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HomeMy WebLinkAbout2016-232 1 RESOLUTION NO. 2016-232
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 CITY OWNED PROPERTY AT
5 SPEICHER MEMORIAL PARK.
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
7 CITY OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The City Manager is hereby authorized and directed to execute on behalf
9 of the City of San Bernardino ("City") a Lease Agreement between the City and Los Angeles
10 SMSA Limited Partnership (dba Verizon Wireless) for the lease of 225 square feet of City
11 owned property at Speicher Memorial Park located 1535 Arden Avenue (APN 1191-201-01 &
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13 02), the "Equipment Space", plus additional ground space sufficient for the installation of an
14 antenna structure" (the "Tower Space"), a copy of which is attached hereto, marked as
15 Attachment"I", and incorporated herein by this reference.
16 SECTION 2. The City Manager is hereby authorized and directed, for and in the name
17 of the City, to do any and all such things and take all actions, including execution and delivery
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of any and all assignments, certificates, agreements, notices, consents, easements, and other
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20 documents which he or she may deem necessary or advisable in order to further the intent of
21 the Mayor and Common Council in entering into the above-referenced agreement.
22 SECTION 3. The authorization to execute the above-referenced agreement is
23 rescinded if the parties to the agreement fail to execute it and return it to the Office of the City
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Clerk within ninety (90) days of the passage of this resolution.
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1
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE CITY MANAGER
2 TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP (DBA
3 VERIZON WIRELESS) FOR THE LEASE OF CITY OWNED PROPERTY AT
4 SPEICHER MEMORIAL PARK.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
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and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
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8 the 7t" day of November, 2016, by the following vote, to wit:
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ X
11
BARRIOS X
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13 VALDIVIA X
14 SHORETT X
15 NICKEL X
16 RICHARD X
17 MULVIHILL X
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20 George n Hanna, CAC, City Clerk
21 The foregoing resolution is hereby approved this l p day of November, 2016.
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23 R. Carey Da s, Mayor
24 City of Sa ernardino
Approved as to form:
25 Gary D. Saenz, City Attorney
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27 By:
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2 ATTACHMENT "1"
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-Lease Agreement-
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11 [See attached]
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2U16 -Z32
1 11111 i I q� I � N
k1aluill �� e 1! 0 1 Sk"
THIS LEASE ("Lease"), is made and entered into this 7 t day of
2016., by and between the CITY OF SAN BERNARDINO, a
November I
municipal corporation, hereinafter referred to as "Lessor", and LOS ANGELES SMSA LIMITED
PARTNERSHIP,, a California limited partnership, dba Verizon Wireless, hereinafter referred to as
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 Speicher Memorial Park ("Property"), 1535 Arden Avenue, in the City of
San Bernardino, APN#1191-201-01 and 1191-201-02, 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 Speicher Memorial 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).
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2016-232
(a) Lessor hereby leases to Lessee, and the Lessee hereby leases from Lessol
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ground space at the Property measuring approximately fifteen feet by fifteen feet (15' x 15') an4.
Space"), plus additional ground space sufficient for the installation of an antenna structure" (the
"Tower Space"), plus, 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
(a) The term of this Lease shall be five (5) years ("Initial Term), commencing
on the first day of the month after 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 T erni or then -current Renewal Term.
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3. Lease Pqyments.
(a) Lessee shall pay Lessor the sum of Two Thousand One Hundred Dollars
($2,100.00) in addition to rent for a document preparation fee upon the Commencement Date of
�aid 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 Dollars ($25,200.00) "Rentpayable in equal monthly installments commencing
upon the Commencement Date ("Rent Start Date"), which shall be paid within thirty (30) days
after the Commencement Date. The monthly installments shall be in the amount of Two Thousand
#rne Hundred 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 "M Street, 3rd Floor
San Bernardino, California 92418
Lessor may, from. time to time, designate such other addresses or entity to receiveRent 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 Paragrapli 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
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transmission and the reception of wireless communication signals on various frequencies, and the
testing,, i*nvestigation, 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
(a) Lessee shall have the right (but not the obligation) at any time prior to th(,�r,
Commencement Date, to enter the Premises for the purpose of making necessary engineering
�-urveys 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.
(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
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lines connecting antennas to transmitters and receivers. all of Lessee's construction and
installation work shall bep erformed 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 (6o) 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 aloe a twelve foot (12') wide right-of-way extending from the nearest public
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right-of-way to the premises as further described in Exhibit "B", to the extent required to construct,
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2016-232
erect, maintain, install, remove and operate the Lessee Faces on the Premises. Lessee shall
repair any damages Lessee, its agents, employees, officers, or contractors cause to said above -
(d) In connection with obtaining the governmental approvals required foil
construction of the Lessee Facilities, Lessee shall be required to install the landscaping
["Landscaping") per the Conditions of Approval for Administrative Permit No. 15-011 as describe�
in Exhibit "C", attached. hereto and, made a part hereof. Lessee shall be solely responsible for
aintag the same as required by said governmental approvals; provided however that Lessor
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shall perinit Lessee to connect an irrigation system to Lessor's existing irrigation system for the
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iy Maintenance and Inspections:
Lessee shall, at Lessee's own cost and expense, keep and maintain all
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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
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2016-232
install along the perimeter of the Equipment Space a power panel and telco board, as mor*
[�,articularly described and depicted on Exhibit "B".
