HomeMy WebLinkAbout1993-05-04; City Council; Resolution 93-128ll 0 e
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RESOLUTION NO. 9 3 - 12 8
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING THE LEASE AGREEMENT
WITH US WEST CELLULAR OF CALIFORNIA, INC. FOR A
CELLULAR SITE AT CHASE FIELD
WHEREAS, US WEST CELLULAR requested permission to lease approximat
square feet of space at Chase Field to construct a cellular telephone site; and
WHEREAS, the City Council of the City of Carlsbad, California, has deterrr
approval of the lease agreement would benefit the City by receiving annual revenues of
and result in the addition of a permanent storage facility at Chase Field at no cost tc
and
WHEREAS, the Parks & Recreation Commission recommended approval of the
lease agreement with US West Cellular at its April 19, 1993 meeting,
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
California as follows:
1. That the above recitations are true and correct.
2. That the Lease Agreement between the City of Carlsbad and US West
California, Inc., attached hereto as Exhibit 3, is hereby approved.
3. That said lease is contingent upon US West Cellular obtaining a1
governmental approvals.
4. That the Mayor is hereby authorized to sign the lease agreement on be
City.
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1 PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council o
2 of Carlsbad, California, on the 4th day of MAY , 1993, by the following voi
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NOES: None 4
AYES: Council Members Lewis, Stanton, Kulchin, Nygaard, Fi
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ABSENT: None
8 I/ ATTEST:
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A!!!A(EW (SEAL) m 11
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0 .. .. . - . ,- 0 EXHIBIT 3
' _, " ."" ~ " I 1 &-LA
..
LEASE AGREEMENT
SDG CARL
This Agreement, made , 1992, between CITY OF CARLSBAD, hereinaft
to as "LESSOR", and US WEST CELLULAR OF CALIFORNIA. WC., 3350 161st Avenue Southeas
9121 1, Bellevue, Washington 98009-221 1 hereinafter referred to as "TENANT".
RECITALS
1. LESSOR is the owner of certain real property located in City of Carlsbad. County of San Die
State of California, and;
2. TENANT desires to lease a portion of said real property, the leased portion of which shall be
referred to as "Property", including rights-of-way and easements for ingress, egress and utilities theretc
approximately 2700 square feet, described on Exhibit "A", and its subparts, attached hereto and incorp
by this reference.
LEASE AGREEMENT
1. LESSOR hereby leases to TENANT that certain parcel of property (hereinafter "Property") cl
square feet situated on Assessor's Parcel Number 204-19-193, City of Carlsbad, County of San Dieao,
State of California, together with the non-exclusive right for ingress and egress, seven (7) days a week
(24) hours a day, on foot or motor vehicle, including trucks, and for the installation and maintenance o
cables, conduits, and pipes over, under, or along a twenty (20) foot wide right-of-way and easement e
the nearest public right-of-way Chestnut Avenue to the demised premises. LESSOR agrees, without (
execute any such easement documents as may be required by any and all utility companies in connectic
TENANT'S use of said Property. Said Property, right-of-way and easement for ingress, egress and u1
described herein in Exhibit ''A", and its subparts, attached hereto and made a part hereof by this refere
2. LESSOR also hereby grants to TENANT the right to obtain metes and bounds legal descripti
survey of said Property, and said metes and bounds legal description and/or survey shall then become :
which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies t
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Exhibit "A", and its subparts. Cost of such work shall be paid by TENANT.
3. This Agreement shall be for an initial term of five (5) years, commencing upon written notificat
TENANT to LESSOR of TENANT'S receipt of all governmental approvals (the "Commencement Date
annual rental of Nine Thousand Six Hundred Dollars ($9.600.00) to be paid in equal monthly installmer
first day of each month, in advance, to City of Carlsbad or to such other person, firm, or place as the LE
from time to time, designate in writing at least thirty (30) days in advance of any rental payment date.
