City of Hesperia
Cell Tower Leasing Program
Effective Date: April 15, 2025
Introduction
The City of Hesperia supports reliable and modern wireless communication by leasing City- owned land for wireless infrastructure. This program ensures consistency, compliance, and long-term revenue generation while promoting community benefit.
Purpose
This program establishes clear guidelines for leasing City-owned property for wireless communication facilities. Leases that follow the parameters outlined here do not require City Council approval, expediting the process.
Key Objectives
- Revenue Optimization: Establish market-based lease rates with fixed annual increases. - Efficiency: Streamline leasing and compliance processes. - Consistency: Use a Standard Lease Agreement for all sites.
Lease Terms
- Term: 5 years with up to two 5-year renewals
- Base Rent:
- $2,000–$2,400/month
- Annual Increase: Fixed 5%
- Subleases: Must be approved; City retains 50% of sublease revenue - Surety Bond: $100,000 required
- Indemnification: Lessee must hold City harmless from liability Process & Oversight
- DSD – Planning: Reviews design, zoning, and permits
- EDD – Economic Development: Negotiates and manages leases - City Council: Approval required only if terms fall outside this program Compliance & Maintenance
- Lessees must maintain sites and complete repairs within 5 business days - Non-compliance may result in penalties or lease suspension - Required Insurance:
- $2M General Liability / $4M aggregate
- $1M Auto Liability
- $1M Workers’ Comp
Access
The City reserves the right to inspect leased facilities for emergency or maintenance purposes.
01071.0005/1043741.1
WIRELESS COMMUNICATIONS FACILITY LEASE AGREEMENT
BETWEEN CITY OF HESPERIA
AND
___________
This WIRELESS COMMUNICATIONS FACILITY LEASE AGREEMENT (“ Lease Agreement” or “ Agreement”) entered into as of this ____ day of __________, 20 _____ is between CITY OF HESPERIA , a California municipal corporation (“ Landlord”), and _________(“Tenant”) (collectively, “Parties”).
RECITALS
WHEREAS, Landlord is the owner of that certain real property located in the County of San Bernardino, as described in Exhibit A, attached hereto and by this reference incorporated herein (“Landlord’s Property”); and
WHEREAS, Tenant desires to lease a portion of Landlord's Property, as described in Exhibit B, in connection with its federally licensed communications business together with a right of ingress and egress and a right to install its wireless communications facilities including wireless antenna or antenna array (collectively, “Communications Facility,” “Equipment” or “Facility”) on Landlord’s Property; and
WHEREAS, subject to the following terms and conditions, Tenant and Landlord desire to enter into this Lease Agreement which shall supersede all other agreements whether oral or written between Tenant and Landlord concerning the herein subject Landlord’s Property , Premises and Communication Facility; and
WHEREAS, Tenant and Landlord hereby enter into this Lease Agreement on the terms and conditions set forth herein and the Parties expressly agree that this is not an easement.
NOW, THEREFORE, in consideration of the promises and of the mutual obligations and agreements in this Lease Agreement, the receipt of which is hereby acknowledged, the Parties agree as follows:
1. LANDLORD’S PROPERTY
Landlord is the record owner of that certain parcel of real property located in the State of California, County of San Bernardino, City of Hesperia, commonly known as ________________, also known as Assessor’s Parcel No. __________, (the “Landlord’s Property”) . The legal description of the Landlord’s Property is contained in Exhibit A attached to and incorporated in this Lease.
2. THE PREMISES
2.1 Description
Landlord hereby leases to Tenant and Tenant leases from Landlord that portion of the Landlord’s Property generally described as follows: approximately ________ square feet of ground space in
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which Tenant, upon obtaining all necessary permits, shall install its Communications Facility .
The location of the Premises, the legal description of ingress and egress pathways to the Premises, and other portions of the Premises shall be as shown in Exhibit B and the map that is contained in Exhibit B, attached hereto and by this reference incorporated herein. The Premises include and permit the following:
(a) An equipment building of approximately ____ square feet in size as described in Exhibit B (“Equipment Building”).
(b) A new ______ tower (the “Tower”).
(c) A ____ foot wide nonexclusive strip of land area for the purpose of installing and maintaining all necessary underground cables and utilities from the Equipment Building to the Tower (“Sub-Grade Cable Run Area”).
2.2 P lans Specifications
Exhibit C shall provide full plans and specifications of the e quipment, tower, photo simulations and landscaping plans (the “Site Plan”). Specifications shall include location of end-of- path site and azimuth. Specifications of any rooftop equipment shall include roof weight loading and how cables will be attached to ground level facilities. The tower, antennas and site installations shall be built exactly per such plans unless Landlord agrees to changes before they are imple mented.
Landlord shall have final design approval.
Prior to construction, Tenant shall deliver to Landlord true and complete sets of submissions and correspondence to and from the local zoning authority and other government entities including the California Public Utilities Commission, the Federal Communic ations Commission and Federal Aviation Authority.
2.3 Communications Faciliy Property; Equipment
All portions of the Communications Facility brought onto the Premises by Tenant will be and shall remain Tenant’s personal property with the exception of Tenant -installed property for the benefit of Landlord such as Tenant-installed light poles or other structures used for antenna mounting that replace Landlord’s original poles or structures. Such exceptions are and shall be the property of the Landlord and shall not be removed without approval of Landlord. Following completion of the Equipment Building and written approval and acceptance thereof by Landlord, which shall not be unreasonably withheld, ownership of the Landlord’s portion of the Equipment Building as indicated on Exhibit B shall automatically transfer to Landlord. Each party shall be responsible for cost of maintenance and repairs to their respective portions of the Equipment Building.
