AT&T - 1997 Agreement for Hecker Pass Cell Tower Lease
MICROCELL SITE LEASE
This MICROCELL SITE LEASE is dated as of December 12,
1997, between BAY AREA CELLULAR TELEPHONE
COMPANY, a California general partnership, doing business as
Cellular One ("CellularOne") having its principal place of business
at 651 Gateway Blvd., Ste. 1500, South San Francisco, CA
94080, Attn. Director, Systems Development, and THE CITY
OF GILROY, a California municipal corporation ("Lessor"),
having its principal place of business at 7351 Rosanna St.,
Gilroy, CA 95020-6141.
1. The Site. Lessor is the record owner of that certain parcel
of real property located in the State of California, County of Santa
Clara, City of Gilroy, commonly known as City of Gilroy Reservoir
D at 2256 Coral Bell Crt. also known as Assessor's Parcel No.
783-46-081 and for which a legal description is attached as
Exhibit A (the "Site").
2. Le~se of ~he Premises.
(a) Premises. Lessor hereby leases to CellularOne and
CellularOne leases from Lessor that portion of the Site generally
described as follows: approximately one hundred thirty (130)
square feet of ground space east of the water tank located on the
site for location of CellularOne's communications equipment
cabinet and space at the twenty-four foot (24') level of the thirty
foot (30') lattice tower (the "Tower") to be constructed by
CellularOne on the east side of the water tank for the placement
of up to three cellular telephone antennas for use by CellularOne
(collectively the "Premises") as shown for legal purposes in
attached Exhibit B. Following CellularOne's construction of the
Tower, CellularOne shall accept the Premises in its as is
condition; without any representation or warranty of any kind,
express or implied, and subject to all applicable laws.
(b) CellularOne Improvements. Following the
Commencement Date (defined herein), CellularOne shall
construct on the Premises a communications facility consisting
of a communications equipment cabinet, three cellular telephone
antennas and related mounting improvements and cabling and
conduit (referred to herein as the MicroCell Site, as further
defined in Section 6, below) provided that such Microcell Site is
constructed in a good and workman like manner and in
substantial conformance with the plans attached as Exhibit B
which were submitted to and approved by Lessor's Planning
Division on September 3, 1997. In addition to constructing the
Microcell Site, CellularOne shall construct or install certain
improvements. for Lessor's own use, which improvements shall
consist of the Tower, Lessor's equipment shelter and the
foundation therefor (together "Lessor's Facility"). Lessor's
Facility shall be constructed in a good and workmanlike manner
and in substantial conformance with Exhibit B, and shall be
completed by December 1, 1997. Upon substantial completion of
Lessor's Facility and reasonable acceptance thereof by Lessor,
Lessor shall reimburse CellularOne for CellularOne's actual costs .
of constructing and installing Lessor's Facility up to the amount of
Twenty Thousand Dollars ($20,000.00). CellularOne shall provide
Lessor with an accounting reasonably acceptable to Lessor of
such actual costs. Following construction thereof, Lessor's
Facility, including the Tower, shall be the property of Lessor, and
Lessor shall be responsible for maintaining Lessor's Facilities,
including the Tower. Lessor shall maintain the Tower in a manner
consistent with all federal, state and local laws, ordinances, rules
and regulations, and in a manner consistent with standard
industry practices (collectively, "Regulations"). CellularOne shall
install and maintain all its Equipment at the Site in accordance
SITE NAME: HECKER PASS
SITE No: 520
with all Regulations. CellularOne shall obtain all necessary
governmental approvals and permits prior to commencing
construction and shall provide Lessor with at least ten (10) days'
written notice prior to the start of construction in order to enable
Lessor to post notices of non-responsibility. All CellularOne
contractors and subcontractors shall be duly licensed in the state
of California, and CellularOne shall indemnify, defend and hold
Lessor harmless from and against any mechanic's or
materialmen's liens against the Site that arise from CellularOne's
work on the Site (except to the extent of any amount required to
be paid by Lessor to CellularOne for construction of Lessor's
Facilities, which amount remains unpaid). CellularOne shall obtain
the consent of Lessor in its capacity as landowner, which shall
not be unreasonably withheld, and shall obtain all necessary
governmental permits and authorizations, for any modifications
required to accommodate the MicroCell Site not shown in Exhibit
B. Any approvals to be obtained by Lessor in Lessor's
governmental capacity shall be subject to normal City processes
and procedures and shall not be governed by any consent
standard applicable to Lessor in its capacity as the landowner
under this Lease. Notwithstanding the foregoing, Lessor
acknowledges that certain non-material modifications to the
Premises not shown on Exhibit B may ~ required to
accommodate construction and operation of the MicroCell Site .
which would not require amendment of the use permit granted for.
the MicroCell Site (such as orientation of the equipment cabinet),.
which modifications CellularOnemay complete without further
approval by Lessor.
3. 1kn.1.
(a) Base Rent. CellularOne shall pay to Lessor as rent the sum
of Nine Hundred Dollars ($900.00) ("Base Rent") per month, due
and payable on the first day of each month, in advance.
commencing on the Commencement Date and continuing during
the term. Base Rent shall be paid without deduction, offset, prior
notice or demand, in U.S. currency at the address first set fbrth
above, or at such other address as Lessor shall designate from
time to time. Rent for any partial month shall be prorated.
(b) Utility Charge. CellularOne shall install separate utility
meters or submeters for the Premises and shall be responsiblr:
directly to the serving utilities for all utility service required for
CellularOne's use of the Premises. A separate utility meter or
submeter shall be installed for Lessor's Facility, the cost of which
installation shall be the responsibility of Lessor and shall not be
included in the reimbursement described in Section 2(b), above.
