CITY OF SAN CLEMENTE COMMUNICATIONS SITE FACILITY LEASE This Communications Site Facility Lease (the “Lease”) is made and entered into this day of , 2024 by and between the CITY OF SAN CLEMENTE, a California Municipal Corporation, (herein “LESSOR”), and DISH WIRELESS, LLC, a Colorado limited liability company (herein “LESSEE”) (hereinafter collectively referred to as “Parties” or individually as the “Party”).
RECITALS
WHEREAS, LESSEE wishes to construct and operate a new communications facility consisting of approximately 216 sq. ft. of ground space for an equipment enclosure, that includes equipment cabinets and electrical control panels, together with antennas and related equipment installed on an existing 80’ monopole light pole owned or controlled by Lessor (“Tower”), all at that certain property commonly known as San Gorgonio Park, located at 2916 Via Gorgonio in San Clemente, California (“Property”).
WHEREAS, the Property is owned by LESSOR; and
WHEREAS, LESSEE wishes to lease the Premises, as defined below, from said LESSOR on the terms and conditions herein for the transmission of and for provision of mobile/wireless communications services; and NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants, conditions, and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties to this Lease do hereby agree as follows:
DEMISE AND DESCRIPTION:
DEMISE: LESSOR agrees to lease a portion of that certain property described as San Gorgonio Park, being described as approximately 216 sq. ft. of ground space for an equipment enclosure that includes equipment cabinets and electrical control panels, together with the right to install utilities over, under and across the Property, collectively hereinafter referred to as the “Premises” and more specifically described in Exhibit “A”, which is attached hereto and incorporated by reference fully herein. Access to the Premises from a public right of way shall be provided by the LESSOR as reflected on Exhibit “B”, which is attached hereto and incorporated by reference fully herein. LESSOR shall provide LESSEE, LESSEE’S employees, agents, and subcontractors access over the Property to the Premises twenty-four (24) hours a day, seven (7) days a week without notice to LESSOR, at no charge to LESSEE. The Premises and access over the Property are provided in an “AS IS, WHERE IS” condition.
DESCRIPTION: The “Facility” shall consist of an equipment enclosure, that includes equipment cabinets, electrical control panels, and occupies approximately 216 sq. ft. of ground space, and use of the Tower, all as more specifically described in Exhibit A attached hereto and made a part hereof. The Premises may be used by LESSEE for the purpose of operating and maintaining the Facility for any lawful activity in connection with the provision of mobile/wireless communications services, including without limitation, cellular communications facilities including the upgrade, repair or replacement of such equipment and facilities; and environmental and other testing.
LEASE TERM:
INITIAL TERM: The initial term of this Lease shall commence on the earlier of (a) the first day of the month following issuance of a final building permit or (b) March 1, 2024 (the “Commencement Date”), and shall continue for five (5) years from that date (“Initial Term”) unless terminated earlier pursuant to Section 6.0 below.
RENEWAL TERMS: LESSOR grants LESSEE an option to renew this Lease for an additional fifteen (15) years, with a renewal in three five (5) year increments (each five (5) year increment, a “Renewal Term”), commencing upon expiration of the Initial Term, which shall continue for five (5) years from that date unless terminated earlier. To exercise such renewal options, LESSEE shall provide written notice of such intention to LESSOR no sooner than ninety (90) days nor later than thirty (30) days prior to the expiration of the then current Lease Term. For the purpose of this Lease, the “then current Lease Term” shall mean either the Initial Term or the Renewal Term, whichever is in effect at the relevant time. The exercise of renewal terms shall not require an amendment to the Lease.
PAYMENT OF RENT: LESSEE agrees to pay to LESSOR, as rental for said Premises, each month in advance, on the first of each month during the term of this Lease payable to the City of San Clemente, 910 Calle Negocio, San Clemente, CA 92673, Attn: Accounts Receivable, Accounting Division. In addition, LESSEE agrees to do and perform all other covenants and agreements contained in this Lease.
BASE RENTAL PAYMENT: The Base Rental Payment under this Lease shall be One Thousand One Hundred Forty-Six DOLLARS and Seventy- Six CENTS ($1,146.76) per month. If the Commencement Date is a date other than the first day of a month, the Base Rental Payment for the first calendar month shall be prorated on the basis of the number of actual days in such partial month.