Prior to installing or allowing any Equipment to be installed in or on the Premises , Tenant shall submit detailed engineering plans and specifications of the planned installation to Landlord for Landlord’s written approval, which approval shall not be unreasonably delayed. Landlord’s review of Tenant’s plan shall include a review of the appearance of the Equipment. The Equipment to be installed must be in compliance with all federal, state, and local laws, including but not limited to local zoning and design requirements, and must adhere to all technical standards set forth in this Lease Agreement. Landlord’s approval of any installation is not a representation that such
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installation of the Equipment is in compliance with all applicable governmental laws, ordinances, rules and regulations or that such Equipment will not cause interference with other systems, if any, then in operation on the Premises. Tenant hereby confirms and agrees that its Equipment shall be installed and operated solely within the Premises.
Tenant understands and acknowledges that it shall at no time install or modify any wireless Communications Facilities or wireless antennas unless it first obtains the necessary approvals and permits in accordance with the Landlord’s local laws, or any othe r applicable state and federal ordinances and regulations. Tenant further acknowledges that all facilities to be maintained within the Premises, whether currently included in the exhibits attached hereto or to be modified or built in the future require all necessary approvals and permits mentioned herein.
2.4 Access.
Access to the site is subject to the notice requirements in Section 15.
2.5 Setbacks.
Any setback of the Premises from the Landlord’s Property boundaries and the width of any access road shall be the width required by the applicable governmental authorities, including police and fire departments.
2.6 Parking
No parking is permitted in the lease area except as specified herein: Tenant and its employees, representatives and contractors may park their vehicles on Landlord's Property only when necessary to carry personnel, Equipment or supplies, or for the purpose of necessary construction, repairs, operation or maintenance on the Premises as allowed under this Lease Agreement.
3. LEASE AND IRREVOCABLE NON-EXCLUSIVE INGRESS AND EGRESS Landlord hereby leases the Premises to Tenant to access, install, operate, maintain and remove Tenant's Communications Facility in and on the Premises, and grants to Tenant an irrevocable, non-exclusive area during the term of this Lease Agreement for reasonable ingress and egress from a public right of way immediately abutting Landlord’s Property to and from the Premises , (collectively, “Ingress and Egress Area”) seven (7) days a week, twenty -four (24) hours per day for the sole purpose of installing, oper ating and maintaining the Communications Facility including conduits and pipes over, under and along the Ingress and Egress Area as more fully described in Exhibit B and Exhibit C. Tenant shall conduct no activities other than those set forth in this Lease Agreement without the prior written consent of Landlord.
4. TERM, RENT, AND SECURITY DEPOSIT
4.1 Term
This Lease Agreement shall not be valid unless and until signed by the City Manager (“ Effective Date”). No right in or to the Premises shall vest in Tenant until the occurrence of the Effective Date.
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This Lease Agreement shall be for an initial term of five (5) years (“Initial Term ”), commence upon full execution of this agreement (“ Commencement Date”). The Lease Agreement shall be terminated in accordance with the provisions governing termination as set forth in Section 8 herein.
Tenant s hall have the option to renew for an additional two (2) terms of five (5) years each (each a “Renewal Term”), for a total term of twenty -five (25) years if all Renewal Terms are granted .
Renewal shall be automatic unless Landlord or Tenant terminates lease in accordance with the provisions governing termination as set forth in Section 8 herein. No renewal shall be permitted if Tenant is in default of this Lease Agreement on the last day preceding such Initial or Renewal Term.
Provided all Renewal Terms to this Lease Agreement are exercised by the Parties, and unless the P
arties terminate this Lease Agreement prior to the Termination Date as set forth in Section 8, this Lease Agreement shall terminate on _______ (“Termination Date”) without any further notice to Tenant. Tenant shall vacate the Premises , in accordance with the terms of this Lease Agreement no later than sixty (60) days from the Termination Date.
At the end of the lease term, with the express consent of the Landlord, the Parties may continue the lease of the Leased Property on a temporary month- to-month basis (“ Temporary Holdover Period”) on the same conditions and terms of this License Agreement except that the Monthly Rent shall be in the amount of 150% of the Monthly Rent in effect at the expiration of this Lease Agreement. Said Temporary Holdover Period shall not exceed 180 days from the date of the end of the lease term. Tenant shall notify Lan dlord in writing of its request to continue the lease on a month-to-month basis one hundred eighty (180) days in advance of the Termination Date. Nothing contained herein shall grant Tenant the right to holdover after the term of this Lease Agreement has expired.
4.2 Rent
This Lease Agreement shall commence on the aforementioned Commencement Date at the initial rental rate of _____________ (“Monthly Rent”). The Monthly Rent shall be payable to Landlord on the first day of each month, in advance without offset or deduction, and shall be non-refundable.
The first month of rent shall be pro- rated from the Commencement Date to the end of the month at a rate of _____________ per day.
