the Premises adequate to service the
Premises and the Antenna Facilities at all times during the term of this
Lease or any renewal thereof at no additional charge to Tenant.
Landlord shall execute an easement evidencing this right upon Tenant's
request.
10. 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 (60) days of receipt of written notice of default (without,
however, limiting any other rights available to the parties pursuant to
any other provisions hereof); (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 Tenant's
3
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 which 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 reduction of any foundation
to a depth greater than one foot below grade.
11. 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 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, and Landlord agrees to furnish proof of
such increase to Tenant.
12. Insurance.
a. Tenant will provide Commercial Liability Insurance in an
aggregate amount of $1,000,000.00 and name Landlord as an additional
insured on the policy or policies. Tenant may satisfy this requirement
by obtaining appropriate endorsement to any umbrella policy of liability
insurance Tenant may maintain.
b. Landlord and Tenant agree that in the event of loss or damage
to property due to any peril which is covered by an insurance policy
maintained by either of the parties, the parties shall look solely to
such insurance for recovery, and provided that the loss is covered by
the insurance policy, neither party shall be liable to the other. In
the event of such an insured loss, neither party's insurance company
shall have a subrogated claim against the other party. Prior to
commencement of the Lease, each party shall provide to the other proof,
whether by copy of the policy or endorsement, that it.has obtained the
waiver of subrogation provided by this paragraph.
13. Destruction of Property. If the Property or the Premises are
destroyed or damaged so as, in Tenant's judgment, to hinder the
effective use of the Antenna Facilities, Tenant may elect to terminate
this Lease as of the date of the damage or destruction by so notifying
Landlord not more than forty-five (45) days following the date of
damage. In such event, all rights and obligations 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.
14. Condemnation. If a condemning authority takes all of the
Property, or a portion sufficient, in Tenant's determination to render
the Premises unsuitable 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
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interests in the Property (which for Tenant 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.
15. Indemnity and Hold Harmless. Tenant agrees to 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 arise from the negligent or
intentional acts or omissions of Landlord, its agents or independent
contractors.
16. Richt of First Refusal. This paragraph deleted from
Agreement.
17. Notices. All 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 Lodi
P. 0. Box 3006
221 W. Pine
Lodi, CA 95241-1910
Attn: Thomas A. Peterson, City Manager
If to Tenant, to: Cellular One
1750 Howe Avenue, Suite 102
Sacramento, CA 95825
Attn: Director of Operations
With a copy to: McCaw Cellular Communications, Inc.
Legal Department
1750 Howe Avenue, Suite 300
Sacramento, California 95825
Attention: General Counsel
18. Title and Quiet Enjoyment.
a. Landlord warrants that it (i) has full right, power and
authority to execute this Agreement; and (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 Premises 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
5
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 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 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 hazardous substances have not been generated,
stored or disposed of on the Premises nor have the same been transported
to or over the Premises. "Hazardous substance" 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 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 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 will hold Tenant harmless from and indemnify
Tenant against and from 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.
19. Assignment. Tenant may assign or sublet this Lease upon
notice to Landlord. Any sublease that is entered into by Tenant shall
be subject to the provision of this Lease. Additionally, Tenant may,
upon notice to Landlord, mortgage or grant a security interest in this
Lease and the Antenna Facilities, and may assign this Lease and the
Antenna Facilities. to any such mortgagees or holders of security
interests including their successor or assigns (hereinafter collectively
referred to as "Mortgagees"). In such event, Landlord shall execute
such consent to leasehold financing as may reasonably be required by
Mortgagees. Landlord agrees to notify Tenant and Tenant's Mortgagees
simultaneously of any default by Tenant and to give Mortgagees the same
right to cure any default as Tenant except that the cure period for any
Mortgagee shall not be less than ten (10) days after receipt of the
default notice.
20. 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.
21. Waiver of Landlord's Lien. Landlord hereby waives any and
all lien rights it may have, statutory or otherwise, concerning the
Antenna Facilities or any portion thereof which shall be deemed personal
Ll
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.
22. Miscellaneous.
a. The substantially prevailing party in any litigation or other
proceeding 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
and other agreements. There are no representations 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 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 hereunder 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.
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DATED as of the date first set forth above.
LANDLORD: City of Lodi
TENANT:
By: Thomas A. Peterson
Its: 000.3G!
Tax I.D.#
By: Jennifer M. Perrin
Its: City Clerk
fr
By: Bob McNatt
Its: City Attorney
McCaw Communications of Stockton, Inc.
By: Brian Gavin
Its: Director of Technical Services
8
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
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
State of California
County of Sacramento
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
CALIFORNIA ALL-PURPOSE ACRNOWLEDGN=
STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
On before me, PENNY RIGGS, Notary Public,
personally appeared BRIAN GAVIN.
❑ personally known to me - OR- ❑ 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 executed 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.
WITNESS my hand and official seal.
