HomeMy WebLinkAboutAgr 2005-02-16 (Cingular Wireless)
SITE AGREEMENT
Market: FSA8 SAN FRANCISCO SAY AREA
Cell Site Number: SNFCCA2095C
Cell Site Name: Mar Wes~ TIBURON
1. Premises and Use. Owner leases toNew Cingular Wireless PCS, LLC, a Delaware limited liability company, having a
mailing address of P.O. Box 2088, Rancho Cordova, CA 95741-2088 (hereinafter referred to as ("Tenant").
BACKGROUND
Owner owns or controls that certain plot, parcel or tract of land, together with all rights and privileges arising in
connection therewith, located at TIBURON TOWN HALL, 1505 TIBURON BOULEVARD, in the County of MARIN,
State of CALIFORNIA (collectively, the "Property"). Tenant desires to use a portion of the Property in connection with
its federally licensed communications business. Owner currently leases a portion of the Property to another wireless
communications company, Sprint Spectrum L. P. whose lease disallows the installation of any Tenant facilities that would
interfere with Sprint's existing equipment Said existing lessee and any permitted successor in interest is hereafter
referenced as"Sprint". Owner desires to grant to Tenant the right to use a portion of the Property in accordance with this
Agreement, provided that Tenant's use is compatible with Owner's normal and reasonably foreseeable operations at the
Property and with the existing communications facilities on the Property.
The parties agree as follows:
1. Lease of Premises. Owner leases to Tenant a certain portion of the Property consisting of (a) a room/cabinet/ground
area space of approximately 7.5' x 7.5' (56.25 square feet) and (b) space on the structure together with such easements as
are necessary for the antennas and initial installation as described on attached Exhibit A (collectively, the "Premises").
Tenant will use the Site in a manner which will not unreasonably disturb the occupancy of Owner's other tenants, if any.
Tenant will have unrestricted access to the Site 24 hours per day, 7 days per week.
2. Permitted Use. The actual equipment that Tenant installs and owes must be approved by Owner and Sprint for
compatibility with existing facilities on the Property and Owner's reasonably foreseeable operations at the Property.
Subject to that condition, Tenant may use the Premises for the transmission and reception of communications signals and
the installation, construction, maintenance, operation, repair, replacement and upgrade of its communications fixtures and
related equipment, cables, accessories and improvements, which may include a suitable support structure, associated
antennas, equipment shelters or cabinets and fencing and any other items necessary to the successful and secure use of the
Premises as set forth in Exhibit B (collectively, the "Communication Facility"), as well as the right to test, survey and
review title on the Property. In the event that Tenant wishes to add, modify and/or replace equipment in order to be in
compliance with any current or future federal, state or local mandated application, including, but not limited to,
emergency 911 communication services, Tenant shall provide Owner with a revised Exhibit B showing the proposed
changes to the Communication Facility. If the Town finds that the proposed changes will not interfere with the Town's
existing and reasonably foreseeable operations at the Property and if Sprint finds that the changes will not interfere with
Sprint's then-existing equipment at the Property, Tenant may implement the changes at no additional cost to Tenant or
Owner. Tenant agrees to comply with all applicable govemmentallaws, rules, statutes and regulations, relating to its use
of the Communication Facility on the Property.
3. Term. The term of this Agreement (the "Initial Term") is 5 years, commencing on the date that both Owner and Tenant
have executed this Agreement ("Lease Commencement Date"). This Agreement will be automatically renewed for 4
additional terms of 5 years each (each a "Renewal Term"), unless Tenant provides Owner with notice of its intention not
to renew not less than 90 days prior to the expiration of the Initial Term or any Renewal Term.
4. Rent. (a)Commencing on the first day of the month following the date that Tenant commences construction (the "Rent
JI/ Commencement Date"), Tenant will pay the Owner a monthly rental payment of Two Thousand and No/lOO Dollars
t~ ($2poo.l(OO) ("Rent"), at the address set forth above, on or before the fifth (5'h) day of each calendar month in advance.