Tenant's failure to pay Monthly Rent by the fifteenth (15th) day of each month shall subject Tenant to a late charge in an amount equal to twenty percent (20%) per annum of the overdue amount or the maximum allowable by law, whichever is greater, until all amounts owing to Landlord are paid in full. Said late charge shall be automatically imposed without notice. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedi es granted hereunder or by law.
The Monthly Rate shall increase annually during the Initial Term and any Renewal Term, effective as of each anniversary of the Commencement Date, by an amount equal to five (5%), per annum above the amount of the Monthly Rate in effect immediately prior to such increase.
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All Monthly Rent payments shall be sent to the Landlord’s address in Section 15.
4.3 Surety Bond
Upon execution of this Lease, Tenant shall deposit with the Landlord a security deposit in the amount of One Hundred Thousand Dollars ( $100,000) in the form of a corporate surety bond (“Surety Bond”) acceptable to Landlord, to secure Tenant’s faithful performance of all terms, covenants and conditions of this Lease. Tenant agrees that Landlord may (but shall not be required to) apply the Surety Bond in whole or in part to remedy any damage to the Pr emises caused by Tenant, its Agents or Invitees, or any failure of Tenant to performs any other terms, covenants of conditions contained herein (including, but not limited to, the payment of Rent or other sum due hereunder either before or after a default), without waiving any of Landlord’s other rights and remedies hereunder or at law or in equity and without any obligation. Tenant waives the provisions of Section 1950.7 of the a California Civil Code or any similar law, statute or ordinance now or hereafter in effect and agrees that Landlord may retain any portion of Security Deposit reasonably necessary to compensate Landlord for any other foreseeable or unforeseeable loss or damage caused by the acts or omissions of Tenant, its Agents or Invitees.
5. PERMITTED USE OF THE PREMISES
The Premises may be used only for (i) the transmission and reception of communication signals within or utilizing the frequency bands duly licensed by the Federal Communications Commission; (ii) the construction, maintenance, repair, and replacement of its Equipment including antennas, cables and facilities, and improvements related thereto; and (iii) activities related to the foregoing, provided that none of the activities described (i), (ii), or (iii) require any physical expansion or relocation of any portion of the Premises or violate Tenant’s duties of non- interference set forth herein (collectively, “Tenant’s Permitted Use”) as described in the project plans and specifications in Exhibit C attached hereto and by this reference incorporated herein.
5.1 Colocation
Tenant may divide, sublease, sublicense, apportion or otherwise piggyback or colocate additional wireless telecommunication operators on the Facility (each such event individually constituting a “Colocation”), provided, however, that prior to any colocation, Tenant shall obtain the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, and Tenant shall obtain any approvals or permits required by the City of Hesperia. Additionally, Tenant shall deliver to Landlord within 30 days of each colocation, a fully executed copy of the agreement evidencing such colocation.
5.2 Additional Rent for Colocation
Tenant shall pay to Landlord, as Additional Rent, 50% of the monthly rent Tenant receives from each such wireless telecommunications operator for a Colocation.
5.3 Access
At all times throughout the term of this Lease Agreement, and at no additional charge to Tenant, Tenant and its employees, agents, and subcontractors, will have twenty- four (24) hour per day,
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seven (7) days per week right of access to and over Landlord’s Property , along Landlord’s specified access routes, for the installation, maintenance and operation of the Communications Facility and any utilities serving the Premises, subject to the following requirements:
• Tenant shall provide notice to Landlord as required by Section 15. • Tenant shall provide a minimum of two (2) weeks written notice to Landlord prior to the planned initial installation of equipment.
• Tenant shall provide forty-eight (48) hours advance notice to Landlord prior to bringing any vehicles or equipment onsite. Vehicular access shall be denied if the vehicle or Equipment: (1) has a gross vehicle weight in excess of 10,000 pounds; (2) has skid steering including track driven vehicles or Equipment; (3) possesses outriggers or stabilizers; (4) needs to be transported by trailer; or (5) is not recognized by the Department of Motor Vehicles to be legally driven or operated across/over public roads or highways. • Tenant shall provide twenty-four hours (24) advance telephone notice to Landlord prior to any routine, non-emergency, maintenance of the equipment to be undertaken by Tenant, its employees, agents, servants, contractors or subcontractors, or any of their employees, agents or servants.
• In the case of an emergency, Tenant shall be required to provide as much notice as is reasonably practicable in the situation.
6. MAINTENANCE AND REPAIR
Tenant will: (i) keep, maintain and repair the Premises in good condition, reasonable wear and tear excepted, and (ii) repair any damage caused by Tenant to Landlord’s Property including but not limited to accessways to the Premises. Tenant’s maintenance obligation in the preceding sentence shall include, but not be limited to, the replacement of any lights that may be mounted upon the Facility.
Tenant shall repair any damage the Premises or the Landlord’s Property caused by Tenant during construction, maintenance and operations, or any time said damage is caused by Tenant. Tenant shall repair the Premises or Landlord’s Property to substantially the same condition in which they existed upon the start of construction within five (5) business days from the date of Tenant’s receipt of Landlord’s written notice to repair such damage. Tenant shall reimburse Landlord for all of Landlord’s direct and indirect costs associated with such repair, including labor and material costs (the “Total Repair Costs ”)incurred by the Landlord to repair such damage if necessitated by Tenant’s failure to make such repair. Should damages be deemed severe in Landlord’s sole determination, Landlord reserves the right to require more immediate timeliness of Tenant’s response or to repair without Tenant’s consent and at Tenant’s expense.
