HomeMy WebLinkAbout13- Development Services ORIGINAL
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director Subject: Resolution authorizing the City Manager to
execute a lease agreement between the City of San
Dept: Development Services Bernardino and Los Angeles SMSA Limited Partnership
(Verizon Wireless) for the lease of nine hundred eighty
Date: August 13, 2009 seven (987) square feet of land at Fire Station No. 228
located at 3398 Highland Avenue for a cellular tower
File: 15.06-164 disguised as a functional fire hose rack (APN 0285-191-
05).
MCC Date: September 8, 2009
Synopsis of Previous Council Action:
5/07/2008 - Resolution No. 2007-145 was adopted approving an agreement with ATS
Communications for development and implementation of a Wireless Master Plan.
4/20/2009 - Item was continued to the May 18, 2009 MCC agenda.
5/18/2009 - Item was continued to the June 1, 2009 MCC agenda.
6/01/2009 - Resolution No. 2009-138 was adopted authorizing the City Manager to execute a
Lease Agreement between the City of San Bernardino and Los Angeles SMSA
Limited Partnership for a cell tower disguised as a functional fire hose rack at
Fire Station No. 228.
Recommended Motion:
1. Adopt Resolution.
AND
2. Authorize the Director of Finance to amend the 2009/10 adopted budget by increasing revenue
account number 001-000-4523 by$21,000 and General Government expenditure account
number 001-182-5505 by$4,725.
Valerie C. Ross
Contact Person: Ryan Sandoval Phone: 5226
Supporting data attached: Staff Report,Map,Letters Reso, &Lease Ward(s): 4
FUNDING REQUIREMENTS: Amount: None
Source: (Acct.No.)N/A
Acct.Description: N/A
Finance:
Council Notes: /QeS�' '�2_00q
Agenda Item No. 13
q. 4-01
l
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT:
Resolution authorizing the City Manager to execute a lease agreement between the City of San
Bernardino and Los Angeles SMSA Limited Partnership (Verizon Wireless) for the lease of nine
hundred eighty seven (987) square feet of land at Fire Station No. 228 located at 3398 Highland
Avenue for a cellular tower disguised as a functional fire hose rack (APN 0285-191-05).
BACKGROUND:
On June 1, 2009, Resolution 2009-138 was adopted, authorizing the City Manager to execute a
lease agreement between the City and Los Angeles SMSA Limited Partnership (Verizon). Due
to some unforeseen issues regarding a deed restriction on the property and a Facility Lease with
the California Infrastructure and Economic Development Bank (IBank), Verizon did not execute
the lease agreement in the time allotted by the adopted resolution (60 days), thus rescinding the
authorization to execute the lease.
The restriction in the Quitclaim Deed from the State of California indicated that the property
being deeded to the City was to be used for a public fire station only, and without written consent
from the State for any other purpose, the State has the right to re-enter the property and take
possession if the conditions were not met. A letter has been received from the State indicating
that this cell tower lease with Verizon is not deemed as a violation of the restrictive covenants of
the Quitclaim Deed.
This fire station site was also included in a Facility Lease with IBank that is dated April 15, 2006
relative to the ten million dollars ($10,000,000) the City received from IBank to pay for the
construction, acquisition and installation of the Pavement Reconstruction and Rehabilitation
Project. The City used eight (8) Fire Stations as collateral to finance this project, and this site
was included. Per the Facility Lease, IBank would need to approve of any leases that would
encumber any of the sites included in the Facility Lease. Language has been added to Section 22
of the cell tower lease that indicates this cell tower lease is subject and subordinate to the Facility
Lease, which IBank has agreed to and given written approval allowing the cell tower lease.
Construction of the cell tower at Fire Station No. 228 is expected to start in the latter part of
2009. Los Angeles SMSA Limited Partnership has received land use approval and filed an
application for a building permit.
Upon termination of the lease agreement, Los Angeles SMSA Limited Partnership will be
required to restore the premises to its previous grade and condition including removal of all
appurtenances installed,to the satisfaction of the City of San Bernardino.
The attached resolution authorizes the execution of a Lease with Los Angeles SMSA Limited
Partnership (Verizon Wireless).
2
FINANCIAL IMPACT:
As provided in the June 1" staff report, the lease payments will begin 30 days after the execution
of the Lease by both parties. The projected gross revenue for 2009/10 is anticipated to be
$18,900 (8 months x $2,100). ATS will receive 25% of the revenue as compensation, which is
$4,725. Additionally, the agreement requires Verizon to pay to the City a document preparation
fee of$2,100, which is not shared with ATS. Therefore the total gross revenue for 2009/10 is
anticipated to be $21,000 with a net revenue of$16,275. The total net revenue over the five (5)
year period is $104,468.50.
RECOMMENDATION:
1. Adopt Resolution; and
2. Authorize the Director of Finance to amend the 2009/10 adopted budget by increasing
revenue account number 001-000-4523 by $21,000 and General Government expenditure
account number 001-182-5505 by $4,725.
ATTACHMENTS:
- Vicinity Map
- Site Plan
- State of California Letter
- Resolution
3
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REAL PROPERTY SECTION SMSA Limited Partnership (Verizon Wireless),
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State of California • Arnold Schwarzenegger, Governor
State and Consumer Services Agency
DGDEPARTMENT S OF GENERAL SERVICES
Real Estate Services Division-Professional Services Branch
707 Third Street,Sude 505 • Wost Sacramento,CA 95605 • (916)3754099
www.resd das.caaov7osblrealestata
July 28, 2009 R1Ec1E0w[ Er%D
Ryan Sandoval, Real Property Specialist CITY OF SAN BERNARDINO
City of San Bernardino DEVELOPMENT SERVICES
Development Services Department DEPARTMENT
300 N. "D" Street, 3rd Floor
San Bernardino, CA 92418
FIRE STATION NO. 228
3398 E. HIGHLAND AVENUE
SAN BERNARDINO, CA
AP N: 0285-191-05
Thank you for your request for an Estoppel Certificate for the promises located at
3398 E. Highland Avenue, San Bernardino, California. The following information is furnished in lieu
of an Estoppel Certificate requested by Verizon. It is not the policy of the State of California to
execute Estoppel Certificate Documents; however. we do acknowledge the following:
1. The State executed a Quitclaim Deed dated July 12, 1968, and recorded
July 25, 1968, in Book 7065, Page 990 &991, in San Bernardino County, for the
transfer of real property identified as APN: 0285-191-05, located at
3398 E. Highland Avenue, San Bernardino, CA, and known as Fire Station No. 228.
The deed contained a restrictive covenant requiring use as a Fire Station.
2. The proposed cell tower lease between the City and Verizon Wireless is not deemed
as a violation of the restrictive covenants of the Quitclaim Deed, provided the site
remain and continue to be used as a Fire Station.
If you have any questions, please contact me at(916) 375-4010 or via FAX to (916)375-4029.
Sincerely,
MICHAEL SALYER
Transactions Unit Supervisor
Real Property Services Section
1 COPY
2 RESOLUTION NO.
3
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
4 OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER
TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN
5 BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA
6 VERIZON WIRELESS FOR THE LEASE OF NINE HUNDRED EIGHTY SEVEN (987)
SQUARE FEET OF CITY OWNED PROPERTY AT FIRE STATION NO. 228
7 LOCATED AT 3398 HIGHLAND AVENUE FOR A CELLULAR TOWER DISGUISED
AS A FUNCTIONAL FIRE HOSE RACK(APN 0285-191-05).
8
9 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
10 SECTION 1. The City Manager is hereby authorized and directed to execute on behalf
11
12 of the City a Lease Agreement between the City of San Bernardino and Los Angeles SMSA
13 Limited Partnership, dba Verizon Wireless for the lease of 987 square feet of City owned
14 property at Fire Station No. 228 located on the northwest comer of Highland Avenue and
15 Orange Avenue, also known as 3398 Highland Avenue (APN 0285-191-05), a copy of which is
16 attached hereto, marked as Exhibit"1", and incorporated herein by this reference.
17 SECTION 2. The authorization to execute the above-referenced agreement is rescinded
18
if the parties to the agreement fail to execute it within ninety (90) days of the passage of this
19
resolution.
20
21
22
23
24
25
26
27
2s
08/04/09 1 3
'M� 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
2 AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP,
3 DBA VERIZON WIRELESS FOR THE LEASE OF NINE HUNDRED EIGHTY SEVEN (987) SQUARE
FEET OF CITY OWNED PROPERTY AT FIRE STATION NO. 228 LOCATED AT 3398 HIGHLAND
4 AVENUE FOR A CELLULAR TOWER DISGUISED AS A FUNCTIONAL FIRE HOSE RACK (APN
0285-191-05).