~he monthly rent due hereunder will be increased on each anniversary of the commencement date to an amount equal to
\1'1~
the amount of the monthly installment of rent payable during the preceding year, increased by the percentage change in
the CPI during such year. "cpr' means consumer price index-U.S. city average for urban wage earners and clerical
workers (1982-94=100) published by the United States Department of Labor. Bureau of Labor Statistics (or a reasonably
equivalent index if such index is discontinued). In no event will the amount of the monthly rent installment of rent due
under this agreement following such adjustment increase by an amount of four percent (4%).
5. Title and Quiet Possession. Owner represents and warrants to Tenant and further agrees that: (a) it is the owner of the
Site; (b) it has the right to enter into this Agreement; (c) the person signing this Agreement has the authority to sign; (d)
Tenant is entitled to access the Site at all times upon reasonable notice to Owner and to the quiet possession of the Site
throughout the Initial Tenn and each Renewal Term so long as Tenant is not in default beyond the expiration of any cure
period; and (e) Owner will not have unsupervised access to the Site or to the Facilities.
6. Assignment/Subletting. Tenant will not assign or transfer this Agreement or sublet all or any portion of the Site
without prior written consent of Owner, which consent will not be unreasonably withheld, delayed or conditioned,
provided, however, Tenant may assign or sublet without Owner's prior written consent to its general partner, or any party
controlling, controlled by or under common control with Tenant or to any party which acquires substantially all of the
assets of Tenant.
Notices. All notices must be in writing and are effective only when deposited in the U.S. mail, certified and postage
prepaid, or when sent via overnight delivery. (a) Notices to Tenant are to be sent to: AT&T Wireless Lease
Administration c/o Wireless Asset Management Re: A WS Cell Site #SNFCCA2095C; Cell Site Name MAR WEST
TIBURON, P.O. Box 2088 Rancho Cordova, CA 95741-2088 With a copy to; AT&T Wireless Ann: Legal Department
Re: A WS Cell Site #SNFCCA2095C; Cell Site Name MAR WEST TIBURON,12900 Park Plaza Drive Cerritos, CA
90703-8573; (b) Notices to Owner will be sent to Tiburon Town Hall, 1505 Tiburon Blvd., Tiburon, CA 94920, Attn:
Town Manager.
7. Improvements. Tenant may, at its expense, make improvements on the Site as it deems necessary or desirable from
time to time for the operation of a transmitter site for wireless, voice and data communications to the extent permitted
under Paragraph 2 of this Agreement. If Tenant desires to make improvements that are not permitted under Paragraph 2,
Tenant will submit a revised Exhibit B to Owner. Owner will approve the revised Exhibit B at no additional cost to
Tenant if (1) Tenant remains in its currently leased space and does not alter the appearance of the Property in any way; (2)
Owner determines that the modifications to the Site will have no impact on Owner's existing and/or foreseeable
operations at the Property or on Owner's ability to lease portions of the Property to other wireless communications
companies; and (3) Sprint confirms that the modifications will not interfere with it's then-existing equipment. Owner
agrees that in its proprietary capacity, it will cooperate with Tenant with respect to obtaining any required zoning
approvals or other governmental approvals or permits for the Site and such improvements, which cooperation may
include but not be limited to executing a recordable notice of Tenant's conditional use permit and/or a notice of special
restrictions as may be required by governmental authority. Owner's cooperation will not extend into its regulatory
capacity, and insofar s Owner's regulatory capacity is called upon to process, consider and issue or deny such approvals or
permits, Owner shall do so utilizing its normal standards and procedures. Upon termination or expiration of this
Agreement, Tenant shall remove its equipment and improvements and will restore the Site to the condition existing on the
Commencement Date, except for ordinary wear and tear.
8. Interference.
A. Tenant will provide information about its intended facilities sufficient for the Town and Sprint to determine if said
facilities will interfere with Sprint's existing facilities and/or with the Town's normal and/or reasonably foreseeable
operations at the Property. If the Town and Sprint do not have sufficient information to make said determinations within
45 days of the date of this agreement, the Town may terminate this Agreement with no further obligation. If the Town
and/or Sprint finds that there will be interference, Tenant shall be given a reasonable opportunity to resolve interference
problems before the Town terminates the agreement.
