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 CITY COUNCIL AGENDA ITEM NO. 05


Meeting Date: January 14, 2003

Subject/Title: Accept Parcel A, Subdivision No. 8369, Beck Properties, and also Approve a Lease with Cingular Wireless for the Use of Parcel A, located on the PG&E Tower, near San Jose Avenue and Highway 4 Bypass

Submitted by: Engineering: B. Grewal, City Engineer
Dennis Beougher, City Attorney


RECOMMENDATION
Approve a Resolution accepting Parcel A of Subdivision No. 8369, Beck Properties, and approve a Lease with Cingular Wireless for use of a portion of Parcel A (400 square feet) for an antenna equipment box and related improvements, located at the base of the PG&E tower near San Jose Avenue and the Highway 4 Bypass.

PREVIOUS ACTION
The City has previously approved wireless antenna leases for various City properties, including the City’s water tower. The City has approved Subdivision No. 8369, Beck Properties, and the creation of Parcel A that has been offered to the City but not yet accepted by the City.

BACKGROUND
Parcel A
The City approved Subdivision No. 8369, Beck Properties, near San Jose Avenue and the Highway 4 Bypass right of way. Parcel A was offered for dedication but was not accepted by the City at the time the offer was made, as it is the City’s standard practice to wait until the public improvements are completed before acceptance of dedications. Parcel A is shown on the attached map and consists of an area parallel to the Highway 4 Bypass that will be used for a public trail and emergency access purposes.

The Developer has bonded to construct all public improvements, including those required to be constructed on Parcel A. (i.e., public trail and emergency access improvements). The City can accept Parcel A without any impact to the Developer’s obligations to subdivision bonds and the construction of public improvements.

Lease
The proposed lease is consistent with the terms of the City’s lease with other wireless communication antennas located on City property. The major terms of the proposed lease are as follows:

Term: Five year original term, with three additional periods of 5 years each to renew (maximum 20 year lease); and

Rent: $1000 per month under the original term, with annual rent increases to match CPI, not less than 2% but also a maximum of 6% for any annual rent increase.

All other lease provisions are comparable or identical to other City wireless antenna leases. 

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ACCEPTING THE DEDICATION OF PARCEL A, SUBDIVISION NO. 8349, BECK PROPERTIES, AND AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE WITH PACIFIC BELL WIRELESS, dba CINGULAR WIRELESS, FOR USE OF A PORTION OF PARCEL A

WHEREAS, the City has previously approved Subdivision No. 8349, Beck Properties, that created Parcel A within its boundaries; and

WHEREAS, the subdivider/property owner of Subdivision No. 8349, Beck Properties, offered the dedication of Parcel A to the City when the final map was recorded and as it is the City’s normal practice to wait to accept the offer of dedication until all public improvements have been constructed per the plans and specifications, rejected the offer of dedication at the time the final map was recorded; and

WHEREAS, Pacific Bell Wireless, dba Cingular Wireless, seeks permission to construct a wireless antenna on the PG&E Tower located on Parcel A and requests City’s permission to construct an antenna equipment box on a portion of Parcel A (approximately 400 square feet); and

WHEREAS, Cingular Wireless has proposed a lease with an initial term of five years, plus 3 renewal options of 5 years each, to the City Council plus rent and provisions consistent with other wireless antenna leases on other City owned property. 

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood directs as follows:

(1) The City Manager is authorized to execute all documents needed to accept Parcel A, Subdivision No. 8349, Beck Properties.

(2) The City Manager is authorized to execute the attached Lease between the City and Pacific Bell Wireless, dba Cingular Wireless, located at San Jose Avenue at Highway 4 Bypass (a portion of Parcel A, Subdivision No. 8349, Beck Properties), Site No. BA 704-01.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 14th day of January 2003 by the following vote:


RECORDING REQUESTED BY:
City Clerk, City of Brentwood
California

WHEN RECORDED, PLEASE RETURN TO:
City of Brentwood
150 City Park Way
Brentwood, CA 94513






LEASE BETWEEN


THE CITY OF BRENTWOOD


AND


PACIFIC BELL WIRELESS dba CINGULAR WIRELESS



SAN JOSE AVENUE AT HIGHWAY 4 BYPASS
BRENTWOOD, CA 94513

SITE NO. : BA-704-01
PORTION OF APN PARCEL A
OF SUBDIVISION 8369, RECORDED JULY 10, 2002
IN BOOK 444, PAGES 14THROUGH 19, 
CONTRA COSTA COUNTY, STATE OF CALIFORNIA