Lessor shall not be responsible for any failure or interruption of
utilities to the Premises, provided, however that if such failure or
interruption is caused by Lessor, Lessor shall be responsible for
repairing any resulting damage to such utilities or to CellularOne's
equipment.
(c) Annual Adjustment to Rent. Throughout the term of this
Lease, including any extension terms, the Base Rent shall be
subject to adjustment on each anniversary of the Commencement
Date (the "Adjustment Date(s)") based upon the Consumer Price
Index, All Urban Consumers (CPI-U), San Francisco-Oakland-San
Jose Area, All items (standard reference base period 1982-84 =
100) published by the U.S. Department of Labor, Bureau of Labor
Statistics (the "Index"), in effect on the Commencement Date (the
"Beginning Index"). If the Index published most immediately
preceding the Adjustment Date in question (the "Adjustment
Index") has increased over the Beginning Index, the monthly rent
for the period following the Adjustment Date in question and until
the next Adjustment Date shall be set by multiplying the Base
Rent in effect immediately before the adjustment by a fraction;
the numerator of which is the Adjustment Index and the
denominator of which is the Beginning Index. In no case shall the
monthly rent be less than the Section 3(a) Base Rent and in no
case shall the monthly rent increase by more than eight percent
(8%) of the Base Rent in effect immediately before the adjustment
on any Adjustment Date. If the Index is changed the Index shall
be converted in accordance with the conversion factor published
by the U.S. Department of Labor, Bureau of Labor Statistics. If
the Index is discontinued .or revised, such other government
index or computation with which it is replaced shall be used.
(d) Late Payments. If CellularOne fails to make any rental
payment when due, the same shall bear interest at the rate of ten
percent (10%) per annum from the date.that is ten (10) days
following the date that the rental payment was due until the date
of payment.
(e) Additional Rent. CellularOne shall pay as "Additional
Rent" all sums required to be paid by CellularOne pursuant to this
Lease. Lessor shall have the same rights and remedies for the
non-payment of Additional Rent as it has with respect to non-
payment of Base Rent.
tf",.Tflrm aI ~,~ This Lease shall be for an initial term of
five (5) years commencing on the Commencement Date. Provided
the Lease is in full force and effect immediately prior to such
renewal, the lease term will automatically renew on the same .
terms and conditions at the expiration of the initial term or any
. subsequent extension term for a total of three (3) optional
extension terms of five (5) years each unless CellularOne gives
Lessor notice of its intention not to renew any such five year term
not less than sixty (60) days prior to the expiration of the then
current term.
5. Commencement Date: Governmental Permits. The
initial term of this Lease shall commence on December 1, 1997
(the "Commencement Date"). CellularOne shall be permitted to
occupy the Premises and . commence construction of the
Microcell Site upon receipt of all such permits and approvals and
notice to Lessor as required in Section 2.
6. Use of. the Premises. CellularOne shall use the
Premises as one of CellularOne's communications sites (a
"MicroCell Site") comprising CellularOne's system (the "System")
for furnishing all cellular telephone, radio and telecommunications
services to the public that CellularOne is legally authorized to
provide during the term of this Lease, and for no other purposes
without Lessor's consent, which consent may be withheld in
Lessor's sole discretion. CellularOne may not display any signs
at the Site without the prior written approval of Lessor.
7. Easement. Lessor hereby grants to CellularOne for the
duration of this Lease an unimpaired, non-exclusive,irrevocable
license (which license shall terminate upon the expiration or
earlier termination of this Lease) in and over the following portions
of the Site (collectively the "Access Areas"): the paved path to
the Premises shown in Exhibit B (the "Access Road"), the
overhead or underground cable and utility runs which may be
shown in Exhibit B (the "Service Easement"), and all areas
necessary to provide physical access by personnel and
equipment from the nearest public right of way, and utilities from
the nearest service, to or from the Premises, provided that the
location of such areas shall be subject to Lessor's reasonable
approval. The rights granted to CellularOne herein are for the
purpose of installing, constructing, maintaining, restoring,
replacing, and operating CellularOne's equipment located within
or on the Premises or such Access Areas. Such rights shall
include the right of ingress and egress, twenty-four (24) hours per
day, seven (7) days per week over such Access Areas for
access to or from any of CellularOne's equipment. CellularOne
agrees to maintain the Access Road at its expense, except that
Lessor shall reimburse CellularOne for the cost of repairing
damage to the Access Road to the extent such damage is caused
by Lessor. Notwithstanding the foregoing, Lessor shall not be in
default under this Section if: (a) CellularOne's license is impaired
by causes beyond the control of Lessor so long as CellularOne
has the right (to the extent Lessor has the authority to grant such
right) to correct such impairment, or (b) if Lessor temporarily
needs to impair CellularOne's access in an emergency situation
to protect public health, safety or welfare.
8. Protections Aaalnst Interference. L~ssor shaH
provide CellularOne with notice of any proposed installation. of
communication antennas on the Site. Lessor will not grant rights
to any party for use of the Site, nor materially modify its use of the
Site, if such new use would materially interfere with CellularOne's
operation of the System or would diminish CellularOne's signa1
quality .for the area serviced by the MicroCell Site. The foregoing
shall not restrict Lessor's right to install and operate new
communications equipment at the Site for its own use in
connection with protecting public health, welfare or safety so long
as such new equipment does not materially interfere with the
operation of the Microcell Site, and so long as Lessor operates
said equipment within its duly assigned frequencies and in
accordance wit~ all- applicable F.C.C. rules and regulations.