B. If the Town and Sprint find that there is no interference, or if Tenant is able to resolve such interference, Tenant
shall be allowed to install and operate the equipment permitted under Paragraph 2 of this agreement. Thereafter, Owner
will not permit the installation of any future communications equipment (excluding standard electronic devices normally
used by Owner in connection with its administrative functions at the Property) which results in technical interference
problems with Tenant's then existing equipment. Prior to installing or permitting any radio transmitter or other
communication equipment or antennas belonging to another commercial entity on the Property (including, without
limitation, the Site,) Owner shall advise Tenant of the nature of the proposed facilities in sufficient detail to permit Tenant
to detennine if said facilities would create technical interference with Tenant's then-existing equipment and shall not
install or pennit the installation of said facilities if Tenant reasonably determines that such interference would result. This
Subparagraph B shall not applied to any facilities that Owner is contractually obliged to allow on the premises under
Owner's lease with Sprint. Any future lease, license or other permit to use the Property granted by Owner, excepting
amendments to the Sprint lease, shall expressly require (for the benefit of Tenant) the user thereunder not to cause
interference with the operation of Tenant's equipment.
10. Utilities. Tenant has reviewed the utilities available at the Site and has determined that they are adequate for the uses
contemplated by Tenant pursuant to this Agreement. Tenant will pay for all utilities used by it as the Site. Owner will
cooperate with Tenant in Tenant' efforts to obtain utilities from any location provided by Owner or the servicing utility,
including a submeter if necessary.
11. Termination. Tenant may terminate this Agreement at any time by notice to Owner without further liability if Tenant
does not obtain all permits, consents, easements, non-disturbance agreements or other approvals (collectively, "approval)
reasonably required by Tenant or required from any governmental authority or any third party related to or reasonably
necessary to operate the communication facilities or if any such approval is canceled, expires or is withdrawn or
terminated, or if Owner fails to have proper ownership of the Site or authority to enter into this Agreement or if Tenant for
any other reason, in its sole reasonable discretion, determines that it will be unable to use the Site for its intended
purpose.
12. Default. If either party is in default under this Agreement for a period of (a) 10 days following receipt of written
notice from the non-defaulting party with respect to a default which may be cured solely by the payment of money, or (b)
30 days following receipt of written notice from the non-defaulting party with respect to a default which may not be cured
solely by the payment of money, then, in either event, the non-defaulting party may pursue any remedies available to it
against the defaulting party at law or in equity, including, but not limited to, the right to terminate this Agreement. If a
non-monetary default cannot reasonably be cured within a 3D-day period, this Agreement may not be terminated if the
defaulting party commences action to cure the default within the 3D-day period and proceeds with due diligence to fully
cure the default.
13. Indemnity. Tenant shall indemnify, defend and hold Owner, its agents, employees, officers and representatives
harmless from and against any and all claims, actions, damages, fines, liabilities, costs and expenses (including reasonable
attorneys' fees) to the extent arising from the negligent or intentionally wrongful acts or omissions of Tenan~ its agents,
employees, contractors and representatives, or to the extent arising from claims of injury caused by emissions emanating
from the operation of Tenant's communications facilities on the Property. This indemnity does not apply to any such
claims, actions, damages, fines liabilities, costs and expenses arising from the sole negligence or intentional misconduct
of Owner, or its agents, employees, representatives or officers.
14. Tenant's Installation and Post-Installation Obligations. (a) Tenant will perform all work in accordance with State and
local law, including, without limitation, the Town of Tiburon Municipal Code and any implementing regulations. (b) In
the event that Tenant's work under this Agreement necessitates the re-testing of any building system on the Property,
Tenant will pay the cost of such retesting. (c) Tenant will provide adequate maintenance access to the Premises, subject
to the approval of the Town Building Official. (d) Tenant will repair any damage to the Property caused by work under
this Agreement and shall restore the appearance of the Property to its previous condition to the extent feasible. This shall
include, without limitation, repainting the tower where the Premises are located. (e) Any locking device used to secure
the Premises shall be incorporated into the Town's existing key system. .