LEASE BETWEEN
THE CITY OF BRENTWOOD AND PACIFIC BELL WIRELESS
SAN JOSE AVENUE AT HIGHWAY 4 BYPASS
PORTION OF APN PARCEL A
OF SUBDIVISION 8369, RECORDED JULY 10, 2002
IN BOOK 444, PAGES 14THROUGH 19, 
CONTRA COSTA COUNTY, STATE OF CALIFORNIA 

This LEASE is made and entered into by and between the City of Brentwood, ("CITY") and Pacific Bell Wireless, LLC, a Nevada Limited Liability Company, doing business as Cingular Wireless ("TENANT"). CITY and TENANT may be collectively referred to as the "parties."

RECITALS

A. The CITY is the owner of “SITE” situated on San Jose Avenue, in the City of Brentwood, California, and particularly described, on the legal description set forth on Exhibit "A", attached hereto and incorporated herein by reference.

B. TENANT desires to lease from the CITY a portion of the SITE, referred to herein as the "PREMISES," and described on Exhibit "B", attached hereto and incorporated herein by reference.

NOW THEREFORE, in consideration of the mutual covenants and conditions identified herein, the parties hereby agree as follows:

1. SITE and PREMISES 

A. Premises and Lease. CITY is the record owner of a certain parcel of real property located at San Jose Avenue, Brentwood, California (the “SITE”). CITY hereby leases to TENANT, and TENANT hereby leases from CITY, upon the terms and conditions hereinafter set forth, that portion of the SITE generally described as 400 square feet of ground space (“PREMISES”). Subject to the terms and conditions set forth in this LEASE, CITY hereby leases to TENANT that certain real property (PREMISES) described and shown in EXHIBIT "B". Unless specifically provided elsewhere in this LEASE, TENANTS accept the PREMISES "as is" on the effective date of this LEASE.

B. PG&E Easement. TENANT acknowledges that the CITY’s ownership of the PREMISES is subject to an easement granted by the CITY to Pacific Gas and Electric Company, a California Corporation (“PG&E”) a copy of which is attached hereto as Exhibit “C”, and incorporated herein by reference (“PG&E Easement”). In using the PREMISES in accordance with this LEASE, TENANT shall not in any way interfere with PG&E’s use of the PREMISES in accordance with the PG&E Easement. TENANT shall defend, indemnify, and hold the CITY harmless (in accordance with section 17 of this LEASE,) for any claim by PG&E related to an interference by TENANT with the PG&E Easement.

C. PG&E License Agreements with TENANT. On or about May 12, 1998, PG&E entered into an agreement with TENANT entitled “Master License Agreement for Antenna Attachments”, a copy of which is attached hereto as Exhibit “ D “, and incorporated herein by reference. On or about October 21, 2002, PG&E entered into an agreement with TENANT entitled “Site License Acknowledgment” for location of TENANT equipment at the PREMISES, a copy of which is attached hereto as Exhibit “E“, and incorporated herein by reference. For the purpose of this Lease, the agreements attached as Exhibits “D“ and “E“ shall be collectively referred to as “PG&E License Agreements”. TENANT shall defend, indemnify, and hold the CITY harmless (in accordance with section 17 of this LEASE) for any claim by PG&E related to any breach by TENANT of the PG&E License Agreements.

D. Acceptance of PREMISES. TENANT acknowledges that TENANT has inspected and accepts the PREMISES in their present condition. TENANT acknowledges that no representations have been made by CITY as to the current condition or repair of the Premises and that CITY has not promised to alter, remodel or improve the Premises except as expressly set forth in this Lease. City represents that to the best of its knowledge, there are no hazardous materials as defined in federal or state environmental statutes or regulations in, on, under or about the PREMISES where TENANT will be installing its equipment or facilities, and TENANT is relying on said representation is accepting the PREMISES.

