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HomeMy WebLinkAbout2015-091 (IMPORTANT NOTE: Resolution is Null' and Void because the agreement was not executed within the time speciifed.) 1 RESOLUTION NO. 2015-91 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER 3 TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN 4 BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP (DBA VERIZON WIRELESS) FOR THE LEASE OF ONE THOUSAND (1,000) TOTAL 5 SQUARE FEET OF CITY-OWNED PROPERTY AT NICHOLSON PARK LOCATED AT 2750 WEST 2ND STREET FOR A CELLULAR TOWER DISGUISED AS A 6 MONOPINE AND APPURTENANT EQUIPMENT SHELTER (APN's 0142-051-13 & 7 14). 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 9 10 SECTION 1. The City Manager is hereby authorized and directed to execute on 11 behalf of the City a Lease Agreement between the City of San Bernardino and Los Angeles 12 SMSA Limited Partnership (dba Verizon Wireless) for the lease of 1,000 total square feet of 13 City-owned property at Nicholson Park located at 2750 West 2nd Street (APN's 0142-051-13 14 15 & 14), a copy of which is attached hereto, marked as Attachment "1", and incorporated 16 herein by this reference. 17 SECTION 2. The authorization to execute the above-referenced agreement is 18 rescinded if the parties to the agreement fail to execute it within ninety (90) days of the 19 passage of this resolution. 20 21 22 23 24 25 26 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 2 BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO 3 AND LOS ANGELES SMSA LIMITED PARTNERSHIP (DBA VERIZON WIRELESS) FOR THE LEASE OF ONE THOUSAND (1,000) TOTAL SQUARE FEET OF CITY 4 OWNED-PROPERTY AT NICHOLSON PARK LOCATED AT 2750 WEST 2ND 5 STREET FOR A CELLULAR TOWER DISGUISED AS A MONOPINE AND APPURTENANT EQUIPMENT SHELTER(APN's 0142-051-13 & 14). 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 8 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on 9 the 4th day of May, 2015,by the following vote, to wit: 10 Council Members: AYES NAYS ABSTAIN ABSENT 11 12 MARQUEZ X 13 BARRIOS x 14 VALDIVIA x 15 SHORETT X 16 NICKEL X 17 18 JOHNSON X 19 MULVIHILL X 20 L' T 21 Georgea Hanna, C(vy)Clerk 22 The foregoing resolution is hereby approved this day of May 2015. 23 24 25 R. CAREY AVIS, Mayor City of San Bernardino 26 Approved as to form: 27 GARY D. SAENZ, City Attorney i 2015-91 1 2 3 ATTACHMENT "1" 4 -Lease Agreement- 5 6 7 8 9 10 11 12 [See attached] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2015-91 1 2 3 ATTACHMENT "1" 4 s -Lease Agreement- 6 7 8 9 10 11 12 [See attached] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2015-91 1 2 3 ATTACHMENT "1" 4 -Lease Agreement- s 6 7 8 9 10 11 12 [See attached] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2015-91 Site: Wigwam Nicholson Park APN: 0142-051-13 & 0142-051-14 LEASE THIS LEASE ("Lease"), is made and entered into this 4th day of May , 2015, 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 Nicholson Park ("Property"), 2750 West 2nd Street Street, City of San Bernardino, CA (APN 0142-051-13 & 14), 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 Department of Parks and Recreation's operations or the public's use of Nicholson Park. (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: 1. Property Leased: (a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessor, ground space at the Property measuring approximately thirty feet by thirty feet(30' x 30') and containing approximately nine hundred (900) square feet (the "Equipment Space"), plus a second parcel of ground space measuring approximately ten feet by ten feet (10' x 10') and containing 2015-91 approximately one hundred (100) square feet (the "Tower Space"), all 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, Tower Space, and any appurtenant facilities and applicable easements for access and utilities as described herein are collectively defined as the "Premises." 2. Term: (a) The term of this Lease shall be five (5) years ("Initial Term), commencing on the first day of the month following the month in which both Lessor and Lessee have executed this Lease ("Commencement Date"). (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 Lessee's obligation to pay rent, for a document preparation fee upon the Commencement Date of said 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) 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 2 File No.: 15.06-176 2015-91 (30)days after the Commencement Date. The monthly installments shall be in the amount of Two Thousand One Hundred and 00/100 Dollars ($2,100.00)each month, 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 Public Works 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. (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 3 File No.: 15.06-176 2015-91 ("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. (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 4 File No.: 15.06-176 2015-91 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. (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 Administrative Development Permit 14-065 as described in Exhibit"C", 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. 