ANNUAL RENTAL INCREASES: Commencing on the first (1st) annual anniversary of the Commencement Date and on each annual anniversary thereafter, the Base Rental Payment shall be increased by an amount equal to three percent (3%) of the Base Rental Payment in effect during the immediately preceding year. Each new rental amount shall also be referred to as the “Base Rental Payment.” LATE CHARGE: LESSEE acknowledges that late payment by LESSEE to LESSOR of the Base Rental Payment will cause LESSOR to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges. Therefore, if any installment of the Base Rental Payment due from LESSEE is not received by LESSOR within ten (10) days after the same becomes due, LESSEE shall pay to LESSOR an additional sum of five percent (5%) of the overdue Base Rental Payment as a late charge. The Parties agree that this late charge represents a fair and reasonable estimate of the costs that LESSOR will incur by reason of a late payment by LESSEE. Acceptance of any late charge shall not constitute a waiver of any right of termination as contained in Section 10 below with respect to the overdue amount, or prevent LESSOR from exercising any of the other rights and remedies available to LESSOR.
LES SEE’S O BLIG AT ION : LESSEE recognizes and understands that this Lease may create a possessory interest subject to property taxation and that LESSEE may be subject to the payment of property taxes levied on such interest. LESSEE shall pay all property taxes and assessments directly attributable to LESSEE’s possessory interest.
CONSTRUCTION OF IMPROVEMENTS:
LES SEE’S CONST RUCT IO N : The purpose of this Lease is to provide LESSEE a site for the placement and use of the Facility, and for no other use whatsoever. LESSEE shall have the right, during the Lease term, to develop, construct, alter, remove, repair, operate, demolish, restore and remodel the following improvements on the Premises and be allowed to operate the Facility as follows:
Antenna Structure: LESSEE shall utilize space on the existing Tower, owned by LESSOR, on the Premises for LESSEE’s antennas and related equipment. Prior to installing the Facility, LESSEE shall obtain a structural analysis from the manufacturer of the Tower and, if recommended, shall reinforce or replace the Tower as needed at LESSEE’s sole expense and to the LESSOR’s satisfaction.
Communications Facilities: An equipment enclosure and related equipment located on a 216 sq. ft. portion of ground space on the Premises.
Site Equipment: LESSEE shall provide all site equipment required for the installation and operation of the Facility (“Site Equipment”). The Site Equipment is and shall remain the sole property of LESSEE, shall not be deemed fixtures, and may be removed from the Premises by LESSEE at any time.
Access to Site: LESSEE’s employees, agents and subcontractors shall have access over the Property to the Premises twenty-four (24) hours a day, seven (7) days a week without notice to LESSOR or charge to LESSEE, which such access as reflected on Exhibit B.
Construction of Improvements: All improvements made to the Premises by LESSEE shall be developed, constructed, altered, restored, and/or remodeled in a good and workmanlike manner, at LESSEE’s expense, in accordance with the requirements of all laws, ordinances, and regulations applicable thereto, including zoning requirements and building code requirements of the City of San Clemente (including compliance with the CUP process prescribed by the City of San Clemente Ordinance No. 1129, if applicable), the County of Orange, and any municipal, state, federal or other governmental agency having jurisdiction over the Premises or the Facility at the time the improvements are constructed. LESSOR agrees to cooperate with LESSEE and execute all documents reasonably required in connection with applying for any municipal permits, zoning variances, or conditional use permits in connection with the construction of the aforementioned improvements. It is understood and agreed that such cooperation and execution of documents shall not be implied to include any expenditures of funds on the part of LESSOR or any implied promise or warranty that such permits, discretionary, or otherwise, will be issued to LESSEE. Notwithstanding anything in this Lease to the contrary, prior to commencement of construction LESSEE, at its expense, shall submit a location and installation plan to LESSOR for review and approval by LESSOR’s Utilities Manager. If LESSOR’s Utilities Manager (or his/her designee) does not respond in writing to LESSEE within twenty (20) days following LESSEE’s request for approval, such request will be deemed to have been approved by LESSOR. Once commenced, any and all improvements to be made by LESSEE with respect to the installation of the Facility and the Premises shall be diligently pursued to completion in compliance with all applicable laws and regulations.
MECHANIC’S LIE NS : LESSEE shall not suffer or permit to be enforced against the Premises, or any part thereof, and shall defend (with counsel acceptable to LESSOR), indemnify, and hold LESSOR harmless from any mechanic’s, material suppliers’, contractors’, tax, or subcontractors’ liens arising from any claim for damage, or growing out of the work of any construction, repair, restoration, replacement, or improvement made by or alleged to have been made by or on behalf of LESSEE with respect to the Premises. LESSEE shall pay or cause to be paid all of such liens, claims, or demands before any action is brought to enforce the same against the Premises. If LESSEE shall in good faith contest the validity of any such lien, claim, or demand, then LESSEE shall, at its expense, defend itself and LESSOR against same and shall pay and satisfy any settlement or adverse judgment that may be entered thereupon prior to the execution thereof. In the event of any such contest, LESSEE shall provide LESSOR with a security bond in a form and amount LESSOR deems sufficient in its reasonable discretion to allow the lien of record to be discharged as a matter of law.