Penny Riggs, Notary Public
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title Type of Document:
Number of Pages:
Date of Document:
Though the data requested here is not required by law, it could prevent
fraudulent reattachment of this form.
10
EXHIBIT A
to the Agreement dated January _, 1995 between City of Lodi ("Landlord")
and McCaw Communications of Stockton, Inc. ("Tenant").
The Property is legally described as follows:
APN: 031-04-003
1331 S. Ham Lane
Lodi, CA
A survey will replace this Exhibit A within 60 days at leases
execution.
11
EXHIBIT B
to the Agreement dated January _, 1995 between City of Lodi ("Landlord")
and McCaw Communications of Stockton, Inc. ("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.
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CELLULARONE
1750 Howe Avenue, Suite 102, Sacramento, CA 95825 s (916) 923-2222
November 1, 1994
Tom Peterson, City Manager
City of Lodi
221 West Pine Street
Lodi, Ca 95240
Subject: Cellular Communication Site on City of Lodi property
Dear Mr. Peterson,
NOV 0 2 'A
City Manager's Office
Thank you for talking with me today regarding the possibility of entering into an agreement to
lease an area from the City to locate a new cell site near Kofu Park or near the maintenance
facility.
Cellular One has a firm commitment to provide quality cellular service in Lodi by increasing the
capacity for the general public to use cellular phones in your community. Cellular One has
picked an area near the area described above to locate the new cell site.
The proposal includes the following;
* An initial lease term of five (5) years with several five (5) year options to renew.
* Monthly lease payment to begin at $650 per month, with rental to increase by an amount
equal to the CPI each five year term.
* The area to be leased would be large enough to place a 12' by 28' equipment shelter and
erect a 100' monopole, an area approximately 600 to 750 sq. it.
* Cellular One would extend power and telco services to the site, and utility service would
be separately metered.
* Cellular One would need twenty four (24) hour access to the site, subject to the security
procedures in force on your property.
It would be helpful for both parties to set-up a joint meeting including City Officials and Cellular
One staff to answer any questions, and then if it appears the proposal is acceptable to both
parties, we could provide you with a lease agreement for your review.
I look forward to hearing from you. Please call me at 916-648-7530 (office) or 916-947-8692
which is my cellular number.
Very truly yours,
L G Lyle
Site Acquisition Consultant
CITY COUNCIL
STEPHEN J. MANN, Mayor
DAVID P. WARNER
Mayor Pro Tempore
RAY C. DAVENPORT
PHILLIP A. PENNINO
JACK A. SIECLOCK
Mr. L. G. Lyle,
Cellular One
1750 Howe Ave.,
Sacramento, CA
CITY OF NODI
CITY HALL, 221 WEST PINE STREET
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6706
FAX (209) 333-6795
January 26, 1995
Site Acquisition Consultant
Ste. 102
95825
THOMAS A. PETERSON
City Manager
JENNIFER M.PERRIN
City Clerk
808 McNATT
City Attorney
SUBJECT: Agreement with Cellular One for Lease of Property at 1331 South Ham Lane
Enclosed is a copy of background information on an item on the City Council agenda of
Wednesday, February 1, 1995, at 7 p.m. The meeting will be held in the City Council
Chamber, Camegie Forum, 305 West Pine Street.
This item is on the consent calendar and is usually not discussed unless a
Council Member requests discussion. I will be sharing with the City Council that we are
still discussing the exact dimension of the site. The public is given an opportunity to
address items on the consent calendar at the appropriate time.
If you wish to write to the City Council, please address your letter to City Council,
City of Lodi, P. O. Box 3006, Lodi, California, 95241-1910. Be sure to allow time for
the mail. Or, you may hand -deliver the letter to City Hall, 221 West Pine Street.
If you wish to address the Council at the Council meeting, be sure to fill out a speakers
card (available at the Camegie Forum immediately prior to the start of the meeting) and
give it to the City Clerk. If you have any questions about communicating with the
Council, please contact Jennifer Perrin, City Clerk, at (209) 333-6702.
If you have any qu tions about the item itself, please call me at (209) 333-6709.
Jack L Ronsko
ubli orks Director
JUVIrn
Enclosure
cc: City Clerk
NCELLONE.DOC
CITY COUNCIL
STEPHEN J. MANN, Mayor
DAVID P. WARNER
Mayor Pro Tempore
RAY C. DAVENPORT
PHILLIP A. PENNINO
JACK A. SIECLOCK
CITY OF LODI
CITY HALL, 221 WEST PINE STREET
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6706
FAX (209) 333-6795
February 3, 1995
Cellular One
Attention L. G. Lyle
1750 Howe Avenue, Suite 102
Sacramento, CA 95825
SUBJECT: Approval of Agreement Between City of Lodi and McGaw
Communications
THOMAS A. PETERSON
City Manager
JENNIFER M. PERRIN
City Clerk
BOB McNATT
City Attorney
The City Council at its meeting of February 1, 1995, approved the agreement
submitted to us, conditioned upon the changes shown on the enclosed sheets
being made. The execution of this agreement by the City Manager will be held
until we can work out the exact dimensions of the site, location of antenna,
gates, access easements, etc., and the attached changes are made in the final
agreement.