5 File No.: 15.06-176 2015-91 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 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 6 File No.: 15.06-176 2015-91 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. (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. 7 File No.: 15.06-176 2015-91 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 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 Public Works Department of the City of San Barnardino must be given notice in writing at least thirty (30) days prior to cancellation or reduction of required limits of the policy. (d) That Lessee's insurance shall be primary to any insurance coverage the City of San Bernardino may have in connection with Lesse's negligence. 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 8 File No.: 15.06-176 2015-91 reasonable attorneys' and consultants' fees, costs and expenses) (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. Lessee agrees to, and shall indemnify and hold harmless the Lessor from any and all liability for any such taxes due during the Lease term pursuant to Paragraph 9, Permits and Fees above. 9 File No.: 15.06-176 2015-91 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 Subletting: (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. No change of stock ownership, partnership interest or control of Lessee or transfer upon partnership or corporate dissolution of Lessee shall constitute an assignment hereunder. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under this Lease, provided that the assignee assumes all of Lessee's obligations herein. This Lease shall run with the Property and shall be 10 File No.: 15.06-176 2015-91 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 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 11 File No.: 15.06-176 2015-91 (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 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 12 File No.: 15.06-176 Z015-91 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) "11azardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances,pollutants or contaminants, or terms of similar import,as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. (d) "Environmental Law" means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof,including orders,decrees,judgments,rulings, directives or notices of violation,that create duties, obligations or liabilities with respect to: (i)human health; or(ii) environmental pollution, impairment or disruption,including,without limitation,laws governing the existence,use,storage, 13 File No.: 15.06-176 Z015-91 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 Administrative Permit No. 14-065, 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. 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 14 File No.: 15.06-176 2015-91 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 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 15 File No.: 15.06-176 2015-91 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 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: 16 File No.: 15.06-176 2015-91 Lessor: Lessee: City of San Bernardino Los Angeles SMSA Limited Partnership, Public Works Department dba Verizon Wireless Real Property Section 180 Washington Valley Road 300 N"D" Street Bedminster, New Jersey 07921 San Bernardino, CA 92418 Attn: Network Real Estate 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 members of his 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. 17 File No.: 15.06-176 2015-91 (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 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. 18 File No.: 15.06-176 2015-91 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. [Signatures begin on next page] 19 File No.: 15.06-176 2015-91 LEASE AGREEMENT BETWEEN THE 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: ALLEN PARKER, City Manager Date: ATTEST: GEORGEANN HANNA, City Clerk Approved as to form: GARY D. SAENZ, City Attorn(e�y/ By _ LESSEE: LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: AirTouch Cellular, its General Partner By: BRIAN MECUM Area Vice President Network Date: 20 File No.: 15.06-176 2015-91 EXHIBIT "A" Legal Description of Property Parcel 1: The South 5 acres of the East 1/2 of Farm Lot 78, Town of Rialto and adjoining Subdivision, in the City of San Bernardino, County of San Bernardino, State of California, as per plat thereof recorded in Book 4 of Maps, Page 11, Records of said County. Parcel 2: The East 1/2 of Farm Lot 78, Town of Rialto and adjoining Subdivision, in the City of San Bernardino, County of San Bernardino, State of California, as per plat thereof recorded in Book 4 of Maps, Page 11, Records of said County. Excepting therefrom the South 5 acres. APN: 0142-051-13 and 0142-051-14 (End of Legal Description) 21 File No.: 15.06-176 2015-91 EXHIBIT "B" -Plat showing Leased Area& Access Easement -Plat showing Utility Installation Area [See Attached] 07/28/2009 22 File No.: 15.06-164 2015-91 9 _ q a a i fit' . co w 3 o r• cn �- Ll xxh 3' �F 3nN3Atl NVIalV3W �r c I i � I � f a I 444 s o 6 I I 1 \�1ltlHdSV!)NIISIX3� r �s 20l5-9l 'lei W CO I P,-1 JCQUI 2015-91 y e N w ti ae S N it a N `yL ii f 14. is S ap. ` n eR W w oil = x I k# alli� � ■■ fie)) E ---< ———— - — ----<-- lit Y b 3{ id 2015-91 1t s E a Z E k lei It E _ { I I It Itf if L life 2015-91 s � y 3 M T k it t � n c s s Ise 3 Nq 4' 2015-91 y o N 3 � 12 $ $ M cot4 ! I IN lit U) _ • : A 4 kh i R Alla I I la, 1 4 2015-91 lu sit e a �4.3 gill co 3 El $ t co 1 CEO= H l i•+: Yl p r- _ ° [ � H9 lag 6 ns 4� � 6 A i I �a 2015-91 EXHIBIT "C" Landscaping Description CONDITIONS OF APPROVAL Administrative Development Permit 14-065 15. The applicant/developer shall install three (3) live pine trees adjacent to the monopine. All live pines shall be of varying heights, with a minimum height of 30 feet. A permanent and automatic irrigation system shall be installed and permanently maintained for all new trees. Details on proposed landscaping and irrigation shall be included on plans submitted to the Land Development Division for plan check review. 30 File No.: 15.06-176 2015-91 31 File No.: 15.06-176 2015-91 R C.? . cc •J g w E x 14 8 N _ y >91 1 o R_ i P I e s a eg I � leis r sill '019's � 7 y, � 1Ln 2015-91 to If Ula pli Ilk it �. ty xnuwau J 4 z a x.06-176 2015-91 EXHIBIT "D" -Memorandum of Lease- [See Attached] 34 File No.: 15.06-176 LU 15-91 RECORDING REQUESTED BY CITY OF SAN BERNARDINO AND WHEN RECORDED MAIL DOCUMENT TO: CITY OF SAN BERNARDINO CITY CLERK 300 NORTH"D" STREET SAN BERNARDINO, CA 92418 APN: FEE EXEMPT PURSUANT TO GOV.CODE SECTION 27383 MEMORANDUM OF LEASE This Memorandum of Lease is entered into this day of , 2015, by and between the CITY OF SAN BERNARDINO, a municipal corporation,having a mailing address of 300 North "D" Street, San Bernardino, California 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's. 1. Lessor and Lessee entered into a certain Lease Agreement ("Lease') on the day of ,2015,for the purpose of installing,operating and maintaining a communications facility and other improvements with respect to a portion of that certain property located 2750 West 2nd Street in the City of San Bernardino, known as Nicholson Park (APN 0142-051-13 & 14), 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 following the month in which both Lessor and Lessee have executed the Lease("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: CITY OF SAN BERNARDINO, LOS ANGELES SMSA LIMITED PARTNERSHIP, a municipal corporation a California limited partnership dba Verizon Wireless By: AirTouch Cellular, its General Partner ALLEN PARKER,City Manager By: BRIAN MECUM Area Vice President Network Date: Date: 2015-91 ACKNOWLEDGEMENT OF GRANTOR(S): A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. STATE OF CALIFORNIA COUNTY OF } S.S. On before me, Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity on behalf of which the person(s)acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS my hand and official seal. SEAL: Signature ACKNOWLEDGEMENT OF GRANTOR(S): A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. STATE OF CALIFORNIA COUNTY OF } S.S. On before me, Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity on behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS my hand and official seal. SEAL: Signature 2015-91 EXHIBIT "A" Legal Description Parcel 1: The South 5 acres of the East 1/2 of Farm Lot 78, Town of Rialto and adjoining Subdivision, in the City of San Bernardino, County of San Bernardino, State of California, as per plat thereof recorded in Book 4 of Maps, Page 11, Records of said County. Parcel 2: The East 1/2 of Farm Lot 78, Town of Rialto and adjoining Subdivision, in the City of San Bernardino, County of San Bernardino, State of California, as per plat thereof recorded in Book 4 of Maps, Page 11,Records of said County. Excepting therefrom the South 5 acres. APN: 0142-051-13 and 0142-051-14 (End of Legal Description)