A late fee of twenty percent (20%) of the Total Repair Costs shall be assessed for each business day the repair is not completed according to mutually agreed upon deadlines.
7. COMPLIANCE WITH ALL LAWS, RADIO FREQUENCY EMISSIONS
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Tenant’s use of the Premises and its Communications Facility on the Premises shall comply with all applicable Governmental Requirements of federal, state and local laws, rules and regulations, including but not limited to the non-interference and radio frequency emissions rules of the Federal Communications Commission (FCC) and the Fe deral Aviation Administration ( FAA). “Governmental Requirements” shall mean all applicable requirements under any federal, state or local statutes, rules, regulations, ordinances, or other requirements of any duly constituted public authority having jurisdiction over the Premises . Tenant shall indemnify Landlord and hold it harmless from all expenses, costs, damages, losses, claims or other expenses and liabilities arising from Tenant’s failure to comply with Government Requirements, except to the extent such expenses, costs, damages, losses, claims or other expenses and liabilities arise from the gross negligence or willful misconduct of Landlord. Tenant shall monitor and certify such compliance in accordance with requirements as may be established by Landlord.
Tenant’s ability to use the Premises shall be dependent upon Tenant obtaining currently valid certificates, permits, and other approvals, which may be required from any federal, state, or local authorities. Landlord shall reasonably cooperate with Tenant, but at no expense to Landlord, in obtaining such approvals.
Tenant shall be accountable for RF safety by submitting annual test results to confirm compliance with the FCC’s RF emission guidelines. Such testing should be sufficiently detailed to ensure that employees in the vicinity of the wireless antenna will not be harmed. Tenant shall also provide warning signs on the antenna and an automatic shutdown if workers are near the antenna.
Tenant is responsible for compliance with all tower marking and lighting requirements of the FAA and the FCC. Tenant shall indemnify and hold harmless Landlord from any fines or other liabilities caused by Tenant’s failure to comply with such requirements.
8. TERMINATION
Either Landlord or Tenant shall have the right to terminate this Lease Agreement after the Initial Term of Five (5) years for any cause by providing the other party with sixty (60) days written notice.
Tenant shall at its own cost and expense remove its personal property and fixtures, foundations and underground conduits and utilities, from the Premises and shall restore the Premises to good order and condition, reasonable wear and tear excepted on or before the 60 th day after the receipt of the notice of termination by Landlord or the issuance of the notice of termination by Tenant and/or sixty (60) days prior to the Termination Date, whichever occurs first, at which time Tenant shall peacefully quit and surrender the Premises and accessways. If Tenant fails to remove such Equipment within sixty (60) days after expiration or earlier termination of this Lease Agreement, Tenant at Tenant’s sole option may: (i) remove and dispose of the Equipment and Tenant shall reimburse Landlord for the reasonable costs actually incurred of such removal and restoration of the Premises; or (ii) Landlord may deem the Equipment abandoned, whereupon the Equipment shall become Landlord’s property, and Landlord shall have all rights to the Equipment, including without limitation the right to use, reuse, sell, lease, or dispose of same.
In the event that Tenant abandons the Premises for a continuous period of sixty (60) days or more,
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Landlord may, at its sole discretion, proceed to remove Tenant’s Equipment and bill Tenant for same, and this Lease Agreement shall automatically terminate after Landlord gives thirty (30) days’ written notice to Tenant. In such case, Landlord shall impose and Tenant shall pay such back Monthly Rental and incurred costs as required by this Lease Agreement.
This Lease Agreement may further be terminated by Landlord or Tenant if either party remains in default under Section 14 of this Lease Agreement after the applicable cure period has lapsed.
9. PERSONAL PROPERTY TAXES
Tenant shall pay all taxes and rental fees levied, assessed, or imposed by reason of Tenant's use of the Premises, including but not limited to possessory interest tax pursuant to California Revenue and Taxation Code Section 107.6, regardless of to whom taxes and/or fees are addressed . Tenant agrees to pay, before delinquency, all such taxes levied. Tenant shall be liable for failure to pay any possessory property taxes. Tenant shall also pay before delinquency, all taxes assessed against personal property of Tenant which may be located in or upon the Premises.
10. LIENS
During the term hereof, Tenant shall keep the Premises free from all liens, including but not limited to mechanic's liens and further encumbrances by reason of the use of the Premises by Tenant.
Failure of Tenant to remove any potential or recorded lien against the Premises within thirty (30) days of receipt of notice of recordation shall be considered an Event of Default of this Lease Agreement and cause for termination under Section 14 herein.
11. UTILITIES
Tenant shall be directly responsible to pay all charges for all utilities required by Tenant's use of the Premises including but not limited to gas, electricity, water and telephone. Tenant shall make all arrangements with utility providers and government authorities for all utilities and other like services to the Premises during the term of this Lease Agreement.