CARE DURING CONSTRUCTION: LESSEE shall exercise great care during construction of the improvements. Any and all damage to improvements, including landscaping and vegetation located on or about the Property that is caused by LESSEE’s construction, shall be repaired and/or replaced with like size and type of plant materials. All applicable City standards and specifications shall be followed. LESSEE shall request and LESSOR shall reasonably approve all work prior to commencement.
TERMINATION:
LES SOR’S RIG HT T O T ERMINAT E : LESSOR may pursue any remedies available to it under applicable law, including, but not limited to, the right to terminate this Lease, upon the earliest of any of the following events:
LESSEE’s failure to pay any Base Rent Payment within fifteen (15) days following notice of nonpayment; (b) LESSEE’s failure to comply with any term, covenant, or condition of this Lease after LESSEE has been given notice of the violation and has had thirty (30) days to cure same or, if such default is not curable within such thirty (30) day period, has not proceeded to commence such cure within such thirty (30) day period and diligently prosecutes the cure to completion; (c) interference by LESSEE’s Site Equipment with other electrical or radio frequency equipment installed on or around the Property prior to the Commencement Date, which interference LESSEE does not commence curing within ten (10) days following notice thereof; (d) interference by LESSEE’s Site Equipment with hydrological equipment installed on or around the Property prior to the Commencement Date, which interference LESSEE does not commence curing within ten (10) days following notice thereof. Likewise, LESSOR will not permit or suffer the installation of any future equipment which (i) results in technical interference problems with LESSEE’S then existing equipment or (ii) encroaches onto the Premises.
LES SEE’S RIG HT T O T ERMINATE : LESSEE may terminate this Lease without further liability for any reason whatsoever upon ninety (90) days written notice to LESSOR. Upon termination, all prepaid Base Rent Payments will be retained by LESSOR unless such termination is due to LESSOR’s failure of proper ownership or authority, or such termination is a result of LESSOR’s default hereunder. In the event that LESSEE terminates the Lease prior to commencement of construction of the improvements, LESSEE’s obligation to construct the improvements shall terminate without further liability.
OWNERSHIP OF IMPROVEMENTS: LESSOR shall be the owner of the Tower structure at all times before, during, or following the Term of this Agreement. Upon termination of this Lease for any reason whatsoever, LESSEE shall transfer to LESSOR title to all real property improvements (“Retained Improvements”) constructed by LESSEE (but not the Site Equipment constructed upon the Premises, provided that LESSEE removes the Site Equipment within thirty (30) days of the end of the Agreement) free, clear and unencumbered of any monetary encumbrance or other restriction or title exception of any kind or nature created by LESSEE other than as permitted by LESSOR in writing. LESSOR acknowledges and agrees that it shall take possession of the Retained Improvements in their then “AS IS” condition, and that LESSEE makes no representation or warranty regarding their condition or fitness for any particular purpose and that LESSEE shall incur no further liability therefore.
INTERFERENCE:
LESSEE’S OBLIGATIONS: Prior to occupancy and operation of any portion of the facility by LESSEE or its agents, assigns or lessees within LESSOR’s portion of the Building or Pole (defined below), LESSEE agrees to:
Submit to LESSOR within 45 days prior to operation, proposed plans designating equipment locations in the Building, antenna type, size and locations on the Pole, heights above ground on LESSOR’s existing towers, along with operating frequencies, effective radiated power, and other necessary on-air technical data at LESSOR’s reasonable discretion for LESSOR’s review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.
Install or cause to be installed, all equipment according to generally accepted standard engineering practices used in the communication industry, in a good and workmanlike manner and in compliance with all applicable law and regulations.
Use reasonable efforts to mitigate any interference on existing radio frequency equipment of LESSEE within ten (10) days of written notification of interference.
LESSOR’S O BLIG AT ION : LESSOR shall include in all leases between LESSOR and future lessees on the Property a covenant that the lessee shall not interfere with other electrical or radio frequency equipment previously installed on or around the Property and that if the lessee is not able to mitigate the interference, the lease shall provide for termination thereof. Likewise, LESSOR will not permit or suffer the installation of any future equipment which (i) results in technical interference problems with LESSEE’s then existing Site Equipment or (ii) encroaches onto the Premises.
NON-INTERFERENCE: The Site Equipment and the use thereof shall not interfere with the use of any other communication or similar equipment of any kind and nature owned or operated by LESSOR or other occupants of the Property existing as of the Commencement Date, except as may be permitted by applicable laws; provided, however that subsequent to the installation by LESSEE of the Facility, LESSOR agrees not to install and to exercise commercially reasonable efforts to not allow installation of new equipment on the Property if such equipment causes interference with LESSEE’s operations.