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6
7 Common Council of the City of San Bernardino at a meeting
8 thereof, held on the day of 20_, by the following vote,
9 to wit:
10 Council Members: AYES NAYS ABSTAIN ABSENT
11 ESTRADA
12 BAXTER
13
BRINKER
14
15 SHORETT
16 KELLEY
17 JOHNSON
18 MCCAMMACK
19
20
RACHEL G. CLARK, City Clerk
21
22 The foregoing resolution is hereby approved this day of 12009.
23
24
PATRICK J. MORRIS, Mayor
25 City of San Bernardino
26 Approved as to Form:
%4W 27 , e"
28 ES F. PENMAN, City Attorney
08/04/09 2
Site: PATTON
APN: 0285-191-05-0000
LEASE
THIS LEASE ("Lease"), is made and entered into this day of
2009, by and between the CITY OF SAN BERNARDINO, a
municipal corporation, hereinafter referred to as "Lessor", and LOS ANGELES SMSA
LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless, hereinafter
referred to as "Lessee".
RECITALS
This Lease is made and entered into with respect to the following facts:
(a) Lessor is the owner of that certain real property herein described.
(b) Lessee has requested permission to construct a mobile/wireless communications
facility to be located at Fire Station Number 228, at 3398 Highland Avenue, San Bernardino,
California, 92346 ("Property"), which Property is more particularly described in Exhibit "A"
attached hereto, and Lessor is willing to lease a portion of the Property to Lessee upon the terms
and conditions hereinafter set forth.
(c) Lessee believes that the facilities will not interfere with the City of San
Bernardino Fire Department's operations or the public's use of the Property.
(d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all
governmental permits and approvals enabling Lessee, or its assigns to construct and operate
mobile/wireless communications facilities on the Premises (as defined below).
NOW THEREFORE, the parties hereto agree as follows:
EXHIBIT "1"
08/04/2009 1 File No.: 15.06-164
1. Pronertv Leased:
(a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor,
ground space at the Property measuring approximately thirty-two feet by twenty-five feet (32' x
25') and containing approximately eight hundred (800) square feet (the "Equipment Space"),
plus a second parcel of ground space measuring approximately eleven feet by seventeen feet(11'
x 17') and containing approximately one hundred eighty seven (187) square feet (the "Tower
Space") for a total area of approximately nine hundred seventy (987) square feet, as more
particularly described in Exhibit `B" attached hereto. Lessor also grants Lessee the right to
install utility connections between the Equipment Space and Tower Space and to the nearest
appropriate utilities providers. The Equipment Space and Tower Space are collectively defined
as the "Premises," including any appurtenant facilities and applicable easements for access and
utilities as described herein.
(b) In connection with the Lessee's construction of the Tower Space, Lessee
and Lessor acknowledge and agree that Lessee shall construct a stealth monopole, which will
include the installation of drying racks ("Drying Racks"). During the term of this Lease, Lessor
shall have the right to use the Drying Racks in connection with Lessor's operations at the
Property, provided that Lessor does not unreasonably interfere with Lessee's operations or use of
the Tower Space. Lessor shall be responsible for repairing any damage Lessor or its agents,
employees and contractors cause to the Tower Space or the Drying Racks.
2. Term:
(a) The term of this Lease shall be five (5) years ("Initial Term), commencing
on the first day of the month in which both Lessor and Lessee have executed this Lease
("Commencement Date").
08/04/2009 2 File No.: 15.06-164
(b) Lessee shall have the right to extend the term of this Lease for three (3)
additional terms of five(5) years each ("Renewal Term(s)"). Each Renewal Term shall be on the
terms and conditions set forth herein. This Lease shall automatically be extended for each
Renewal Term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify
the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior
to the expiration of the Initial Term or then-current Renewal Term.
3. Lease Payments:
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and
00/100 Dollars ($2,100.00) in addition to rent for a document preparation fee within thirty (30)
days after the Commencement Date of this Lease. In the event this Lease is terminated as a
result of testing as set forth in Paragraph 5(a) below, Lessor shall retain the document
preparation fee of Two Thousand One Hundred Dollars ($2,100.00) for work performed.
(b) Upon the Commencement Date, Lessee shall pay Lessor as rent, the
annual sum of Twenty-Five Thousand Two Hundred and 00/100 Dollars ($25,200.00) "Rent",
payable in equal monthly installments commencing upon the Commencement Date ("Rent Start
Date"), which shall be paid within thirty (30) days after the Commencement Date. Rent shall be
due and payable on the Rent Start Date, and on the same date of each month thereafter.
Payments shall be mailed or delivered to:
City of San Bernardino
Development Services Department/Real Property Section
300 North"D" Street, 3rd Floor
San Bernardino, California 92418
Lessor may, from time to time, designate such other addresses or entity to receive Rent payments
due hereunder, which designation shall be made in writing at least thirty (30) days in advance of
any Rent payment date by notice given in accordance with Paragraph 20 below.
08/04/2009 3 File No.: 15.06-164
(c) Rent shall be increased on each yearly anniversary of the Rent Start Date
by an amount equal to four percent(4%) of the Rent then in effect for the previous year.
4. Use Restrictions:
The Premises may be used by Lessee for any lawful activity in connection with
the provision of mobile/wireless communications services, including without limitation, the
transmission and the reception of wireless communication signals on various frequencies, and
the testing, investigation, construction;, maintenance and operation of related communications
facilities. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for
and obtaining all licenses, permits and any and all other necessary approvals that may be
required for Lessee's intended use of the Premises.
5. Improvements:
(a) Lessee shall have the right (but not the obligation) at any time prior to the
Commencement Date, to enter the Premises for the purpose of making necessary engineering
surveys and inspections (and soil tests where applicable) and other reasonably necessary tests
("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined
herein) for mobile/wireless communications operations. During any Tests, Lessee shall have
insurance as set forth in Paragraph 10 below, and shall notify Lessor at least forty-eight (48)
hours prior to any proposed Tests, and shall coordinate the scheduling of same with Lessor. If
Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee
shall notify Lessor and this Lease shall terminate. Lessee shall repair any damage to the Premises
caused by Lessee and shall restore the Premises to the condition existing prior to conducting the
Tests.
08/04/2009 4 File No.: 15.06-164
(b) Lessee shall have the right to construct, erect, maintain, operate and
remove mobile/wireless communications facilities on the Premises, including but not limited to
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, and supporting equipment, structures and improvements
(collectively, "Lessee Facilities"). In connection therewith, Lessee has the right to do all work
necessary to prepare, add, maintain and alter the Premises for Lessee's operations and to install
utility lines and transmission lines connecting antennas to transmitters and receivers. All of
Lessee's construction and installation work shall be performed at Lessee's sole cost and expense
and in a good and workmanlike manner. Lessee shall hold title to the Lessee Facilities and all of
the Lessee Facilities shall remain the property of Lessee and shall not be deemed fixtures.
Lessee has the right to remove the Lessee Facilities at its sole expense as provided in this
Paragraph 5(b). Once the Lessee Facilities are installed, Lessee shall not make any material
alterations to the Premises, or any part thereof, other than as set forth in Paragraph 5 herein,
without the prior written consent of Lessor, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, maintenance, repairs, like-kind or
similar replacements of the Lessee Facilities and modifications made within the interior of any
shelters or base station equipment shall not be considered "Material Alterations". Any and all
alterations and/or improvements made to the Premises pursuant to this Paragraph, including but
not limited to the Lessee Facilities, shall, within sixty (60) days after the expiration or earlier
termination of this Lease, be removed from the Premises, and the Premises shall be returned to
its previous state as of the Commencement Date, excepting normal wear and tear, casualty, or
damage caused by Lessor or Lessor's agents, employees,tenants, lessees, licensees or invitees.
08/04/2009 5 File No.: 15.06-164
(c) Lessor shall provide to Lessee, Lessee's employees, agents and
contractors, access to the Premises across the Property twenty-four (24) hours a day, seven (7)
days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of
ingress to and egress from said Premises over the Property, and shall allow Lessee access from
the nearest public roadway to the Premises at all times, and hereby grants such non-exclusive
ingress and egress rights to Lessee along a twelve foot (12') wide right-of-way extending from
the nearest public right-of-way to the Premises as further described in Exhibit `B", to the extent
required to construct, erect, maintain, install, remove and operate the Lessee Facilities on the
Premises. Lessee shall repair any damages Lessee, its agents, employees, officers, or contractors
cause to said above- described ingress and egress area.
(d) In connection with obtaining the governmental approvals required for
construction of the Lessee Facilities, Lessee shall be required to install the landscaping
("Landscaping") per the Conditions of Approval for Development Permit I No. 07-048 as
described in Exhibit "C" and depicted on Exhibit"C-1", attached hereto and made a part hereof.
Lessee shall be solely responsible for maintaining the same as required by said governmental
approvals; provided however, that Lessor shall permit Lessee to connect an irrigation system to
Lessor's existing irrigation system for the purpose of maintaining the Landscaping.
6. Maintenance and Inspections:
Lessee shall, at Lessee's own cost and expense, keep and maintain all
improvements hereinafter constructed on the Premises in good condition and repair, reasonable
wear and tear excepted, and shall use reasonable precaution to prevent waste, damage or injury
to the Premises. Lessor shall, at any reasonable time, have the right to go upon the Premises upon
seventy-two (72) hours prior notice to Lessee, and inspect and examine the same relative to such
08/04/2009 6 File No.: 15.06-164
maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an
employee or authorized representative of Lessee.
7. Utilities:
Lessee shall have the right to install utilities, at Lessee's expense, and to improve
the present utilities on or near the Premises (including, but not limited to the installation of
emergency power generators) , subject to Lessor's approval of the location, which approval shall
not be unreasonably withheld or delayed. In connection therewith, Lessee shall have the right to
install along the perimeter of the Equipment Space a power panel and telco board, as more
particularly described and depicted on Exhibit`B".
Lessee shall pay for all electricity, gas, water, telephone service, and all other
services and utilities required for the Lessee Facilities, including service installation fees and
charges for such utilities, used by Lessee during the term of this Lease.
8. Liens and/or Encumbrances:
Lessee shall pay or cause to be paid, all costs of construction and/or installation of
Lessee's improvements at the Property. Lessee shall keep the Premises free and clear of any and
all claims, liens, or encumbrances arising out of performance of work on Lessee's behalf,
furnishing of materials on Lessee's behalf, or upon use of utilities by Lessee with respect to the
Property. This Lease shall be subordinate to any lien, mortgage or deed of trust currently on
record against said Property .
9. Permits and Fees:
(a) Lessee shall pay all license fees, assessments, taxes, penalties or fines
which may be levied against Lessee by virtue of the installation , ownership, use, or operation of
Lessee's leasehold improvements at the Property.
08/04/2009 7 File No.: 15.06-164
(b) Lessor shall pay when due all real property taxes for the Property,
including the Premises. In the event that Lessor fails to pay any such real property taxes or
other fees and assessments, Lessee shall have the right, but not the obligation, to pay such owed
amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the
foregoing, Lessee shall pay any personal property tax, real property tax or any other tax and/or
fee which are directly attributable to the presence or installation of the Lessee's Facilities, only
for so long as this Lease has not expired of its own terms or is not terminated by either party.
Lessor hereby grants to Lessee the right to challenge, whether in a Court, Administrative
Proceeding, or other venue, on behalf of Lessor and/or Lessee, any personal property or real
property tax assessments that may affect Lessee. If Lessor receives notice of any personal
property or real property tax assessment against the Lessor, which may affect Lessee and is
directly attributable to Lessee's installation, Lessor shall provide timely notice of the
assessment to Lessee sufficient to allow Lessee to consent to or challenge such assessment.
Further, Lessor shall provide to Lessee any and all documentation associated with the
assessment and shall execute any and all documents reasonably necessary to effectuate the
intent of this Section 9.
10. Liability Insurance:
Lessee agrees to procure and maintain in force during the term of this Lease and
any extension, at Lessee's sole cost and expense, the following insurance from companies with
an A.M. Best Rating of at least A-/VII, and with such minimum limits as set forth below, which
shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and
contractors, arising out of or in connection with Lessee's use of the Premises as provided for
herein; (1) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per
08/04/2009 8 File No.: 15.06-164
occurrence, provided such limit may be satisfied by a combination of primary and umbrella
policies, and Lessee may satisfy this requirement by obtaining the appropriate endorsement to
any master policy of liability insurance Lessee may maintain.-, (2) Automobile Liability with a
combined single limit of One Million Dollars ($1,000,000.00) per accident, and (3) Worker's
Compensation Insurance as required by law and Employers' Liability with limits of One Million
Dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor a certificate of insurance
and name Lessor as an additional insured for the general liability policy, which certificate
provides:
(a) Additional insured: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insured with respect to this
contract with the City."
(b) The certificates shall include the insurance company name, policy number,
period of coverage, and the amount of insurance.
(c) That the Real Property Section of the Development Services Department
of the City of San Bernardino must be given notice in writing at least thirty (30)days prior to any
cancellation or modification that materially and adversely affects the coverage required
hereunder.
(d) That Lessee's insurance shall be primary to any insurance coverage the
City of San Bernardino may have in effect as relates to the operations of Lessee.
11. Indemnification:
(a) Lessor and Lessee shall each indemnify, defend and hold the other
harmless from and against all claims, causes of action, losses, liabilities, damages, costs, and
expenses (including reasonable attorneys' and consultants' fees, costs and expenses)
08/04/2009 9 File No.: 15.06-164
(collectively "Losses") to the extent arising from or related to the indemnifying party's
operations at the Property or the negligence or willful misconduct of the indemnifying party, or
its agents, employees or contractors in or about the Premises or Property, except to the extent
caused by the negligence or willful misconduct of the party to be indemnified, or such party's
agents, employees and contractors. Except as provided in the first sentence, Lessee shall defend
with counsel reasonably approved by Lessor (if requested by Lessor), indemnify, and hold
harmless Lessor, its agents, boards, officers, employees, representatives or contractors against
any and all claims, suits, damages for bodily injury, including death, property damage, demands,
loss or liability of any kind or nature ("Claims") to the extent arising from or related to Lessee's
operations under this Lease and except to the extent any Claims arise out of the negligence or
misconduct of Lessor, its agents, officers, employees, representatives or contractors. The duties
described in this Paragraph 11 shall apply as of the Commencement Date of this Lease and shall
survive the termination of this Lease.
(b) Neither Party shall be liable to the other, or to any of their respective
agents,representatives, officers or employees for any lost revenue, lost profits, loss of
technology, rights or services, incidental, punitive, indirect, special or consequential damages,
loss of data, or interruption or loss of use or service, even if advised of the possibility of such
damages, whether under theory of contract, tort (including negligence), strict liability or
otherwise.
12. Taxes/Possessory nterest:
Lessee recognizes and understands that this Lease may create a possessory
interest subject to property taxation, and that Lessee may be subject to the payment of property
taxes levied on such interest. Each party agrees to, and shall hold harmless the other party from
08/0412009 10 File No.: 15.06-164
any and all liability for any such taxes due during the Lease term pursuant to Paragraph 9,
Permits and Fees above.
13. Waiver of Lessor's Lien:
(a) Lessor waives any lien rights it may have concerning the Lessee Facilities,
all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to
remove the same at any time without Lessor's consent.
(b) Lessor acknowledges that Lessee may enter into a financing arrangement
including promissory notes and financial and security leases for the financing of the Lessee
Facilities ("Collateral") with a third party financing entity (and may in the future enter into
additional financing arrangements with other financing entities). In connection therewith, Lessor
(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.
14. Assignment and Sublettine:
(a) Lessee may not assign all or any part of its interest in this Lease or in the
Premises without the prior written consent of Lessor; provided, however, that Lessee may assign
without notice to Lessor its interest to its parent company, any subsidiary or affiliate of it or its
parent company, or to any entity which acquires all or substantially all of Lessee's assets in the
market defined by the Federal Communications Commission ("FCC") in which the Property is
located by reason of a merger, acquisition or other business reorganization, subject to any
financing entity's interest, if any, in this Lease as set forth in Paragraph 13 above. Upon
assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under
08/04/2009 11 File No.: 15.06-164
this Lease, provided that the assignee assumes all of Lessee's obligations herein. This Lease 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 Lease, Lessee may assign, mortgage, pledge, hypothecate or
otherwise transfer without notice or consent its interest in this Lease to any financing entity, or
agent on behalf of any financing entity, to whom Lessee (i) has obligations for borrowed money
or with respect to 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 with respect to guaranties thereof.
(b) Sublease - Subject to all permits and approvals from all governmental
agencies having jurisdiction thereover, Lessee may lease or license space on the support structure
forming a part of the Lessee's Facilities, in its equipment cabinets or elsewhere on the Lessee
Facilities to a third party for installation of transmission, receiving or other types of equipment or
facilities, whether similar or dissimilar to Lessee's installation, on such terms and conditions as
Lessee in its sole discretion, desires (a "Third Party Lease"); provided, however, that Lessor
shall receive as additional rent under this Lease, fifty percent (50%) of such Third Party Lease
rent actually received by Lessee, and after Lessee has been able to recover all direct and indirect
costs of obtaining the sublease. Any sublessee shall be instructed to pay the foregoing
percentage amount directly to Lessor.
15. Termination:
This Lease may be terminated without further liability after thirty (30) days prior
written notice as follows: (i)by either party upon a default of any covenant or term hereof by the
01 other party, which default is not cured within sixty (60) days of receipt of written notice of
08/04/2009 12 File No.: 15.06-164
default, except that this Lease 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
Lessee if it does not obtain or maintain any license, permit or other approval necessary for the
construction and operation of the Lessee Facilities; or (iii) by Lessee if Lessee 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 Lessee if any environmental report for the
Property reveals the presence of any Hazardous Material after the Commencement Date; or (v)
by Lessee if Lessee determines that the Premises are not appropriate for its operations for
economic or technological reasons, including, without limitation, signal interference. In the
event that Lessee terminates this Lease prior to the expiration of the Initial Term pursuant to the
terms of paragraph (v) above, Lessee shall pay to Lessor a sum equivalent to three (3) months'
then-current Rent as liquidated damages.
16. Hazardous Materials:
(a) As of the Commencement Date of this Lease: (1) Lessee hereby
represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous
Material (as defined below) in, on, under, upon or affecting the Premises in violation of any
Environmental Law (as defined below), and (2) Lessor 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 Premises in violation of any Environmental Law; (ii) no notice has been received
by or on behalf of Lessor from, and Lessor has no knowledge that notice has been given to any
predecessor owner or operator of the Premises by, any governmental entity or any person or
08/04/2009 13 File No.: 15.06-164
entity claiming any violation of, or requiring compliance with any Environmental Law for any
environmental damage in, on, under, upon or affecting the Property; and (iii) it will not pemrit
itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in,
on, under, upon, or affecting the Property in violation of any Environmental Law.
(b) Without limitation of Paragraph 11 above, Lessor and Lessee 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 16 by such party; and/or (ii)
environmental conditions or noncompliance with any Environmental Law that result, in the case
of Lessee, from operations in or about the Premises by Lessee or Lessee's agents, employees or
contractors, and in the case of Lessor, from the ownership or control of, or operations in or
about, the Property by Lessor or Lessor's predecessors in interest, and their respective agents,
{` employees, contractors, lessees, or invitees. The duties described in this Paragraph 16 shall apply
as of the Commencement Date of this Lease and survive termination of this Lease.
(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,
prules, regulations, codes, ordinances, or by-laws, and any judicial or administrative
08/04/2009 14 File No.: 15.06-164
i
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.
17. Interference with Communications:
Lessee's Facilities shall not unreasonably disturb the communications
configurations, equipment and frequency which exist on the Property on the Commencement
Date ("Pre-existing Communications"), and the Lessee's Facilities shall comply with all
applicable non-interference rules of the FCC, and the conditions set forth in Development Permit
I, 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). Lessor shall not and
shall not permit its lessees or licensees to use any portion of the Property in a way that
unreasonably interferes with the communications operations of Lessee described in Section 4,
above. Such interference with Lessee's communications operations shall be deemed a material
breach by Lessor, and Lessor 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 Lessee, and therefore,
Lessee shall have the right to bring action to enjoin such interference or to terminate this Lease
immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre-existing
Communications operating in the same manner as on the Commencement Date and in
compliance with applicable FCC non-interference rules shall not be deemed interference.
08/04/2009 is File No.: 15.06-164
18. CasgdV:
In the event of damage by fire or other casualty to the Premises that cannot
reasonably be expected to be repaired within forty-five (45) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt Lessee's operations at the Premises for more than forty-five (45) days, then Lessee may,
at any time following such fire or other casualty, provided Lessor has not completed the
restoration required to permit Lessee to resume its operation at the Premises,terminate this Lease
upon fifteen (15) days prior written notice to Lessor. Any such notice of termination shall cause
this Lease to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of this Lease and the parties shall make an
appropriate adjustment, as of such termination date, with respect to payments due to the other
under this Lease. Notwithstanding the foregoing, Rent shall abate during the period of repair
following such fire or other casualty in proportion to the degree to which Lessee's use of the
Premises is impaired.
19. Condemnation:
In the event of any condemnation of all or any portion of the Property, this Lease
shall terminate as to the part so taken as of the date the condemning authority takes title or
possession, whichever occurs first. If as a result of a partial condemnation of the Premises or
Property, Lessee, in Lessee's sole discretion, is unable to use the Premises for the purposes
intended hereunder, or if such condemnation may reasonably be expected to disrupt Lessee's
operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee's option, to
be exercised in writing within fifteen (15) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within fifteen (15) days after the
08/04/2009 16 File No.: 15.06-164
condemning authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. Lessee may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to the equipment, conduits,
fixtures, its relocation costs and its damages and losses (but not for the loss of its leasehold
interest). Any such notice of termination shall cause this Lease to expire with the same force and
effect as though the date set forth in such notice were the date originally set as the expiration date
of this Lease and the parties shall make an appropriate adjustment as of such termination date
with respect to payments due to the other under this Lease. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Rent shall be reduced in the same proportion
as the rentable area of the Premises taken bears to the total rentable area of the Premises.
20. Miscellaneous:
(a) This Lease constitutes the entire agreement and understanding between the
parties, and supersedes all offers, negotiations and other leases concerning the subject matter
contained herein. Any amendments to this Lease must be in writing and executed by both
parties.
(b) Both parties represent and warrant that their use of the Premises and
Property and their real and personal property located thereon shall be in compliance with all
applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent
government authority.
(c) If any provision of this Lease is invalid or unenforceable with respect to
any party, the remainder of this Lease or the application of such provision to persons other than
08/04/2009 17 File No.: 15.06-164
those as to whom it is held invalid or unenforceable, shall not be affected and each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by law.
(d) This Lease shall be binding on and inure to the benefit of the successors
and permitted assignees of the respective parties.
(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:
Lessor: Lessee:
City of San Bernardino Los Angeles SMSA Limited Partnership,
Development Services Department dba Verizon Wireless
Real Property Section 180 Washington Valley Road
300 N D Street Bedminster,New Jersey 07921
San Bernardino, CA 92410 Attn: Network Real Estate
` With a copy to:
ATS Communications
22642 Lambert Street,#402
Lake Forest, CA 92692
Lessor or Lessee 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 or
refusal as shown on the receipt obtained pursuant to the foregoing.
(f) This Lease 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 Lease shall be
brought in the courts with jurisdiction in the County of San Bernardino, State of California. The
prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to
recover from the losing party reasonable attorney's fees and court costs, including appeals, if
any, in connection with that action. The costs, salary, and expenses of the City Attorney and
08/04/2009 18 File No.: 15.06-164
members of its office in connection with that action shall be considered as "attorney's fees" for
the purposes of this Lease.
(g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in
the form annexed hereto as Exhibit "D" and acknowledges that such Memorandum of Lease will
be recorded by Lessee in the official records of the County where the Property is located.
(h) In the event the Property is encumbered by a mortgage or deed of trust,
Lessor agrees to provide reasonable cooperation in obtaining and delivering to Lessee 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) Lessor agrees to fully cooperate, including executing necessary
documentation, with Lessee to obtain information and documentation clearing any outstanding
title issues that could adversely affect Lessee's interest in the Premises created by this Lease.
0) In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Lease, such party shall not unreasonably delay,
condition 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 Lease.
(1) The captions and headings in this Lease are for convenience only and in
no way define, limit or describe the scope or intent of any provision of this Lease.
(m) All Exhibits annexed hereto form material parts of this Lease.
(n) The captions contained in this Lease are inserted for convenience only and
are not intended to be part of this Lease. They shall not affect or be utilized in the construction or
08/04/2009 19 File No.: 15.06-164
interpretation of this Lease.
(o) Lessor covenants that Lessee, on paying Rent and performing the
covenants herein, shall peaceably and quietly have,hold and enjoy the Premises.
(p) Lessor represents and warrants to Lessee as of the execution date of this
Lease, and covenants during the term hereof that Lessor is seized of good and sufficient title and
interest to the Property.
(q) The failure of either party to insist upon strict performance of any of the
terms or conditions of this Lease or to exercise any of its rights under this Lease shall not waive
such rights and such party shall have the right to enforce such rights at any time and take such
action as may be lawful and authorized under this Lease, in law or in equity.
21. Risk to Public Safety or Health:
In the event the FCC, or any successor federal agency thereto, makes a
determination which is final and non-appealable or which is affirmed and becomes final after the
exhaustion of all available appeals concluding that the Lessee's use as set forth in this Lease
presents a material risk to the public health or safety, including, but not limited to radio
frequency emissions, either Lessor or Lessee may terminate this Lease upon ten (10) days notice
to the other party.
22. Facilityy Lease:
Lessor and Lessee acknowledge and agree that this Lease shall be subject and
subordinate to that certain Facility Lease dated April 15, 2006, between Lessor and California
Infrastructure and Economic Development Bank, recorded on May 16, 2006, in the Office of the
County Recorder of San Bernardino County as Instrument Number 2006-0333822. Lessor and
Lessee acknowledge and agree that this Lease is intended to meet all of the terms of Section 2.04
08/04/2009 20 File No.: 15.06-164
of said Facility Lease, including the requirement that the fair rental value of the Property for all
purposes shall be first allocated to the Facility Lease, as the same may be amended from time to
time, before or after any assignment, transfer or sublease of the Facility Lease or the rights
granted thereunder.
[Signatures begin on next page]
08/04/2009 21 File No.: 15.06-164
LEASE BETWEEN CITY OF SAN BERNARDINO AND LOS ANGELES SMSA
LIMITED PARTNERSHIP, DBA VERIZON WIRELESS.
IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set
forth at the beginning of this Lease.
LESSOR:
CITY OF SAN BERNARDINO,
a Municipal corporation
By. EXHIBIT COPY
CHARLES E. MCNEELY, City Manager
Date:
ATTEST:
EXHIBIT COPY
RACHEL CLARK, City Clerk
Approved as to form:
EXHIBIT COPY
JAMES F. PENMAN, City Attorney
LESSEE:
LOS ANGELES SMSA PARTNERSHIP, a
California limited partnership, dba Verizon
Wireless
By: AirTouch Cellular, its General Partner
By: EXHIBIT CONY
WALTER L. JONES, JR.
Area Vice President Network
Date:
O
09/04/2009 22 File No.: 15.06-164
Exhibit "A"
Legal Description of Property
All that certain real property situated in the County of San Bernardino, State of
California, described as follows:
Real property in the City of San Bernardino, County of San Bernardino, State of
California, described as follows:
Beginning at a point in the center line of Highland Avenue, which point is Westerly
thereon a distance of 246.15 feet from the Intersection of said centerline with the
centerline of Orange Street;
Thence North 890 43' 01" East along said centerline of Highland Avenue, a distance of
246.15 feet to the centerine of said Orange Street;
Thence North 000 21' 29" West along said centerline of Orange Street, a distance of
460.60 feet;
Thence North 820 29' 49' West, a distance of 186.86 feet;
Thence South 630 18' 31" West, a distance of 68.21 feet;
Thence Southerly In a straight line a distance of 455.50 feet, more or less, to the point of
beginning.
Excepting therefrom all oil, gas and other mineral deposits, lying below a depth of two
hundred feet, as reserved in the Deed recorded July 25, 1968 In Book 7065, Page 990 of
Official Records.
08/04/2009 23 File No.: 15.06-164
EXHIBIT"B"
-Plat showing Leased Area&Access Easement-
-Plat showing Utility Installation Area-
08/04/2009 24 File No.: 15.06-164
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EXHIBIT"C"
Landscaping Description
Six (6)Cedar Elm trees shall be installed on site. Three shall be placed around the eastern
driveway and three shall be placed around the southern driveway in accordance to the approved
site plan. An Automatic irrigation system shall be installed to maintain live trees. On-site
landscaping and trees shall be maintained in accordance with the provisions of the Development
Code.
08/04/2009 25 File No.: 15.06-164
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EXHIBIT"D"
Memorandum of Lease
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF SAN BERNARDINO
CITY CLERK
300 N."D"STREET
SAN BERNARDINO,CA 92418
APN: 0285-191-05
FEE EXEMPT PURSUANT TO
GOV.CODE SECTION 27383 MEMORANDUM OF LEASE
This Memorandum of Lease is entered into this—day of 2009,by and between THE
CITY OF SAN BERNARDINO,a municipal corporation,having a mailing address of 300 North"D"Street, San
Bernardino,CA 92418(hereinafter referred to as"Lessor")and LOS ANGELES SMSA LIMITED
PARTNERSHIP, a California limited partnership dba Verizon Wireless having a mailing address of 180
Washington Valley Road,Bedminster,New Jersey 07921,Attention:Network Real Estate(hereinafter referred to
as"Lessee").
1. Lessor and Lessee entered into a certain Lease ("Lease") on the day of
2009, for the purpose of installing, operating and maintaining a communications facility and other improvements
with respect to a portion of that certain property located at 3398 Highland Avenue, Highland, CA, legally
described on Exhibit"A"attached hereto and made a part hereof.All of the foregoing is set forth in the Lease.
2. The initial lease term will be five (5)years (`Initial Term") commencing on the first day of the month in
which both Lessor and Lessee have executed the Lease above ("Commencement Date") , with three (3)
successive five(5)year options to renew.
3. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as
amending or modifying, any of the terms, conditions or provisions of the Lease, all of which are hereby ratified
and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions
of the Lease,the provisions of the Lease shall control. The Lease 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 Lease.
IN WITNESS WHEREOF,the parties have executed this Memorandum of Lease as of the day and year
first above written.
LESSOR: LESSEE:
THE CITY OF SAN BERNARDINO, LOS ANGELES SMSA LIMITED PARTNERSHIP,
a municipal corporation a California limited partnership dba Verizon Wireless
By:
EXHIBIT COPY By: AirTouch Cellular,its General Partner
CHARLES E.McNEELY,City Manager By: EXHIBIT COPY
WALTER L.JONES,JR.
Date: Area Vice President Network
Date:
07/28/2009 File No.: 15.06-164
EXHIBIT "A"
Legal Description
All that certain real property situated In the County of San Bernardino, State of
California, described as follows:
Real property in the City of San Bernardino, County of San Bernardino, State of
California, described as follows:
Beginning at a point In the center line of Highland Avenue, which point Is Westerly
thereon a distance of 246.15 feet from the Intersection of said centerline with the
centerline of Orange Street;
Thence North 89" 43' 01" East along said centerline of Highland Avenue, a distance of
246.15 feet to the centerline of said Orange Street;
Thence North 000 21' 29" West along said centerline of Orange Street, a distance of
460.60 feet;
Thence North 82" 29' 49" West, a distance of 186.86 feet;
Thence South 630 18' 31" West, a distance of 68.21 feet;
Thence Southerly in a straight line a distance of 455.50 feet, more or less, to the point of
beginning.
Excepting therefrom all oil, gas and other mineral deposits, lying below a depth of two
hundred feet, as reserved In the Deed recorded July 25, 1968 in Book 7065, Page 990 of
Official Records.
07/28/2009 File No.: 15.06-164
Site: PATTON
APN: 0285-191-05-0000
LEASE
THIS LEASE ("Lease"), is made and entered into this day of
, 2009, by and between the CITY OF SAN BERNARDINO, a
municipal corporation, hereinafter referred to as "Lessor", and LOS ANGELES SMSA
LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless, hereinafter
referred to as "Lessee".
RECITALS
This Lease is made and entered into with respect to the following facts:
(a) Lessor is the owner of that certain real property herein described.
(b) Lessee has requested permission to construct a mobile/wireless communications
facility to be located at Fire Station Number 228, at 3398 Highland Avenue, San Bernardino,
California, 92346 ("Property"), which Property is more particularly described in Exhibit "A"
attached hereto, and Lessor is willing to lease a portion of the Property to Lessee upon the terms
and conditions hereinafter set forth.
(c) Lessee believes that the facilities will not interfere with the City of San
Bernardino Fire Department's operations or the public's use of the Property.
(d) This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all
governmental permits and approvals enabling Lessee, or its assigns to construct and operate
mobile/wireless communications facilities on the Premises (as defined below).
NOW THEREFORE,the parties hereto agree as follows:
08/04/2009 1 File No.: 15.06-164
1. Property Leased:
(a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor,
ground space at the Property measuring approximately thirty-two feet by twenty-five feet (32' x
25') and containing approximately eight hundred (800) square feet (the "Equipment Space"),
plus a second parcel of ground space measuring approximately eleven feet by seventeen feet(11'
x 17') and containing approximately one hundred eighty seven (187) square feet (the "Tower
Space") for a total area of approximately nine hundred seventy (987) square feet, as more
particularly described in Exhibit `B" attached hereto. Lessor also grants Lessee the right to
install utility connections between the Equipment Space and Tower Space and to the nearest
appropriate utilities providers. The Equipment Space and Tower Space are collectively defined
as the "Premises," including any appurtenant facilities and applicable easements for access and
utilities as described herein.
(b) In connection with the Lessee's construction of the Tower Space, Lessee
and Lessor acknowledge and agree that Lessee shall construct a stealth monopole, which will
include the installation of drying racks ("Drying Racks"). During the term of this Lease, Lessor
shall have the right to use the Drying Racks in connection with Lessor's operations at the
Property, provided that Lessor does not unreasonably interfere with Lessee's operations or use of
the Tower Space. Lessor shall be responsible for repairing any damage Lessor or its agents,
employees and contractors cause to the Tower Space or the Drying Racks.
2. Term:
(a) The term of this Lease shall be five (5) years ("Initial Term), commencing
on the first day of the month in which both Lessor and Lessee have executed this Lease
("Commencement Date").
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(b) Lessee shall have the right to extend the term of this Lease for three (3)
additional terms of five (5) years each ("Renewal Term(s)"). Each Renewal Term shall be on the
terms and conditions set forth herein. This Lease shall automatically be extended for each
Renewal Term. In the event the Lessee decides not to extend this Lease, then Lessee shall notify
the Lessor in writing of Lessee's intention not to extend this Lease at least ninety (90) days prior
to the expiration of the Initial Term or then-current Renewal Term.
3. Lease Payments:
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and
00/100 Dollars ($2,100.00) in addition to rent for a document preparation fee within thirty (30)
days after the Commencement Date of this Lease. In the event this Lease is terminated as a
result of testing as set forth in Paragraph 5(a) below, Lessor shall retain the document
1' preparation fee of Two Thousand One Hundred Dollars($2,100.00) for work performed.
(b) Upon the Commencement Date, Lessee shall pay Lessor as rent, the
annual sum of Twenty-Five Thousand Two Hundred and 00/100 Dollars ($25,200.00) "Rent",
payable in equal monthly installments commencing upon the Commencement Date ("Rent Start
Date"), which shall be paid within thirty (30) days after the Commencement Date. Rent shall be
due and payable on the Rent Start Date, and on the same date of each month thereafter.
Payments shall be mailed or delivered to:
City of San Bernardino
Development Services Department/Real Property Section
300 North"D" Street, 3rd Floor
San Bernardino, California 92418
Lessor may, from time to time, designate such other addresses or entity to receive Rent payments
due hereunder, which designation shall be made in writing at least thirty (30) days in advance of
any Rent payment date by notice given in accordance with Paragraph 20 below.
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i
(c) Rent shall be increased on each yearly anniversary of the Rent Start Date
by an amount equal to four percent(4%) of the Rent then in effect for the previous year.
4. Use Restrictions:
The Premises may be used by Lessee for any lawful activity in connection with
the provision of mobile/wireless communications services, including without limitation, the
transmission and the reception of wireless communication signals on various frequencies, and
the testing, investigation, construction-, maintenance and operation of related communications
facilities. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for
and obtaining all licenses, permits and any and all other necessary approvals that may be
required for Lessee's intended use of the Premises.
5. IMprovements:
�1 (a) Lessee shall have the right (but not the obligation) at any time prior to the
Commencement Date, to enter the Premises for the purpose of making necessary engineering
surveys and inspections (and soil tests where applicable) and other reasonably necessary tests
("Tests") and for the purpose of determining the suitability of the Lessee Facilities (as defined
herein) for mobile/wireless communications operations. During any Tests, Lessee shall have
insurance as set forth in Paragraph 10 below, and shall notify Lessor at least forty-eight (48)
hours prior to any proposed Tests, and shall coordinate the scheduling of same with Lessor. If
Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee
shall notify Lessor and this Lease shall terminate. Lessee shall repair any damage to the Premises
caused by Lessee and shall restore the Premises to the condition existing prior to conducting the
Tests.
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(b) Lessee shall have the right to construct, erect, maintain, operate and
remove mobile/wireless communications facilities on the Premises, including but not limited to
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, and supporting equipment, structures and improvements
(collectively, "Lessee Facilities"). In connection therewith, Lessee has the right to do all work
necessary to prepare, add, maintain and alter the Premises for Lessee's operations and to install
utility lines and transmission lines connecting antennas to transmitters and receivers. All of
Lessee's construction and installation work shall be performed at Lessee's sole cost and expense
and in a good and workmanlike manner. Lessee shall hold title to the Lessee Facilities and all of
the Lessee Facilities shall remain the property of Lessee and shall not be deemed fixtures.
Lessee has the right to remove the Lessee Facilities at its sole expense as provided in this
Paragraph 5(b). Once the Lessee Facilities are installed, Lessee shall not make any material
alterations to the Premises, or any part thereof, other than as set forth in Paragraph 5 herein,
without the prior written consent of Lessor, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, maintenance, repairs, like-kind or
similar replacements of the Lessee Facilities and modifications made within the interior of any
shelters or base station equipment shall not be considered "Material Alterations". Any and all
alterations and/or improvements made to the Premises pursuant to this Paragraph, including but
not limited to the Lessee Facilities, shall, within sixty (60) days after the expiration or earlier
termination of this Lease, be removed from the Premises, and the Premises shall be returned to
its previous state as of the Commencement Date, excepting normal wear and tear, casualty, or
damage caused by Lessor or Lessor's agents, employees, tenants, lessees, licensees or invitees.
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(c) Lessor shall provide to Lessee, Lessee's employees, agents and
contractors, access to the Premises across the Property twenty-four (24) hours a day, seven (7)
days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of
ingress to and egress from said Premises over the Property, and shall allow Lessee access from
the nearest public roadway to the Premises at all times, and hereby grants such non-exclusive
ingress and egress rights to Lessee along a twelve foot (12') wide right-of-way extending from
the nearest public right-of-way to the Premises as further described in Exhibit `B", to the extent
required to construct, erect, maintain, install, remove and operate the Lessee Facilities on the
Premises. Lessee shall repair any damages Lessee, its agents, employees, officers, or contractors
cause to said above-described ingress and egress area.
(d) In connection with obtaining the governmental approvals required for
construction of the Lessee Facilities, Lessee shall be required to install the landscaping
("Landscaping") per the Conditions of Approval for Development Permit I No. 07-048 as
described in Exhibit "C" and depicted on Exhibit "C-1", attached hereto and made a part hereof.
Lessee shall be solely responsible for maintaining the same as required by said governmental
approvals; provided however, that Lessor shall permit Lessee to connect an irrigation system to
Lessor's existing irrigation system for the purpose of maintaining the Landscaping.
6. Maintenance and Inspections:
Lessee shall, at Lessee's own cost and expense, keep and maintain all
improvements hereinafter constructed on the Premises in good condition and repair, reasonable
wear and tear excepted, and shall use reasonable precaution to prevent waste, damage or injury
to the Premises. Lessor shall, at any reasonable time, have the right to go upon the Premises upon
seventy-two (72) hours prior notice to Lessee, and inspect and examine the same relative to such
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maintenance and upkeep. Such inspections shall be conducted in the accompaniment of an
employee or authorized representative of Lessee.
7. Utilities:
Lessee shall have the right to install utilities, at Lessee's expense, and to improve
the present utilities on or near the Premises (including, but not limited to the installation of
emergency power generators) , subject to Lessor's approval of the location, which approval shall
not be unreasonably withheld or delayed. In connection therewith, Lessee shall have the right to
install along the perimeter of the Equipment Space a power panel and telco board, as more
particularly described and depicted on Exhibit`B".
Lessee shall pay for all electricity, gas, water, telephone service, and all other
services and utilities required for the Lessee Facilities, including service installation fees and
charges for such utilities, used by Lessee during the term of this Lease.
8. Liens and/or Encumbrances:
Lessee shall pay or cause to be paid, all costs of construction and/or installation of
Lessee's improvements at the Property. Lessee shall keep the Premises free and clear of any and
all claims, liens, or encumbrances arising out of performance of work on Lessee's behalf,
famishing of materials on Lessee's behalf, or upon use of utilities by Lessee with respect to the
Property. This Lease shall be subordinate to any lien, mortgage or deed of trust currently on
record against said Property .
9. Permits and Fees:
(a) Lessee shall pay all license fees, assessments, taxes, penalties or fines
which may be levied against Lessee by virtue of the installation , ownership, use, or operation of
Lessee's leasehold improvements at the Property.
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(b) Lessor shall pay when due all real property taxes for the Property,
including the Premises. In the event that Lessor fails to pay any such real property taxes or
other fees and assessments, Lessee shall have the right, but not the obligation, to pay such owed
amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the
foregoing, Lessee shall pay any personal property tax, real property tax or any other tax and/or
fee which are directly attributable to the presence or installation of the Lessee's Facilities, only
for so long as this Lease has not expired of its own terms or is not terminated by either party.
Lessor hereby grants to Lessee the right to challenge, whether in a Court, Administrative
Proceeding, or other venue, on behalf of Lessor and/or Lessee, any personal property or real
property tax assessments that may affect Lessee. If Lessor receives notice of any personal
property or real property tax assessment against the Lessor, which may affect Lessee and is
directly attributable to Lessee's installation, Lessor shall provide timely notice of the
assessment to Lessee sufficient to allow Lessee to consent to or challenge such assessment.
Further, Lessor shall provide to Lessee any and all documentation associated with the
assessment and shall execute any and all documents reasonably necessary to effectuate the
intent of this Section 9.
10. Liability Insurance:
Lessee agrees to procure and maintain in force during the term of this Lease and
any extension, at Lessee's sole cost and expense, the following insurance from companies with
an A.M. Best Rating of at least A-/VII, and with such minimum limits as set forth below, which
shall insure, on an occurrence basis, against all liability of Lessee, its employees, agents, and
contractors, arising out of or in connection with Lessee's use of the Premises as provided for
herein; (1) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per
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occurrence, provided such limit may be satisfied by a combination of primary and umbrella
policies, and Lessee may satisfy this requirement by obtaining the appropriate endorsement to
any master policy of liability insurance Lessee may maintain, (2) Automobile Liability with a
combined single limit of One Million Dollars ($1,000,000.00) per accident, and (3) Worker's
Compensation Insurance as required by law and Employers' Liability with limits of One Million
Dollars ($1,000,000.00) per occurrence. Lessee shall provide to Lessor a certificate of insurance
and name Lessor as an additional insured for the general liability policy, which certificate
provides:
(a) Additional insured: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insured with respect to this
contract with the City."
(b) The certificates shall include the insurance company name, policy number,
period of coverage, and the amount of insurance.
(c) That the Real Property Section of the Development Services Department
of the City of San Bernardino must be given notice in writing at least thirty (30) days prior to any
cancellation or modification that materially and adversely affects the coverage required
hereunder.
(d) That Lessee's insurance shall be primary to any insurance coverage the
City of San Bernardino may have in effect as relates to the operations of Lessee.
11. Indemnification:
(a) Lessor and Lessee shall each indemnify, defend and hold the other
harmless from and against all claims, causes of action, losses, liabilities, damages, costs, and
expenses (including reasonable attorneys' and consultants' fees, costs and expenses)
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(collectively "Losses") to the extent arising from or related to the indemnifying party's
operations at the Property or the negligence or willful misconduct of the indemnifying party, or
its agents, employees or contractors in or about the Premises or Property, except to the extent
caused by the negligence or willful misconduct of the party to be indemnified, or such party's
agents, employees and contractors. Except as provided in the first sentence, Lessee shall defend
with counsel reasonably approved by Lessor (if requested by Lessor), indemnify, and hold
harmless Lessor, its agents, boards, officers, employees, representatives or contractors against
any and all claims, suits, damages for bodily injury, including death, property damage, demands,
loss or liability of any kind or nature ("Claims") to the extent arising from or related to Lessee's
operations under this Lease and except to the extent any Claims arise out of the negligence or
misconduct of Lessor, its agents, officers, employees, representatives or contractors. The duties
described in this Paragraph 11 shall apply as of the Commencement Date of this Lease and shall
survive the termination of this Lease.
(b) Neither Party shall be liable to the other,or to any of their respective
agents, representatives, officers or employees for any lost revenue, lost profits, loss of
technology, rights or services, incidental, punitive, indirect, special or consequential damages,
loss of data, or interruption or loss of use or service, even if advised of the possibility of such
damages, whether under theory of contract, tort(including negligence), strict liability or
otherwise.
12. Taxes/Possessory Interest:
Lessee recognizes and understands that this Lease may create a possessory
interest subject to property taxation, and that Lessee may be subject to the payment of property
taxes levied on such interest. Each party agrees to, and shall hold harmless the other party from
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any and all liability for any such taxes due during the Lease term pursuant to Paragraph 9,
Permits and Fees above.
13. Waiver of Lessor's Lien:
(a) Lessor waives any lien rights it may have concerning the Lessee Facilities,
all of which are deemed Lessee's personal property and not fixtures, and Lessee has the right to
remove the same at any time without Lessor's consent.
(b) Lessor acknowledges that Lessee may enter into a financing arrangement
including promissory notes and financial and security leases for the financing of the Lessee
Facilities ("Collateral") with a third party financing entity (and may in the future enter into
additional financing arrangements with other financing entities). In connection therewith, Lessor
(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.
14. Assienment and Sublettine:
(a) Lessee may not assign all or any part of its interest in this Lease or in the
Premises without the prior written consent of Lessor;provided, however, that Lessee may assign
without notice to Lessor its interest to its parent company, any subsidiary or affiliate of it or its
parent company, or to any entity which acquires all or substantially all of Lessee's assets in the
market defined by the Federal Communications Commission ("FCC") in which the Property is
located by reason of a merger, acquisition or other business reorganization, subject to any
financing entity's interest, if any, in this Lease as set forth in Paragraph 13 above. Upon
assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under
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this Lease, provided that the assignee assumes all of Lessee's obligations herein. This Lease 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 Lease, Lessee may assign, mortgage, pledge, hypothecate or
otherwise transfer without notice or consent its interest in this Lease to any financing entity, or
agent on behalf of any financing entity, to whom Lessee (i) has obligations for borrowed money
or with respect to 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 with respect to guaranties thereof.
(b) Sublease - Subject to all permits and approvals from all governmental
agencies having jurisdiction thereover, Lessee may lease or license space on the support structure
` forming a part of the Lessee's Facilities, in its equipment cabinets or elsewhere on the Lessee
Facilities to a third party for installation of transmission, receiving or other types of equipment or
facilities, whether similar or dissimilar to Lessee's installation, on such terms and conditions as
Lessee in its sole discretion, desires (a "Third Party Lease"); provided, however, that Lessor
shall receive as additional rent under this Lease, fifty percent (50%) of such Third Party Lease
rent actually received by Lessee, and after Lessee has been able to recover all direct and indirect
costs of obtaining the sublease. Any sublessee shall be instructed to pay the foregoing
percentage amount directly to Lessor.
15. Termination:
This Lease may be terminated without further liability after 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
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default, except that this Lease 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
Lessee if it does not obtain or maintain any license, permit or other approval necessary for the
construction and operation of the Lessee Facilities; or (iii) by Lessee if Lessee 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 Lessee if any environmental report for the
Property reveals the presence of any Hazardous Material after the Commencement Date; or (v)
by Lessee if Lessee determines that the Premises are not appropriate for its operations for
economic or technological reasons, including, without limitation, signal interference. In the
event that Lessee terminates this Lease prior to the expiration of the Initial Term pursuant to the
terms of paragraph (v) above, Lessee shall pay to Lessor a sum equivalent to three (3) months'
then-current Rent as liquidated damages.
16. Hazardous Materials:
(a) As of the Commencement Date of this Lease: (1) Lessee hereby
represents and warrants that it shall not use, generate, handle, store or dispose of any Hazardous
Material (as defined below) in, on, under, upon or affecting the Premises in violation of any
Environmental Law (as defined below), and (2) Lessor 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 Premises in violation of any Environmental Law; (ii) no notice has been received
by or on behalf of Lessor from, and Lessor has no knowledge that notice has been given to any
predecessor owner or operator of the Premises by, any governmental entity or any person or
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entity claiming any violation of, or requiring compliance with any Environmental Law for any
environmental damage in, on, under, upon or affecting the Property; 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 Property in violation of any Environmental Law.
(b) Without limitation of Paragraph 11 above, Lessor and Lessee 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 16 by such party; and/or (ii)
environmental conditions or noncompliance with any Environmental Law that result, in the case
of Lessee, from operations in or about the Premises by Lessee or Lessee's agents, employees or
contractors, and in the case of Lessor, from the ownership or control of, or operations in or
about, the Property by Lessor or Lessor's predecessors in interest, and their respective agents,
employees, contractors, lessees, or invitees. The duties described in this Paragraph 16 shall apply
as of the Commencement Date of this Lease and survive termination of this Lease.
(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
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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.
17. Interference with Communications:
Lessee's Facilities shall not unreasonably disturb the communications
configurations, equipment and frequency which exist on the Property on the Commencement
Date ("Pre-existing Communications"), and the Lessee's Facilities shall comply with all
applicable non-interference rules of the FCC, and the conditions set forth in Development Permit
1, 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). Lessor shall not and
shall not permit its lessees or licensees to use any portion of the Property in a way that
unreasonably interferes with the communications operations of Lessee described in Section 4,
above. Such interference with Lessee's communications operations shall be deemed a material
breach by Lessor, and Lessor 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 Lessee, and therefore,
Lessee shall have the right to bring action to enjoin such interference or to terminate this Lease
immediately upon written notice to Lessor. Notwithstanding the foregoing, Pre-existing
Communications operating in the same manner as on the Commencement Date and in
compliance with applicable FCC non-interference rules shall not be deemed interference.
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18. Casualty:
In the event of damage by fire or other casualty to the Premises that cannot
reasonably be expected to be repaired within forty-five (45) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt Lessee's operations at the Premises for more than forty-five (45) days, then Lessee may,
at any time following such fire or other casualty, provided Lessor has not completed the
restoration required to permit Lessee to resume its operation at the Premises, terminate this Lease
upon fifteen (15) days prior written notice to Lessor. Any such notice of termination shall cause
this Lease to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of this Lease and the parties shall make an
appropriate adjustment, as of such termination date, with respect to payments due to the other
under this Lease. Notwithstanding the foregoing, Rent shall abate during the period of repair
following such fire or other casualty in proportion to the degree to which Lessee's use of the
Premises is impaired.
19. Condemnation:
In the event of any condemnation of all or any portion of the Property, this Lease
shall terminate as to the part so taken as of the date the condemning authority takes title or
possession, whichever occurs first. If as a result of a partial condemnation of the Premises or
Property, Lessee, in Lessee's sole discretion, is unable to use the Premises for the purposes
intended hereunder, or if such condemnation may reasonably be expected to disrupt Lessee's
operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee's option, to
be exercised in writing within fifteen (15) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within fifteen (15) days after the
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condemning authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. Lessee may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to the equipment, conduits,
fixtures, its relocation costs and its damages and losses (but not for the loss of its leasehold
interest). Any such notice of termination shall cause this Lease to expire with the same force and
effect as though the date set forth in such notice were the date originally set as the expiration date
of this Lease and the parties shall make an appropriate adjustment as of such termination date
with respect to payments due to the other under this Lease. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Rent shall be reduced in the same proportion
as the rentable area of the Premises taken bears to the total rentable area of the Premises.
20. Miscellaneous:
(a) This Lease constitutes the entire agreement and understanding between the
parties, and supersedes all offers, negotiations and other leases concerning the subject matter
contained herein. Any amendments to this Lease must be in writing and executed by both
parties.
(b) Both parties represent and warrant that their use of the Premises and
Property and their real and personal property located thereon shall be in compliance with all
applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent
government authority.
(c) If any provision of this Lease is invalid or unenforceable with respect to
any party, the remainder of this Lease or the application of such provision to persons other than
i
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those as to whom it is held invalid or unenforceable, shall not be affected and each provision of
this Lease shall be valid and enforceable to the fullest extent permitted by law.
(d) This Lease shall be binding on and inure to the benefit of the successors
and permitted assignees of the respective parties.
(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:
Lessor: Lessee:
City of San Bernardino Los Angeles SMSA Limited Partnership,
Development Services Department dba Verizon Wireless
Real Property Section 180 Washington Valley Road
300 N D Street Bedminster,New Jersey 07921
San Bernardino,CA 92410 Attn: Network Real Estate
With a copy to:
ATS Communications
22642 Lambert Street, #402
Lake Forest, CA 92692
Lessor or Lessee 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 or
refusal as shown on the receipt obtained pursuant to the foregoing.