CellularOneshall have the right to terminate this Lease upon
thirty (30) days prior written notice to Lessor in the event future
equipment installed by Lessor materially interferes with
CellularOne's operation of the Microcell Site or CellularOne'g
System. Any future lease or license of the Site which permits the
installation of communication equipment shall be conditioned
upon not materially interfering with CellularOne's operation of the
System, including the MicroCell Site, or diminishing CellularOne's
signal quality for the area serviced by the MicroCeIl Site. Except
with respect to new communications equipment being operated by
Lessor in connection with protecting public health, welfare or
safety, which equipment is operated within its assigned
frequencies and in compliance with all applicable F.C.C. Rules
and Regulations, CellularOne shall not be required to modify the.
MicroCell Site to prevent interference with any . new
communications equipment at the Site so long as CellularOne
operates the MicroCell Site within its assigned frequencies and in
compliance with all applicable FCC Rules and Regulations.
9. Damaae. Destruction and Condemnation. If the
Premises are damaged or destroyed then: (1) if the damage or
destruction is sufficient to prevent reconstruction of the MicroCell
Site, then upon CellularOne's election and notice to Lessor this
Lease shall terminate and CellularOne shall be liable for the rent
only up to the time of such termination; but (2) if still usable for
construction and operation of a MicroCell Site, Lessor shall have
no obligation to repair the Premises, but CellularOne shall have
the right to repair the Premises and to erect temporary or new
antenna facilities as necessary for use as a MicroCell Site,
provided CellularOne first obtains all necessary permits and other
governmental approvals for such temporary or new facilities. A
decision as to whether the destroyed Premises (or condemned
Premises for purposes of Section 10) are suitable for use as a
MicroCell Site shall be reasonably made by CellularOne. If all or
part of the Premises is taken by condemnation and are no longer
usable as a MicroCell Site, this Lease shall terminate unless
CellularOne's equipment and improvements can be relocated on
the Site to a position acceptable to Lessor and CellularOne
(determined in each party's sole discretion and without obligation
of either party to agree to a relocation). In no event shall any
damage, destruction or condemnation result in any abatement of
rent if such damage or destruction resulted from causes beyond
the reasonable control of Lessor.
"
10. Need to Prevent Unsuoervised Access. Lessor
shall never access or disturb CellularOne's antennas or
equipment except in an emergency. In case of emergency
requiring Lessor access to CellularOne's equipment, Lessor shall
first call CellularOne's Network Management Center at (800)481-
9500.
11. Default. Remedies and Termination.
(a) CellularOne Default. CellularOne shall be in default
under this Lease upon the occurrence of any of the following: (a)
failure by CgllularOne to pay rent when due if such failure shall
continue for more than ten (10) days after notice to CellularOne of
such failure; or (b) failure by CellularOne to comply with any
material term, condition or covenant of this Lease, other than the
payment of rent, if such failure is not cured within thirty (30) days
after written notice to CellularOne, or in the event of a cure which
requires in excess of thirty (30) days to complete, if CellularOne
has not commenced such cure within thirty (30) days of such
notice and is not diligently prosecuting said cure to completion.
(b) Lessor Remedies. In the event of a default by
CellularOne as provided in 11 (a), above, Lessor shall have the
right to terminate the Lease and recover damages in accordance
with California Civil Code Section 1951.2; Lessor shall have the
remedy described in California Civil Code Section 1951.4 (Le.
Lessor may continue the Lease in effect and recover rent as it
becomes due, if CellularOne has the right to sublet or assign,
subject only to reasonable limitations); and Lessor shall have all
other rights and remedies provided by law, in equity or as
otherwise provided in this Lease, to which Lessor may resort
cumulatively or in the alternative. No act by Lessor, other than
the giving of written notice of termination to CellularOne shall
terminate this Lease. Acts of maintenance, efforts toreJet the
Premise$ or the appointment of a receiver to protect Lessor's
interest shall not constitute a termination of CellularOne's right to
possession. No delay or omission of Lessor to exercise any right
or remedy shall be construed as a waiver of such right or remedy
or of any default by CellularOne hereunder. CellularOne agrees
that the limitations in this Lease on assignment, subletting and
other transfers are reasonable.
(c) Termination by CellularOne. CellularOne may
terminate this Lease for cause upon the giving of thirty (30) days'
written notice if: (a) CellularOne fails to obtain or loses any
necessary permits, approvals or orders and is thereby unable to
use the Premises as a MicroCell Site; or (b) Lessor fails to comply
with any term, condition or covenant of this Lease and does not
cure such failure within thirty (30) days of CellularOne's notice or
in the event of a cure which requires in excess of thirty (30) days
to complete, if Lessor has not commenced such cure within thirty
(30) days of such notice and is not diligently prosecuting said
cure to completion. Notwithstanding any other provisions of this
Lease, in no event shall Lessor be liable to CellularOne for
consequential damages, or loss of CellularOne's business,
including without limitation lost profits.
12. Insurance and Indemnltv.
(a) Liability Insurance. At all times during the Term of this
Lease, CellularOne, at its own cost and expense, shall maintain in
effect workmen's compensation insurance in the minimum
amounts required by law and comprehensive commercial general
liability and property damage insurance, with minimum limits of
One Million Dollars ($1,000,000) per occurrence and aggregate,
combined single limit for both bodily injury and property damage
which includes blanket contractual liability, broad form property
damage, personal injury, completed operations, products liability
and fire damage legal (which fire damage legal amount shall not be
less than $25,000.00). The minimum limits specified above are
the minimum amounts required by Lessor, and may be reasonably
revised by Lessor from time to time to meet changed
circumstances, including without limitation changes in the dollar's
purchasing power and changes consistent with the standards of
other landlords of similar premises in the county in which the
Premises are located. All such insurance shall specifically insure
CellularOne's performance of the indemnity defense and hold
harmless provisions of Section 12(d), although CellularOne's
obligations pursuant to Section 12(d) shall not be limited to the
amount of any insurance required of or carried by CellularOne
under this Section 12(a) and CellularOne is responsible for
insuring that the amount of any liability insurance carried by
CellularOne is sufficient for CellularOne's purposes.