CO-LOCATION:
RIGHT TO LEASE TO THIRD PARTY: LESSOR, in LESSOR’S sole and absolute discretion and in compliance with the terms of this Lease, may elect to enter into a similar lease with another carrier (“Potential Carrier”) to place an antenna and/or other improvements on the Property. LESSEE hereby agrees that LESSOR may elect to place any such antenna either upon the pole constructed by LESSEE pursuant to this Lease (“Pole”) or upon a second pole located upon the Property constructed by the Potential Carrier pursuant to the terms of this Section 8. Any lease entered into between LESSOR and a Potential Carrier shall reference the obligation of the Potential Carrier to comply with the applicable FCC non-interference rules as set forth in Section 7 herein.
CO-LOCATION AGREEMENT: In the event LESSOR elects to enter into a lease with a Potential Carrier with respect to the Pole, LESSEE hereby covenants to exercise good faith and use commercially reasonable efforts to enter into a separate written co-location agreement with the Potential Carrier (“Co-location Agreement”) subject to the reasonable approval of the City Manager of the City of San Clemente or his/her designee. In the event that an antenna is placed upon the Pole, the Co-location Agreement shall, among other things, set forth the maintenance, utility, indemnification and other obligations of the parties as to the Pole. In the event that LESSEE and the Potential Carrier are unable to agree as to the terms of a Co-location Agreement, LESSEE shall not be obligated to enter into the Co-location Agreement.
RELEASE OF LESSOR: LESSEE hereby releases LESSOR, its officers, agents, and employees from any responsibility or liability occurring by reason of or arising out of interference with LESSEE’s communication configurations, equipment and/or frequency caused by the location of any Potential Carrier upon the Pole, the Facility, the Premises, or the Property in conformity with the provisions of this Lease, or by pre-existing communications operating upon the commencement of this Lease.
REPAIRS AND MAINTENANCE:
NO OBLIGATION OF LESSOR: LESSEE agrees that LESSOR shall be under no obligation to repair, rebuild or replace the Premises or the Right- of-Way area or any Improvements located thereon during the term of this Lease, except LESSOR may be liable to LESSEE for any damage arising out of the negligence or willful misconduct of LESSOR or its agents.
LES SEE’S O BLIG AT ION : Notwithstanding the provisions of paragraph
5.1 above, LESSEE shall, at LESSEE’s sole expense and cost, keep and maintain only that portion of the Premises and improvements that are directly associated with its antennas and related equipment located thereon, and any and all facilities appurtenant under LESSEE’s control thereto, including any landscaping, in a good and safe order and repair and in a clean and orderly condition, reasonable wear and tear excepted. Not by way of limitation of the foregoing, LESSEE shall remove any accumulation of trash, weeds, debris, and graffiti on the Premises within seventy-two (72) hours of receipt of notice of the same. LESSEE shall make any and all additions, alterations, repairs or improvements in and about the Premises that may be required by law, and shall otherwise observe and comply with all public laws, ordinances and regulations that are from time to time made applicable to the Premises. LESSEE shall indemnify, defend (with counsel acceptable to LESSOR) and hold LESSOR harmless from and against all actions, claims, liabilities, damages, costs (including without limitation, reasonable attorney’s fees) and expenses incurred by LESSOR to the extent resulting by reason of LESSEE’s failure to comply with or perform the provisions of this Lease or its acts on the Property. LESSEE is aware of and waives the provisions of California Civil Code Sections 1941 and 1942 with respect to any obligation LESSOR may have during the term of this Lease regarding the tenantability of the Premises and LESSEE’s right to make repairs and deduct the expenses of such repairs from Base Rent Payments.
LES SEE’S CONT RACT OR : LESSEE shall be responsible for any and all damage to City equipment or property to the extent caused by LESSEE or LESSEE’s contractors and shall be responsible for the repair of any such damage to the extent caused by their act hereunder. LESSEE shall be responsible for the replacement of all plant materials damaged by LESSEE or LESSEE’s contractors during the construction of the Premises including trees, shrubs, ground cover, mulch, pebble bark and similar materials. The full cost of such replacement, including the cost of labor shall be borne by LESSEE.
UTILITIES AND PROVISION OF SERVICE: LESSEE shall determine the availability of and shall, at its sole cost and expense, cause to be installed in, on, and about the Premises all facilities necessary to supply thereto all water, sewage, gas, electricity, telephone, and other similar services required to service the Premises. LESSOR shall allow LESSEE to have its own electrical metering equipment installed. LESSEE shall obtain all necessary approvals for the installation of the meter. An electrical plan shall be submitted to the LESSOR and approved prior to commencement of such work, such approval not to be unreasonably withheld, conditioned or delayed. LESSOR agrees to cooperate with LESSEE in its efforts to obtain such utility service. During the Lease term, LESSEE agrees to pay when due all charges for water, sewage, gas, electricity, and all other utility services of every kind and nature supplied to and used by LESSEE on the Premises. LESSOR shall be responsible for its own electrical and other utility service and for the regular payment of electrical and other utility charges attributable to the Facility other than the Premises.