15. Miscellaneous. (a) This Agreement applies to and binds the heirs, successors, executors, administrators and assigns
of the parties to this Agreement; (b) the laws of the State of California shall govern this Agreement; Marin County shall
be the venue for resolving any disputes arising from this Agreement; (c) If requested by Tenant, Owner agrees to
promptly execute and deliver to Tenant a recordable Memorandum of Agreement in the form of Exhibit C, (d) this
Agreement (including the Exhibits) constitutes the entire agreement between the parties and supersedes all prior written
and verbal agreements, representations, promises or understandings between the parties. Any amendments to this
Agreement must be in writing and executed by both parties; (e) if any provision of this Agreement is invalid or
unenforceable with respect to any party, the remainder of this Agreement or the application of the provision to persons
other than those as to whom it is held invalid or unenforceable, will not be affected and each provision of this Agreement
will be valid and enforceable to the fullest extent permitted by law; and (t) the prevailing party in any action or proceeding
in court or mutually agreed upon arbitration proceeding to enforce the terms of this Agreement is entitled to receive its
reasonable attorneys' fees and other reasonable enforcement costs and expenses from the non-prevailing party.
16. Insurance. Tenant will procure and maintain commercial general liability insurance, with limits of not less than
$2,500,000 combined single limit per occurrence for bodily injury and property damage liability, with a certificate of
insurance to be furnished to Owner within 30 days after Tenant' receipt of a written request. Tenant shall provide an
endorsement adding Owner as an additional insured to said policy, to the satisfaction of the Tiburon Town Attorney.
Tenant will cause said insurance policy obtained by it to provide that the insurance company waives all rights of recovery
by subrogation against Owner for damages arising from Tenant's use of the Premises.
17. Bond: Prior to commencement of construction of its improvements at the Property, Tenant will provide Owner a
surety bond ensuring Tenant's performance of its duties and obligations under this Agreement. Said bond shall have a
face amount of $20,000.
The following Exhibits are attached to and made a part of this Agreement:
Exhibit A - Site Description
Exhibit B - Lease Exhibits
Exhibit C - Memorandum of Agreement Form
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last date written below.
OWNER:
Town OF
By:
Name:
Title:
Taxpayer ID:
Address:
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Name:
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Date:
TENANT:
APPF~..~ \~~D AS l~O FOt~ib'J.
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ANN DANFORTH
TOWN ATTORNEY
TOVVN OF TIBURON
F\~\X'
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Exh~b;+ A
DESCRIPTION
S cre
ESCROW NO. 260141 Ave
ALL THAT CERTAIN real property situate in the City ofTiburon, County of Marin, State of
California, described below as follows:
A portion of Parcel "A", as shown upon that certain Parcel Map entitled "Parcel Map of a Portion
of Section 6, T. 1 S., R.5 W;, M. D. B. & M. in the City ofTiburon, Marin County, California", filed
for record December 7,1978 in Book 15 of Parcel Maps, at Page 90, Marin County Records; said
portion described as follows:
Beginning at the most Northerly comer of said Parcel "A"; said corner also being a point on the
Southerly right of way line of Mar West Street and a point on the Southwesterly line of Lot 10, as
shown upon that certain Map entitled .point Tiburon", filed for record February 16, 1984 in
Volume 19 of Maps,. at Page 4, Marin County Records; thence along the Northeasterly line of
said Parcel "A" and said Southwesterly line of Lot 10, South 65047' 32" East, 261.79 feet
(recorded South 650 22' 40" East, 15 PM 90) to the true point of beginning; thence from the true
point of beginning, along said Northeasterly line of Parcel "A" and Southwesterly line of Lot 1 0,
South 65047' 32" East, 114.50 feet to a point; thence leaving said Northeasterly and
Southwesterly lines, South 36025' 08' West, 203.05 feet to a point on the Northeasterly right of
way line of Tiburon Boulevard; thence along said Northeasterly right of way line of Tiburon
Boulevard, North 550 55' 42" West, 112.00 feet (recorded North 550 35' West, 15 PM 90) to a
point; thence leaving said right of way line, North 360 25' 08' West, 183.42 feet to the true point of
beginning.