4. TENANT shall have the right to extend this lease for two (2) additional five (5) year terms by 1
LESSOR written notice of its intention to do so at least six (6) months prior to the end of the then cum
(a). In addition. this lease may be extended for two (2) additional five (5) year terms (thirc
extension) uDon written approval bv both TENANT and LESSOR. TENANT shall provide LESSOR L
of TENANT'S request for said additional term at least twelve (12) months prior to the end of the then c
LESSOR shall Drovide to TENANT written approval or disapproval for said requested additional term
(2) months of the receipt of TENANT'S written request for said additional term.
5. The annual rental for the first five (5) year extension term shall be increased to Eleven Thousal
Dollars ($1 1.040.00); the second (2nd) five (5) year extension term shall be increased to Twelve Thous
Hundred Ninetv Six Dollars ($ 12.696.00); the third (3rd) five (5) year extension term shall be increasec
Thousand Six Hundred Dollars ($14.600.00); and the fourth (4th) five (5) year extension term shall be i
Sixteen Thousand Seven Hundred Ninetv Dollars ($16.790.00).
6. If, at the end of the fourth (4th) five (5) year extension term, this Agreement has not been tern
either party by giving to the other written notice of an intention to terminate it at least six (6) months PI
end of such term, this Agreement shall continue in force upon the same covenants, terms, and conditio1
rental specified for the fourth (4th) five (5) year extension term, for a hrther term of one (1) year and f
terms thereafter until terminated by either party giving to the other written notice of its intention to so 1
least six (6) months prior to the end of such term.
7. TENANT shall use the Property for the purpose of constructing, maintaining, and operating a
Communications Facility and uses incidental thereto, consisting of one (1) building of approximately 4:
feet and one (1) antenna structure of approximately 70 feet in height, including cellular antennas, link a
all necessary connecting waveguide and appurtenances. The contents of said building shall include, wil
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limitation, radio transmission and computer equipment, and emergency battery and generator equipment
fence consisting of chain link construction or similar, but comparable, construction may be placed aroun
perimeter of the Property (not including the access easement). All improvements shall be at the TENAP
expense. TENANT shall maintain the Property in reasonable condition. It is understood and agreed thz
TENANT'S ability to use the Property is contingent upon its obtaining, after the execution date of this 1
all the certificates, permits, and other approvals that may be required by any federal, state, or local authc
LESSOR shall cooperate with TENANT in its efforts to obtain such approvals and shall take no action 1
adversely affect the status of the Property with respect to the proposed use thereof by TENANT. In tht
any of such applications should be finally rejected or any certificate, permit, license, or approval issued t
is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority so that '
its sole discretion, will be unable to use that Property for its intended purposes, TENANT shall have thf
terminate this Agreement. Said termination right shall also apply in the event that TENANT is otherwi!
sole discretion, precluded fiom using the Property for its intended purpose. Notice of the TENANT'S t
its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, anc
effective upon receipt of such notice by the LESSOR as evidenced by the return receipt. All rentals pai
lease of the Property to said termination date shall be retained by LESSOR. Upon such termination, thi
shall become null and void and all the parties shall have no hrther obligations, including the payment of
each other.
(a). In addition to TENANT'S described Mobile Communications Facilities, TENANT sh
at TENANT'S expense. for the sole use by the LESSOR or other Party or parties which LESSOR may
for time to time. one (1) building of approximatelv 240 square feet. Construction of said building shall
appearance to the existing building located on the property and shall be constructed with adequate elec
and fixtures. and shall not be constructed with any plumbinp facilities or fixtures. All necessary certific,
and other approvals that mav be required by any federal. state. or local authorities shall be the responsil
TENANT.
fb). From time to time during; the term of the lease as set forth in this agreement, LESS0
LESSOR'S sole expense. require TENANT to relocate TENANT'S described Mobile Communications
pursuant to this agreement to another location on the LESSOR'S propertv within the same geographic2
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shall provide TENANT with (1) building of approximately 432 square feet and similar space for the re1
(1) antenna structure of approximately 70 feet in height. including cellular antennas. link antennas and a
connecting waveguide and appurtenances.