DAMAGE OR DESTRUCTION OF IMPROVEMENTS TO PREMISES:
LES SOR’S OBLIGATION : LESSOR shall have no duty or obligation to rebuild the Facility or the improvements thereon if such Facility or improvements are substantially damaged during the Lease term, in whole or in part by any casualty. LESSOR will give LESSEE (a) notice of such casualty within thirty (30) days after the date of the casualty and (b) the right to terminate in sixty (60) days from said casualty date. A proportion of the Rent herein reserved, according to the extent that such damage to LESSEE’s equipment that interferes with the full enjoyment and use of the Premises, shall be suspended and abated from the date of commencement of such damaging or destructive event until the date that such event subsides. In the event LESSOR chooses not to rebuild the Facility or improvements thereon, LESSEE shall be entitled to build a new equipment shelter and tower for its own use on the leased Premises.
WAIVER OF CIVIL CODE SECTIONS: LESSEE is aware of and, by entering into this Lease, waives the provisions of Civil Code Sections 1932(2) and 1933(4) with respect to any damage or destruction of the Premises.
CONDEMNATION: In the event of condemnation of the Premises, unless LESSEE is allowed by the condemning authority to continue its operations on the Premises, this Lease shall terminate as of the date title to the Premises vests in the condemning authority or LESSEE is required to cease its operations, whichever is earlier. Notwithstanding the foregoing, if as a result of a condemnation of the Premises, LESSEE, in LESSEE’s sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation is expected to disrupt LESSEE’s operations at the Premises for more than forty-five (45) days, LESSEE may, at LESSEE’s option, terminate this Lease as of the date the condemning authority takes such possession. LESSEE shall be entitled to share in the proceeds of any condemnation, and LESSEE’s share shall include the value of any improvements, which are transferred to the condemning authority, moving expenses, and prepaid rent and business dislocation expenses. LESSEE shall not be allowed to recover for the value of its leasehold interest.
ASSIGNMENT AND SUBLEASING:
1 ASSIGNMENT: LESSEE shall not voluntarily assign or transfer its interest under this Lease or in the Premises without first obtaining the prior written consent of LESSOR, which consent shall not be unreasonably withheld, delayed or conditioned. The transfer of the rights and obligations of LESSEE to a parent, subsidiary, or other affiliate of LESSEE, or to any successor in interest or entity acquiring fifty-one (51%) or more of LESSEE’s membership interests or assets in the market as defined by the FCC in which the Property is located, shall not be deemed an assignment and LESSOR’s consent shall not be required for such transfer. Any assignment without LESSOR’s consent (when such consent is required) shall be voidable and, at LESSOR’s election, shall constitute cause for exercise of LESSOR’s remedies under applicable law, including termination of the Lease. No consent to any assignment shall constitute a further waiver of the provisions of this Section. Notwithstanding the foregoing, it is understood that LESSEE shall not be released from liability hereunder by virtue of any assignment. As a condition precedent to any such assignment that requires LESSOR’s consent, LESSEE agrees to provide written notice to LESSOR of its intention to assign at least thirty (30) days before the proposed effective date of any such proposed assignment which notice shall include the identity of the proposed assignee, copies of the proposed assignment documentation and current financial statements of the proposed assignee. As a further condition precedent to any assignment, the assignee must assume, in writing, all of LESSEE’s obligations under this Lease.
12.2 SUBLEASING: LESSEE shall not sublease any portion of the Premises except as expressly provided herein. LESSEE shall be permitted to sublease portions of the Premises to a wholly-owned subsidiary of LESSEE, provided LESSEE provides LESSOR with express written notice of such sublease.
RENEWAL/HOLDING OVER: Upon the expiration or within ninety (90) days following termination of this Lease, LESSEE shall surrender the Premises to LESSOR. If LESSEE shall remain in possession of the Premises after the expiration or termination of the Lease, with the consent of LESSOR, either express or implied, such holding over shall be construed to create a tenancy from month to month subject to all the covenants, conditions, and obligations hereof, and LESSEE hereby agrees to pay LESSOR, as monthly rental, an amount equal to one hundred twenty-five percent (125%) of the most recent monthly Base Rent Payment. Nothing above shall be construed to give LESSEE any rights to so hold over and to continue in possession of the Premises after the expiration of the Lease term without the express consent of LESSOR.