Excepting'therefrom:
The title and exclusive right to all of the minerals and mineral ores of every kind and character
now known to exist or hereafter discovered upon, with or underlying said land or that may be
produced therefrom including, without limiting the generality of the foregoing, all petroleum, oil,
natural gas and other hydrocarbon substances and products derived therefrom, together with the
exclusive and perpetual right of said Grantor, its' successors and assigns, of ingress and egress
beneath the surface of said land to explore fore, extract, mine and' remove the same, and to
make use of the said land beneath the surface as is necessary or useful in connection therewith,
which use may include lateral or slant drilling, boring, digging or sinking of wells, shafts or
tunnels, provided however, that said Grantor, its successors and assigns shall not use the
surface of said land in the exercise of any of said rights and shall not disturb the surface of said
land or any improvements thereon, or remove or repair the lateral or subjacent support of said
land or any improvements thereon, as reserved in the Deed from Northwestern Pacific Railroad
Company, a corporation, recorded January 31,1955 in Book 917 of Official Records at Page 311
and December 13,1956 in Book 1079 of Official Records at Page 616, Marin County Records.
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Recording Requested by &
When Recorded Mail To:
AT&T Wireless Lease Administration
c/o Wireless Asset Management
Re: A WS Cell Site#SNFCCA2095C;
Cell Site Name: MAR WEST TIBURON
P.O. Box 2088
Rancho Cordova, CA 95741-2088
EXHmIT C
MEMORANDUM OF LEASE
This Memorandum of Lease is entered into on this day of 2005,
by TIBURON TOWN HALL, 1505 TIBURON BOULEVARD, in the
County of MARIN, State of CALIFORNIA (collectively, the
"Property"). Tenant desires to (hereinafter referred to as "OWNER") and
New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a
mailing address of P.O. Box 2088, Rancho Cordova, CA 95741-2088 (hereinafter
referred to as "OWNER").
1. 0 WNER and Tenant entered into a certain Lease Agreement ("Agreement")
on the _ day of 2005, for the purpose of installing,
operating and maintaining a communications facility and other improvements.
All of the foregoing are set forth in the Agreement.
2. The term of the Agreement is for an Initial Term of five (5) years
commencing on the date that Tenant commences construction and ending on
the last day of the month in which the fifth (5th) anniversary of the
Commencement Date occurs, with five (5) successive five (5) year options to
renew.
3. The portion of the land being leased to Tenant (the "Premises") is described in
Exhibit 1 annexed hereto.
4. The Agreement shall be binding upon and inure to the benefit of the parties
and their respective heirs, successors, and assigns, subject to the provisions of
the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as
of the day and year first above written.
OWNER:
::~:ml
Name: ~)(' ];>.~
Title: ',e\W \'l\fnJ"t<f..~
TaxpayerID: fL( - /S-1-b~ ~61
Address: i~S" \, tNl~1J ~ 'tv Jrr;i.A
,. \'l!av4&A~. C, f\ <1 "I q7l)
APP. ROVE~ A~ TO FORM
~//'/n~
ANN DANFORTH
TOWN ATTORNEY
TO\NN ell::: T!\BUPO~\!
Date: ~~ 'VI 1D~
By:
Name:
Title:
Taxpayer ill:
. Address:
Date:
TENANT:
New Cingular Wireless PCS, LLC, a Delaware limited liability company
By:
Print Name:
Its:
Date:
CALIFORNIA ALL.pURPOSE ACKNOWLEDGMENT
~
County offlJ-u./VLJ
On o//ft 105' befo.re me, f'yJWj,tLd(CLr Nd~. 12/;//(./
I DATE N nn.EOFOFRCER.E.G.. 'JANEDOE.NOT PUBUC"
personally appeared -.A!//f m e.j /1'-1;;.. ,e; ~,
NAME(S) OF S1GNER(S)
't(ipersonallY known to me - OR - '0 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 ac-
knowledged 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 enUty upon behalf of which the
person(s) acted, executed the instrument.
State of
WITNESS my hand and official seal.
rnILUfJ!~
OPTIONAL
Though the data below is not required by law. it may prove valuable to persons relying on the document and could prevent
fl'8udulent reattachment of this fonn.
CAPACITY CLAIMED BY SIGNER
o INDIVIDUAL.