(f) This Lease 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 Lease shall be
brought in the courts with jurisdiction in the County of San Bernardino, State of California. The
prevailing party in any legal proceeding to enforce any provision of this Lease shall be entitled to
recover from the losing party reasonable attorney's fees and court costs, including appeals, if
any, in connection with that action. The costs, salary, and expenses of the City Attorney and
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members of its office in connection with that action shall be considered as "attorney's fees" for
the purposes of this Lease.
(g) Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in
the form annexed hereto as Exhibit"D" and acknowledges that such Memorandum of Lease will
be recorded by Lessee in the official records of the County where the Property is located.
(h) In the event the Property is encumbered by a mortgage or deed of trust,
Lessor agrees to provide reasonable cooperation in obtaining and delivering to Lessee 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) Lessor agrees to fully cooperate, including executing necessary
documentation, with Lessee to obtain information and documentation clearing any outstanding
title issues that could adversely affect Lessee's interest in the Premises created by this Lease.
0) In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Lease, such party shall not unreasonably delay,
condition 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 Lease.
(1) The captions and headings in this Lease are for convenience only and in
no way define, limit or describe the scope or intent of any provision of this Lease.
(m) All Exhibits annexed hereto form material parts of this Lease.
(n) The captions contained in this Lease are inserted for convenience only and
Qare not intended to be part of this Lease. They shall not affect or be utilized in the construction or
08/04/2009 19 File No.: 15.06-164
interpretation of this Lease.
(o) Lessor covenants that Lessee, on paying Rent and performing the
covenants herein, shall peaceably and quietly have,hold and enjoy the Premises.
(p) Lessor represents and warrants to Lessee as of the execution date of this
Lease, and covenants during the term hereof that Lessor is seized of good and sufficient title and
interest to the Property.
(q) The failure of either party to insist upon strict performance of any of the
terms or conditions of this Lease or to exercise any of its rights under this Lease shall not waive
such rights and such parry shall have the right to enforce such rights at any time and take such
action as may be lawful and authorized under this Lease, in law or in equity.
21. Risk to Public Safety or Health:
In the event the FCC, or any successor federal agency thereto, makes a
determination which is final and non-appealable or which is affirmed and becomes final after the
exhaustion of all available appeals concluding that the Lessee's use as set forth in this Lease
presents a material risk to the public health or safety, including, but not limited to radio
frequency emissions, either Lessor or Lessee may terminate this Lease upon ten (10) days notice
to the other party.
22. Facility Lease:
Lessor and Lessee acknowledge and agree that this Lease shall be subject and
subordinate to that certain Facility Lease dated April 15, 2006, between Lessor and California
Infrastructure and Economic Development Bank, recorded on May 16, 2006, in the Office of the
County Recorder of San Bernardino County as Instrument Number 2006-0333822. Lessor and
Lessee acknowledge and agree that this Lease is intended to meet all of the terms of Section 2.04
08/04/2009 20 File No.: 15.06-164
of said Facility Lease, including the requirement that the fair rental value of the Property for all
purposes shall be first allocated to the Facility Lease, as the same may be amended from time to
time, before or after any assignment, transfer or sublease of the Facility Lease or the rights
granted thereunder.
[Signatures begin on next page]
08/04/2009 21 File No.: 15.06.164
LEASE BETWEEN CITY OF SAN BERNARDINO AND LOS ANGELES SMSA
LIMITED PARTNERSHIP, DBA VERIZON WIRELESS.
IN WITNESS WHEREOF, the parties have executed this Lease on the day and year set
forth at the beginning of this Lease.
LESSOR:
CITY OF SAN BERNARDINO,
a Municipal corporation
By:
CHARLES E. MCNEELY, City Manager
Date:
ATTEST:
RACHEL CLARK, City Clerk
Approved as to form:
S F. PENMAN, City Attorney
LESSEE:
LOS ANGELES SMSA PARTNERSHIP, a
California limited partnership, dba Verizon
Wireless
By: AirTouch Cellular, its General Partner
By:
WALTER L. JONES, JR.
Area Vice President Network
Date:
08/04/2009 22 File No.: 15.06-164
Exhibit
Legal Description of Property
All that certain real property situated in the County of San Bemardino, State of
California, described as follows:
Real property in the City of San Bernardino, County of San Bemardino, State of
California, described as follows:
Beginning at a point In the center line of Highland Avenue, which point is Westerly
thereon a distance of 246.15 feet from the Intersection of said centerline with the
centerline of Orange Street;
Thence North 890 43' 01" East along said centerline of Highland Avenue, a distance of
246.15 feet to the centerline of said Orange Street;
Thence North 000 21' 29" West along said centerline of Orange Street, a distance of
460.60 feet;
Thence North 820 29' 49" West, a distance of 186.86 feet;
Thence South 630 18' 31" West, a distance of 68.21 feet;
Thence Southerly In a straight line a distance of 455.50 feet, more or less, to the point of
beginning.
Excepting therefrom all oil, gas and other mineral deposits, lying below a depth of two
hundred feet, as reserved in the Deed recorded July 25, 1968 in Book 7065, Page 990 of
Official Records.
08/04/2009 23 File No.: 15.06-164
EXHIBIT "B"
-Plat showing Leased Area& Access Easement-
-Plat showing Utility Installation Area-
08/04/2009 24 File No.: 15.06-164
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Landscaping Description
Six (6) Cedar Elm trees shall be installed on site. Three shall be placed around the eastern
driveway and three shall be placed around the southern driveway in accordance to the approved
site plan. An Automatic irrigation system shall be installed to maintain live trees. On-site
landscaping and trees shall be maintained in accordance with the provisions of the Development
Code.
08/04/2009 25 File No.: 15.06-164
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EXHIBIT"D"
( - Memorandum of Lease
i RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF SAN BERNARDINO
CITY CLERK
300 N. "D"STREET
SAN BERNARDINO,CA 92418
APN:0285-191-05
FEE EXEMPT PURSUANT TO
GOV.CODE SECTION 27383 MEMORANDUM OF LEASE
This Memorandum of Lease is entered into this_day of 2009,by and between THE
CITY OF SAN BERNARDINO,a municipal corporation,having a mailing address of 300 North"D"Street, San
Bernardino,CA 92418(hereinafter referred to as"Lessor")and LOS ANGELES SMSA LIMITED
PARTNERSHIP, a California limited partnership dba Verizon Wireless having a mailing address of 180
Washington Valley Road, Bedminster,New Jersey 07921,Attention:Network Real Estate(hereinafter referred to
as"Lessee").
1. Lessor and Lessee entered into a certain Lease ("Lease") on the day of
2009, for the purpose of installing, operating and maintaining a communications facility and other improvements
with respect to a portion of that certain property located at 3398 Highland Avenue, Highland, CA, legally
described on Exhibit"A"attached hereto and made a part hereof.All of the foregoing is set forth in the Lease.
2. The initial lease term will be five (5)years ("Initial Term") commencing on the first day of the month in
which both Lessor and Lessee have executed the Lease above ("Commencement Date") , with three (3)
successive five(5)year options to renew.
3. This Memorandum of Lease is not intended to amend or modify,and shall not be deemed or construed as
amending or modifying, any of the terms, conditions or provisions of the Lease, all of which are hereby ratified
and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions
of the Lease,the provisions of the Lease shall control. The Lease 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 Lease.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year
first above written.
LESSOR: LESSEE:
THE CITY OF SAN BERNARDINO, LOS ANGELES SMSA LIMITED PARTNERSHIP,
a municipal corporation a California limited partnership dba Verizon Wireless
By:
EXHIBIT COPY By: AirTouch Cellular, its General Partner
CHARLES E.McNEELY,City Manager
By: EXHIBIT COPY
WALTER L.JONES,JR.
Date: Area Vice President Network
Date:
07/28/2009 File No.: 15.06-164
EXHIBIT "A"
Legal Description
All that certain real property situated In the County of San Bernardino, State of
California, described as follows:
Real property In the City of San Bernardino, County of San Bernardino, State of
California, described as follows:
Beginning at a point In the center line of Highland Avenue, which point is Westerly
thereon a distance of 246.15 feet from the Intersection of said centerline with the
centerline of Orange Street;
Thence North 890 43' 01" East along said centerline of Highland Avenue, a distance of
246.15 feet to the centerline of said Orange Street;
Thence North 000 21' 29" West along said centerline of Orange Street, a distance of
460.60 feet;
Thence North 820 29' 49' West, a distance of 186.86 feet;
Thence South 630 18' 31" West, a distance of 68.21 feet;
Thence Southerly in a straight line a distance of 455.50 feet, more or less, to the point of
beginning.
Excepting therefrom all oil, gas and other mineral deposits, lying below a depth of two
hundred feet, as reserved in the Deed recorded July 25, 1968 in Book 7065, Page 990 of
Official Records.
07/28/2009 File No.: 15.06-164