HAZARDOUS SUBSTANCES:
LESSEE shall not under any circumstances store or bring onto the Property any Hazardous Substances. For purposes of this Lease, the term “Hazardous Substances” means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the California Porter-Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended (the above cited statutes are hereinafter collectively referred to as the “Toxic Substances Laws”); or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance, product, waste or other material of any nature whatsoever that may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court; (c) petroleum fuel or crude oil, other than petroleum and petroleum products which are contained within regularly operated motor vehicles; and (d) asbestos.
Except as otherwise specifically permitted under the terms of the Lease, LESSEE shall not use, create, generate, store, deposit, dispose of or allow any Hazardous Substances on, under, about or within the Property or the Premises in violation of any federal, state, or local law, rule, regulation, order, decree or other Lease requirement. Storage batteries for emergency power, and ordinary paints, solvents and similar substances commonly used in small quantities and necessary for maintenance of the LESSEE’s Facilities are excepted from the preceding prohibition of use by LESSEE of Hazardous Substances on the Premises, so long as LESSEE complies with all applicable federal, state and local laws, rules and regulations governing the storage and use of such items (“Excepted Materials”). All Excepted Materials stored on the Property shall be stored in a lockable and weather resistant storage cabinet with leak containment in accordance with industry standards. LESSEE shall develop and maintain all required hazardous material compliance documentation related to the site as mandated by federal, state, or local law, rule, regulation, order, decree or other requirements.
No permanent underground or above ground storage tanks shall be installed on the Premises. LESSOR or its officers, employees, contractors, or agents shall at all times have the right to go upon and inspect the Premises and the operations conducted thereon to assure compliance with the requirements herein stated. This inspection may include taking samples for chemical analysis of substances and materials present and/or testing soils on Property and taking photographs. In addition, a representative of LESSEE’s shall be available for all requested site inspections initiated by the County or LESSOR staff. LESSOR shall provide at least two (2) working days of advance notice for such inspections that are not emergency in nature.
LESSEE shall, within twenty-four (24) hours of the discovery by LESSEE of the presence of, or believed presence of, a Hazardous Substance as defined herein not in compliance with Toxic Substance Laws caused by LESSEE, give written notice to Lessor in the event that LESSEE knows or has reasonable cause to believe that any release of Hazardous Substance caused by LESSEE has come or will come to be located on, under, about or within the Property or Premises. The failure to disclose in a timely manner the release of a Hazardous Substance, including but not limited to, an amount which is required to be reported to a state or local agency pursuant to law (e.g., California’s Hazardous Materials Storage and Emergency Response Act, Health and Safety Code Section 25550 et seq.) shall be grounds for termination of the Lease by Lessor in addition to actual damages and other remedies provided by law. LESSEE shall immediately clean up and completely remove all Hazardous Substances placed by LESSEE on, under, about or within the Property or Premises, in a manner that is in all respects safe and in accordance with all applicable laws, rules and regulations.
In the event Hazardous Substances are discovered by LESSEE, LESSEE shall, within twenty-four (24) hours of discovery, disclose to Lessor the specific information regarding LESSEE’s discovery of any Hazardous Substances placed on, under, about or within the Property by LESSEE, and provide written documentation of its safe and legal disposal, if LESSEE disposes such.
Breach of any of these covenants, terms, and conditions, and LESSEE’s failure to cure within thirty (30) days of LESSEE’s receipt of written notice from Lessor, shall give Lessor the authority to either immediately terminate the Lease or to shut down LESSEE’s operations thereon, at the sole discretion of Lessor. In either case, LESSEE will continue to be liable under the Lease to remove, mitigate all Hazardous Substances placed by LESSEE on, under, about or within the Premises and indemnify, defend and hold harm the Lessor with respect thereto. LESSEE shall be responsible for, and bear the entire cost of removal and disposal of, all Hazardous Substances introduced to Premises by LESSEE during LESSEE’s period of use and possession of Premises. Upon termination of the Lease, LESSEE shall, in accordance with all laws, remove from the Premises any equipment or improvements placed on Premises by LESSEE that may be contaminated by Hazardous Substances.
LESSEE shall defend (with counsel acceptable to LESSOR), indemnify and hold Lessor and its officials, officers, employees, contractors and agents free and harmless from any and all claims, liability, injury, damage, costs, fines, or expenses (including, without limitation, the cost of attorney’s fees) arising as a result of the presence or use of any Hazardous Substances placed or caused to be placed by LESSEE or its partners, affiliates, agents, officials, officers, contractors, representatives or employees on the Premises or the Property. Lessor shall defend, indemnify and hold LESSEE and its officers, employees, contractors and agents free and harmless from any and all claims, liability, injury, damage, costs, fines, or expenses (including, without limitation, the cost of attorney’s fees) arising as a result of the presence of use of any Hazardous Substances placed or caused to be placed by Lessor or its agents, officials, officers, contractors or employees on the Property. The foregoing indemnity is intended to operate as an agreement pursuant to, among other requirements, Section 107, subdivision (e) of CERCLA, 42 United States Code Section 9607, subdivision (e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless and indemnify each party from any liability created by the other party pursuant to such sections.
LESSEE acknowledges and agrees that it is not permitted to operate a generator on the Premises.
MUTUAL WAIVER OF DAMAGES AND INDEMNIFICATION:
Except as provided below, neither party will be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
With respect to third-party claims, LESSEE shall and indemnify, defend (with counsel acceptable to LESSOR), and hold harmless LESSOR and its officers, officials, directors, shareholders, employees, representatives, and agents, and each of them, from and against any and all claims, actions, damages, liabilities, proceedings, costs and expenses (including without limitation reasonable attorneys’ fees) (collectively, “Claims”) to the extent relates to or arising from or out of any claim or action filed against LESSOR as a result of the Facility or this Agreement, LESSEE’s use of the Premises or Property or use of the Site Equipment on the Premises, except to the extent such claim or action is due, in whole or in part to the negligence or willful misconduct to LESSOR, in which case, LESSEE’s indemnification obligation shall be proportionately reduced in direct proportion to the extent LESSOR’s negligence or willful misconduct resulted in the claims, actions, damages, liabilities and expenses.
With respect to third-party claims, LESSOR shall and indemnify, defend (with counsel acceptable to LESSEE), and hold harmless LESSEE and its officers, officials, directors, shareholders, employees, and agents, and each of them, from and against any and all Claims to the extent arising from or out of any claim or action filed against LESSEE as a result of LESSOR’s operation of Lessor's Property, except to the extent such claim or action is due, in whole or in part to the acts, omissions, negligence or illegal or willful misconduct of LESSEE, in which case, LESSOR’s indemnification obligation shall be proportionately reduced in direct proportion to the extent LESSEE’s acts or omissions resulted in the Claims.
Neither Party has any obligation to defend or indemnify the other unless the Party seeking defense and indemnity (“Indemnified Party”) provides prompt written notice of any such claims to the party from which defense and indemnity is sought under this Section 15 (“Indemnifying Party”). The Indemnifying Party also agrees and acknowledges that it shall not admit any liability, settle, compromise, pay or discharge any such claims without the advance written consent of the Indemnified Party and such consent will not be unreasonably withheld, conditioned or delayed.
INSURANCE:
LESSEE agrees, at its sole expense, and at all times during the term of this Lease, to maintain in full force, or cause to be maintained in full force, a policy of commercial general liability insurance, including bodily injury and property damage, with limits of One Million Dollars ($1,000,000) per occurrence for bodily injury (including death) and property damage, and Two Million Dollars ($2,000,000) general aggregate. Any deductible or self-insured retentions shall be the sole responsibility of LESSEE. Such policies shall insure against liability for injury to persons and/or property and death of any person or persons which may occur as a result of or in connection with the existence and/or operation of LESSEE’S equipment in, on or about the CITY’S property. Each such policy of insurance shall:
be issued by companies licensed, authorized or permitted to do business in the State of California that hold a current policy holder’s alphabetic and financial size category rating of not less than A-VII, according to the current Best’s Key Rating Guide. include as additional insureds CITY, CITY’s officers and employees. A blanket additional insured endorsement shall accompany the insurance certificate. specify it acts as primary insurance and that no insurance held or owned by CITY (or, if applicable, the San Clemente Redevelopment Agency) shall be called upon to cover a loss under said policy; cover the operations of LESSEE pursuant to the terms of this Agreement; and be written on an occurrence and not a claims made basis.
MISCELLANEOUS:
INSPECTION: LESSOR reserves the right for itself and its employees, agents, and representatives to enter upon the Premises at any reasonable time and after reasonable notice to LESSEE and in the presence of a LESSEE representative for the purpose of attending to LESSOR’s obligations under this Lease, provided that LESSOR and its employees, agents, and representatives shall make best efforts not to disturb, disrupt, damage, move, alter, turn off, adjust or otherwise adversely affect LESSEE’s operations or Site Equipment.
NO WAIVER: No covenant, term, or condition contained herein shall be deemed waived, except by written consent of the Party against whom the waiver is claimed. Any waiver or the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance by LESSOR of performance other than full performance by LESSEE after the time the performance shall have become due shall not constitute a waiver by LESSOR of the breach or default or default of any covenant, term, or condition unless otherwise expressly agreed to by LESSOR in writing.
INTERPRETATION: The Parties hereto agree that all provisions hereof are to be construed as both covenants and conditions as though the words imparting such covenants and conditions were used in each separate paragraph hereof. The captions of the articles and paragraphs of this Lease are for convenience only and shall not be deemed to be relevant in resolving any questions of interpretation or construction.
INTEGRATION AND GOVERNING LAW: This Lease represents the entire understanding of LESSOR and LESSEE as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Lease. This Lease shall be governed by the laws of the State of California and construed as if drafted by both LESSOR and LESSEE. This Lease may not be modified, altered, or amended except in writing signed by both LESSOR and LESSEE.
LEASE BINDING ON HEIR AND ASSIGNS: Each of the terms, covenants, and conditions of this Lease shall extend to, be binding upon, and inure to the benefit of not only LESSOR and LESSEE, but each of their respective heirs, representatives, administrators and assigns. Whenever in this Lease reference is made to either LESSOR or LESSEE, the reference shall be deemed to include, whenever applicable, the heirs, legal representatives, and assigns of each of the parties, the same as if in every case expressed.
CORPORATE AUTHORITY: Each person executing this Lease on behalf of an entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said entity, in accordance with a duly adopted resolution or other action of the Party, that this Lease is binding upon said Party in accordance with its terms and that such person will defend and indemnify the other Party should such representation and warranty prove false.
NOTICES: Any written notices required pursuant to this Lease shall be made by certified or registered mail, return receipt requested, or reliable overnight courier and delivered to the following address:
To LESSOR: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673 Attn: Finance
(949) 361-8200
With a Copy to: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: Accounting
(949) 361-8282
To LESSEE: DISH Wireless LLC
5701 South Santa Fe Avenue Littleton, CO 80120 Attention: Landlord Relations Site: LSSNA01191A Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing.
PROPERTY: LESSOR warrants that: (i) LESSOR owns the Property in fee simple and has rights of access thereto; (ii) LESSOR has full right to make this Lease; and (iii) LESSOR covenants and agrees with LESSEE that upon LESSEE paying the Base Rental Payment and observing and performing all the terms, covenants, and conditions on LESSEE’s part to be observed and performed, LESSEE may peacefully and quietly enjoy the Premises, subject, nevertheless, to the terms and conditions of this Lease. LESSOR warrants that the making of this Lease and the performance thereof will not violate the provision of any mortgage, lease, or other agreements under which LESSOR is bound and which restricts the LESSOR in any way with respect to the use or disposition of the Property.
18. AMENDMENTS: The City Council assigns the City Manager signature authority to execute future Lease Amendments and extensions for periods not more than five (5) years each and provided that the City Manager shall not have the authority to approve a decrease in the rental rate without the prior approval of the City Council.
19. COUNTERPARTS/ELECTRONIC SIGNATURES: This Lease may be executed electronically and in any number of counterparts, which together shall constitute one agreement. A true and correct electronic copy of this Lease can be used for any purpose as one with an original ink signature.
20. SIGNATORIES/AUTHORITY TO ENTER AGREEMENT: LESSEE represents and warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party and individual signing this Agreement represents and warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties hereto caused this Lease to be executed by their duly authorized officers.
CITY OF SAN CLEMENTE
Dated:
By:_
Andy Hall, City Manager
Dated: , 2024
ATTEST:
TAX I.D. #: 95-6000775
CITY CLERK of the City of San Clemente, California
APPROVED AS TO FORM:
Elizabeth A. Mitchell, CITY ATTORNEY
LESSEE
DISH Wireless L.L.C.
By: DISH Wireless Holding L.L.C, a Colorado limited liability company Its: Managing Member
By:_ Richard Leitao, Sr. Vice President, National Development Date:
EXHIBIT “A” DESCRIPTION OF PREMISES
This exhibit is attached to and incorporated into certain Communications Site Facility Lease dated ______________by and between the CITY OF SAN CLEMENTE, a California Municipal Corporation, and DISH WIRELESS, LLC, a Colorado limited liability company All that certain real property located in the City of San Clemente, County of Orange, State of California, as follows:
PARCEL 2:
Lot “A” of Tract No. 5879, in the City of San Clemente, County of Orange, State of California, as per Map Recorded in Book 213 Pages 42 and 43 of Miscellaneous Maps, in the office of the County Recorder of said County.
PARCEL 3:
Lots A, B, & C of Tract No. 4938, in the City of San Clemente, County of Orange, State of California, as shown on a map Recorded in Book 177, Pages 35, 36, 37, 38, and 39 of Miscellaneous Maps, records of Orange County, California.
APN: 691-211-04The Premises shall consist of that portion of the Property where the Facility is located and as depicted on the map attached as Exhibit “B” hereto and incorporated fully herein by this reference.
DISH #LSSNA01191A
ATTACHMENT 2