2. USE OF THE PREMISES

A. Permitted Use and Limitations. TENANT shall use the PREMISES as one of the TENANT’s communications sites (a “Cell Site”) comprising TENANT’s system (the “System”) for furnishing all telephone, radio and other wireless telecommunications services to the public that TENANT is legally authorized to provide during the term of this LEASE. TENANT shall use the PREMISES for the purpose of installing, removing, replacing, maintaining, modifying and operating, at its expense, a “Cell Site” facility, consisting of the following: up to 6 panel antennas to be mounted to PG&E Tower; up to 4 BTS cabinets measuring 4’ 3” x 2’ 4” each, connecting coax cables; telco cabinet; meter main; LMU RX Unit, LMU Omni directional antenna; utility light; fiberglass antenna coax vault; concrete equipment pad; power point of connection; telco point of connection, surrounded by a 6 foot CMU “split face” wall ; and wood gates, as further described in Site Plans Exhibit “B”. TENANT shall not permit any unreasonable odors, smoke, dust, gas, substances, noise or vibrations to emanate from the PREMISES, nor take any action which would constitute a nuisance or would disturb, obstruct or endanger any other tenants of the Site or interfere with their use of their respective PREMISES. Storage outside the PREMISES of materials, vehicles or any other items is prohibited. TENANT shall not use or allow the PREMISES to be used for any unlawful purpose, nor shall TENANT cause or maintain or permit any nuisance in, on or about the PREMISES. TENANT shall not commit or suffer the commission of any waste in, on or about the PREMISES. TENANT shall not place any harmful liquids in the drainage system of the Site. No waste, materials or refuse shall be dumped upon or permitted to remain outside the PREMISES except in trash containers placed inside exterior enclosures designated for that purpose by CITY. CITY shall not be responsible to TENANT for the non-compliance by any other tenant or occupant of the Site with any of the above-referenced rules or any other terms or provisions of such tenant's lease or other contract.

B. Noninterference. TENANT’s communications operations at the PREMISES shall not interfere with the communications operations of the CITY or any other tenants or licensees of the CITY at the SITE, provided that for the operations of other tenants or licensees of CITY that are communications service carriers, their operations must be existing prior to the operations of TENANT. If after the effective date of the Lease CITY enters into any leases or license agreements with other communications service carriers permitting them to conduct communications operations on the SITE, CITY shall include provisions in any such leases or license agreements that such other communications service carriers shall not interfere with TENANT’s pre-existing communications operations. If TENANT gives notice to CITY accompanied by documentation demonstrating that such a lessee or licensee of CITY is in fact causing interference with TENANT’s pre-existing communications operations, CITY shall make reasonable efforts to cause such licensee or lessee to promptly eliminate such interference.

3. LEASE COMMENCEMENT

The term commencement date ("Term Commencement Date") shall be the date that is the First day of the first month following TENANT's notice to CITY in writing that TENANT has obtained all permits and approvals necessary for TENANT to be legally entitled to construct a facility for providing communications services at the Premises. In no event shall the Term Commencement Date be later than June 30, 2003.

4. TERM

The term of this LEASE shall commence on the Term Commencement Date for a period of five (5) years with three additional five (5) year options to extend.

A. Option to Extend. TENANT is granted the option to extend the Initial Term of this Lease for three (3) additional periods of five (5) years each, each an “Extended Term”, provided TENANT is not in default hereunder (beyond any grace or cure periods) at the time of TENANT’s exercise of the right to extend. If TENANT should decide to exercise any of TENANT’s options to extend, TENANT shall give written notice hereof to CITY at least one hundred twenty (120) days before expiration of the then current term. 

B. Extension Term. Not later than 90 days prior to the expiration of the current five (5) year term, CITY shall have the right to modify the Base Rent then in effect to an amount substantially equal to the current market value for sites in the San Francisco Bay Area or Alameda County similar to the Premises (“Current Market Rent”); provided that the CITY notifies TENANT in writing (“the Review Notice”) of the modification to the Base Rent.

5. CONSIDERATION/RENT

A. Base Rent. As consideration for TENANT's use of the PREMISES in accordance with the terms and conditions of this LEASE, TENANT shall pay to CITY ONE THOUSAND DOLLARS ($1,000.00) per month, due and payable by the first of each month and late after the 5th day of each month.