12. INDEMNIFICATION
12.1 Indemnification; Definitions
To the maximum extent permitted by law, including but not limited to California Civil Code Section 2778, Tenant shall indemnify, defend, and hold harmless Landlord, its officers, agents, representatives and employees (individually and collectively “ Landlord Indemnitee”) from and against a “Liability ” [as defined in Subparagraph (a) below] or an “ Expense” [as defined in Subparagraph (b) below], or both, that arise out of, pertain to, or relate to an act, error, or omission of Tenant, its employees, agents, contractors and persons whom Tenant employs or hires (individually and collectively “Tenant Indemnitor”):
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(a) “Liability” means claims, suits, actions, causes of action, proceedings, judgments, decrees, awards, settlements, liens, losses, damages, injuries, or liability of any kind, whether the liability is:
(1) Actual or alleged;
(2) In contract or in tort; or
(3) For bodily injury (including accidental death), personal injury, advertising injury, or property damage.
(b) “Expense” means fees, costs, sums, penalties, fines, charges, or expense s of any kind, including, but not limited to:
(1) Attorney’s fees;
(2) Costs of an investigation, litigation, arbitration, mediation, administrative or regulatory proceeding, or appeal;
(3) Fees of an accountant, expert witness, consultant, or other professional; or
(4) Pre or post: judgment interest or settlement interest.
12.2 Obligations
Under this Section 12, Tenant Indemnitor’s defense and indemnification obligations:
(a) Apply to a Liability, or an Expense, or both, that arise out of, pertain to, or relate to the actual or alleged passive negligence of a Landlord Indemnitee; but (b) Do not apply to a Liability, or an Expense, or both, that arise out of, pertain to, or relate to the sole active negligence or willful misconduct of a Landlord Indemnitee.
12.3 Defense
To the extent that Tenant Indemnitor’s insurance policy provides an upfront defense to Landlord Indemnitee, Tenant Indemnitor’s obligation to defend a Landlord Indemnitee under this Section 12:
(a) Means that Tenant shall provide and pay for legal counsel satisfactory to Landlord Indemnitee;
(b) Arises when a claim, suit, complaint, pleading, or action against a Landlord Indemnitee arises out of, pertains to, relates to, or asserts an act, error, or omission of Tenant Indemnitor; and
(c) Arises regardless of whether a claim, suit, complaint, pleading, or action specifically names or identifies Tenant Indemnitor.
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Section 12.3 does not limit or extinguish Tenant Indemnitor’s obligation to reimburse a Landlord Indemnitee for the costs of defending the Landlord Indemnitee against a Liability, or an Expense, or both. Landlord Indemnitee’s right to recover defense costs and attorney’s fees under this Section 12 does not require, and is not contingent upon, Landlord Indemnitee’s first:
(a) Requesting that Tenant Indemnitor provide a defense to the Landlord Indemnitee; or (b) Obtaining Tenant Indemnitor’s consent to the Landlord Indemnitee’s tender of defense.
If Tenant Indemnitor contracts all or any portion of its work under this Lease Agreement, Tenant Indemnitor shall require that each contractor indemnify, defend and hold harmless Landlord Indemnitee under the terms in this Section 12.
Tenant Indemnitor’s obligation to indemnify, defend, and hold harmless Landlord Indemnitee will remain in effect and will be binding upon Tenant Indemnitor whether the Liability, or the Expense, or both, accrues — or is discovered— before or after this Lease Agreement’s expiration, cancellation, or termination.
12.4 Application of Section
Except for Section 12.3, this Article’s indemnification and defense provisions are separate and independent from the insurance provisions in Section 13. In addition, the indemnification and defense provisions in this Article:
(a) Are neither limited to nor capped at the coverage amounts specified under the insurance provisions in Section 13; and
(b) Do not limit, in any way, the applicability, scope, or obligations of the insurance provisions in Section 13.
13. INSURANCE
In order to accomplish the indemnification of Tenant provided for in this Lease Agreement, but without limiting the indemnification, Tenant shall secure and maintain through the term of this Lease Agreement the following types of insurance with limits as shown in this Lease Agreement.
Tenant shall obtain, pay for, and maintain during the life of this Lease Agreement a Commercial General Liability policy, including Contractual Liability, and an Automobile Liability policy which shall protect it and Landlord from claims for injuries and damages. The Commercial General Liability and Automobile Liability policies shall include the Landlord, its officers, agents, and employees as additional insureds under the policy in the following amounts:
• Commercial general liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($ 4,000,000) general aggregate and Four Million Dollars ($4,000,000) completed operations aggregate; and
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• Automobile liability insurance covering all owned, non-owned and hired vehicles with a combined single limit of not less than One Million Dollars ($1,000,000) per accident for personal injuries, including accidental death, to any one person and for property damage. • The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated and that all excess policies shall cover Landlord, its officers, agents and employees as additional insureds and said policies are primary coverage. • Workers’ Compensation insurance with statutory limits and Employers Liability insurance with limits of $1,000,000 per accident for bodily injury and disease. • Property Insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision.
Said policies shall contain a "Severability of Interest" clause and a "Primary Coverage" clause for any loss arising from or caused by Tenant's exercise of this Lease. Said policies shall contain a statement of obligation on the carrier's part to notify the Landlord, by U.S. Mail, at least thirty (30) days in advance of any policy cancellation. Tenant shall provide Landlord with at least thirty (30) days advance notice in the event of any policy termination or reduction in the amount of coverage.
Tenant shall require the carriers of the above-required coverages to waive all rights of subrogation against Landlord, its officers, agents, and employees. Said policies shall be issued by companies authorized to do business in California and having not less than Best's A -VII rating or approved by Landlord in its business judgment, and shall be issued in the name of Tenant.