Lessee shall pay for all electricity, gas, water, telephone service, and all other
cervices and utilities required for the Lessee Facilities, including service installation fees and
charges for such utilities, used by Lessee during the terni 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
[_,ease shall be subordinate to any lien, mortgage or deed of trust currently on record against said
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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 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
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2016-232
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
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
Lessee agrees to procure and maintain in force during the term of this Lease and
Iny extension, at Lessee's sole cost and expense, the following insurance from companies with an
A.M. Best Rating of at least A -NII, and with such minimum limits as set forth below, which shall
insure on an occurrence basis, against liability of Lessee and its employees arising out of
or in
connection with Lessee's use of the Premises as provided for herein; (1) Commercial General
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general aggregate 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) each accident/disease/policy limit. Lessee shall provide to
Lessor a certificate of insurance and include Lessor as an additional insured as their interest may
appear for the general liability policy, which certificate provides:
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(a) Additional insured: "The City of San Bernardino and its elected and
appointed boards, officers, and employees are additional insured with respect to this contract with
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(b) Upon receipt of notice from its insurer, Lessee will provide Lessor wil
thirty (30) days prior written notice of cancellation. The certificates shall include the insurance
company name, policy number, period of coverage, and the amount of insurance.
(c) That Lessee's insurance shall be primary to any insurance coverage the Cit]
of San Bernardino may have 'in connection with Lessee's negligence.
(d) Lessee shall require its contractors and subcontractors to provide Lessol
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with certificates of insurance reflecting substantially the same types and levels of coverage as
required of Lessee hereunder, prior to the commencement of any work at the Property by such
contractors and subcontractors.
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) (collectively "Losses")
to the extent arisinv, 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.
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Except as provided in the first sentence, Lessee shall defend with counsel reasonably approved by
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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
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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 agentl
12. Taxes/PossessoryInterest:
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
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
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2016-232
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. Ass,igin nent and SublettinK.
(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 binding upon and inure to the benefit of the parties, their respective successors, personal
representatives, heirs and assigns. Notwithstanding any -thing 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
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obligations under or with respect to letters of credit, bankers acceptances and similar facilities or
with respect to guaranties thereol
(b) Sublease - Subject to all permits and approvals from all governmentl
agencies having jurisdiction thereover, Lessee may lease or license space on the support structure
forming a part of the Lessee Facilities, in its equipment cabinets or elsewhere on the Lessee
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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
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.?-mount directly to Lessor.
15. Termination:
This Lease may be terminated without further liability after thirty (3 0) days prior
written notice as follows: (i) by either party upon a default of any covenant or term hereof by tho-,
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
(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
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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
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reasons including, without limitation, signal interference. In the event that Lessee terminates this
Leaseprior 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 thepresence 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
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violation of, or requiring compliance with any Enviromental 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 1I 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)
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environmental conditions or noncompliance with any Environmental Law that result, in the case 011
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 Para9 ra-ph 16 shall apply as of th�vi
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(c) "Hazardous Matefial" means any solid, gaseous or liquid wasteqh
(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,
.?.ny 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) "Envioronmental Law" means any and all federal, state or local laws, rules,
regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations
thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create
duties,, obligations or liabilities with respect to: (i) human health; or (ii) environmental pollution,
impairment or disruption, including, without limitation, laws governing the existence, use, storage,
treatment discharge, release, containment,, transportation, generation,, manufacture, refinement,
handling, production, disposal, or management of any Hazardous Material, or otherwise regulating
or providing for the protection of the environment.
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17. Interference with Communications:.
The Lessee Facilities shall not unreasonably disturb the communications
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configurations, equipment and frequency which exist on the Property on the Commencement Date
,/"Pre-existing Communications"), and the Lessee Facilities shall comply with all applicable
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non-interference rules of the FCC, and the conditions set forth in Administrative Permit No. 15-011,
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 FeC(-1-'
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 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
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In the event of any condemnation of all or any portion of the Property, this Lease
shall terminate as to thepart 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 Premi*ses 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 Preml*ses for more than forty-five (45) days, Lessee may, at Lessee's option., to be
exercised. in writing within fifteen (1 5) 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 talcen. possession) terminate this Lease as of the date the condemning authority
takes suchpossession. Lessee may on its own behalf sake a claim in any condemnation
proceeding involving the Premises for losses related to the equipment, conduits, fixtures., its
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(a) This Lease constitutes the entire agreement and understanding between thi
[�,,arties, 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 useof the Premises antd
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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
City of San Bernardino
Public Works Department
Los Angeles SMSA Limited Partnership,
dba Verizon Wireless
17
Real Property Section
300 N ID" Street
San Bernardino, CA 92418
2016-232
180 Washington Valley Road
Z:>
Bedminster, New Jersey 07921
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
0
refusal as shown on the receipt obtained pursuant to the foregoing.