(b) Property Insurance. CellularOne shall at all time during
the Term of this Lease, at its own cost and expense, maintain in
effect policies of insurance covering its trade fixtures, personal
property and equipment located on the Premises in an amount not
less than their full replacement value, providing protection on an
"All Risk bases, which shall include, without limitation, vandalism
and malicious mischief.
(c) Lessor Approval. All insurance required to be carried by
CellularOne hereunder shall be with. companies, on forms and with
loss payable clauses reasonably acceptable to Lessor, and
certificates evidencing such insurance. shall. be delivered by
CellularOne upon execution of this Lease by CellularOne and
delivery of the Lease to Lessor, and a new certificate shall be
delivered to Lessor at least fifteen (15) days prior to the
expiration or cancellation of an insurance policy. Lessor shall
receive not less than fifteen (15) days' notice prior to the
cancellation of any such policy. All policies to by carried by
CellularOne under this Lease shall name Lessor and Lessor's
agents, employees and designated lenders as. additional
insureds. Said insurance shall contain cross liability
endorsements. CellularOne shall also maintain insurance for
perils usual to a standard "all risk" insurance policy on all its
equipment, personal property, fixtures, tenant improvements and
alterations in, on or about the Premises.. Such policies shall
provide coverage on a per occurrence basis and not on a claims
made basis.
12(d) Indemnity. CellularOne hereby agrees to defend,
indemnify, and hold harmless Lessor and Lessor's employees
and agents from and against any and all claims, damage, loss,
liability or expense, including, without limitation, reasonable
attorneys' fees and legal costs, due to any cause including
without limitation, bodily injury and property damage, which arises
from the use or occupancy of the Premises or any part thereof by
CellularOne or CellularOne's agents, or the acts or omissions of
CellularOne or CellularOne's agents, or CellularOne's default
under this Lease, except to the extent caused by the willful
misconduct or sole negligence of Lessor CellularOne's obligation
under this paragraph to indemnify and hold the other party
harmless shall be limited to the sum that exceeds the amount of
insurance proceeds, if any, received by the indemnified party.
This provision shall survive the expiration or sooner termination of
this Lease.
12(e) Lessor's Disclaimer. Lessor shall not be liable to
CellularOne for any loss or damages arising out of personal
injuries or property damage on the Premises except to the extent
caused by the sole negligence or willful misconduct of Lessor
13. Warranties and Covenants of Lessor. Lessor
warrants and covenants that: (a) Lessor has legal right to
possession of the Premises and the power and the right to enter
into this Lease and that CellularOne, upon the faithful
performance of all of the terms, conditions and obligations of
.,
CellularOne contained in this Lease, shall peaceably and quietly
hold and enjoy the Premises upon the terms, covenants and
conditions set forth in this Lease throughout the term of this
Lease; (b) Lessor shall deliver the Premises to CellularOne clean
and free of debris on the Commencement Date and shall maintain
the Tower in a manner that does not interfere with Tenant's use of
the Premises; (c) Lessor shall make available to CellularOne at
the Premises, all presently existing utility services required by
CellularOne for purposes of the operation of CellularOne's
equipment at the Premises, provided that CellularOne may at its
own expense install any additional utilities service facilities which
are so required to the extent such utilities are available from the
utility supplier; (d) Lessor shall maintain at its expense
throughout the term of this Lease a policy of property insurance
for perils usual to a standard "all risk" insurance policy in an
amount equal to the full replacement cost of the Tower excepting
CellularOne's fixtures, equipment, personal property, tenant
improvements and alterations; and (f) CellularOne shall have
access to the Premises from the nearest public way at all times,
subject to the provisions of Section 7, above.
14. Title To and Removal Of CellularOne's
Eauloment: Surrender. Title to CellularOne's equipment,
and all improvements installed at and affixed to the Premises by
CellularOne, other than Lessor's Facilities, shall be and shall
remain the property of CellularOne. CellularOne may, at any time,
and shall when it vacates the Premises, remove CelltJlarOne's
equipment, fixtures,. all improvements installed at the Premises
by CellularOne other. than Lessor's Facilities, and all of
CellularOne's personal property from the Premises. Upon
termination of this Lease, CellularOne shall remove CellularOne's
equipment, fixtures, and all improvements installed at the
Premises by CellularOne other than Lessor's Facilities, and all of
CellularOne's personal property, and shall surrender the
Premises in as good order and condition as when first occupied
by CellularOne, normal wear and tear and damage by fire or other
casualty excepted.
15. Holdlna Over. If CellularOne holds over with Lessor's
consent after this Lease has been terminated, the tenancy shall
be month-to-month, subject to the provisions of this Lease.
16. Notices and Other Communications. Notices
required by this Lease shall be delivered by (i) personal delivery
(including delivery by overnight courier service which obtains
confirmation of receipt) or (ii) postage prepaid return receipt
requested certified mail, addressed to the party for whom
intended at the addresses appearing in the first paragraph above
or such other address as the intended recipient may designate by
written notice. A copy of each notice to CellularOne shall be sent
to: Paul Albritton, Mackenzie & Albritton, One Post St., Ste. 500,
S.F., CA 94104.
17. Mutual Release: Waivers Of SubroQatlon. The
parties release each. other, and their respective authorized
representatives, from any claims for damage to the Premises and
the Tower and other improvements in which the Premises are
located, and to the fixtures, personal property, tenant
improvements, and alterations of either Lessor or CellularOne in
or on the Premises and the Tower and other improvements in
which the Premises are located to the extent such damage is
insured against under property insurance policies carried by the
parties and in force at the time of any such damage. Each party
shall cause each insurance policy obtained by it to provide that
the insurance company waives all right of recovery by way of
subrogation against either party in connection with any damage
. covered by any policy. Neither party shall be liable to the other
for any damage caused by any risks insured against under any
insurance policy required by this Lease to the extent such waiver
is permitted under the parties' insurance policies and does not
prejudice coverage under such policies.