Before execution of this Lease Agreement, Tenant shall furnish Landlord with a "Certificate of Insurance" and an "Additional Insured Endorsement.” Said documents shall include policy language evidencing the additional insured status of Landlord, its officers, agents and employees.
Said documents shall be countersigned by the insurance carrier or its authorized representative, on forms satisfactory to the Landlord’s City Attorney, which set forth the above provisions. The countersigned certificate, along wit h the additional insured endorsement, shall include the Landlord, its officers, agents, and employees as additional insureds under the Commercial General Liability policy. Said insurance shall be primary to the coverage of the Landlord and neither Landlord nor any of its insurers shall be required to contribute to any loss. This policy contains a severability of interest clause.”
Tenant shall maintain all required insurance in force at all times during the Term of this Agreement. Failure to maintain said insurance, due to expiration, cancellation, or reduction in coverage shall be cause for the Landlord to give notice to immediately terminate this Lease Agreement. Failure to reinstate said insurance within ten (10) days of said notice shall constitute a material breach and shall be cause for the immediate termination and forfeiture of this Lease Agreement.
Notwithstanding the foregoing, Tenant shall have the right to self -insure with respect to the insurance coverage with the approval of the City. The required proof of such self -insurance shall be in a form satisfactory by the Landlord’s City Attorney.
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No less than ten (10) days prior to the annual anniversary date of said insurance policy coverage, Tenant shall deliver to Landlord a renewal certificate of insurance and renewal additional insured endorsement in a form satisfactory to the City Attorney and in conformance with the requirements set forth herein.
Landlord reserves the right to modify its insurance requirements pursuant to this Lease Agreement on a tri-annual basis unless circumstances arise that require earlier consideration of said insurance requirements.
14. DEFAULT AND RIGHT TO CURE
The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder in whole or part by Tenant.
• The failure by Tenant to make the payment of Monthly Rent or any other payment required to be made by Tenant hereunder when due, where such failure shall continue for a period of thirty (30) days after written notice thereof is received by Tenant from Landlord.
• Tenant’s failure to maintain insurance coverage as required in Section 13. • The failure by Tenant to observe or perform any other provision contained in this Lease Agreement, where such failure shall continue for a period of thirty (30) days after written notice thereof is received by Tenant from Landlord; provided, however, that it shall not be deemed an Event of Default by Tenant if Tenant shall commence to cure such failure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
Upon an Event of Default caused in whole or part by Tenant which is not cured or commenced to be cured by Tenant, Landlord in addition to any and all other remedies available to Landlord at law or in equity, shall be entitled to one or more of the following remedies: (i) terminate this Lease Agreement; (ii) obtain immediate restraint by injunction; or (iii) prior to a determination and authorization by a court of competent jurisdiction, to re -enter the Premises and remove persons and personal property therefrom.
15. NOTICES
All notices hereunder must be in writing and given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier U.S. Postal mailbox or any U.S.
Post Office, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Should Landlord or Tenant have a change of address, or a change in the designated individual with knowledge of this Lease Agreement, the other party shall immediately be notified in writing of such change, provided, however, that each address for notice must include a street address and not merely a post office box. All notices, demands or requests from Tenant to Landlord shall be given to Landlord addressed as follows:
Landlord: City of Hesperia
9700 Seventh Ave.
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Hesperia, CA 92345
Attn: Economic Development
Email: [email protected]
Phone: 760-947-1909
With copy to: Pam K. Lee, City Attorney
1 Park Plaza, Suite 1000
Irvine, CA 9214
[email protected]
949-223-1170
Tenant: NAME
Address
Attn:
Email:
Phone:
With copy to: NAME
Address
Attn:
Email:
Phone:
16. HAZARDOUS SUBSTANCES
Tenant agrees that it will not use, generate, store, or dispose of any Hazardous Material on, under, about, or within the Premises in violation of any federal, state, or local law or regulation. Landlord represents, warrants and agrees that neither Landlord nor, to Landlord's knowledge, any third party has used, generated, stored or disposed or permitted the use, generation, storage or disposal of, any Hazardous Material on, under, about or within Premises in violation of any law or regulation.
Tenant shall defend, indemnify and hold harmless Landlord against any and all losses, liabilities, claims, and costs (including reasonable attorneys’ fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. “Hazardous Material” shall mean any hazardous or radioactive material, polychlorinated biphenyls, friable asbestos or other hazardous or medical waste substances as defined by the Comprehensive Environmental Response, Compensation and Liability Act, as amended or by any other federal, state or local law, statute, rule, regulation or order concerning environmental matters, or any matter which would trigger any employee or community “right -to-know; requirements adopted by any such body, or for which any such body has adopted any requirements for the preparation or distribution of a material safety data sheet. This paragraph shall survive the termination of this Lease Agreement.
17. QUIET ENJOYMENT
Landlord warrants and agrees that Tenant, upon paying the Monthly Rent and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Premises. Landlord
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shall not cause or permit any use of the Premises, which interferes with or impairs the quality of the communications services being rendered by Tenant from the Leased Premises.
Subject to the terms of this Lease Agreement, Landlord reserves for itself, its successors and assigns the right to use the Premises, or any portion thereof for any purposes that Landlord may find necessary. Landlord acknowledges that Tenant's use of the Premises includes proprietary trade secrets. Accordingly, Landlord, except in cases of emergency, shall have no right to enter the Tenant Portion of the Equipment Building without Tenant's prior consent and accompaniment which shall not be unreasonably withheld.