. '~CORPOAATE OFACER
-r /J:VYI- ~r ---'
D PARTNER(S) D UMITED
o GENERAl
DESCRIPTION OF ATTACHED DOCUMENT
o ATTORNEY-IN-FACT
o TAUSTEE(S)
o GUARO~CONSERVATOR
,0 OTHER:
~~p~
~ 0 PE OF DOCUMENT
/ ~ {rd er:h~Jt~)
NUMBER 0 PAGES --
:y/{,/o~
6A TE OF DOCUMENT
SIGNER IS REPRESENT1NG:
~OR ENTTTY(IES)
.I ITl.lJYt 1J -r ~~
P KWI/J pjtiherlzt
SIGNER(S) OTHER THAN N~OVE
EXHmIT I
DESCRIPTION OF PREMISES
Page _1_ of _1_
To the Agreement dated January _ 2005 -' by and between TIB URO N TOWN
HALL as OWNER, and New Cingular Wireless PCS, LLC, a Delaware limited
liability company, having a mailing address of P.O. Box 2088, Rancho Cordova, CA
95741-2088 (hereinafter referred to as "TENANT").
The Premises are described and/or depicted as follows:
ALL THAT CERTAIN real property situate in the Town of Tiburon, County of Marin, State of
California, described as follows:
See attached legal description
lJ
>~
-J
,
DESCRIPTION
ESCROW NO. 260141 AVC
ALL THAT CERTAIN real property situate in the City ofTiburon, County of Marin, State of
California, described below as follows:
A portion of Parcel "A", as shown upon that certain Parcel Map entitled "Parcel Map of a Portion
of Section 6, T. 1 S., R5 W;, M. D. B. & M. in the City ofTiburon, Marin County, California", filed
for record December 7, 1978 in Book 15 of Parcel Maps, at Page 90, Marin County Records; said
portion described as follows:
Beginning at the most Northerly comer of said Parcel "A"; said corner also being a point on the
Southerly right of way line of Mar West Street and a point on the Southwesterly line of Lot 10, as
shown upon that certain Map entitled "point Tiburon", filed for record February 16, 1984 in
Volume 19 of Maps, at Page 4, Marin County Records; thence along the Northeasterly line of
said Parcel "A" and said Southwesterly line of Lot 10, South 65047' 32" East, 261.79 feet
(recorded South 650 22' 40" East, 15 PM 90) to the true point of beginning; thence from the true
point of beginning, along said Northeasterly line of Parcel " A" and Southwesterly line of Lot 10,
South 650 47' 32" East, 114.50 feet to a point; thence leaving said Northeasterly and
Southwesterly lines, South 360 25' 08' West, 203.05 feet to a point on the Northeasterly right of
way line of Tiburon Boulevard; thence along said Northeasterly right of way line of Tiburon
Boulevard, North 550 55' 42" West, 112.00 feet (recorded North 550 35' West, 15 PM 90) to a
point; thence leaving said right of way line, North 360 25' 08' West, 183.42 feet to the true point of
beginning.
Excepting'therefrom:
The title and exclusive right to all of the minerals and mineral ores of every kind and character
now known to exist or hereafter discovered upon, with or underlying said land or that may be
produced therefrom including, without limiting the generality of the foregoing, all petroleum, oil,
natural gas and other hyd rocarbon substances and products derived therefrom, together with the
exclusive and perpetual right of said Grantor, its' successors and assigns, of ingress and egress
beneath the surface of said land to explore fore, extract, mine and remove the same, and to
make use of the said land beneath the surface as is necessary or useful in connection therewith,
which use may include lateral or slant drilling, boring, digging or sinking of wells, shafts or
tunnels, provided however, that said Grantor, its successors and assigns shall not use the
surface of said land in the exercise of any of said rights and shall not disturb the surface of said
land or any improvements thereon, or remove or repair the lateral or subjacent support of said
land or any improvements thereon, as reserved in the Deed from Northwestern Pacific Railroad
Company, a corporation, recorded January 31,1955 in Book 917 of Official Records at Page 311
and December 13,1956 in Book 1079 of Official Records at Page 616, Marin County Records.