Base Rent Adjustment. The amount of the Base Rent payable hereunder shall be adjusted annually, the “Adjustment Date”, commencing with the first annual anniversary date (twelve (12) months after the commencement date of the Initial Term) and thereafter on each anniversary date of the commencement date during the initial term or any extensions thereof as provided in Section 3.B. above. Such adjustments shall be for the purpose of reflecting the increase, if any, in the cost of living. Adjustment, if any, shall be calculated based upon the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for all Urban Consumers (CPIU), San Francisco-Oakland-San Jose, 1982-84 <<100, Sub Group “All Items”, the “Index”. The Index published as of two months prior to the Adjustment Date shall be compared with the Index Twelve (12) months immediately preceding. On Adjustment Date, the monthly rent shall be increased by a percentage increase, if any, in the Index during said twelve (12) month period. Notwithstanding any subsequent decrease in the Index, the adjusted Base Rent shall not be less that that paid the immediately preceding year.

B. Manner of Payment. Payments shall be delivered to the CITY of Brentwood Finance Department, 150 City Park Way, Brentwood, CA 94513. CITY may change the designated place of payment at any time upon ten days written notice to TENANT. Payments may be made by check made payable to the CITY of Brentwood; however, TENANT assumes all risk of loss if Payments are made by mail. 

C. Acceptance of Late or Incorrect Payment. TENANT specifically agrees that acceptance of any late or incorrect Payment submitted by TENANT shall not constitute an acquiescence or waiver by CITY and shall not prevent CITY for enforcing late payment charges or any other remedy provided in this LEASE. 

D. Security Deposit. A security deposit in the sum of ONE THOUSAND DOLLARS AND 00/100 CENTS ($1,000.00) shall be paid to CITY by TENANT.

E. Charges for Late Payment. TENANT hereby acknowledges that this Lease contains no grace period and that the late payment of rent or any other sums due hereunder will cause CITY to incur costs not contemplated by this lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, costs such as administrative processing of delinquent notices, increased accounting costs and loss of interest income.

Accordingly, if any payment of rent, as specified elsewhere in this Lease, is not received by CITY by the due date, or if any other sum due CITY is not received by CITY by the due date for such other sums, a late charge of ten percent (10%) of the past due amount shall be added to the payment, and the total shall become immediately due and payable to CITY.

6. TENANT'S OBLIGATIONS DURING LEASE TERM

A. Good Condition and Repair. TENANT shall keep and maintain the PREMISES and all appurtenances in good condition and repair to the complete satisfaction of CITY.

B. Alterations. TENANT shall not make, or allow to be made, any alterations or physical additions in, about, or to the PREMISES without obtaining the prior written consent of the CITY.

C. Weed Control. TENANT shall, as often as needed, weed all areas of the PREMISES. Said weed control shall be performed routinely and when deemed necessary by CITY and shall be done to CITY’s satisfaction. 

D. Hazardous Materials. No goods, merchandise or material shall be kept, stored or sold on the PREMISES which are in any way explosive or hazardous. In the event any hazardous or toxic materials are present on the PREMISES, TENANT agrees, at its sole cost to clean up same, to the satisfaction of CITY. Notwithstanding the above, TENANT shall have the right to use on the PREMISES lead –based batteries for back up-power and small quantities of cleaning solvents commonly used in the telecommunications industry, provided that all such materials shall be used, transported and disposed of in full compliance with all applicable environmental statutes and regulations.


E. Good Neighbor. TENANT shall conduct all activities on the PREMISES as good neighbors, and TENANT shall make good faith effort to correct any conditions causing complaint by the neighbors as quickly as possible.

Utilities. TENANT shall be responsible for and shall pay, prior to delinquency, all charges for utilities supplied to the PREMISES. TENANT shall not interfere with any existing utility facilities on, over, under or in the PREMISES and will cooperate if any additional utility facilities are installed during the term of this LEASE. 
7. CITY’S RIGHT TO ENTER THE PREMISES

CITY shall have the right to enter upon the PREMISES at any reasonable time for the purpose of inspecting TENANT's compliance with the terms of this LEASE, provided that such entry shall not result in any damage to TENANT’s equipment or interruption of TENANT’s communications operations at the PREMISES. TENANT expressly consents to such entry and abatement by CITY.

8. TERMINATION 


In the event of default by TENANT, CITY shall have the right immediately to terminate this LEASE and all rights of TENANT hereunder by giving written notice of no less than thirty (30) days to TENANT of such election by City. 