18. NON-INTERFERENCE
Tenant shall operate its communications and related existing ground Equipment as described in Exhibit C on the Premises in a manner that will not cause harmful interference with the use or enjoyment of the Premises by Landlord and other tenants or licensees (“Existing Tenants”) in and/or on the Premises. Tenant shall be responsible for all costs associated with any tests deemed necessary to resolve any and all interference.
Tenant's activities on the Premises shall not interfere with Landlord's radio communication operations including but not limited to interference with Landlord's radio frequencies, effective radiated power and physical location. Such interference shall be deemed a material breach by Tenant subject to Section 14 herein, and Tenant shall have the responsibility to promptly terminate said interference. If interference caused by Tenant’s failure to comply with FCC or FAA rules and regulations has not been correc ted within the required period specified by the FCC or FAA after Tenant receives notice thereof, Landlord may require Tenant to remove from its facilities the specific items causing such interference.
Landlord shall not interfere nor shall Landlord allow any use of the Premises conferred after the Effective Date to interfere in any way with the communications operations of Tenant as described in this Lease Agreement. Such interference with Tenant's communications operations shall be deemed a material breach by Landlord, and Landlord shall have the responsibility to promptly terminate said interference.
Landlord shall not alter its existing or contemplated use of the Premises, nor shall Landlord permit any tenants, licensees, employees, invitees or agents obtaining rights to the Premises from and after the Commencement Date to use any portion of the Premises in any way which unreasonably interferes with the operations of Tenant. Without limiting the generality of the foregoing, Landlord hereby acknowledges that in the event of any unreasonable interference with Tenant’s Permitted Use as a result of the transmission or reception (or both) of radio, microwave or other telecommunications signals by a future tenant, licensee, or occupant of the Premises , Tenant’s rights hereunder to conduct Tenant’s Permitted Use shall be and remain superior to the rights of any such future tenant, licensee or occupant, subject, however, to the provisions of Section 18 herein.
Landlord reserves the right to license or lease other portions of the Premises to other parties during the Term of this Lease Agreement and any month to month tenancy thereafter. Accordingly, Landlord agrees that any other person or entity who may install Equipment subsequent to the
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Commencement in and/or on the Premises , including, without litigation, existing tenants or licensees, will be permitted to install only such communications Equipment that is of a type and frequency that does not cause harmful interference to Tenant or any persons or entities collocated on Tenant’s facilities. In the event any such person or entity’s Equipment causes such interference, Landlord will cause the interfering party to take all steps necessary to correct and eliminate the interference or such interfering party will be required to cease operations until such interference is removed. To the extent that Tenant’s operations are not within the parameters of its FCC license, this protection from collocated interference will not be applicable, but it shal l be applicable with respect to those operations, or portions thereof, falling within the FCC license parameters.
Notwithstanding the foregoing, Tenant’s right to be free from interference and Landlord’s duties concerning the prevention and/or correction of interference shall be subject to Section 18 herein.
In the event that Tenant commences to use the Premises in a manner as to which Tenant is not presently licensed by the FCC but, Tenant’s right to conduct such particular use shall be subordinate to the use of the Premises by Landlord and other tenants or licensees thereof existing on or before the date on which the Tenant subsequently obtains the necessary FCC licensure.
Landlord shall be under no obligation to exercise the duties concerning interference described in Section 18 with respect to a future use of the Premises by Tenant as described in this Section 18.
19. SECURITY
Tenant acknowledges that while Landlord makes every effort to protect and secure all property within the park, it does not guarantee the security of the Premises. Tenant shall be responsible to maintain its own security measures as it pertains to Tenant’s use of the Premises.
20. CONDEMNATION
In the event Landlord or any other public or private entity that has condemnation authority under state law initiates condemnation proceedings affecting the Premises, Landlord or other said entity will provide at least forty-eight (48) hours’ notice of the proceeding to Tenant. If Landlord or other said entity takes all of the Premises, or a portion sufficient, in Tenant’s sole determination, to render the Premises unsuitable for Tenant, this Lease Agreement will terminate as of the date the title vests in the Landlord or other said authority. Tenant will be entitled to reimbursement for any prepaid Monthly Rent on a prorated basis and no severance fee shall apply.
21. MISCELLANEOUS PROVISIONS
21.1 Waiver
Landlord's failure to exercise any of its rights resulting from a default or breach of covenant on the part of Tenant shall not be construed as a waiver thereof, nor shall any custom or practice which may grow up between the Parties in the course of administering this Lease Agreement be construed to waive or to lessen the right of Landlord to insist upon the performance by Tenant of any term, covenant or condition hereof, or to exercise any right given it resulting from any such default. A waiver of a particular breach or default shall not be deemed to be a waiver of the same or any other subsequent breach or default.
21.2 Time Essence
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Time is of the essence of this Lease Agreement and of each provision.
21.3 No Partnership
This Lease Agreement shall not be construed to continue any form of partnership or joint venture between Landlord and Tenant.
21.4 Construction
Section titles or captions contained in this Lease Agreement are inserted as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Lease Agreement or any provision hereof.