8. TENANT shall indemnifi and hold LESSOR harmless against any claim of liability or loss fror
injury or property damage resulting from or arising out of the use and occupancy of the Property by the
its servants or agents, excepting, however, such claims or damages as may be due to or caused by the a
LESSOR, its servants or agents.
9. TENANT shall procure and maintain for the duration of the contract. insurance against claims
to persons or damage to propertv which may arise from or in connection with the performance of the v
hereunder by the TENANT . his agents, representatives. employees or subcontractors. Said insuran
the LESSOR'S policv for insurance as stated in Resolution No. 91 -403.
(a). COVERAGE AND LIMITS - TENANT shall maintain the types of coverape and mi
indicated herein:
1. Comprehensive General Liability Insurance: $1 .OOO.OOO.OO combined sinde
occurrence for bodily in-iury and property damage. If the policy has an agregatc
seuarate aggregate in the amounts specified shall be established for the risks for I
LESSOR or its agents. officers or employees are additional insureds.
10. TENANT will be responsible for all utilities required by its use of the Property. TENANT s
real estate taxes levied against Property and the improvements constructed thereon by TENANT.
1 1. TENANT, upon termination of this Agreement, shall, within a reasonable period, remove its
property and fixtures and restore the Property to its original condition, reasonable wear and tear excep
time for removal causes TENANT to remain on the Property after termination of this Agreement, TEP
pay rent at the then existing monthly rate or the existing monthly pro-rata basis if based on a longer pa
until such time as the removal of personal property and fixtures is completed. At LESSOR'S option \I
Agreement is terminated. and upon LESSOR'S advance written notice to TENANT, TENANT will le
foundation. building(s] and security fence to become the propertv of LESSOR or at the discretion of
shall be removed by TENANT.
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{a). TENANT agrees - to deDosit with LESSOR. at least ten (10) dam prior to the commet
this Lease. either Ten Thousand Dollars ($10.000.00) cash deposit to be held in trust. in an interest beal
or a performance bond in the amount of Ten Thousand Dollars ($10.000.00) for the purpose of securinl
demolition of the building(s) and removal of the antenna structure as provided herein. Said bond shall t
pavable to the Citv of Carlsbad, and shall be in force during the entire term of this lease or extension thf
performance bond shall contain the following notice requirement:
"It is agreed that this bond shall not be canceled nor the coverage reduced
until ninety (90) davs after the Director. Utilities and Maintenance of the Citv
of Carlsbad, shall have received written notice of such cancellation or
reduction. The notice shall be sent bv certified or registered mail. and shall be
deemed effective the date delivered to said Director. as evidenced bv properlv
validated return receipt.
12. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any
Property (the Property to include only the parcel leased hereunder) to a purchaser other than TENANT
shall be under and subject to this Agreement and TENANT'S right hereunder, and any sale by the LES!
portion of the LESSOR'S property underlying any and all rights-of-way and easements for ingress, egre
utilities herein granted shall be under and subject to the right of the TENANT in and to such rights-of-\
easements.
13. LESSOR covenants that TENANT, on paying the rent and performing the covenants by it he
shall and may peacehlly and quietly have, hold, and enjoy the leased Property.
14. LESSOR covenants that LESSOR is seized of good and sufficient title and interest in the Prc
has hll authority to enter into and execute this Agreement. LESSOR hrther covenants that there are r
judgments, or impediments of title on the Property.
15. It is hereby mutually agreed and understood that this Agreement contains all agreements, pro
understandings between the LESSOR and TENANT and that no verbal or oral agreements, promises, (
understandings shall or will be binding upon either the LESSOR or TENANT in any dispute, controver
proceeding at law, and any addition, variation, or modification to this Agreement shall be void and inef
in writing and signed by the parties hereto.
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16. This Lease Agreement and the performance thereof shall be governed, interpreted, construed
regulated by the laws of the State of California.
17. This Agreement may not be sold, assigned, or transferred at any time by TENANT except to
affiliates or subsidiaries. As to other parties, this Agreement may not be sold, assigned, or transferred I
written consent of the LESSOR, such consent not to be unreasonably withheld.
18. In the event that either party hereto shall institute suit to enforce any rights hereunder, the prc
shall be entitled to recover court costs and a reasonable attorney's fee. Upon appeal, the prevailing pan
entitled to recovery of court costs and reasonable attorneys' fees incurred as a result of such appeal.
19. All notices hereunder must be in writing and shall be deemed validly given if sent by certified
receipt requested, addressed as follows (or any other address that the party to be notified may have des
the sender by like notice):
TENANT: US West Cellular of California. Inc.
3350 161st Avenue Southeast
P. 0. Box 91211
Bellevue, Washington 98009-221 1
Attn: Real Estate Department
LESSOR: Citv of Carlsbad
Utilities and Maintenance Director
405 Oak Avenue
Carlsbad, California 92008
Telephone: 6 19-43 8-7753
20. This Agreement shall extend to and bind the heirs, personal.representatives, successors and a
parties hereto.
21. At LESSOR'S option, this Agreement shall be subordinate to any mortgage by LESSOR whi
to time, may encumber all or part of the Property and any or all Rights-of-way and easements thereto;
however, every such mortgage shall recognize the validity of this Agreement in the event of a foreclosu
LESSOR'S interest and also TENANT'S right to remain in occupancy of and have access to the Proper
TENANT is not in default of this Agreement. TENANT shall execute whatever instruments may reasa
required to evidence this subordination clause. If the Property is presently encumbered by one or more
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LESSOR will provide TENANT with a Non-Disturbance Agreement in recordable form for each such n
22. LESSEE shall indemnifjr, defend and hold LESSOR harmless fiom and against any claim, cos
(including reasonable attorney's and consultant's fees), damage, penalty, or liability imposed upon LESS
fiom the treatment, storage, generation, release or disposal of any substance by LESSEE, its agents, COI
employees, on, under, in, or about the Property which substance is designated as hazardous, dangerous,
hdl andor subject to regulation under federal, state or local law, regulation or ordinance ("Hazardc
Substances").
23. The rights and obligations of the parties as set forth in paragraph number 22 shall survive the
of this agreement.
M WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the
first above written.
LESSOR:
City of Carlsbad
By:
Its:
SS # or Taxpayer ID#
TENANT:
US West Cellular of California, Inc.
BY
Its
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State of California
County of
On before me,
personally appeared (here insert name and title of officc
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personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name(s) Mare subscribed to the within instument and acknowledged to me that he/she/th executed the same in hislherhheir authorized capacity(ies), and that by his/her/their signature@) on t
instument the person(s), or the entity upon behalf of which person@) acted, executed the instrument.
WITNESS my official hand and seal.
Signature (Seal)
State of California
County of
On before me,
personally appeared
(here insert name and title of offic
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persol
whose name@) Ware subscribed to the within instument and acknowledged to me that he/she/tl
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature($ on instument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
WITNESS my official hand and seal.
Signature (Seal)
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EXHIBIT "A"
PAGE 1 of 2
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF SAN DIEGO AND IS DESCRIBED AS FOLLOWS:
LOTS 1 THROUGH 32, INCLUSIVE IN BLOCK 61 OF CARLSBAD, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 365, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 2,1887.
TOGETHER WITH ALL THE ALLEY LYING WITHIN SAID BLOCK 61 AS
VACATED AND CLOSED TO PUBLIC USE BY RESOLUTION RECORDED APRIL
18, 1930 IN BOOK 1755, PAGE 287 OF DEEDS.
ALSO TOGETHER WITH THE SOUTHEASTERLY HALF OF CHESTNUT
AVENUE ADJACENT TO AND ADJOINING THE NORTHWESTERLY LINE OF
SAID BLOCK 6 1, AS VACATED AND CLOSED TO PUBLIC USE BY
RESOLUTION NO. 265, RECORDED JUNE 24,2957 IN BOOK 6633, PAGE 230 OF
OFFICIAL, RECORDS.
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PALM
0 EXHIBIT "A- 1 "
Assessor's Parcel No. 204-19.
Page 2 of 2 AVENUE
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CHESTNUT AVENUE