Notwithstanding anything to the contrary contained in this LEASE agreement, if the CITY at any time during the term of this LEASE is unable after use of its best efforts to fully accommodate TENANT’s continuing use of the LEASE space on the PREMISES due to the CITY’s desire to redevelop, demolish, modify, remodel or alter the PREMISES, City shall have the right to terminate this LEASE upon not less than One Hundred Eighty (180) days prior written notice to TENANT, whereupon this LEASE shall terminate without further liability.

This Lease may also be terminated by TENANT without further liability on thirty (30) days prior written notice (i) if Lessee is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Lessee from installing, removing, replacing, maintaining or operating TENANT’s Facilities or using the Premises in the manner described in Paragraph 1 above; or (ii) if TENANT determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference.

9. CONDITION OF PREMISES UPON TERMINATION 

Upon expiration or termination of this LEASE, except as otherwise agreed to herein, TENANT shall redeliver possession of the PREMISES to CITY in substantially the same condition that existed on the effective date of this LEASE, excepting only damages caused by reasonable wear and tear or any cause of nature beyond the reasonable control of TENANT. Any and all improvements to the PREMISES will be removed, at TENANT's expense, unless CITY agrees in writing to waive this requirement, and TENANT shall surrender same to CITY in as good condition as when received, reasonable use and wear thereof excepted.

10. DISPOSITION OF ABANDONED PERSONAL PROPERTY 

If TENANT abandons any property on the PREMISES in excess of forty five (45) days after the expiration or termination of this LEASE, CITY shall have the right to remove and to dispose of such property without liability therefor to TENANT or to any person claiming under TENANT.

11. TAXES AND ASSESSMENTS

This LEASE may create a possessory interest, which is subject to the payment of taxes levied on such interest. It is understood and agreed that all taxes and assessments (including but not limited to said possessory interest tax) which become due and payable upon the PREMISES or upon fixtures, equipment, or other property installed or constructed thereon by or on behalf of TENANT, shall be the full responsibility of TENANT, and TENANT shall pay said taxes and assessments prior to delinquency

12. PERMITS AND LICENSES 

TENANT shall obtain any and all permits and/or licenses, which may be required in connection with the operation of, and any approved TENANT construction upon, the PREMISES as set forth in this LEASE.

13. NONDISCRIMINATION

TENANT and its employees shall not discriminate against any person because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, or sex. 

14. COMPLIANCE WITH LAW

TENANT shall comply with all applicable federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this LEASE.

15. INSURANCE

TENANT shall, throughout the duration of this LEASE, maintain insurance to cover TENANT (including its agents, representatives, contractors, and employees) in connection with the performance of services under this LEASE. This LEASE identifies the minimum insurance levels with which TENANT shall comply; however, the minimum insurance levels shall not relieve TENANT of any other performance responsibilities under this LEASE (including the indemnity requirements), and TENANT may carry, at its own expense, any additional insurance it deems necessary or prudent. Concurrently with the execution of this LEASE by the TENANT, and prior to the commencement of any services, the TENANT shall furnish written proof of insurance (certificates and endorsements), in a form acceptable to the CITY. TENANT shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance policy required by this LEASE.

A. Minimum Insurance Levels. TENANT shall maintain insurance at the following minimum levels:

A.1. Commercial General Liability (with coverage at least as broad as ISO form CG 00 01 01 96) coverage in an amount not less than $1,000,000 general aggregate and $1,000,000 per occurrence for general liability, bodily injury, personal injury, and property damage.

A.2. Workers’ Compensation coverage as required by the State of California. 

B. Endorsements. The insurance policies shall be endorsed with a form equivalent to ISO form CG 20 10 11 85, as follows:

B.1. For the commercial general liability insurance, the CITY (including its elected officials, employees, and agents) shall be named as additional insured.

B.2. TENANT’s insurance is primary to any other insurance available to the CITY with respect to any claim arising out of this LEASE. Any insurance maintained by the CITY shall be excess of the TENANT’s insurance and shall not contribute with it.

B.3. TENANT’s insurance will not be canceled, limited, or allowed to expire without renewal until after 30 days written notice has been given to the CITY. 

C. Qualifications of Insurers. All insurance companies providing coverage to TENANT shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California, and shall have an A.M Best’s rating of not less than “A:VII.”