This Lease shall be governed by the laws of the State of California. An I,
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 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.
18
2016-232
�j) 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.
{in} All Exhibits annexed hereto form material parts of this Lease.
(n) The captions contained in this Lease are inserted for convenience only and
0/
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, oa 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 anc . authorized under this Lease, in laxAl or in equity.
ILI
2016-232
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
i Lease
presents a material risk to the public health or safety, including, but not limited to radio frequency
#c'missions, either Lessor or Lessee may terminate this Lease upon ten (10) days notice to the other
[Signatures begin on next page]
Fill
2016-232
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS
ANGELES SMSA LIMITED PARTNERSHIP9 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.
CITY OF SAN BERNARDINO,
a Municipal. corporAwn
ell
Mark Scott, City Manager
Date: klaIV-1 kil—i- 2�014
ATTEST:
.......................
GEORGEANN Clerk
Approved as to form:
GARY D . SAENZ, C ity Attome
B
LESSEE,
LOS ANGELES SMSA LIMITED PARTNERSHIP,
a California limited partnership. d*ba Verizon
Wireless
By. AirTouch Cell r neral Partner
Bv,-
Dame -,
Title.-
Date: 1e3111
21
2016-232
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF ,
THE NORTH LINE OF SAID LOT, 40 RODS TO THE CENTER OF THE NORTH LINE OF
SAID LOT; THENCE SOUTH ALONG THE CENTER LINE OF SAID LOT, 120 RODS TO A
POINT THAT IS NORTH 40 RODS FROM
WEST PARALLEL WITH THE SOUTH LINE OF SAID LOT, 40 RODS TO A POINT ON THE
WEST LINE ONORTH'
RODS POINT OF
.• •1-201-01 AND 1191-201-0
22
2016-232
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2016-232
'EXHIBIT "C"
CONDITIONS OF APPROVAL
Administrative Permit No 15-011
15. The
pi of shall, install two (2) live elm trees adjacent to the mono -broadleaf
tower. All live trees shall be a minimum 48" box size. A permanent and automatic
0
irrigation system shall be installed and permanently maintained for all new trees.
24 File No.:
If!"XHIBIT 'T"
Memorandum of Leasi
CITY OF SAN BERNARDINO
CITY CLERK
300 NORTH 44D" STREET
SAN BERNARDINO,, CA 9241�.
8
FEE EXEMPT PURSUANT TO
GOV. CODE SECTION 27383 MEMORANDUM OF LEASE
This Memorandum of Lease is entered into this day of , 2016, 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 R.eal Estate (hereinafter referred to as "Lessee").
1. the Lessor and Lessee entered into a certain Lease Agreement ("Lease") on thday of
� 2016, 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 1535 Arden
Avenue, San. Bernardino California known. as Speicher Memorial *Park-,, legally described on Exhibit-']-"'
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 the first day of the month
following the month in which both Lessor and Lessee ha,\/e 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.
[Signatures appear on next page]
2016-232
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year
first above written.
CITY OF SAN BERNARDINO,
a municipal corporation
BY:
Mark Scott, City Manager
Date:
LOS ANGELES SMSA LIMITED PARTNERSHIP,
a California Iii-nited partnership dba Verizon 'Wireless
By: AirToucl, Cellular, its General. Partner
By:
Nanie:
Title:
Date:
2016-232
THE LAND REFERREDTO! COUNTY
is
BERNARDINO, STATE OF i• FOLLOWS:
THAT PORTION OF THE WESTONE—HALF OF LOT 2. BLOCK
SURVEY OF THE RANCHO SAN BERNARDIN05 IN THE COUNTY OF SAN
�; i i i`
i'
RNIA,, AS PER MAP RECORDED IN BOOK 7 OF MAPS,
PAGE 2. IN THE OFFICE OF THE COUNTYOF SAID DESCRIBED
AS i i'
SAID
,.. MMENCING AT THE NORTHWEST CORNER OF THE NORTH LINE OF SAID LOT, 40 RODS TO THE CENTER OF i'
SAID ;iT; THENCE SOUTH ALONGOF SAID LOT,0 RODS jir C,
POINT 40 RODS FROM THE SOUTH LINE OF i
WEST PARALLEL
SOUTH OF D LOT,, 40 RODS POINT ON THE
WEST LINE OF NORTH ;NG THE WEST LINE OF SAID LOT, 120
RODS i THE POINT OF
APN: 1191-201-01 AND 1191-201-02