18. Confidential Information. In connection with this
Lease, and Lessor's access to the Premises, CellularOne has or
will disclose to Lessor certain information which is non-public,
confidential and/or proprietary in nature, including, without
limitation, CellularOne equipment specifications and any studies
or documents prepared in connection with this Lease, all of which
are referred to herein as "Confidential Information". Provided
CellularOne prominently marks as "Trade Secrets. such
documents thatCellul.arOne wants kept confidential Lessor shall
not disclose Confidential Information to any third party without the
express written authorization of CellularOne; except (a) only after
Lessor has given CellularOne seven (7) days' prior written notice
that it intends to make such disclosure, (b) in confidence, to legal
counsel, technical consultants, financing sources and
prospective purchasers of the Site with a "need to know"; or (c)
regarding the enforcement of this Lease. A breach or threatened
breach of this covenant will result in irreparable and continuing
damage to CellularOne without adequate remedy at law which
Lessor agrees shall entitle CellularOne to injunctive relief and/or a
decree of specific performance.
19. Waivers: Written Agreement to Govern:
Attornevs'Fees. Any waiver of any right under this Lease
must be in writing and signed by the waiving party. This Lease is
the entire understanding between the parties relating to the
. subjects it covers. The prevailing party in any action or
proceeding brought to enforce this Lease shall be entitled to
recover its reasonable attbrneys'fees, costs, and expenses in
connection with such action or proceeding from the other party.
20. T a xes. CellularOne shall pay, before the same become
delinquent, all Taxes imposed against Landlord or CellularOne in
connection with this Lease, the Premises, or attributable to the
value of the improvements placed upon the Premises, including,
without limitation, general or special assessments assessed
during the Lease term against any leasehold interest or trade
fixtures or personal property of any kind, owned or leased by or
used in connection with the Premises by CellularOne (provided
CellularOne shall have the right, at no cost to Lessor and without
causing a lien to be placed against the Site, to contest with the
taxiing authorities any such taxes which duplicate unitary taxes
paid by CellularOne as a public utility to the State Board of
Equalization). As used in this Lease, Taxes means any form of
assessment,license, fee, rent tax, levy or tax (other than net
income, estate, successor or inheritance taxes or any charge
against Lessor's Facility), now or hereafter imposed by any
authority having the direct or indirect power to tax or by any city,
county, state or federal government or any improvement or other
district or division thereof, whether or not now customary or within
the contemplation of the parties, ordinary or extraordinary,
general or special, or resulting from increased rate or valuation,
together with any taxes levied or assessed in lieu of, in
substitution for, or in addition to existing taxes and assessments
on the Premises or resulting from CellularOne's improvements on
the Premises, including without limitation any possessory interest
tax. In connection with the California Revenue and Taxation Code
Section 107.6, Landlord states and CellularOne acknowledges
that by entering into this Lease, a possessory interest subject to
property taxes may be created. CellularOne or other parties in
whom the possessory interest is vested may be subject to the
payment of property taxes levied on such interest. If such Taxes
are assessed, levied or imposed upon Lessor or any portion of
the Premises, Lessor shall give CellularOne a statement with
supporting documentation of the amount. applicable to the
Premises. If a separate assessment of CellularOne's
improvements is not available from the applicable governmental
authority, Landlord's good faith allocation shall be binding on
CellularOne. CellularOne shall pay Landlord for such Taxes within
ten (10) days of demand therefor.
21. Hazardous Substances. CellularOne agrees that it will
not use, generate, store or dispose of any Hazardous Material
(defined herein) on, under, about or within the Site except for
such Hazardous Materials as may be contained in sealed
components of commercially available products such as
batteries, which are disposed of off-site in compliance with all
applicable federal, state or local laws and regulations. Lessor
represents warrants and agrees that Les~or will not, and will not
knowingly permit any third party to, use generate, store or
dispose of any Hazardous Material on, under, about or within the
Site in violation of any law or regulation. Lessor and CellularOne
each agree to defend, indemnify and hold harmless the other and
the other's partners, affiliates, agents and employees against
any and all losses, liabilities, claims and/or costs (including
reasonable attorney's fees and costs) arising from any breach of
any representation, warranty or agreement contained in this
Section. As used in this Section, "Hazardous Material" shall
mean petroleum or any petroleum product, asbestos, any
substance known by the state of California to cause cancer
and/or reproductive toxicity, and/or any substance, chemical or
waste that is identified as hazardous, toxic or dangerous in any
applicable federal, state or local law or regulation.
22. Asslanment and Sublettina. CellularOne shall not
assign, sublet or otherwise transfer all or any part of
CellularOne's interest in this Lease without Lessor's prior written
consent, which Lessor shall not unreasonably withhold. In no
event shall CellularOne encumber its interest in this Lease, the
Premises or any improvements located thereon. Notwithstanding
the foregoing, CellularOne may assign or sublet the Premises, or
any portion thereof, without Lessor's consent, to any entity which
controls, is controlled by, or is under the common control with
CellularOne, or to any entity resulting from any merger or
consolidation with CellularOne, or to any partner of CellularOne or
to any partnership in which CellularOne is a general partner, or to
any person or entity which acquires all of the assets of
CellularOne as a going concern, or to any entity which obtains a
security interest in a substantial portion of CellularOne's assets.
Any such assignment, subletting or transfer shall not relieve
CellularOne of its obligations under this Lease. Any assignee
shall also assume and be bound to perform all of the obligations of
CellularOne under this Lease. Should Lessor sell, lease, transfer
or otherwise convey ("Transfer") all or any part of the Site to any
transferee other than CellularOne, then such Transfer shall be
subject to this Lease and all of CellularOne's rights hereunder and
the easement rights of CellularOne to the Access Areas, and
CellularOne agrees to attorn to such transferee provided such
transferee agrees not to disturb CellularOne in its tenancy under
the terms of this Lease so long as CellularOne does not default
under this Lease. Upon any such Transfer by Lessor, Lessor
shall be relieved of any and all obligations on the part of Lessor
accruing from and after the date of the Transfer.
23. Condemnation. If all or part of the Premises is taken by
condemnation such that the Premises are no longer usable as a
MicroCeIl Site, this Lease shall terminate unless CellularOne's
equipment and improvements can be relocated to another
position at the Site acceptable to Lessor and CellularOne.
CellularOne shall be entitled only to that portion of the proceeds
of condemnation which is directly attributable to the value and
cost of relocation of CellularOne's equipment and improvements.
(the position of any such relocation shall be determined mutually
by the parties, which determination shall be made in each party's
sole discretion and without obligation of either party to agree to a
relocation).
24. Further Assurances. In addition to the actions
specifically mentioned in this Lease, the parties shall each do
whatever may be reasonably necessary to accomplish the
transactions contemplated by this Lease including, without
limitation, execution of all applications, permits and approvals
required of Lessor (in its capacity as lessor and not in its
legislative or governmental capacity) for construction of the
MicroCeIl Site by CellularOne; execution of IRS Form W-9; and a
Memorandum of this Lease in the form attached as Exhibit C. In
the event the parties record a Memorandum of this Lease,
CellularOne agrees to record a quitclaim deed immediately
following the termination of this Lease, provided CellularOne's
failure to deliver such quitclaim deed when required shall not
delay, prevent or otherwise affect the expiration or termination of
this Lease.
25. Compliance With Laws. CellularOne shall, at its,
expense, comply with all laws relating to CellularOne's use of the
Premises. CellularOne shall not use or permit the use of the
Premises in any manner that will tend to create a nuisance or
constitute waste. CellularOne shall maintain the Premises and all
of its improvements thereon in good, clean, and sanitary
condition.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first set forth above.
CELLULARONE: BAY AREA CELLULAR
TELEPHONE COMPANY, a California general partnership
By: CMT Partners, a Delaware general partnership, its
general partner
~
,/"
./
,/. ~
~_...>-~
-1', [-4"." .!J. ,/
., ,.- /-
By:
Title: L).~,_ .
Printed Name:
'.'t-.....
LE.:--t:/ f ,(.(LJ~-':'//.~,.1../ :.,..
, - .
. ' APPR~~~~ ~ ~ ~~
t~..J--pty Attorney
SCHEDULE OF EXHIBITS: (a) Exhibit A (the "Site"); (b) Exhibit B (the "Premises"); (c) Memorandum of Lease: IRS Form W-9
Legal Description of Site
LEGAL DESCRIPTION FOR RES'ERVOIR "Dit.
All that certain real property situated in the City of Gilroy, CQunty of Santa Clara, State of
California. described as follows:
All of Lot 121 of Tract 8136 filed on September 6. 1989, ffi Book 605 of Maps at
Pages 8 through 16 in the Recorrlcr's Office of Santa Clara County, Califor.nia.
EXHIBIT A
EXHIBIT B
Premises Description
r:i1 0 I
l- II
0
w
~ l- .
. II
J: .
. II
= .
0
a: . I
.
< ,
I ~ i.u ~ a:
"
z ! 10
en ~ >
~ j en l- I
w
~I <( w 0
:5 ! a.. J: I
~I en
r ~ a: Ii T~T
~ :3 ] w Iii 0:
w
~ ~ > ~
" -l j U 0 ~ .J . 9 ~:
, ~
I W ~ n w a a I u ". "
I ul ::c . ~
I
I ~
: gU
.1 <(
I!;(
I a
'I-
10 .:i
I. ~it~~
I 0 ~~N
, !f >
IX
:2 s
l<!l ~i
: ~ ! ~ ~
: IS ~
I
I
I
I
1-
@
W
Z
o
0::::
::5
::)
~
--.l
W
U
n -~~~ _H r!~
~~ ~~
~::: ~ I~
~ ~ ~ t2
~ . ~
, ~ : G
~ ~ ~; i
... ~ ti ~ ~
8 9 ~~ ~
n ~ ~
,
~
~
I--
I
I
I
I
I
I
I
I
I
I
I
I
I
1>-
115
II-
10
II ~ i, ,. I II it
'I~I H I h~! j~. ~
: b '111,1 lidIa' !!-hll!, hll'l,l!1
I ~ i mIl !Ill h I
:!f ! I i
- - - - - - - - - - --- - - - - -1- - - -~ - .. ~. -. . I
I I
: Ig- :
I ~ ~~m 1
: s I ~ i~U :
I.. ~ CJ) j)it~
'" l ~ 3~~~
:~ h ~UU
I a ~i .... ~~IM
I- ~~ '<t ~~
10 's N"~ ~
I ~ gi ~ i~~i_"
10 3~ r'!5w
l!f ~i ~h~
(f) ~ --- -
(f) I
<( :
a. gs I
~ i~ i~
J U I 0 I ~ ~ ::,i
;~;~;~; ~
n~
G < <
~
~
o
R;
~
a
U
I
:~
:~
I > ~
. I.
I
: !
I II
I ~
: H
I ~~
I ~ ~
I ~~
I en 0;';
: 8 ~~
I U ~~
I
(ll
~
a
..r:::
R.
~
(ll
h
f...
d
~
(ll
U
d
(ll
f...
""<::
~
d
Cl.:l
~ ~~ 7~
~ ~r. ~~-
~ ~~ t.~ ~
~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~~ g
:& l-~ w.....~ ~ ~ !S l! ~ ~~ ~w Q' ~ 9
,~ ~ ~ ~ ~ " ~ ~ Q J" ~ X ~
~ t~ ~~ ~~ $ ~ ~ ~ ~ ~~ ~;, ~ ~ ~
I ll' ~
oe = ~@~.
:en f3 (gJ [SJ IS! ~DD i i
15 ~.
i g) ~ oj g
I~ ~ ~ S ~ ~ ~ ~ ?: ?i
ICJ)~~ 3~~" ~~~<
;i!!!t ~~CC~ ~,,~~ ~
:I~~: ~~u i ~ M~II~ i 0~
...c:
00
Ql+::
.-tll
~~
(~I
:!'
'"
'"
~ ~
~i~ CJ)
~8h ~
~~ ~
~; 0
il ~1 ~
~ ~~ ~
~ g~ CJ)
I!~ 52
-~ W
~"
~~~
~~~
~~~
~~~
E~I!
~~'l'
"~~
~:!'1
~h
,,~~
hs
~~~
o
~
: ~
~ ~
1-. ~
- ~
; ~
5 >
~ :
! ~
~ ~
E if,
~
~H8~
~~~~(\
n~~
~~~~r
~3~~~
:,!~~"'ii:
!uU
u55~~
E
i
~
~
~
~
~ .
~ I
~j h ~ ~J U
3" jR g,~." r-
~5 ~5 ,~5 ~i ~ ~
~; ..6:' .~;.~ 1~ ~ 1.
~~ t ~~ 3u .~ ~ ~ d
ii e ~~ Hi ll~ ~ ;i ~ j ~~
t it U: H ~ h I i m
., ~ (]l ~~ ~\ ~l ~ ~ ~
r
I ~g ~ :\" ~"." I
I 1~~~ I~i" ~~ ",~~;,i I
I "~r.'~. H~~''''.~'
~~~~~~~ ~("~~s;,u
I ~~ ~ ~~ ~~'Y\~~"j
I t~~e~i!h~~m~~~ r
II; ~~mt~;~~li'~~~~9 '
I a1r'~'ti~'~ ~i; ~t~, i I
11i'11'Q,~..\18.!"Q,o/",. ,
>lIa;",~P':fI~~~P; i\'-119;~
I &1@b'~~~~~~~~i lb, '
I u~mt~!~i! n~ ~~~\i~ I
I '
I
I
I
I
I
I
I
I
I
I
I
I
I
1
I
I
I
I
I
I
I
I
I
I
I
I
I
1
I
J
I
I
I
I
I
I .. v ~!"::i~ j'}~~ff
I
I '.~. ~
I J /'!' 11 l ~ '1
I ,LL\L~" 1rPH
I
I
I
I
I
I
I
I
I
I
I
I
IJnhi9:'1 r n
~ ~
~Bi ~ e
~.~~ as! l a
,H..ihi.. ..X
>~~!~"~ .! ,B~
~
~~ ! i i.
if' ~~ ,~,~j.
.~~HH~ Ji,hHi
1~~Hl .~.,~.u"
. , t i
~ < 1 ~~ J I.
n i '"i ," I
l~~'~~ ~~r@h~l;"';:
. ,.x.. ~t~.... ;,
~trH .~ ~~d~.1i
~B
.n a .
3U '. ~
m~iiJlmlinB
.;y~ ~H~S&. r J..,
~ ~ "I
~~ '."~ l~
~.. ~a!~l. .\~r'2
.hBoh ~H.;i'.;r
~~im II II. ~~
.
. !!
~i ?
l~. .;~ ".
~ll '\ H;. I.~j 'i
Jjijj~ ,!;';H\ yy
~2tl~ ~~dlli'~f~~~'~'
, i
, ! I ! '.9
.~~!~ .. ~!.l ~~:,
J.2~~h .j~~h:S;~~!~!
,,~~~~ ~6~r.H~~~
I .
~! ~ ! .j
~~iy, 1~1' 111' ..
! ~mtJ~~~~U.:;
I CJ) ~h"8~ ~"Ba.,:I~n~ilt,
'z
10 l)! ~ 6 ~ !",
I ~ g~I~, ~f' ;i\mii
I > u~~13, 6f<~,,[i~h\~nf,
I l!! ,~.\,.n\ ..~~l
~ [3 r! "
'<( . ~ " 1
~ ~,- a t ~
1".- '" "
,,(:j\j~F .1""
..;i1/h:\:.,....~...:>;llllll
....~ I
II
w
~ l- .
. II
J: .
= . II
0
It . I
.
oil( ,
d W5 Cl 0
w
zl '0 CJ .
(f) ~ a: .,--
~ i < I
(f) ...J I
< z
w I <(
::5- 0.. _z
~
:J ! 0: ri z:S I
I w Iii <a.
0 ...J ~
..J~ j a. a: 8 "
..J ~ wO h . ~ t'-l .
w~ Ii w I f-O ~ 9 i
I :c i B _...J ~ r 'I; ~
, u! cnu.. II
I
I
~I
I
I
~
Q
.!)
0'
~----~-~--{
r
"~
. ~
. 0 i
t
Ii
~
~
d ~
u ~
I:' ,,~ ._~ ~
.f',1I ,;t r. ,t-.( ..:::i
:; Q-.f ~q--1:1 -~ ~(::~- J ~
~
,Q
~b
lq
~~
~
..