16. REPORTING DAMAGES

If any damage (including death, personal injury or property damage) occurs in connection with the performance of this LEASE, TENANT shall immediately notify the CITY Risk Manager Office by telephone at 925-516-5183, a written report (in a form acceptable to the CITY) with the following information: 
(a) name and address of the injured party or deceased person(s), 
(b) name and address of witnesses,
(c) name and address of TENANT’S insurance company, and 
(d) a detailed description of the damage and whether any CITY property was involved.

17. INDEMNIFICATION

TENANT shall indemnify, hold harmless, and defend the CITY (including its elected officials, officers and employees) from and against any and all claims (including all litigation, demands, liabilities, costs, and expenses, and including court costs and attorney fees) resulting or arising from TENANT’s performance, or failure to perform, under this LEASE (with the exception of any claims resulting from the gross negligence or willful misconduct of the CITY).

18. TIME 

Time is of the essence of this LEASE.

19. DEFAULT

If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this LEASE, the demanding party shall give a written notice of the default (with reasonable specificity) to the defaulting party, and demand to be cured within (10) ten days of the notice. If:
(a) the defaulting party fails to cure the default within (10) ten days of the notice, or, 
(b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then 
(c) the demanding party may either: 
(1) terminate this Agreement upon written notice to the defaulting party, or 
(2) make, or cause to be made, the necessary corrections, and the costs therefor (including but not limited to the cost of labor, materials, and equipment and a 15% charge for administration and overhead) shall be paid by the defaulting party to the demanding party within 10 days of receipt of a statement of costs, or 
(3) choose other remedies available herein, or available by law.




20. NOTICES 

All notices required or contemplated by this LEASE shall be in writing and shall be personally delivered or delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party's authorized representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. Either party may modify their respective contact information identified in this section by providing written notice to the other party.

TO: CITY TO: TENANT

CITY of Brentwood PACIFIC BELL WIRELESS
John Stevenson, City Manager d/b/a Cingular Wireless
150 City Park Way 4420 Rosewood Drive, Building 2, 3rd Floor
Brentwood, CA 94513 Pleasanton, California 94588
Attn: Property Manager

with copy to:
Cingular Wireless, 
6100 Atlantic Boulevard
Norcross, GA 30071 
Attn: Network Real Estate

21. HEADINGS

The heading titles for each paragraph of this LEASE are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the LEASE.

22. SEVERABILITY

If any term of this LEASE (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the LEASE shall be construed as not containing that term, and the remainder of this LEASE shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this LEASE.

23. GOVERNING LAW, JURISDICTION, AND VENUE

The interpretation, validity, and enforcement of this LEASE shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this LEASE shall be filed and heard in a court of competent jurisdiction in the County of Contra Costa.

24. ATTORNEY’S FEES

In the event any legal action is commenced to enforce this LEASE, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

25. ASSIGNMENT AND DELEGATION

Lessee may assign this Lease or sublease the Premises at any time without Lessor’s consent to (i) any of Lessee’s partners or parent firms, (ii) Lessee’s and their affiliates and subsidiaries, (iii) in connection with the sale, exchange, or other transfer of Lessee’s FCC authorization for the geographic area in which the Premises are located or substantially all of Lessee’s assets in the geographic area where the Premises are located; or (iv) in connection with any financing, loan, security interest, pledge, or mortgage of Lessee’s property. Any other assignment shall require Lessor’s prior written approval, which approval shall not be unreasonably withheld, delayed, or conditioned.

26. MODIFICATIONS 

This LEASE may not be modified orally or in any manner other than by an agreement in writing signed by both parties.

27. WAIVERS

Waiver of a breach or default under this LEASE shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this LEASE.

28. ENTIRE AGREEMENT

This LEASE, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This LEASE supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this LEASE are complementary; what is called for in one is binding as if called for in all.


29. SIGNATURES

The individuals executing this LEASE represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this LEASE on behalf of the respective legal entities of the TENANT and the CITY. This LEASE shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

IN WITNESS WHEREOF, the CITY and TENANT do hereby agree to the full performance of the terms set forth herein.

CITY OF BRENTWOOD: TENANT: PACIFIC BELL WIRELESS, LLC,

By: GSM FACILITIES, LLC its
sole member

By: CINGULAR WIRELESS LLC 
John Stevenson, City Manager its agent 

By: 
Name: 
Title: 
Date: 

ATTEST WITNESS ATTEST WITNESS


Karen Diaz, City Clerk, CMC


APPROVED AS TO FORM:


Dennis Beougher, City Attorney


City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov