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HomeMy WebLinkAbout2004-3481 2 3 4 5 6 7 111 151 161 1 RESOLUTION NO. 2004-348 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR OF THE CITY OF SAN BERNARDINO OR HER DESIGNEE TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NEXTEL COMMUNICATIONS FOR THE LEASE OF TWELVE HUNDRED (1200) SQUARE FEET OF LAND AT THE SAN BERNARDINO SOCCER COMPLEX. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino or her designee is hereby authorized to execute a contractual agreement with Nextel Communications for twelve hundred (1200) square feet of land at the San Bernardino Soccer Complex located at 2500 E. Pacific Ave., San Bernardino, CA., a copy of which is attached hereto, marked Attachment "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. That the Director of Finance be authorized to amend the FY 20034-2005 Parks, Recreation and Community Services San Bernardino Soccer Complex budget to include revenue to account 134-000-4520 (Land and Building Rental) and expenditure of $76,860 in account 134-462-5706 (Renovations). SECTION 3. The authorization granted hereunder shall expire and be void and of no further effect if the agreement is not executed by both parties and returned to the office of the City Clerk within one hundred twenty (120) days following the effective date of the resolution. 21 22 23 /// 24 /// 25 /// 26 /// 27 N/ 2004-348 1 2 3 4 6 7 8 9 10 it 12 13 14 15 16 17 211 ?AI 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR OF THE CITY OF SAN BERNARDINO OR HER DESIGNEE TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND NEXTEL COMMUNICATIONS FOR THE LEASE OF TWELVE HUNDRED (1200) SQUARE FEET OF LAND AT THE SAN BERNARDINO SOCCER COMPLEX I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j t. reg. meeting thereof, held on the Ist day of November , 2004, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x LONGVILLE x MC GINNIS DERRY x KELLEY x JOHNSON x MC CAMMACK x 2004. x Rache G. Clark, City Clerk The foregoing resolution is hereby approved Approved as to Form and legal content: JAMES F. PENMAN, City Attorney By: day of _ November h Valles, Mayor of San Bernardino 2004-348 Market: Los Angeles Site #: CA7257E Attachment "A" Site Name: Arden COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement') is dated as of 1 2004, by NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications ("Nextel" or "Tenant') and THE CITY OF SAN BERNARDINO ("Owner" or "Landlord'). The parties hereto agree as follows: 1. Premises. Owner owns a parcel of land ("Land') located in the City of San Bernardino County of San Bernardino State of California, commonly known as 2500 E. Pacific Ave. (APN:1191-101-03). The Land is more particularly described in Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ("Effective Date/Due Diligence Period"), Owner hereby leases to Nextel and Nextel leases from Owner approximately one thousand two hundred (1200) square feet of the Land and all access and utility easements necessary or desirable therefor ("Premises"), as may be described generally in Exhibit B annexed hereto. 2. Effective Date/Due Diligence Period. This Agreement shall be effective on the date of full execution hereof ("Effective Date"). Beginning on the Effective Date and continuing until the Term Commencement Date as defined in Paragraph 3 below ("Due Diligence Period'), Nextel shall only be permitted to enter the Land for the limited purpose of making appropriate engineering and boundary surveys, inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structural and environmental tests (collectively, "Investigations and Tests") that Nextel may deem necessary or desirable to determine the physical condition, feasibility and suitability of the Premises. In the event that Nextel determines, during the Due Diligence Period, that the Premises are not appropriate for Nextel's intended use, or if for any other reason, or no reason, Nextel decides not to commence its tenancy of the Premises, then Nextel shall have the right to terminate this Agreement without penalty upon written notice to Owner at any time during the Due Diligence Period and prior to the Term Commencement Date. Owner and Nextel expressly acknowledge and agree that Nextel's access to the Land during this Due Diligence Period shall be solely for the limited purpose of performing the Investigations and Tests, and that Nextel shall not be considered an owner or operator of any portion of the Land, and shall have no ownership or control of any portion of the Land (except as expressly provided in this Paragraph 2), prior to the Term Commencement Date. 3. Term. The term of Nextel's tenancy hereunder shall commence upon the start of construction of the Tenant Facilities (as defined in Paragraph 6 below) or eighteen (18) months following the Effective Date, whichever first occurs ("Term Commencement Date") and shall terminate on the fifth anniversary of the Term Commencement Date ("Term") unless otherwise terminated as provided herein. Tenant shall have the right to extend the Term for three (3) successive five (5) year periods ("Renewal Terms") on the same terms and conditions as set forth herein. Tenant must advise Landlord in writing of such intent to renew no later than ninety (90) days prior to the expiration of the first five (5) year term or any renewal term. In the event that Tenant decides not to extend this Agreement beyond its original term or any renewal term, then Tenant shall notify Landlord in writing of Tenant's intention not to so extend this Agreement at least ninety (90) days prior to the expiration of the first five (5) year term or any renewal term. 4. Rent. (a) Within fifteen (15) business days following the Term Commencement Date and on the first day of each month thereafter, Tenant shall pay to Landlord as rent ONE THOUSAND FIVE HUNDRED and 00/100 Dollars ($1500.00) per month ("Rent'). Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. Rent shall be payable to Landlord at City of San Bernardino, Parks, Recreation, and Community Services Department, 547 N. Sierra Way, San Bernardino, California, 92410. Attention: Accounting. All of Tenant's monetary obligations set forth in this Agreement are conditioned upon Tenant's receipt of an accurate and executed W-9 Form from Landlord. Ground Lease Agreement CA7257 - Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden (b) Rent shall be increased on each annual anniversary of the Commencement Date by an amount equal to three percent (3%) of the Rent for the previous year. (c) Upon commencing construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs, Tenant shall pay Landlord the sum of $76,860.00 and in consideration for Tenant paying for the installation of a new sports lighting system on the Land (pursuant to Musco lighting quote dated May 17, 2004, in the amount of $76,860.00), Landlord agrees that the Rent in Section 5(a) shall abate for a period of fifty-one (51) months from the Commencement Date, upon which no rent will be payable from Tenant to Landlord. Upon conclusion of the Rent abatement period, Tenant shall pay Rent pursuant to Section 5(a), including all Rent increases that have occurred." 5. Use. From and after the Term Commencement Date, the Premises may be used by Tenant for any lawful activity in connection with the provision of communications services, and Tenant shall have the ongoing right to perform such Investigations and Tests as Tenant may deem necessary or desirable. Landlord agrees to cooperate with Tenant, at Tenant's expense, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Tenant's intended use of the Premises. 6. Facilities; Utilities; Access. (a) Tenant has the right to construct, erect, maintain, replace, remove, operate and upgrade on the Premises communications facilities, including without limitation an antenna tower or pole and foundation, utility lines, transmission lines, air conditioned equipment shelter(s), electronic equipment, transmitting and receiving antennas, a standby power generator and generator pad, supporting equipment and structures therefor ("Tenant Facilities"). In connection therewith, Tenant has the right to do all work necessary to prepare, maintain and alter the Premises for Tenant's business operations and to install transmission lines connecting the antennas to the transmitters and receivers. All of Tenant's construction and installation work shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner. Tenant shall hold title to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant's personal property and are not fixtures. Tenant has the right to remove the Tenant Facilities at its sole expense on or before the expiration or earlier termination of this Agreement, and Tenant shall repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Tenant shall remove the Tenant Facilities from the Land, but is not required to remove any foundation more than three (3) feet below grade level. Upon the expiration or earlier termination of this Agreement, all alterations and/or improvements (above ground and below) made to the real property which is the subject of this Agreement shall be removed from the property by Tenant and the land shall be returned to its previous state, excepting normal wear and tear, casualty, or damage cause by Landlord. (b) Tenant shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Tenant shall have the right to draw electricity and other utilities from the existing utilities on the Land or obtain separate utility service from any utility company that will provide service to the Land. Landlord agrees to sign such documents or easements as may be required by said utility companies to provide such service to the Premises, including the grant to Tenant or to the servicing utility company at no cost to the Tenant, of an easement in, over across or through the Land as required by such servicing utility company to provide utility services as provided herein. Any easement necessary for such power or other utilities will be at a location acceptable to Landlord and the servicing utility company. (c) Tenant, Tenant's employees, agents and contractors shall have access to the Premises without notice to Landlord twenty-four (24) hours a day, seven (7) days a week, at no charge. Landlord grants to Tenant, and Tenant's agents, employees, contractors, guests and invitees, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across the Land as may be described generally in Exhibit B. Interference. (a) Tenant shall operate the Tenant Facilities in compliance with all Federal Communications Commission ("FCC') requirements and in a manner that will not cause interference to Landlord or other lessees or licensees of the Land, provided that any such installations predate that of the Tenant Facilities. (b) Tenant's Facilities shall not disturb the communications configurations, equipment and frequency which exist on Landlord's property on the Commencement Date ("Pre-existing Communications") and Tenant's Facilities shall comply with Ground Lease Agreement CA7257 - Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden all non-interference rules of the Federal Communications Commission (`FCC") and the conditions set forth in Development Permit I 02-I57, regarding the City's public safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC or other Federal agency or department). Landlord shall not permit the use of any portion of Landlord's property in a way that interferes with the communications operations of Tenant described in Section 6, above. Such interference with Tenant's communications operations shall be deemed a material breach by Landlord, and Landlord shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference will cause irreparable injury to Tenant, and therefore, Tenant shall have the right to bring action to enjoin such interference or to terminate this Lease immediately upon written notice to Landlord. Notwithstanding the forgoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of such taxes directly attributable to the Tenant Facilities. Landlord shall pay all real property taxes, assessments and deferred taxes on the Land. 9. Waiver of Landlord's Lien. (a) Landlord waives any lien rights it may have concerning the Tenant Facilities, all of which are deemed Tenant's personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's consent. (b) Landlord acknowledges that Tenant has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Tenant Facilities ("Collateraf') with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that the Agreement shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty (60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice; or (ii) by Tenant if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Tenant Facilities; or (iii) by Tenant if Tenant is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; or (iv) by Tenant if any environmental report for the Land reveals the presence of any Hazardous Material after the Term Commencement Date, or (v) by Tenant if Tenant determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference, or (vi) by Tenant if the Landlord fails to deliver to Tenant an executed memorandum of agreement or non -disturbance and attornment agreement pursuant to Paragraphs 19(g) and (h) below. 11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Landlord no more than forty- five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. If Tenant chooses not to terminate this Agreement, future Rent to be paid shall be reduced in proportion to the actual reduction or abatement of use of the Premises. 12. Insurance. Tenant, at Tenant's sole cost and expense, shall procure and maintain on the Premises and on the Tenant Facilities, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Tenant, its employees and agents arising out of or in connection with Tenant's use of the Premises, all as provided for herein. Within thirty (30) days following the Effective Date, Tenant may, at its option, (i) provide Landlord with a certificate of insurance ("COI") evidencing the coverage required by this Paragraph 12, or (ii) electronically provide Ground Lease Agreement CA7257 - Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden Landlord with a memorandum of insurance ("MOI") evidencing the coverage required by this Paragraph 12. In the event Tenant elects to provide Landlord with a MOI, Tenant shall provide Landlord with a uniform resource locator link to Tenant's MOI web site. Landlord, at Landlord's sole cost and expense, shall procure and maintain on the Property, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Landlord, its employees and agents arising out of or in connection with Landlord's use, occupancy and maintenance of the Property. Each party shall be named as an additional insured on the other's policy. Landlord shall provide a COI evidencing the coverage required by this Paragraph 12 within thirty (30) days following the Effective Date. Proof of a bona fide self- insurance program of $1,000,000 shall satisfy the insurance coverage requirement of this section. 13. Waiver of Subrogation. Landlord and Tenant release each other and their respective principals, employees, representatives and agents, from any claims for damage to any person or to the Land or the Premises or to the Tenant Facilities or any other property thereon caused by, or that result from, risks insured against under any insurance policies carried by the parties and in force at the time of any such damage. Landlord and Tenant shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. 14. Liability and Indemnity. Landlord and Tenant shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party's agents, employees or contractors in or about the Land. Except as provided in the first sentence, Tenant shall defend (if requested by Landlord), indemnify, and hold harmless Landlord, its agents, boards, officers, employees, representatives or contractors against any and all claims, suits, damages for personal injury, including death, property damage, demands, loss or liability of any kind or nature arising from Tenant's operations under this Agreement. The duties described in this Paragraph 14 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 15. Assignment and Subletting. Tenant may not assign, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of Landlord; provided, however, that Tenant may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor -in - interest or entity acquiring fifty-one percent (51 %) or more of its stock or assets, subject to any financing entity's interest, if any, in this Agreement as set forth in Paragraph 9 above. Upon assignment, Tenant shall be relieved of all future performance, liabilities, and obligations under this Agreement, provided that the assignee assumes all of Tenant's obligations herein. Landlord may assign this Agreement, which assignment may be evidenced by written notice to Tenant within a reasonable period of time thereafter, provided that the assignee assumes all of Landlord's obligations herein, including but not limited to, those set forth in Paragraph 9 ("Waiver of Landlord's Lien") above. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary contained in this Agreement, Tenant may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Tenant (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 16. Warranty of Title and Quiet Enjoyment. Landlord warrants that: (i) Landlord owns the Land in fee simple and has rights of access thereto and the Land is free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date; and (ii) Landlord covenants and agrees with Tenant that Tenant may peacefully and quietly enjoy the Premises, provided that Tenant is not in default hereunder after notice and expiration of all cure periods. 17. Repairs. Tenant shall repair any damage to the Premises or Land caused by the negligence or willful misconduct of Tenant. Except as set forth in Paragraph 6(a) above, upon expiration or termination hereof, Tenant shall Ground Lease Agreement CA7267 - Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden repair the Premises to substantially the condition in which it existed upon start of construction, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. 18. Hazardous Materials. (a) As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Land in violation of any Environmental Law (as defined below), and (2) Landlord hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Land in violation of any Environmental Law; (ii) no notice has been received by or on behalf of Landlord from, and Landlord has no knowledge that notice has been given to any predecessor owner or operator of the Land by, any governmental entity or any person or entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Land; and (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Land in violation of any Environmental Law. (b) Without limitation of Paragraph 14, Landlord and Tenant shall each indemnify, defend and hold the other harmless from and against all Losses arising from (i) any breach of any representation or warranty made in this Paragraph 18 by such party; and/or (ii) environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Tenant, from operations in or about the Land by Tenant or Tenant's agents, employees or contractors, and in the case of Landlord, from the ownership or control of, or operations in or about, the Land by Landlord or Landlord's predecessors in interest, and their respective agents, employees, contractors, tenants, guests or other parties. The duties described in this Paragraph 18 shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. (c) "Hazardous Material"means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental LaW' means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i) human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment 19. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Land and their real and personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. (c) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (d) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden (a) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Landlord: Tenant: City of San Bernardino Nextel of California, Inc. 310 Commerce Irvine, CA 92602 Attn: Property Manager Phone: (714) 368-3500 With a copy to: Nextel Communications, Inc. 2001 Edmund Halley Drive Reston, VA 20191-3436 Second Floor, Mail Stop 2E225 Attn: Site Leasing Services, Contracts Manager Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt. (f) This Agreement shall be governed by the laws of the State of California. Any legal proceeding brought to enforce any right, interest, or other demand to this Agreement shall be brought in the Superior Court of the County of San Bernardino, San Bernardino District, State of California. The prevailing party in any legal proceeding to enforce any provision of this Agreement shall be entitled to recover from the losing party all attorney's fees and court costs, including appeals, if any, in connection with that action. The portion of the costs, salary, and expenses of the City Attorney and members of his office directly arising from that action shall be considered as "attorney's fees" for the purpose of this paragraph. (g) Landlord agrees to execute and deliver to Tenant a Memorandum of Agreement in the form annexed hereto as Exhibit C and acknowledges that such Memorandum of Agreement will be recorded by Tenant in the official records of the County where the Land is located. (h) In the event the Land is encumbered by a mortgage or deed of trust, Landlord agrees to obtain and deliver to Tenant an executed and acknowledged non -disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. (i) Landlord agrees to fully cooperate, including executing necessary documentation, with Tenant to obtain information and documentation clearing any outstanding title issues that could adversely affect Tenant's interest in the Premises created by this Agreement. 0) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent. (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Agreement. (1) The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Agreement. (m) All Riders and Exhibits annexed hereto form material parts of this Agreement. (n) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original. ***SIGNATURES ON FOLLOWING PAGE*** NEXTEL Lease Agreement SS Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last signature below. LANDLORD: TENANT: CITY OF SAN BERNARDINO Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications By: Name: Title: Date: Tax I.D.: By: Name: Title: Date: NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden EXHIBIT A DESCRIPTION OF LAND to the Agreement dated 200_, by and between CITY OF SAN BERNARDINO, as Landlord, and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, as Tenant. The Land is described and/or depicted as follows (metes and bounds description): APN: 1191-101-03 A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 F33F� x SR ��PF �6R ;v � spy D Z A$a�=� r-1- y '.. 5 K?ppe9yp4 •^' m O _� D m � V m qmill p Fg4 sRs�9 z N qq c ¢¢ ®[ R pp 5 P1<9 C a g�E '3 ME 2 F' R rD i PDF created with FinePrint pdfFactory Pro trial version www.oditactorv.com rD i PDF created with FinePrint pdfFactory Pro trial version www.oditactorv.com PDF created with FinePrint pdfFactory Pro trial version www.oditactorv.com 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden EXHIBIT B DESCRIPTION OF PREMISES to the Agreement dated 200_, by and between CITY OF SAN BERNARDINO, as Landlord and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, as Tenant. The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO Notes: 1. Tenant may replace this Exhibit with a survey of the Premises once Tenant receives it. 2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental authorities. 3. The access road's width will be the width required by the applicable governmental authorities, including police and fire departments. 4. Tenant may install up to twelve (12) antennas and fifteen (15) coaxial cables. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions and locations may vary from what is shown above. NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden The location of any utility easement is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations. NEXTEL Lease Agreement SB Soccer Complex 11-1-04 10 saga � \ ! , _ems p : ; [ ; 1|6 HIM )) \§ Z Z , ! R /| , `\ pƒ: PDF created with pdfFm,Pro trial version __mry.co, 2004-348 pp O 0 ! m m a z =Em n Z C) 4 v �k d aifi i i 1 z 5p5p a AA'� A / m T" z d A Afi 9RgRR F��� L 4 F. RAY •p" X Ell,, F. s $ age I �4 III q'i D d 3�y d'.ly' §fie 9 R ✓i d£ $p n [ 1 iiiiii SSxei a '9FC $ 6 D�n e Z 0 9 x a $ ggv "2ul Is R V ° N $ g m " i PDF created with FinePrint pdfFactory Pro trial version www.odffactorv.com 2004-348 M PDF created with FinePrint pdfFactory Pro trial version www.odffactorv.com 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden EXHIBIT C RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Nextel of California, Inc. 310 Commerce Irvine, CA 92602 Attn: Property Manager MEMORANDUM OF AGREEMENT CA8818 / Mountain View APN: 0143-201-25 This MEMORANDUM OF AGREEMENT Is entered Into on this day of , 200 , by CITY OF SAN BERNARDINO, with an address at San Bernardino, CA, 92404 (hereinafter referred to as "Owner" or "Landlord') and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, with an office at 310 Commerce, Irvine, California, 92602 (hereinafter referred to as "Nextel" or "Tenant'). 1. Landlord and Tenant entered into a Communications Site Lease Agreement ("Agreement') dated as of , 200_, effective upon full execution of the parties ("Effective Date") for the purpose Nextel undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of the Agreement is for five (5) years commencing on the start of construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs ("Term Commencement Date"), and terminating on the fifth anniversary of the Commencement Date with three (3) successive five (5) year options to renew. 3. The Land that is the subject of the Agreement is described in Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the "Premises") are set forth in the Agreement. In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: CITY OF SAN BERNARDINO, NOT FOR EXECUTION - EXHIBIT ONLY By: Name: Title: Date: TENANT: Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications NOT FOR EXECUTION - EXHIBIT ONLY By: Name: Title: Date: Nextel Lease Agreement SB Soccer Complex 11-1-04 11 J. 2004-348 STATE OF COUNTY OF Market: Los Angeles Site #: CA7257E Site Name: Arden On , before me, , Notary Public, personally appeared (Landlord) , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: STATE OF COUNTY OF On , before me, , Notary Public, personally appeared (Nextel) , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. EAL) Notary Public My commission expires: NExiEL Lease Agreement Ss Soccer Complex t t-t-o4 12 2004-348 �.. ORIGINAL Market: Los Angeles Site #: CA7257E Site Name: Arden COMMUNICATIONS SITE LEASE AGREEMENT (GROUND) This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement') is dated as of November 1, 1 2004, by NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications ("Nextel" or "Tenant') and THE CITY OF SAN BERNARDINO ("Owner" or "Landlord'). The parties hereto agree as follows: 1. Premises. Owner owns a parcel of land ("Land') located in the City of San Bernardino County of San Bernardino State of California, commonly known as 2500 E. Pacific Ave. (APN:1191-101-03). The Land is more particularly described in Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ("Effective Date/Due Diligence Period"), Owner hereby leases to Nextel and Nextel leases from Owner approximately one thousand two hundred (1200) square feet of the Land and all access and utility easements necessary or desirable therefor ("Premises"), as may be described generally in Exhibit B annexed hereto. 2. Effective Date/Due Diligence Period. This Agreement shall be effective on the date of full execution hereof ("Effective Date"). Beginning on the Effective Date and continuing until the Term Commencement Date as defined in Paragraph 3 below ("Due Diligence Period'), Nextel shall only be permitted to enter the Land for the limited purpose of making appropriate engineering and boundary surveys, inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structural and environmental tests (collectively, "Investigations and Tests") that Nextel may deem necessary or desirable to determine the physical condition, feasibility and suitability of the Premises. In the event that Nextel determines, during the Due Diligence Period, that the Premises are not appropriate for Nextel's intended use, or if for any other reason, or no reason, Nextel decides not to commence its tenancy of the Premises, then Nextel shall have the right to terminate this Agreement without penalty upon written notice to Owner at any time during the Due Diligence Period and prior to the Term Commencement Date. Owner and Nextel expressly acknowledge and agree that Nextel's access to the Land during this Due Diligence Period shall be solely for the limited purpose of performing the Investigations and Tests, and that Nextel shall not be considered an owner or operator of any portion of the Land, and shall have no ownership or control of any portion of the Land (except as expressly provided in this Paragraph 2), prior to the Term Commencement Date. 3. Term. The term of Nextel's tenancy hereunder shall commence upon the start of construction of the Tenant Facilities (as defined in Paragraph 6 below) or eighteen (18) months following the Effective Date, whichever first occurs ("Term Commencement Date") and shall terminate on the fifth anniversary of the Term Commencement Date ("Term') unless otherwise terminated as provided herein. Tenant shall have the right to extend the Term for three (3) successive five (5) year periods ("Renewal Terms") on the same terms and conditions as set forth herein. Tenant must advise Landlord in writing of such intent to renew no later than ninety (90) days prior to the expiration of the first five (5) year term or any renewal term. In the event that Tenant decides not to extend this Agreement beyond its original term or any renewal term, then Tenant shall notify Landlord in writing of Tenant's intention not to so extend this Agreement at least ninety (90) days prior to the expiration of the first five (5) year term or any renewal term. 4. Rent. (a) Within fifteen (15) business days following the Term Commencement Date and on the first day of each month thereafter, Tenant shall pay to Landlord as rent ONE THOUSAND FIVE HUNDRED and 00/100 Dollars ($1500.00) per month ("Rent'). Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. Rent shall be payable to Landlord at City of San Bernardino, Parks, Recreation, and Community Services Department, 547 N. Sierra Way, San Bernardino, California, 92410, Attention: Accounting. All of Tenant's monetary obligations set forth in this Agreement are conditioned upon Tenant's receipt of an accurate and executed W-9 Form from Landlord. Ground Lease Agreement CA7257 -Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden (b) Rent shall be increased on each annual anniversary of the Commencement Date by an amount equal to three percent (3%) of the Rent for the previous year. (c) Upon commencing construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs, Tenant shall pay Landlord the sum of $76,860.00 and in consideration for Tenant paying for the installation of a new sports lighting system on the Land (pursuant to Musco lighting quote dated May 17, 2004, in the amount of $76,860.00), Landlord agrees that the Rent in Section 5(a) shall abate for a period of fifty-one (51) months from the Commencement Date, upon which no rent will be payable from Tenant to Landlord. Upon conclusion of the Rent abatement period, Tenant shall pay Rent pursuant to Section 5(a), including all Rent increases that have occurred." 5. Use. From and after the Term Commencement Date, the Premises may be used by Tenant for any lawful activity in connection with the provision of communications services, and Tenant shall have the ongoing right to perform such Investigations and Tests as Tenant may deem necessary or desirable. Landlord agrees to cooperate with Tenant, at Tenant's expense, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Tenant's intended use of the Premises. 6. Facilities; Utilities; Access. (a) Tenant has the right to construct, erect, maintain, replace, remove, operate and upgrade on the Premises communications facilities, including without limitation an antenna tower or pole and foundation, utility lines, transmission lines, air conditioned equipment shelter(s), electronic equipment, transmitting and receiving antennas, a standby power generator and generator pad, supporting equipment and structures therefor ("Tenant Facilities"). In connection therewith, Tenant has the right to do all work necessary to prepare, maintain and alter the Premises for Tenant's business operations and to install transmission lines connecting the antennas to the transmitters and receivers. All of Tenant's construction and installation work shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner. Tenant shall hold title to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant's personal property and are not fixtures. Tenant has the right to remove the Tenant Facilities at its sole expense on or before the expiration or earlier termination of this Agreement, and Tenant shall repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Tenant shall remove the Tenant Facilities from the Land, but is not required to remove any foundation more than three (3) feet below grade level. Upon the expiration or earlier termination of this Agreement, all alterations and/or improvements (above ground and below) made to the real property which is the subject of this Agreement shall be removed from the property by Tenant and the land shall be returned to its previous state, excepting normal wear and tear, casualty, or damage cause by Landlord. (b) Tenant shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Tenant shall have the right to draw electricity and other utilities from the existing utilities on the Land or obtain separate utility service from any utility company that will provide service to the Land. Landlord agrees to sign such documents or easements as may be required by said utility companies to provide such service to the Premises, including the grant to Tenant or to the servicing utility company at no cost to the Tenant, of an easement in, over across or through the Land as required by such servicing utility company to provide utility services as provided herein. Any easement necessary for such power or other utilities will be at a location acceptable to Landlord and the servicing utility company. (c) Tenant, Tenant's employees, agents and contractors shall have access to the Premises without notice to Landlord twenty-four (24) hours a day, seven (7) days a week, at no charge. Landlord grants to Tenant, and Tenant's agents, employees, contractors, guests and invitees, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across the Land as may be described generally in Exhibit B. Interference. (a) Tenant shall operate the Tenant Facilities in compliance with all Federal Communications Commission ("FCC") requirements and in a manner that will not cause interference to Landlord or other lessees or licensees of the Land, provided that any such installations predate that of the Tenant Facilities. (b) Tenant's Facilities shall not disturb the communications configurations, equipment and frequency which exist on Landlord's property on the Commencement Date ("Pre-existing Communications") and Tenant's Facilities shall comply with Ground Lease Agreement CA7257 - Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden all non-interference rules of the Federal Communications Commission (`FCC") and the conditions set forth in Development Permit 1 02-157, regarding the City's public safety transmissions (provided the conditions are not within the exclusive jurisdiction of the FCC or other Federal agency or department). Landlord shall not permit the use of any portion of Landlord's property in a way that interferes with the communications operations of Tenant described in Section 6, above. Such interference with Tenant's communications operations shall be deemed a material breach by Landlord, and Landlord shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference will cause irreparable injury to Tenant, and therefore, Tenant shall have the right to bring action to enjoin such interference or to terminate this Lease immediately upon written notice to Landlord. Notwithstanding the forgoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of such taxes directly attributable to the Tenant Facilities. Landlord shall pay all real property taxes, assessments and deferred taxes on the Land. 9. Waiver of Landlord's Lien. (a) Landlord waives any lien rights it may have concerning the Tenant Facilities, all of which are deemed Tenant's personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's consent. (b) Landlord acknowledges that Tenant has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Tenant Facilities ("Collateraf') with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, except that the Agreement shall not be terminated if the default cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty (60) day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice; or (ii) by Tenant if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of the Tenant Facilities; or (iii) by Tenant if Tenant is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies, or (iv) by Tenant if any environmental report for the Land reveals the presence of any Hazardous Material after the Term Commencement Date; or (v) by Tenant if Tenant determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference; or (vi) by Tenant if the Landlord fails to deliver to Tenant an executed memorandum of agreement or non -disturbance and attornment agreement pursuant to Paragraphs 19(g) and (h) below. 11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Landlord no more than forty- five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. If Tenant chooses not to terminate this Agreement, future Rent to be paid shall be reduced in proportion to the actual reduction or abatement of use of the Premises. 12. Insurance. Tenant, at Tenant's sole cost and expense, shall procure and maintain on the Premises and on the Tenant Facilities, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Tenant, its employees and agents arising out of or in connection with Tenant's use of the Premises, all as provided for herein. Within thirty (30) days following the Effective Date, Tenant may, at its option, (i) provide Landlord with a certificate of insurance ("COI") evidencing the coverage required by this Paragraph 12, or (ii) electronically provide Ground Lease Agreement CA7257 - Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden Landlord with a memorandum of insurance ("MOI") evidencing the coverage required by this Paragraph 12. In the event Tenant elects to provide Landlord with a MOI, Tenant shall provide Landlord with a uniform resource locator link to Tenant's MOI web site. Landlord, at Landlord's sole cost and expense, shall procure and maintain on the Property, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Landlord, its employees and agents arising out of or in connection with Landlord's use, occupancy and maintenance of the Property. Each party shall be named as an additional insured on the other's policy. Landlord shall provide a COI evidencing the coverage required by this Paragraph 12 within thirty (30) days following the Effective Date. Proof of a bona fide self- insurance program of $1,000,000 shall satisfy the insurance coverage requirement of this section. 13. Waiver of Subrogation. Landlord and Tenant release each other and their respective principals, employees, representatives and agents, from any claims for damage to any person or to the Land or the Premises or to the Tenant Facilities or any other property thereon caused by, or that result from, risks insured against under any insurance policies carried by the parties and in force at the time of any such damage. Landlord and Tenant shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. 14. Liability and Indemnity. Landlord and Tenant shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party's agents, employees or contractors in or about the Land. Except as provided in the first sentence, Tenant shall defend (if requested by Landlord), indemnify, and hold harmless Landlord, its agents, boards, officers, employees, representatives or contractors against any and all claims, suits, damages for personal injury, including death, property damage, demands, loss or liability of any kind or nature arising from Tenant's operations under this Agreement. The duties described in this Paragraph 14 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 15. Assignment and Subletting. Tenant may not assign, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of Landlord; provided, however, that Tenant may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor -in - interest or entity acquiring fifty-one percent (51 %) or more of its stock or assets, subject to any financing entity's interest, if any, in this Agreement as set forth in Paragraph 9 above. Upon assignment, Tenant shall be relieved of all future performance, liabilities, and obligations under this Agreement, provided that the assignee assumes all of Tenant's obligations herein. Landlord may assign this Agreement, which assignment may be evidenced by written notice to Tenant within a reasonable period of time thereafter, provided that the assignee assumes all of Landlord's obligations herein, including but not limited to, those set forth in Paragraph 9 ("Waiver of Landlord's Lien") above. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary contained in this Agreement, Tenant may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Tenant (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 16. Warranty of Title and Quiet Enjoyment. Landlord warrants that: (i) Landlord owns the Land in fee simple and has rights of access thereto and the Land is free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date; and (ii) Landlord covenants and agrees with Tenant that Tenant may peacefully and quietly enjoy the Premises, provided that Tenant is not in default hereunder after notice and expiration of all cure periods. 17. Repairs. Tenant shall repair any damage to the Premises or Land caused by the negligence or willful misconduct of Tenant. Except as set forth in Paragraph 6(a) above, upon expiration or termination hereof, Tenant shall Ground Lease Agreement CA7257 -Arden 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden repair the Premises to substantially the condition in which it existed upon start of construction, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. 18. Hazardous Materials. (a) As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Land in violation of any Environmental Law (as defined below), and (2) Landlord hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Land in violation of any Environmental Law; (ii) no notice has been received by or on behalf of Landlord from, and Landlord has no knowledge that notice has been given to any predecessor owner or operator of the Land by, any governmental entity or any person or entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Land; and (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Land in violation of any Environmental Law. (b) Without limitation of Paragraph 14, Landlord and Tenant shall each indemnify, defend and hold the other harmless from and against all Losses arising from (i) any breach of any representation or warranty made in this Paragraph 18 by such party; and/or (ii) environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Tenant, from operations in or about the Land by Tenant or Tenant's agents, employees or contractors, and in the case of Landlord, from the ownership or control of, or operations in or about, the Land by Landlord or Landlord's predecessors in interest, and their respective agents, employees, contractors, tenants, guests or other parties. The duties described in this Paragraph 18 shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. (c) "Hazardous Material"means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Lard' means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i) human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment 19. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) Both parties represent and warrant that their use of the Land and their real and personal property located thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. (c) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (d) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden (e) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Landlord: City of San Bernardino Parks, Recreation and Community Services Dept. 547 N. Sierra Way San Bernardino, CA 92410 Tenant: Nextel of California, Inc. 310 Commerce Irvine, CA 92602 Attn: Property Manager Phone: (714) 368-3500 With a copy to: Nextel Communications, Inc. 2001 Edmund Halley Drive Reston, VA 20191-3436 Second Floor, Mail Stop 2E225 Attn: Site Leasing Services, Contracts Manager Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt. (f) This Agreement shall be governed by the laws of the State of California. Any legal proceeding brought to enforce any right, interest, or other demand to this Agreement shall be brought in the Superior Court of the County of San Bernardino, San Bernardino District, State of California. The prevailing party in any legal proceeding to enforce any provision of this Agreement shall be entitled to recover from the losing party all attorney's fees and court costs, including appeals, if any, in connection with that action. The portion of the costs, salary, and expenses of the City Attorney and members of his office directly arising from that action shall be considered as "attorney's fees' for the purpose of this paragraph. (g) Landlord agrees to execute and deliver to Tenant a Memorandum of Agreement in the form annexed hereto as Exhibit C and acknowledges that such Memorandum of Agreement will be recorded by Tenant in the official records of the County where the Land is located. (h) In the event the Land is encumbered by a mortgage or deed of trust, Landlord agrees to obtain and deliver to Tenant an executed and acknowledged non -disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. (1) Landlord agrees to fully cooperate, including executing necessary documentation, with Tenant to obtain information and documentation clearing any outstanding title issues that could adversely affect Tenant's interest in the Premises created by this Agreement. 0) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent. (k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Agreement. (1) The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Agreement. original. (m) All Riders and Exhibits annexed hereto form material parts of this Agreement. (n) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an `SIGNATURES ON FOLLOWING PAGE*** NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last signature below. LANDLORD: TENANT: CITY OF SAN BERNARDINO Nextel of California, Inc., a Delaware corporation, d/bla Nextel Communications r BY: '' e'.mLL �J l ild -VI BY Name: --� i ( Name: Title: ' re A 4'j r Title: DIRFCTno o; Date: Date: / Tax I.D.: 9 S- 00 2:2 2-1 NEXTEL Lease Agreement SB Soccer Complex 11-1-04 7 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden EXHIBIT A DESCRIPTION OF LAND to the Agreement dated November 1 , 200 4, by and between CITY OF SAN BERNARDINO, as Landlord, and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, as Tenant. The Land is described and/or depicted as follows (metes and bounds description): APN: 1191-101-03 A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 as 9 41 s I.,B- a g"s i; 0 91 A pG j4 -jf_ pyy3 - yi r T 4 yy¢ D F yy �x =T9 =RED x en i Elyi �� • EyRR ^: Ti F 4� "J Z Y - NX V 8 F T CD `m �gagF9 gri O X,9°ova �.M �� X,x CD d a rn m 0 D o3 �� 11".4l1 1115, . .... _ z N 3 Nell 4 ill s� 3R v A E i m D ION N 6ea ` D e9 1 m PDF created with FinePrint pdfFactory Pro trial version www.odffactorv.com 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden EXHIBIT B DESCRIPTION OF PREMISES to the Agreement dated November 1 200 4, by and between CITY OF SAN BERNARDINO, as Landlord and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, as Tenant. The Premises are described and/or depicted as follows: A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO Notes: 2 1. Tenant may replace this Exhibit with a survey of the Premises once Tenant receives it. 2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental authorities. 3. The access road's width will be the width required by the applicable governmental authorities, including police and fire departments. 4. Tenant may install up to twelve (12) antennas and fifteen (15) coaxial cables. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions and locations may vary from what is shown above. NEXTEL Lease Agreement SB Soccer Complex 11-1-04 2004-348 Market: Los Angeles Site #: CA7257E Site Name: Arden 5. The location of any utility easement is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations. NEXTEL Lease Agreement SB Soccer Complex 11-1-04 10 2004-348 PDF created with FinePrint pdfFactory Pro trial version www.odffactorv.com 2004-348 O �o m s� {. • a ^' .. Z S 1 n ED z 8 � z i 0 9x al q a� i � m --- ------. �T"}a 0 9 I z 6� 1 i I A { � lit Ind Z n 3 a Ca •. Ta S3Ek"k �i" " gg A D z1 ri k g iakag3O • S 5s D i ' g rM PDF created with FinePrint pdfFactory Pro trial version www.odffactorv.com !«4@v § |\ ) ;_ § <, pp ) < &1, > . . i % | )§ ! ; Rill III . ` § ) . ( \ $ � / xf ` / ƒ \}©� F d. , |� f\ [ ?� . .. \ !G §; w • ; \`. & [ f |� ;/ / - | 0 \ )' Ln q !# LW - created with __pdfF m,w_______ 2004-348 Market: Los Angeles Site #: CA7257E 6*=- kl . r�G1T.CTi1 EXHIBIT C RECORDED AT REQUEST OF, AND WHEN RECORDED RETURN TO: Nextel of California, Inc. 310 Commerce Irvine, CA 92602 Attn: Property Manager MEMORANDUM OF AGREEMENT CA7257E / Arden APN: 1191-101-03 This MEMORANDUM OF AGREEMENT Is entered Into on this day of 1 200 , by CITY OF SAN BERNARDINO, with an address at San Bernardino, CA, 92404 (hereinafter referred to as "Owner" or "Landlord') and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, with an office at 310 Commerce, Irvine, California, 92602 (hereinafter referred to as "Nextel" or "Tenant'). 1. Landlord and Tenant entered into a Communications Site Lease Agreement ("Agreement') dated as of , 200, effective upon full execution of the parties ("Effective Date") for the purpose Nextel undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of the Agreement is for five (5) years commencing on the start of construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs ("Term Commencement Date"), and terminating on the fifth anniversary of the Commencement Date with three (3) successive five (5) year options to renew. 3. The Land that is the subject of the Agreement is described in Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the "Premises") are set forth in the Agreement. In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: CITY OF SAN BERNARDINO NOT FOR EXECUTION — EXHIBIT ONLY By: Name: Title: Date: 11��19�Y�1 Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications NOT FOR EXECUTION — EXHIBIT ONLY By: Name: Title: Date: NEXTEL Lease Agreement SB Soccer Complex 11-1-04 11 10 2004-348 STATE OF COUNTY OF Market: Los Angeles Site #: CA7257E Site Name: Arden On before me, , Notary Public, personally appeared (Landlord) personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: STATE OF COUNTY OF On before me, , Notary Public, personally appeared (Nextel) personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) Notary Public My commission expires: NEXTEL Lease Agreement SB Soccer Complex 11-1-04 12 2004-348 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Nextel Communications 310 Commerce Irvine, CA 92602 Attn.: Property Manager MEMORANDUM OF AGREEMENT CA 7257E / Arden APN: 1191-101-03 This MEMORANDUM OF AGREEMENT is entered Into on this 1st day of November 200 4 , by CITY OF SAN BERNARDINO, with an address at San Bernardino, CA, 92404 (hereinafter referred to as "Owner" or "Landlord') and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, with an office at 310 Commerce, Irvine, California, 92602 (hereinafter referred to as "Nextel" or "Tenant'). Landlord and Tenant entered into a Communications Site Lease Agreement ("Agreement') dated as of November 1 , 200 4 , effective upon full execution of the parties ("Effective Date") for the purpose Nextel undertaking certain Investigations and Tests and, upon finding the Land appropriate, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing is set forth in the Agreement. 2. The term of the Agreement is for five (5) years commencing on the start of construction of the Tenant Facilities or eighteen (18) months following the Effective Date, whichever first occurs ("Term Commencement Date"), and terminating on the fifth anniversary of the Commencement Date with three (3) successive five (5) year options to renew. 3. The Land that is the subject of the Agreement is described in Exhibit A annexed hereto. The portion of the Land being leased to Tenant and all necessary access and utility easements (the "Premises") are set forth in the Agreement. In witness whereof, the parties have executed this Memorandum of Agreement as of the day and year first written above. LANDLORD: CITY OF SAN BERNARDINO, By: G� Name: Title: z2 Date: TENANT: Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications By: Name: ric M. W00dfu DNecta of Sk Development Title: Date: CA 7257E MOA 11-11-04 cgjs.doc 2004-348 STATEOF COUNTY OF S9✓ Qcn On /�-/n ( vW_ before me, aBc� L-- S' s , Notary Public, personally appeared kr-'E� v. aAPJVJ✓1- , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. �—— (SEAL) Notary Public My commission expires: STATE OF CALIFORNIA COUNTY OF ORANGE RW 14�270N5 . NDW; nkMa - On before me, I Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public My commission expires: CA 7257E MOA 11-11-04 cgjs.doc 2004-348 EXHIBIT A DESCRIPTION OF LAND to the Agreement dated November 1 200 4, by and between CITY OF SAN BERNARDINO, as Landlord, and NEXTEL OF CALIFORNIA, INC., a Delaware corporation, d/b/a Nextel Communications, as Tenant. The Land is described and/or depicted as follows (metes and bounds description): APN: 1191-101-03 A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO Lot 1 of the North half of Block 1, according to map of West Highlands, in the county of San Bernardino, State of California, recorded in the Book 5 of maps, page 77, records of said country. Together with that portion of the South %2 of Walnut Street adjoining said Block 1 on the north, vacated by order of the Board of Supervisors, a certified copy of which was recorded December 15, 1925 in Book 45 page 107 of official records. CA 7257E MCA I 1-11-04 cgis.doc