If you have any questions concerning the Council approval, please contact me.
rack LR o nVsk o
Public orks Director
JLR/pmf
Enclosure - 4 sheets
cc: City Attorney
City Clerk
CELLULAR.DOC
State: California
Market: Stockton
Cell ID: So. Lodi
5573-95-008
OPTION AND SITE LEASE AGREMY1ENT
THIS OPTION AND SITE LEASE AGREEMENT (this "Agreement") is entered
into this day of January, 1995 between City of Lodi ("Landlord") and
McCaw Communications of Stockton, Inc. ("Tenant")
For the sum of Six Hundred Fifty Dollars ($650.00) the ("option
Fee") to be paid to Landlord by Tenant within fifteen (15) working days
r 4 after full execution of this Agreement and other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
A. OPT?ON
S
h 1. Premises. Subject to the following terms and conditions,
v� Landlord grants to Tenant an option (the "Option") to lease a portion
(the "Premises") of the real property (the "Property") described in
Exhibit A attached hereto and incorporated herein by this reference.
The Premises, located at 1331 S. Ham Lane, Lodi, CA are comprised of
825)square feet and are situated within the Property as described and/or
epicted in Exhibit B attached hereto and incorporated herein by this
reference.
2. Option Term. The option shall be for an initial term of
twelve (12) months commencing upon the date set forth above (the
"Initial Option Period") and may be extended for an additional twelve
(12) months upon notification to Landlord by Tenant and upon payment of
additional consideration in the sum of Six Hundred Fifty Dollars
($650.00) ("Additional Option Fee") prior to the end of the Initial
Option -Period.
3. Cooperation. During the Initial 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 specifications,
system design, and Governmental Approvals.
4. Exercise of Option. Tenant may exercise this Option by
notifying Landlord in writing prior to the expiration of the Initial
Option Period or any extension thereto that. Tenant is exercising its
Option.
B. LEASE
5. Lease Term. In the event that Tenant exercises the Option,
the term of this lease (this "Lease") shall be five (5) years,
commencing upon the date Tenant gives written notice to Landlord that
Tenant is exercising its Option ("Commencement Date"), which shall in
any event be prior to the expiration of the Initial Option Period or any
extension thereof, 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 (5) additional five (5) 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 ten (10) days prior to the expiration
of the term or any Renewal Term.
6. Use. The Premises may be used by Tenant for the transmission
and reception of radio communication signals in any and all frequencies,
for the construction and maintenance of related facilities, towers,
antennas, or buildings and for related activities.
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7. RENT. OCCCV04"a" Fr.X.to••.tr•
A.
a. Upon the Commencement Date, Tenant shall pay Landlord, as
rent, the sum of Six Hundred Fifty Dollars ($650.00) per month ("Rent").
Rent shall be payable on the first day of each month in advance to City
of Lodi at Landlord's address specified in Paragraph 17 below. 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. 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.
C. Rent shall be increased as of the term 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 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 more than Twenty -Five percent (25%) of the rent for the
previous term. Rent shall not be decreased below the Rent for the
previous term. 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.
d. As additional consideration,
three (3) cellular telephones, at no
Five Hundred Dollars ($500.00) in
Tenant agrees to give to Landlord
cost to Landlord, not to exceed
cost, upon execution of Lease.
2
Landlord is responsible for any installation fee and all customary
service charges connected with the use of said cellular telephone,
including but not limited to activation, access, air time, long distance
and toll charges.
8. Interference. 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'saidinterference. 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.
9. 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
transmitting and receiving antennas, and an electronic equipment
(collectively the "Antenna Facilities"). The Antenna Facilities shall
remain the exclusive property of Tenant, and Tenant shall have the right
to remove all or any portion of the Antenna Facilities during the term
and following any termination of this Lease.
bTenant 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
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 an easement
evidencing this ri ht u�%on Tenant' s re,{�'est . �^tib ^"`�! "`�*`� � E,�gnr�
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C. Landlord shall provide Tenant ingress, egress, and access from
an open and improved public road to the Premises adequate to service the
Premises and the Antenna Facilities at all times during the term of this
Lease or any renewal thereof at no additional charge to Tenant.
Landlord shall execute an easement evidencing this right upon Tenant's
request. L4nd-t J,--1 1o411¢t e'- ✓tla f44i I kT �Grta �,{'J fK�Y-�3t S✓cLi e45�.t`,�s
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10. 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 (60) days of receipt of written notice of default (without,
however, limiting any other rights available to the parties pursuant to
any other provisions hereof); (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 Tenant's
hti�t
T41 tA 04
y EXHIBIT B
to the Agreement dated January _, 1995 between City of Lodi ("Landlord")
and McCaw Communications of Stockton, Inc. ("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.
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