Unless defined otherwise, the words used in this Lease Agreement shall be construed according to their plain meaning in the English language. The language used in this Lease Agreement shall not be interpreted strictly for or against either party.
If any provision of this Lease Agreement is capable of two constructions, one of which would render the provision valid and the other of which would render the provision invalid, then the provision shall have the meaning that renders it valid.
The singular includes the plural and vice -versa and the masculine includes the feminine and neuter, whenever the context so requires.
21.5 Warranty
Landlord warrants and agrees that Landlord is seized of good and sufficient title to and interest in the Premises, and has full authority to enter into and execute this Lease Agreement, and that there are no undisclosed liens, judgments or impediments of title of record or not of record on the Premises that would affect this Lease Agreement. Landlord makes no representation or warranty whatsoever concerning the suitability of the Premises for the purposes intended by Tenant. Except as otherwise expressly set forth in this Lease Agreement, Tenant further acknowledges that neither Landlord, nor any of Landlord's officers, agents, and employees have made nor is Tenant entering into this Lease Agreement in reliance upon any such representations.
21.6 Governing Law
This Lease Agreement and the performance hereon shall be governed, interpreted, construed, and regulated by the laws of the State of California.
21.7 Entire Lease Agreement
This Lease Agreement constitutes the entire Lease Agreement between the Parties hereto pertaining to the subject matter hereof, fully supersedes any and all prior understandings, representations, warranties and agreements between the Parties hereto, or any of them, pertaining to the subject matter hereof, and may be modified only by written agreement signed by all of the Parties hereto.
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21.8 Binding Power
Each person executing this Lease Agreement warrants and represents that he or she is duly authorized to execute this Lease Agreement on behalf of Landlord or Tenant.
21.9 Assignment & Subleases
Tenant shall not assign this Lease Agreement or otherwise transfer all or any part of its interest in this Lease Agreement without the prior written consent of Landlord, which consent shall not be unreasonably denied, withheld, or delayed. Tenant may assign all or any of its interests in this Lease Agreement without such consent to Tenant’s Affiliate or to any entity which acquires all or substantially all of the Tenant’s assets in the market defined by the Federal Communications Commission in which the Premises is located by reason of a merger, acquisition, or other business reorganization. Upon notification to Landlord of such assignment, transfer or sale, Tenant will be relieved of all future performance, liabilities and obligations under this Agreement. All insurance policies and other documents bearing Tenant’s name that must be provided by Tenant to landlord must be reissued and filed anew with Landlord not later than thirty (30) days before any such transfer is final and completed.
Tenant may not otherwise assign or sublease this Lease Agreement without Landlord’s consent, which consent may be delayed in Landlord’s sole discretion, except in connection with an assignment as collateral to secure a loan from a bona fide thirty party lender obtaining such assignment as a part of a larger collateral pool. Any assignment consented to by Landlord in its sole discretion shall not operate to release the assigning Tenant from its liabilities or obligations arising hereunder.
Tenant shall not sublease the Premises , in whole or in part, without Landlord’s consent, which consent shall not be unreasonably denied, withheld, or delayed.
21.10 Severability
If any portion of this Lease Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion shall be deemed modified to the extent necessary in such court's option to render such portion enforceable and, so modified, such portion and the balance of this Lease Agreement shall continue in full force and effect.
21.11 Attorneys' Fees
In case suit shall be brought because of the breach or alleged breach of any covenant herein contained on the part of any party to be kept or performed, or for declaratory relief, the prevailing party or Parties shall recover from the non- prevailing party or Parties all costs and expenses incurred therein, including reasonable attorneys' fees and expenses incurred in enforcing any judgment.
21.12 Section 7901
Notwithstanding this Lease Agreement or any provision contained herein, the Parties agree and acknowledge that Tenant preserves all rights and benefits under Section 7901 of the California
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Public Utilities Code, and nothing herein shall be deemed to have waived such rights.
21.13 Force Majeure
For the purposes of this Lease Agreement, “ Force Majeure” means an unforeseen event or condition deemed by Landlord as calling for immediate action to avoid the threat of loss or injury of property and/or danger to public safety—including, but not limited to, an act of God, labor dispute, civil unrest, epidemic, and/or natural disaster.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease Agreement as of the date and year first written above.
LANDLORD
City of Hesperia, a municipal corporation
Rachel Molina, City Manager
ATTEST
Melinda Sayre, City Clerk
APPROVED AS TO FORM
Aleshire & Wynder, LLP
Pam K. Lee, City Attorney
TENANT
Name
Name:
Title:
Name:
Title:
SCHEDULE OF EXHIBITS
Exhibit A (the Landlord’s Property)
Exhibit B (the Premises)
Exhibit C (the Site Plan)
LANDLORD ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
)
COUNTY OF )
On ________________________________ before me, ________________________________, the undersigned, a Notary Public in and for said State, personally appeared ________________________________________________________________________________ _______________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________
Name _____________________________________
(typed or printed) (Seal)
TENANT ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ________________________________ before me, ________________________________, the undersigned, a Notary Public in and for said State, personally appeared ________________________________________________________________________________ _______________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________
Name _____________________________________
(typed or printed) (Seal)
EXHIBT A
Landlord’s Property
Number of pages: ______ (__)
EXHIBIT B
Premises
Number of pages: _______ (___)
EXHIBIT C
Site Plan
Number of pages:________ (______)