- ~ ~I
~l~e ~
c~ J ~,;
33 ~ ~~~ ~
dfi) ; (;Ol
to~ O. \Jd~
~~ ~ ~1i~
NO 3<:01019
"
..
~
~
~
~
z[
~.
dSI
//--
.
~
~
0:
t
"
'Ii
@:}
~~
t.G
.0
It
~-
~-----
~~~ i Q
;~ de ~~~ .
ta" .~e~ _ Ou,
s:!1--~ III l:lll ~j:Iui I
:1'4 ..J wll QW\.'l!;l I
.i~ ~~'\I~ ~~iw
~W' Oa~~ o~.~
~~~ !I--i' ~~QY~
I
I
I
I
I
I
I
\1 I
\ I
IJ
j 111
~
~
~f
~ ~
~
o ~
~
~i
"
/
/
III
J
V
Z
~~ l~
lI' "-
IllrY
(U)
I.
Ii
&(1) .
I- ;
o ;
....-... w:
~ 1-.
- ~
=~:
It :
< :
I
~
;I!
. ~ II
!. I
: :
.d'
~
z
o
1=
<(
>
w
I .J
W
"
.
~ .
. ~
~ '"
~ u
~
E ~
~
~ i
~ ~
z
a:
~
iiJ
z
()
F
<(
....
L"
ITI
r:
0:
o
6
~~
I~
~~
-~
~
-=
~~
., ~
~(ft~~
~til"
8j~;
li~~
~
- ~.
~
p,
.J
"~
)~--*
=>
i ! ~~
h~ ~ a~ ~
~~a ~ h~ ~
"!!Ie tj ,
~ii~~ . ~~I I
I .~ 0
.~~~ I ~. I
il~
~.
\
~.... ;;
~~It.' ..
\ @;e;k!'"
-~&:<Ct~.
\.
\
\
\
+~ \
~
~ ~
~ !
N.
"
~.
~i(
~
.
~; ~ .
g' i ~
....c g
~ ~ ' 'I!IJ
"
Q
L
II
~!
d
~"
-~
~~
~
~~
~~
~~
~~
~-
x~
i"
~~
\
l i
oj
.~
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna Street Gilroy CA 95020-6141
Attn. City Attorney
RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of this December 12, 1997, by and between THE CITY OF
GILROY, a California municipal corporation ("Lessor") and BAY AREA CELLULAR TELEPHONE COMPANY, a California
general partnership doing business as Cellular One ("CellularOne").
WITNESSETH:
That Lessor hereby leases to CellularOne and CellularOne hereby leases from Lessor a portion of that certain real property in
the City of Gilroy, County of Santa Clara, California, commonly known as City of Gilroy Reservoir D at 2256 Coral Bell Crt. also known as
Assessor's Parcel No. 783-46-081, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by
reference, under the terms and conditions of the unrecorded MicroCeIl Site Lease by and between Lessor and CellularOne dated
December 12, 1997, and incorporated herein by reference (the "Lease"), for an initial term of five (5) years, and three (3) subsequent
optional extension terms of five (5) years each, pursuant to the terms of the Lease. The portion of the real property leased by Lessor to
CellularOne is that portion consisting of one hundred thirty (130) square feet of ground space east of the water tank located on said real
property and space at the twenty-four foot level of the thirty foot lattice tower constructed or to be constructed by CellularOne on the
east side of the water tank pursuant to the Lease, generally depicted as the Premises on Exhibit B attached hereto and incorporated
herein by reference. This Memorandum is entered by the parties for purposes of recordation and shall not be deemed to modify.
amend, alter, limit or otherwise change any of the provisions of the Lease. In the event of any conflict or ambiguity between the terms
of this ~emorandum and the terms of the Lease, the terms of the Lease shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the day and year first set
forth above.
. ..
CELLULARONE: BAY AREA CELLULAR
TELEPHONE COMPANY, a California general partnership
By:
Printed Name:
Jay Baksa
Title:
Federal Tax ID. No: 94-6000340
A~~4~'
City Clerk
APPROVED AS TO FORM: D 0.
. ~ L ,\pY---
A-<- \---fity Attorney
ACKNOWLEDGMENTS ON NEXT PAGE
State of California
County of Q,(lIi 1)1r1.+-{('i
On 'DtUnLl){( 1~110q1 be~ore me, t~e undersigned, a Notary Public in and for the State of California, duly commissioned
and sworn, personally appeared, l C R'\c---, l.Ocu'n , personally known to me ~-the--bas-is-of
satisfaotory evidenc9) to be the personC~ whose nameOO islafe- subscribed to the within instrument and ack!,owledged to me that
he/sh9'th~ executed the same in his/Aefltheif authoriz~d, capacity{iest, and that by hisltt&rltReir signaturevo on the instrument the
personOQ, or the entity upon behalf of which the person(S;), acted, executed the instrument.
~l.LJUJI"IIII1I~~~MC ~III"
WITNESS my hand and official seal. ........&n .. WVWft
Signature il"-^-l'/Ll L' {~, )~ll-t(J ~~L, _---.... :
I ~ I ........ClU. .
State of Caiifornia ~GDUN'IY ..
County of 'J Santa Clara 1...IIIIUlIU::U:U:.:.::..';
On January 16, 1998before me, the undersigned, a Notary Public in and for the State of California, duly commissioned
and sworn, personally appeared, Jay Baksa , personally known to me (or proved 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/shelthey executed the same in his/herltheir authorized capacity(ies), and that by hislherltheir signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s), acted, executed the instrument.
. W~~:~'llaL .
Signature ~"-
------------1
RHONDA PELLIN
l ~ Commission # 1142623 z
~ i-A Notay Public - California ~
1 Santa Clara County 1
_ _ ~ _My~m~~r~~l~~l